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Fair use: search engines and social media

January 29, 2021
Photo by Alan Levine (PxHere) – Attribution 2.0 Generic (CC BY 2.0)

While I’m reluctant to weigh into the current Google debate in Australia (I think both sides have a point), it does raise a number of issues – particularly the continued pressure on the viability of news publications and the journalists who work for them. Google ANZ’s managing director says that about 95% of searches in Australia are made through Google, which makes its threat to pull out of Australia a serious one.

I’m old enough to remember being introduced to Google by one of our tech guys in the office when it had just started out, and being amazed by how much better it was than the existing crop of search tools (remember AltaVista and Ask Jeeves?). Recognising the power of Google at the time, we quickly embedded it as a search bar on the company’s intranet. I’m not sure how many people would have predicted Google’s complete dominance and, given the company’s longstanding (now demoted) “Don’t be evil” motto, it’s hard to reconcile Google of the late 1990s with the company we see now.

Google’s recent “experiment” in hiding Australia news was particularly chilling, especially when you think about the concept of a free and open internet – which Google’s own (and Internet pioneer) Vint Cerf expounded on without irony. Like many other professionals who rely on keeping up to date with news and media coverage, the thought of an expurgated search engine is really concerning and a threat to our ability to do our work. I’ve been busy trying out other search engines this week, but invariably fall back to Google as my default.

What I don’t understand is why we need to keep creating new legislation and regulatory controls to deal with technology and internet issues. The internet and the technology we use is just part of life and how society works. We just need our legal system to keep pace with the rapid change (another issue altogether!)

In this case, that’s the Federal Government’s proposed digital media code that would force tech giants to pay local media companies for providing their content in search and sharing their content on social media. Is that really necessary? For media companies, it’s all about protecting and creating revenue from their content, so why don’t they simply rely on our existing copyright laws, and launch a joint legal action for copyright infringement? While there are currently no fair use provisions in the Australian Copyright Act (as Gizmodo and other publications have pointed out), it’s still a defence that can be used in court. Rather than the government stepping in to regulate, maybe it’s better to see how the legal system would deal with something like this. As a test case, the court’s decision would actually have far greater power and impact than a media code. It’s a great definition of what constitutes fair use for search engines and social media companies, particularly when you consider the eye-watering amount of advertising revenue being generated by Facebook and Google in Australia – “Google told a senate inquiry the regulation would make the function unviable, despite paying just $59m in corporate tax while reporting over $4b in revenue“.

For me, it keeps coming back to the protection of Australian journalism and independent media content. We should be able to do that successfully by relying legal principles that have been protecting the rights of content creators and publishers for centuries. If Google, Facebook and other big tech players want to benefit financially from news content, why don’t they join the other side, employ journalists, and create and publish their own content?

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