Publishers Juggle Legal, Technical, and Business Approaches to Google, Yahoo!, and MSN
Important Details: The recent Belgian court ruling against Google has sent minor shockwaves through the content publishing world. The court ruled that Google did not have the right to take headlines and brief paragraphs from news websites and include them in versions of Google News. It fined Google for the use that it had made — at up to 25,000 euros per day. While Google is appealing the ruling, the decision gives greater momentum to publishers seeking a better deal with Google, Yahoo!, MSN and other search aggregators.
In the wake of the ruling, a consortium of largely European publishers has announced progress with its ACAP standard. ACAP (or Automated Content Access Protocol) system is intended to "provide permissions information (relating to access and use of content) in a form that can be recognized and interpreted by search engine spiders." The intention is to allow search engines to only use content if they comply with the business rules built into content metadata.
The project is an initiative of the World Association of Newspapers (WAN), the European Publishers Council (EPC) and the International Publishers Association (IPA). So far, the ACAP consortium includes an impressive list of publishers, most, but not all, Europe-based. They include:
- Agence France Presse
- DePersgroep
- Impresa
- Independent News & Media
- Macmillan/Holtzbrinck
- Reed Elsevier
- Sanoma Corporation
ACAP has also signed up two U.S. companies, John Wiley & Sons and Media24, and is seeking more U.S. news publishers, Mark Bide, a senior consultant at the Rightscom intellectual property consultancy and the project coordinator for ACAP, told Outsell. Two of the major search engines have joined the initiative’s Technical Working Group, but their identities have not yet been revealed. Bide notes that if a system such as ACAP’s had been in place, the Belgian suit, brought by Copiepresse, might never have been necessary.
"ACAP is intended to support normal business-to-business relationships between content providers and content intermediaries on the network," says Bide. "In general terms these relationships are consensual and should not be mediated by the courts. The fact that Google and Copiepresse have ultimately had to resolve their differences in court is an indication of a failure of relationship……Search engines will continue to have a problem with content that has no permissions information attached to it, but that is a problem which ACAP cannot resolve."
In Outsell’s Opinion: It’s curious to note the difference in approaches to dealing with the powerful search aggregators of the day. Clearly, European news publishers have been quicker to move disputes to court — and the Belgian ruling provides an interesting precedent. In the U.S.; book publishers have taken Google to court, but news publishers have generally not. Some observers point to differences in "fair use" law between the U.S. and Europe as a reason. Others note U.S. publishers’ willingness (and/or resignation) to try to broker business relationships with Google, Yahoo! and MSN. Clearly it’s that path that has been most ascendant in the U.S. lately. The Associated Press completed a ground-breaking agreement with Google last year. Now a consortium of nine major news publishers has completed a phase one relationship with Yahoo! (around recruitment advertising) and is moving forward on a letter of intent that would include editorial content as well.
Both approaches — litigation and business negotiation — may in the end reinforce one another. The grayness of "fair use" has nudged parties together; rulings that reinforce greater publisher rights may accelerate the search aggregators’ willingness to negotiate better pricing for use of editorial headlines and briefs. After all, insiders say that as few as five per cent of users coming to sites such as Google News actually click through to originating news sites.
What then is the content worth? That’s a moving target. Establishing some value for it – the headlines and briefs — is one step. That step needs to provide a new growing revenue stream for journalism companies, whose advertising revenues are now being decimated by Internet advertising innovation.
The ACAP technical solution may or may not gain sufficient adherents to become a standard. Standard-setting around editorial content has been elusive, as Copyright Clearance Center, iCopyright and others continue to push forward there. There is a need for universal standards of content tagging and tracking — information is proving that it does indeed want to be free to go mobile, hi-def and listenable. So once the revenue shares between publishers and search aggregators have crystallized — that’s really what the question comes down to — all will have to agree on an interoperable protocol.
Outsell believes the discussion that comes first though is the business one. As that settles, we’ll see the emergence of protocols — current or new — that serve those new business agreements.