What Do We Do About Google? The Great Debate

What do we do about Google? The Great Debate Gavin K. O’Reilly – President of WAN+IFRA

Our theme for this panel debate is to consider “what do we do about Google”. The blogosphere, the airwaves, and even the man on the street has an opinion. Only this week, we hear rumours of news publishers “ganging up” on Google; then yesterday, we heard that GoogleNews has just decreed – seemingly in acknowledgement of the damage that their existing rules cause to publishers - that it will limit free news access with its new "first click free programme"… So, never a dull moment - which fuels the enigma that is Google. This afternoon, I want to stand back from the arguably provocative title of today’s debate, and instead, talk about something more fundamental that should underpin any rational discussion on this topic. And that is the issue of copyright – a deceptively, simple legal principle. But to start, I want to first read a quotation: “It’s mine – you can’t have it. If you want to use it for something, then you have to negotiate with me. I have to agree, I have to understand what I’m getting in return”. Are these the words of some billionaire media mogul? No, actually it was Sir Tim Berners Lee, the inventor of the World Wide Web, talking to the BBC last year. He was not talking about copyright, but about personal information. And as a backdrop to this debate, I want to suggest that, the issue we face in the management of copyright on the web is exactly the same as that which we face in the management of privacy and confidentiality on the web. Critics will say – but all information wants to be free? Well perhaps. But many who advocate the abolition of copyright - or simply ignore it as a constant irritation - are the very same people who are most vociferous about the need to retain privacy. And the web infrastructure required to manage all types of information which is not to be freely distributed – whether for reasons of confidentiality or copyright – is the same. Page 1

What do we do about Google? The Great Debate Gavin K. O’Reilly – President of WAN+IFRA

So why focus on copyright? Well, it’s simple - because media business models – almost without exception – are dependent on copyright; they always have been and will always be. As every publisher in this room knows: copyright, in turn, creates the incentive to create and then distribute widely, an incredibly diverse world of content. The same information which “wants to be free” turns out to be quite expensive to create – and if it doesn’t exist, it’s hard to see how anyone can “set it free”. So being able to make a commercial return is essential to justify investment in content – whether we are talking news or education or entertainment – and that depends on having the mechanism to choose how that content is distributed, used and paid for. That is what copyright was invented for 300 years ago – and when you consider the breadth, depth, richness and diversity of 21st century media, it has been a stunning success - and that it why copyright remains as relevant today. However, what is clear is that collectively, we haven’t made copyright work properly on the web, and that is down to we content creators who have perhaps foolishly failed to enforce our copyright – although let’s not forget that reaching the biggest possible audience is a noble goal not only of copyright law and the media, but also – famously – of Google. And it used to bring with it rewards for success, fuelling the media - which in turn fuelled ever more choice and diversity for societies and individuals. The lack of copyright functionality online is, though, also down to the content aggregators who have broken that link between audience and success, who have seized the opportunity and opted for an “a la carte” vision of copyright to serve their own business needs and who, as we have seen with Google’s announcement yesterday about First Click Free, believe it is their role to dictate to publishers which business models Google will permit them to follow. So, what is missing is the collective will to guarantee copyright protection and the technology to manage it. And when the matter of news publishers and Google gets debated, somehow people want to shift direction and talk about a new “paradigm”, as if copyright is Page 2

What do we do about Google? The Great Debate Gavin K. O’Reilly – President of WAN+IFRA

some historical irrelevancy in this modern age. Well, it isn’t – it forms the very basis of the internet and before it, the long and dramatic explosion in availability of knowledge and choice for consumers. It’s why hundreds of thousands of books, magazines and newspapers are published. The reason why we have hundreds of TV channels to choose from. And the reason we have – for now at least – commercially created content online. It is also the basis of success in the future for all publishers – be they big media companies or individual bloggers - and aggregators. Somehow, people wish to conveniently forget that there is a simple interdependency between what content providers do and what content aggregators do, and really what we are talking about is how the legal entitlements and economics get fairly reflected. In his introductory remarks, Kees reminded us that, Google CEO Eric Schmidt did say, "It's a huge moral imperative to help [newspapers}" – but as benevolent a position as this may appear, I want to say that I am not advocating charity here... We publishers don’t need hand outs or crumbs from Google’s table... What we want is a more rigorous and unambiguous acceptance on copyright, an acknowledgement of our right to choose our own business model, a more transparent technical mechanic, and perhaps, less of the rather tired “fair use” rhetoric. Some years ago in a speech at the Frankfurt Book Fair – I accused Google of being “kleptomaniacs”. That was a harsh description – some might even say unfair. But I was mindful that Google was then (as it is now) the largest media company in the world worth $190 billion – after only 10 short years in existence – and, it had achieved this vaulted position by developing an ingenious model that did not actually require it to pay for content. In truth, my awe for this commercial success was only matched by my envy! But in calling Google a “kleptomaniac”, I was merely reflecting on the basic underlying principle of copyright that says: “Not Saying ‘NO’, doesn’t actually mean YES”, and the content aggregators (be they Google, Yahoo, or the countless Page 3

What do we do about Google? The Great Debate Gavin K. O’Reilly – President of WAN+IFRA

thousands of bots and spiders that trawl through cyberspace) should not presume that “our content is simply their content”. As the architects, creators and funders of this valuable content, surely we publishers have the right to determine how our content is to be exploited by them, and surely we have the right to be able to have a reasonable dialogue as to how a more equitable division of value can be achieved? Unfortunately, the pat answer always seems to be: don’t complain – aren’t we giving you the traffic?... AS IF I could take traffic to my bank manager. But shouldn’t I have the right to determine – as a fair trade for my own content - whether I want traffic or something else? Leaving aside the thorny issue of dominant market position that Google enjoys, why should I just be forced to accept Google’s business model of site referral as the only online model? Some, of course, have accused me of simply “not getting it” and over-simplifying a very complex issue… but even if you accept such categorizations of mine as being facile, headline grabbing tactics, no one – in truth - should really be that threatened by what I am saying on the issue of copyright. There is no reasonable commentator that would seriously deny that the internet – and Google, in particular - has catalyzed fundamental change in the media business. The democratization of the mechanisms for the creation – and rather more critically, the distribution – of content, provide unprecedented, if unproven, opportunities for all participants on the web. But some things – including critically for this audience, high quality in depth news – are bloody expensive, and those who research, write and shape the news have a not unreasonable expectation of just reward. Our content is inherently valuable and to ensure its continuance, it relies on copyright and a sensible dialogue around the commercial implications of that copyright. Page 4

What do we do about Google? The Great Debate Gavin K. O’Reilly – President of WAN+IFRA

What is most curious about this entire debate is that the copyright of audio-visual content is rarely ever questioned on the web now – even YouTube (which is owned by Google) recognizes the increasing importance of copyright, and yes, now pays for professional content. Yet, somehow when it comes to the written word from us news publishers, the inherent logic of copyright gets sidelined. More the pity. Too many internet technologists have conveniently side-stepped copyright, ignoring the needs of copyright and creators; resisting attempts to create it themselves; and regarding the negative impact of their actions (or inaction) on others as an act of God or some Darwinian form of natural selection - rather than their own omission. To my mind, as publishers with aspirations to constructively work with the many content aggregators, surely we need to harness the potential that technology offers today to make copyright work online, by creating the technical tools for copyright to work at machine-to-machine level. If nothing else, it could put to an end the myriad of constant legal challenges and court cases – which seem like an unworkable and undesirable way to resolve our differences. That’s why the World Association of Newspapers is behind ACAP – Automated Content Access Protocol – a new protocol that seeks to provide a modest (if essential) part of that infrastructure: the language which allows machines to speak to one another without fear or favour. Our effort is to contemporize the outdated “Robots Exclusion Protocol” for the 21st Century and introduce a new protocol that works for publishers and aggregators alike. Some dismiss this, including Google – saying that the existing “Robots Exclusion Protocol” does the job just fine – BUT, if you are listening to us - it just doesn’t do Page 5

What do we do about Google? The Great Debate Gavin K. O’Reilly – President of WAN+IFRA

it for publishers, and we publishers need something more than essentially a binary “yes/ no” for the management and commercial exploitation of our valuable content. Google and others self-interested forces in cyber-space have spent the last 3 years telling us what’s wrong with ACAP – as opposed to seeing it as a positive development for the web – and by extension, for Google (and in that order). And what really baffles me is: Why should Google have a problem with ACAP? I mean all it seeks to do is to give publishers a language to communicate certain things about their content, their copyright… That is, unless, what Google are really saying (but not saying) is that they have a problem with the principle of copyright. So, perhaps now is the time for Google and others to stop protesting and time for Google to start working constructively and openly with publishers. If Google are genuinely pro-copyright, then they must be pro-ACAP (or at least pro its goals), as all ACAP seeks to do is to make copyright work on the web, by creating an infrastructure that is universal – not proprietorial; not owned by any one individual business; not confined to specific media; not telling anyone what their business model should or shouldn’t be; but making it easier for them to choose. An open standard available to everyone and at no cost to the user. For those who savour the democratization of content on the web, this seems like a reasonable starting point. Google’s mantra is “Do no Evil”, and I make no apology for reminding them of that. Nor do I make an apology for reminding them that Copyright is not some intellectual abstract – it is the law – and I’d suggest that Google needs to start to work in good faith to find solutions that enshrine copyright, not abuse it. And unilaterally issuing decrees frankly doesn’t do it. The way to do it is sit down with us, discuss the issues, understand what publishers want - individually and collectively. Negotiate and be Page 6

What do we do about Google? The Great Debate Gavin K. O’Reilly – President of WAN+IFRA

flexible. Acknowledge mutual benefit. Do it the way other people do it - forming an agreement by actually agreeing on something. Because in the end – the stark choice is that we either abandon copyright or we find common ground and use non-proprietorial technology to properly manage it. I, for one, am not for abandoning copyright – nor I suspect is any right-minded and law abiding person. So, for fear of being accused of “Google-bashing” today – my invitation to Google is to really engage with content creators in an open, nonproprietorial way… so, not a case of “Do no Evil” but rather “Do the Right Thing”! In the final analysis, ACAP itself may or may not be the right technical answer for the web – but if nothing else, it sets a positive and open framework for a more equitable and transparent model for content management and commercial interaction on the web. That’s all. It is nothing to be afraid of – rather it is something that should be welcomed by Google. In closing, let me say that no one more than Google has defined the web – and Google’s justifiable popularity is a function of its ubiquity, brilliant marketing and ohso clever technology… they are a world leader, but they are not infallible… So, “what do we do about Google” as the debate poses – well, getting them to unequivocally embrace copyright seems to be a damn good starting point – and thereafter, we can all work together to find the industry-wide, technological solutions that give effect to that. Pretty uncontroversial really…

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