Against an ancillary copyright for press publishers

Photo by Utsav Srestha on Unsplash

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Basel, 15.09.2023

Consultation response on the amendment of the Copyright Act

Dear Sir or Madam

We are pleased to take the opportunity to comment in the consultation on the amendment of the Copyright Act.

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This statement is accordingly limited to our core competencies and interests. We do not comment on the other matters of the consultation on behalf of the association; this should be taken neither as approval nor as rejection. From this perspective, we would like to note the following:

Healthy journalism is essential for a functioning democracy. The internet called the old business model of journalism into question. The advertising market has shifted from paper to the internet, where it is dominated by a handful of companies. These exploit the market power they have built up unchecked – including vis-à-vis traditional media. In our view, there is a need for regulation here. However, in our view the approach proposed in the preliminary draft is the wrong one:

“The ability to link freely – i.e. without restrictions regarding the content of the linked website and without financial fees – is central to how the internet works.” If the internet were a place, links would be the paths, and snippets and thumbnails would be the signposts. The planned regulation would hamper free access to information, its reach and the debate about it (e.g. on social media), which runs counter to the ideals of a democratic knowledge society.

Opendata.ch therefore firmly rejects the planned introduction of an ancillary copyright for press publishers and asks the Federal Council to discontinue the process.

To counter the “market inefficiency in the area of advertising revenue” and the “outflow of advertising money from media companies to providers of online services”, which are also identified in the regulatory impact assessment, we recommend that the Federal Council – in the international context – evaluate the following regulatory measures:

Promote competition in the digital advertising market: in future, a single company should no longer be allowed to operate an ad marketplace and represent both buyers and sellers at the same time. This would eliminate conflicts of interest that have allowed the leading platforms to manipulate ad auctions and earn monopoly rents (including from media).
Promote data protection: serving advertising on online platforms based on personal data should not be permitted without users’ consent. This would make contextual advertising (based on the content of a publication) more attractive again and strengthen the media in the advertising market.
Promote competition among app stores: with their own app stores, Apple and Google earn 30 centimes for every franc spent there (including in-app purchases such as news subscriptions). If they had to allow the easy installation of competing app stores, this would increase competition, lower fees and thus increase media revenues.

We comment on the questions asked as follows:

Should the present bill be supplemented by a right to remuneration for the use of journalistic content by AI applications? What reasons speak for or against regulating, within the framework of the present bill, the challenges arising from the use of new AI tools in the production and use of journalistic publications?

We reject this idea of a right to remuneration in principle and also consider copyright law unsuitable for tackling any AI regulation, which in our view is in itself necessary.

Where do you plan to use AI, or in which sectors do you see which opportunities for its use?