Big Tech accuses Belgium of rewriting rules for paying creators

(CN) — Google, Meta, Spotify and Sony asked Europe’s top court Tuesday to stop Belgium from rewriting who gets paid when news, music and other creative works spread online.

Belgium, backed by several EU governments, countered that the law simply gives publishers, musicians and other creators a fairer shot at sharing in the money platforms earn when their work attracts clicks, listeners and subscribers.

The judges must now decide whether Belgium faithfully implemented the EU’s 2019 copyright directive or rewrote it. The EU created the law to help publishers and creators capture more of the value generated when news, music and videos circulate on large online platforms. Belgium added mandatory negotiations, disclosure obligations and new compulsory payment schemes for some creators, which Google, Meta, Spotify and Sony argue go well beyond what the EU legislature approved.

Google argued those extra obligations upset the balance struck by EU lawmakers. Its lawyer told the court Google Search already has more than 1,500 licensing agreements covering over 5,500 press publications, while YouTube has long paid music companies and creators through licensing and revenue-sharing programs. Belgium’s system, Google said, forces platforms into binding payment negotiations and demands commercially sensitive information before anyone has established that protected press content was even used.

The company warned platforms could end up surrendering confidential business information simply to dispute whether a claimant qualifies for protection. Google said it regularly receives demands from organizations that look nothing like traditional news publishers, citing plumbing trade associations, gaming websites, podcast operators, broadcasters and real estate listings. “This places online service providers in a dilemma,” Google lawyer Olivier Vrins told the court.

Meta argued the Belgian law blurs the distinction between platforms that host content and publishers that create it. Facebook, it said, does not decide which news stories appear online but provides a service where users, including publishers themselves, choose what to post and who sees it. Treating ordinary hosting, indexing and recommendation functions as copyright “use” would effectively make platforms responsible for user-uploaded content. “Otherwise, every online platform would effectively become a user of the content uploaded by its own users,” Meta lawyer Benoit Van Asbroeck told the court.

Spotify and Sony focused on a different section of the law. Belgium gives authors and performers a mandatory, nontransferable right to additional remuneration when works are made available through certain online services, even after licensing rights have already been assigned. The companies argued artists are already paid through licensing deals negotiated with labels, producers and collecting societies, and warned the Belgian model risks making platforms pay twice for the same stream or upload while unsettling licensing arrangements that operate across Europe.

Belgium and the governments lining up behind it said those concerns overlook the realities of the digital marketplace. France, Spain, Italy, Poland, Germany and Denmark argued publishers and creators negotiate with companies that wield vastly greater economic power, making additional safeguards necessary if copyright rights are to have any practical value. France added news organizations cannot realistically abandon major platforms without losing readers, and accepting standard platform terms should not be treated as blanket consent for every later commercial use of their work.

The hearing ended with both sides claiming to defend the same EU law. Google, Meta, Spotify and Sony argued Belgium had upset the balance struck by EU lawmakers. Belgium replied that balance had never worked for publishers and creators in the first place.

Advocate General Maciej Szpunar is due to deliver his opinion Nov. 19. A final ruling will follow at a later date, with the court expected to decide how much room member states have to build tougher copyright rules than those set by the EU.

Courthouse News reporter Eunseo Hong is based in the Netherlands.