France v Google: Antitrust as Complement to Copyright Law?

Google's copyright feud with the French Gov raises interesting prospective issues of antitrust law & policy. The facts are pretty simple. EU copyright directive 2019/790 creates a special IP right. It allows EU press publishers to be remunerated for online use of their press publications by information society service providers. The IPR does not cover hyperlinking but press content like extracts (except very short ones) and images.

France was one of the first Member States to implement the directive in national law. Google replied that it would no longer show snippets in searches for EU press publishers unless press publishers wish otherwise (read give a free license). Google’s reaction irked the French executive.

This naturally leads to think of potential antitrust implications, should third parties seek advice or action from the European Commission ("EC") or the French Autorité de la concurrence.

Here are some possible ways to think about a hypothetical France v Google antitrust case.

To start, antitrust law and policy in unilateral conduct/abuse of dominance cases to date has mostly been about cracking intellectual property ("IP") rights open, not effectuating them. More specifically, antitrust doctrine has generally followed a "no use no pay" philosophy to support findings of unlawful IP abuse. A common example is that of an IP owner charging fees to third party implementer in the absence of effective use. Recall the case law on IP tying, portfolio licensing, SEPS & pay for delay. An alternative has been to apply antitrust law to improvidently defined IP rights. Read rights which are likely to be invalid or whose contribution to inventive activity is dubious. Recall the Magill case in which television programme listings were protected under Irish copyright law. Obviously, none of these doctrines seems relevant here because Google is not the IP right holder. So we need to move to other doctrinal ground.

One often heard idea on the conference circuit - and one that may prove more promising for hypothetical complainants against Google - would be to suggest to use antitrust law as a "gap filler" for other legal regimes (here copyright). The German Bunderkartellamt recently tried this approach in relation to privacy in the Facebook case. However, this case is essentially a policy experiment. It seats at the outer boundary of established antitrust doctrine. As I understand, the review court has stayed the decision amidst concerns of lack of legal authority.

That said, antitrust law has in the past been used by the EC as a “gap filler”. The point was to assist market opening reforms in liberalized industries like telcos or energy. Could this reasoning apply here? I doubt it. The analogies between past experience in liberalized industries and a Google antitrust/copyright case are weak. In the latter case, the point is to rechannel advertising revenue to upstream segments of the industry, not to open up markets to competition.

Neither is the consistency principle enshrined in Article 7 TFEU and 13 TEU of much help here. The Treaty provisions mandate negative comity from the antitrust structure towards other policies (like copyright) not positive comity. Put differently, the Treaties do not support use of antitrust provisions to weaponize principles found in other bodies of law.

In reality, as long as Google is under no duty to deal with/or must carry obligation in relation to copyrighted content, its move does not seem particularly problematic from the antitrust perspective. Conversely, any antitrust action against Google would require at least proof of something close to an “essential facility”. Unless a firm is under a duty to provide a service – akin to a universal service obligation – exit from a market (here by Google) is not an antitrust abuse.

And even if we were to assume these threshold conditions to be met, one may wonder to what extent Google or any other search engine may legitimately claim the benefit of the an objective justification along the following lines: the platform’s policy is to favor free content over content that seats behind a paywall (like most press content today). This, incidentally, is congruent with net neutrality arguments.

To close, note that the law on abusive exploitation could perhaps be used to blame Google's extraction of free licenses. But again, there has been a historical reluctance from antitrust agencies to bring exploitative abuse cases. Moreover, antitrust has predominantly sought to decrease royalties accross industries favoring licensing models known as FRAND or royalty free (RF). It would be quite of a copernician revolution, if antitrust law was used to increase royalties, not lower them.