STATE OF NEW YORK ________________________________________________________________________ 7811 2023-2024 Regular Sessions IN ASSEMBLY June 15, 2023 ___________ Introduced by M. of A. KELLES -- read once and referred to the Committee on Consumer Affairs and Protection AN ACT to amend the general business law, in relation to journalism usage fees The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Article 21-A of the general business law is renumbered 2 article 21-B and a new article 21-A is added to read as follows: 3 ARTICLE 21-A 4 JOURNALISM USAGE FEES 5 Section 338. Definitions. 6 338-a. Journalism usage fee payments; notice. 7 338-b. Journalism usage fees; arbitration. 8 § 338. Definitions. The following terms, whenever used or referred to 9 in this article, shall have the following meanings: 10 1. "Access" means to acquire, crawl, or index content. 11 2. "Advertising revenue" means revenue generated through the sale of 12 digital advertising impressions that are served to customers through an 13 online platform, regardless of whether such impressions are served on 14 internet websites or accessed through online or mobile applications, and 15 contain references to content from eligible digital journalism provid- 16 ers. 17 3. a. "Covered platform" means an online platform that at any point 18 during a twelve-month period meets either of the following criteria: 19 (i) The online platform has at least fifty million United States-based 20 monthly active users or subscribers on the online platform. 21 (ii) The online platform is owned or controlled by a person with 22 either of the following: 23 (1) United States net annual sales or a market capitalization greater 24 than five hundred fifty billion dollars, adjusted annually for inflation EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11191-01-3
A. 7811 2 1 on the basis of the consumer price index published by the United States 2 bureau of labor statistics. 3 (2) At least fifty billion worldwide monthly active users on the 4 online platform. 5 b. "Covered platform" does not mean an organization exempt from feder- 6 al income taxation pursuant to Section 501(c)(3) of the Internal Revenue 7 Code of 1986. 8 4. "Eligible broadcaster" means an entity that meets all of the 9 following criteria: 10 a. The entity holds or operates under a license issued by the federal 11 communications commission under Subchapter III (commencing with Section 12 301) of Chapter 5 of Title 47 of the United States Code. 13 b. The entity engages professionals to create, edit, produce, and 14 distribute original content concerning local, regional, national, or 15 international matters of public interest through activities, including 16 conducting interviews, observing current events, analyzing documents and 17 other information, and fact checking through multiple firsthand or 18 secondhand news sources. 19 c. The entity updates its content on at least a weekly basis. 20 d. The entity uses an editorial process for error correction and clar- 21 ification, including a transparent process for reporting errors or 22 complaints to the station. 23 5. "Eligible digital journalism provider" means an eligible publisher 24 or eligible broadcaster that discloses its ownership to the public. 25 6. "Eligible publisher" means an entity that publishes a qualifying 26 publication. 27 7. "Notifying eligible digital journalism provider" means an entity 28 that has provided notice to a covered platform pursuant to section three 29 hundred thirty-eight-a of this article that the entity is an eligible 30 digital journalism provider. 31 8. "Online platform" means an internet website, online or mobile 32 application, digital assistant, or online service that does both of the 33 following: 34 a. Serves references to news articles, works of journalism, or other 35 content, or portions thereof, generated, created, produced, or owned by 36 an eligible digital journalism provider. 37 b. Aggregates, displays, provides, distributes, or directs users to 38 content described in paragraph a of this subdivision. 39 9. "Qualifying publication" means an internet website, online or 40 mobile application, or other digital service that meets all of the 41 following criteria: 42 a. The internet website, online or mobile application, or other 43 digital service does not primarily display, provide, distribute, or 44 offer content generated, created, produced, or owned by an eligible 45 broadcaster or television network. 46 b. The internet website, online or mobile application, or other 47 digital service provides information to an audience in the state. 48 c. The internet website, online or mobile application, or other 49 digital service performs a public information function comparable to 50 that traditionally served by newspapers and other periodical news publi- 51 cations. 52 d. The internet website, online or mobile application, or other 53 digital service engages professionals to create, edit, produce, and 54 distribute original content concerning local, regional, national, or 55 international matters of public interest through activities, including 56 conducting interviews, observing current events, or analyzing documents
A. 7811 3 1 and other information, and fact checking through multiple firsthand or 2 secondhand news sources. 3 e. The internet website, online or mobile application, or other 4 digital service updates its content on at least a weekly basis. 5 f. The internet website, online or mobile application, or other 6 digital service has an editorial process for error correction and clar- 7 ification, including a transparent process for reporting errors or 8 complaints to the publication. 9 g. The internet website, online or mobile application, or other 10 digital service meets any of the following criteria: 11 (i) The internet website, online or mobile application, or other 12 digital service generated at least one hundred thousand dollars in annu- 13 al revenue from its editorial content in the previous calendar year. 14 (ii) The internet website, online or mobile application, or other 15 digital service had an International Standard Serial Number assigned to 16 an affiliated periodical before January first, two thousand twenty-four. 17 (iii) The internet website, online or mobile application, or other 18 digital service is owned or controlled by an organization exempt from 19 federal income taxation pursuant to Section 501(c)(3) of the Internal 20 Revenue Code of 1986. 21 h. The internet website, online or mobile application, or other 22 digital service has at least twenty-five percent of its editorial 23 content consisting of information about topics of current local, 24 national, or international public interest. 25 i. The internet website, online or mobile application, or other 26 digital service is not controlled, or wholly or partially owned by, an 27 entity that meets any of the following criteria: 28 (i) The entity is a foreign power or an agent of a foreign power, as 29 those terms are defined in Section 1801 of Title 50 of the United States 30 Code. 31 (ii) The entity is designated as a foreign terrorist organization 32 pursuant to Section 1189 of Title 8 of the United States Code. 33 (iii) The entity is a terrorist organization, as defined in Section 34 1182 of Title 8 of the United States Code. 35 (iv) The entity is designated as a specially designated global terror- 36 ist organization under federal Executive Order 13224. 37 (v) The entity is an affiliate of an entity described in subparagraph 38 (i), (ii), (iii) or (iv) of this paragraph. 39 (vi) The entity has been convicted of violating, or attempting to 40 violate, Section 2331, 2332b, or 2339A of Title 18 of the United States 41 Code. 42 § 338-a. Journalism usage fee payments; notice. 1. An eligible digital 43 journalism provider that submits a notice to a covered platform pursuant 44 to subdivision two of this section shall receive journalism usage fee 45 payments from such covered platform pursuant to section three hundred 46 thirty-eight-b of this article beginning not more than thirty days 47 following the submission of such notice. 48 2. The notice described in subdivision one of this section shall meet 49 all of the following criteria: 50 a. The notice identifies the eligible digital journalism provider. 51 b. The notice certifies, not under penalty of perjury, that the eligi- 52 ble digital journalism provider reasonably believes that it is either an 53 eligible broadcaster or an eligible publisher. 54 c. The notice identifies the root uniform resource locators for the 55 internet websites associated with the eligible digital journalism 56 provider's digital content.
A. 7811 4 1 § 338-b. Journalism usage fees; arbitration. 1. The percentage of a 2 covered platform's advertising revenue remitted to notifying eligible 3 digital journalism providers shall be determined pursuant to this 4 section. 5 2. Eligible digital journalism providers may initiate, pursuant to 6 rule R-4 of the American Arbitration Association's Commercial Arbi- 7 tration Rules and Mediation Procedures, a final offer arbitration 8 against a covered platform for an arbitration panel to determine the 9 percentage of the covered platform's advertising revenue remitted to the 10 notifying eligible digital journalism provider. 11 3. The arbitration procedure authorized by this section shall commence 12 ten days after the receipt of the notice required by section three 13 hundred thirty-eight-a of this article. 14 4. The arbitration procedure authorized by this section shall be 15 decided by a panel of three arbitrators under the American Arbitration 16 Association's Commercial Arbitration Rules and Mediation Procedures and 17 the American Arbitration Association-International Centre for Dispute 18 Resolution Final Offer Arbitration Supplementary Rules except to the 19 extent they conflict with this section. 20 5. The cost of administering the arbitration proceeding, including 21 arbitrator compensation, expenses, and administrative fees, shall be 22 shared equally between the covered platform and the eligible digital 23 journalism provider. 24 6. The arbitrators shall be appointed in accordance with the American 25 Arbitration Association's Commercial Arbitration Rules and Mediation 26 Procedures. 27 7. During a final offer arbitration proceeding under this section all 28 of the following shall apply: 29 a. (i) Eligible digital journalism providers and covered platform may 30 demand the production of documents and information that are nonprivi- 31 leged, reasonably necessary, and reasonably accessible without undue 32 expense. 33 (ii) Documents and information described in subparagraph (i) of this 34 paragraph shall be exchanged not later than thirty days after the date 35 the demand is filed. 36 b. Rules regarding the admissibility of evidence applicable in federal 37 court shall apply. 38 c. Eligible digital journalism providers and a covered platform shall 39 each submit a final offer proposal for the remuneration that the eligi- 40 ble digital journalism provider should receive from the covered platform 41 for access to the content of the eligible digital journalism provider 42 during the period under arbitration based on the value such access 43 provides to the platform, which shall include backup materials suffi- 44 cient to permit the other party to replicate the proffered valuation. 45 d. A discussion or final offer under this section shall not address 46 whether or how the covered platform or any eligible digital journalism 47 provider displays, ranks, distributes, suppresses, promotes, throttles, 48 labels, filters, or curates the content of the eligible digital journal- 49 ism provider or any other person. 50 e. (i) Not later than sixty days after the date proceedings commence 51 pursuant to subdivision three of this section, the arbitration panel 52 shall determine the percentage of the covered platform's advertising 53 revenue remitted to notifying eligible journalism providers from a final 54 offer from one of the parties without modification. 55 (ii) In making a determination under subparagraph (i) of this para- 56 graph, the arbitration panel shall do all of the following:
A. 7811 5 1 (1) Refrain from considering any value conferred upon any eligible 2 digital journalism provider by the covered platform for distributing or 3 aggregating its content as an offset to the value created by that eligi- 4 ble digital journalism provider. 5 (2) Consider past incremental revenue contributions as a guide to the 6 future incremental revenue contribution by any eligible digital journal- 7 ism provider. 8 (3) Consider the pricing, terms, and conditions of any available, 9 comparable commercial agreements between parties granting access to 10 digital content, including pricing, terms, and conditions relating to 11 price, duration, territory, and the value of data generated directly or 12 indirectly by the content accounting for any material disparities in 13 negotiating power between the parties to those commercial agreements. 14 (4) Issue a binding, reasoned determination of the percentage of the 15 covered platform's advertising revenue remitted to notifying eligible 16 digital journalism providers. 17 § 2. This act shall take effect immediately.