New Copyright Office Report Correctly Concludes News Publishers Enjoy Copyright Protections Similar to the EU, Acknowledges Bargaining Power Disparities as Major Obstacle for Publishers in Protecting News Content Online

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By Johannes Munter, outside consultant, and Allison Reed

In late June, the U.S. Copyright Office released its long-awaited report on copyright protections for news publishers. The report, requested by Senator Thom Tillis (R-NC) and others last year, focused on whether the United States should adopt similar ancillary copyright protections for news publishers as those created by the European Union in 2019.

Article 15 of the EU’s Directive on Copyright in the Digital Single Market – a broader package to harmonize copyright laws across the Union – required members states to implement national laws to better allow publishers to protect their content online and to negotiate with online platforms for compensation. This so-called “publishers’ right” was warranted due to considerable variance in rights afforded to news publishers across the EU, leaving many publishers with no independent rights to protect their works.

The study – informed by two comment periods and a public roundtable, all of which the News/Media Alliance participated in – does not recommend the creation of new ancillary copyright protections for news publishers in the U.S. This conclusion was consistent with the News/Media Alliance views.  This recommendation is based on the undisputable fact that American publishers in most case already own the copyrights to the content they publish, in addition to which, they have at their disposal various other ways to protect their content – including paywalls, technological circumvention protections under Section 1201, and contractual provisions. Implementing new ancillary rights would not lead to a significant improvement or change for U.S. publishers, especially as the marketplace is characterized by an uneven playing field and bargaining power between publishers and a few dominant online platforms.

The report closely follows our recent white paper on Google’s abusive business practices and the recommendations made by the Alliance in our comments and during the roundtables in highlighting the current state of news media, acknowledging the existing protections, and noting the imbalanced bargaining power that prevents publishers from enforcing their rights effectively in the digital ecosystem. The Alliance’s comments noted that U.S. publishers already enjoy protections similar to those established by the EU Copyright Directive, while being unable to effectively enforce those rights due to existing power imbalances. Consequently, the Alliance called on the Copyright Office to endorse the Journalism Competition and Preservation Act (JCPA) as a potential solution to the competition problem and to conclude that the use of news content by aggregators is not, in most cases, fair use.

While the report recognizes that problems in the digital marketplace are largely competition-based, and therefore outside the Copyright Office’s remit, it highlights the JCPA as a potential non-copyright solution to the problem. The report also includes an extended fair use discussion, balancing both sides of the argument, and acknowledging that not all uses of news content by aggregators are likely to be fair use. Related to the Alliance’s argument that systemic aggregation has a noticeable negative effect on the demand for news content, the Office notes that “widespread aggregation may significantly impede the ability of press publishers to obtain payment for their expression” and that “[t]o the extent that aggregation provides a substitute that ‘satisfies most demand for the full original’ and decreases the resources available for original news reporting, this would cut against a finding of fair use.” This conclusion captures the essence of the Alliance’s fair use argument and provides an important marker for courts analyzing cases involving systemic aggregation of news content.

In addition to its fair use and bargaining power discussions, the report also addresses the inability of news publishers to register dynamic web content – a major impediment to effective protection and an issue highlighted by the Alliance in our comments. The Office recognizes the importance of the issue and notes that it is actively considering ways to address it during the ongoing Copyright Office modernization efforts. The Alliance will continue working with the Office to ensure that these changes get implemented expeditiously in order to allow publishers to register and better protect their content online.

Despite arguments by some detractors to the contrary, the Alliance has never requested the Copyright Office to recommend the creation of additional ancillary copyright protections for publishers. Our members already have the tools to protect their content. However, the abusive practices of the dominant online platforms, together with the disparate bargaining power between them and news publishers, make enforcing those rights effectively next to impossible. By providing a time-limited period during which publishers could come together to negotiate with the large platforms for fair compensation, the JCPA would help balance the playing field and provide a lifeline for high-quality journalism in America. The Copyright Office’s report closely follows the Alliance’s comments and amounts to an important acknowledgment of the issues faced by news publishers. We look forward to working together with the Office to ensure that news publishers are well-positioned to utilize their existing rights to protect news content online, while continuing to push Congress to act on the anticompetitive practices of the dominant online platforms.

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