Copyright Office Study Finds Protections for News Publishers are Adequate

“All the copyright protection in the world is not going to help if the copyright owners have no choice but to agree to contractual terms that are very unfavorable to them.” – Professor Jane C. Ginsburg June 30, the U.S. Copyright Office officially published a report titled Copyright Protections for Press Publishers, which explores existing frameworks in nations around the world providing additional rights under copyright law for news publishers, and includes recommendations regarding similar changes that could be effected under U.S. law. The Copyright Office’s study concludes that, while the news publishing industry is facing significant problems in obtaining adequate funding during the Internet era, those problems are not due to any current shortcomings in the state of U.S. copyright law.

Online News Aggregators Gaining in Strength as Traditional News Industry Declines

The Office’s study on copyright protections for news publishers comes a little more than one year after the agency received a letter from a bipartisan group of U.S. Senators, led by Senate IP Subcommittee Chair Patrick Leahy (D-VT) and Ranking Member Thom Tillis (R-NC), requesting a study on ancillary copyright protections for publishers. The letter referenced ongoing developments in foreign copyright regimes, including the European Union which in recent years has enacted a new Copyright Directive including a new press publisher’s right giving news publishers additional rights against the republication of their content by online news aggregators. These new protections recently led to a landmark agreement between Internet services giant Google and French regulatory authorities creating a framework under which Google would compensate French news outlets for republishing content online.

The copyright protections study begins with a look at how the traditional news publishing industry has steeply declined while online news aggregators have gained strength over the past two decades. The traditional news industry in America has seen advertising revenues, which typically provide more income for newspapers than sales and subscriptions, decline dramatically, by 68% between 2008 and 2018, and total newspaper circulation in 2020 was at the industry’s lowest point since 1940. Meanwhile, major platform providers including Google, Facebook and Apple have been able to leverage their large consumer base to launch popular news aggregator services, although the Copyright Office’s report noted that there was no strong evidence showing that these aggregator services were driving traffic away from news publishers’ websites.

Of the forms of legal protections for press publishers enacted by several countries in recent years, the Copyright Office found that those protections were rooted either in copyright law or in competition law. In addition to the EU’s 2019 Copyright Directive, the Office noted legislative reforms enacted in Germany and Spain over the past decade that are designed to provide additional copyright protections to news publishers in those countries. Those reforms did not produce many positive results, as Germany’s law creating an exclusive right to press products for news publishers was invalidated by the Court of Justice for the European Union (CJEU) in 2019, while studies show that website traffic to news publishers, especially small news outlets, dropped significantly under Spain’s law requiring online aggregators to compensate news publishers for online republications of news articles.

Regulatory Frameworks Under Competition Law May Better Address Industry Issues

While the Copyright Office’s report indicates that other federal agencies are in a better place to evaluate competition law-based models of additional protections for news publishers, the agency did note that many public comments submitted for the study argued that competition concerns and not copyright law were the biggest issue facing the news publishing industry. The Office noted that the Australian model, which involves a news media bargaining code requiring Google and Facebook to compensate for the value of stories republished on their platforms, has led to a string of licensing deals between those Big Tech firms and Australian publishers. Along with French regulatory enforcement activities against Google, the Copyright Office also discussed the four-year antitrust safe harbor for news publishers to withhold content from online content distributors that would be available under the Journalism Competition and Preservation Act, a bill introduced last March and currently under debate in the U.S. Senate.

In tracing existing copyright protections for news publishers under U.S. law, the Copyright Office noted that most publishers retain the copyright to full issues and individual articles, with the work-for-hire doctrine aiding publishers by letting them retain copyright to articles written by hired journalists. However, U.S. copyright law also has several limits on copyright protections for news publishers, including the non-copyrightable nature of facts and ideas; the merger doctrine limiting copyright protections for original expression like headlines that can only be expressed in a few unique ways; the short phrases doctrine that refuses copyright protection for works containing a de minimis amount of authorship; and the impacts of the fair use doctrine under which courts have found searchable indexes to be transformative fair uses of snippets and small excerpts of content that would typically be protected under copyright.

Ancillary Protections for News Publishers Likely Run Afoul of First Amendment Principles

Public comments received by the Copyright Office during the course of this study noted concerns over the lack of relative bargaining power between news publishers and Google and Facebook, the two largest news aggregator platforms operating in America. Other comments focused on issues with Copyright Office registration policies that make it difficult to protect dynamic content that continues to change as news outlets publish articles to their websites. The Office found that the difficulties faced by news publishers in asserting existing copyright against news aggregators were unrelated to copyright law, deferring to comments made at a roundtable event by renowned copyright professor Jane C. Ginsburg:

“As Professor Ginsburg put it at the public roundtable: ‘All the copyright protection in the world is not going to help if the copyright owners have no choice but to agree to contractual terms that are very unfavorable to them.’”

In discussing the advisability of adopting additional rights for news publishers under U.S. law, the Copyright Office found that such new rights may be unnecessary as some of the new protections established by Article 15 of the EU’s Copyright Directive, including distribution and reproduction rights to published news content, are already reflected in U.S. copyright law that considers news publications to be “authors” for purposes of copyright protection. Further, additional ancillary rights for news publishers would likely run afoul of traditional First Amendment principles that limit the boundaries of U.S. copyright law, as well as provisions of the Berne Convention that some argue include a “right to quotation” that would supersede new ancillary protections for news content.

“The Copyright Office’s decision not to recommend additional copyright protections for press publishers should not be mistaken for a lack of concern about the future of journalism,” the Office’s study concludes. Although there is plenty of data underscoring “a sea change in the press publishing ecosystem,” the Office noted that other proposed mechanisms under competition law do not lie within the agency’s expertise and thus the Office made no findings on the merits of those potential legal frameworks.


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Author: maxxyustas
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