Study by the Copyright Office concludes that news publishers have adequate protections

on Jul 08, 2022

The U.S. Copyright Office published a report titled Copyright Protections for Press Publishers on June 30. It examines existing systems in other countries that grant news publishers additional rights under copyright law and offers suggestions for comparable modifications that could be made to U.S. law. The analysis by the Copyright Office comes to the conclusion that while the news publishing sector is having a difficult time finding appropriate funding in the Internet era, those issues are not caused by any current flaws in the status quo of U.S. copyright law.

The strength of online news aggregators is increasing while the traditional news industry declines

A little more than a year after receiving 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 Office has completed a study on copyright protections for news publishers. The letter made reference to ongoing changes to foreign copyright laws, including those in the European Union, which recently passed a new copyright directive that includes a new press publisher's right, which gives news publishers more protections against the republication of their content by online news aggregators. Due to these additional safeguards, Internet giant Google and French regulatory bodies recently reached a historic deal that establishes a framework for Google to pay French news organisations for online material republishing.

The copyright protections study starts by examining how, over the past 20 years, internet news aggregators have become stronger while the traditional news publishing industry has experienced a sharp drop. The overall number of newspapers circulated in America's traditional news sector fell to its lowest level since 1940 in 2020, with advertising revenues, which normally generate more cash for newspapers than sales and subscriptions, falling by 68 percent between 2008 and 2018. While prominent news aggregator services have been introduced by major platform providers like Google, Facebook, and Apple, the Copyright Office's study concluded that there was no conclusive proof that these aggregator services were driving visitors away from news publishers' websites.

The Copyright Office discovered that the legal safeguards for press publishers adopted by various nations in recent years have their foundations in either copyright law or competition law. In addition to the EU's 2019 Copyright Directive, the Office cited legal changes made in Germany and Spain over the past ten years that are intended to give news publishers in those nations more copyright protections. The Court of Justice for the European Union (CJEU) invalidated Germany's law granting news publishers an exclusive right to press products in 2019, and studies show that website traffic to news publishers, particularly small news outlets, decreased significantly as a result of Spain's law requiring online aggregators to pay news publishers for online republications of news articles. These reforms did not yield many positive results.

Regulations based on competition law may be more effective at addressing industry issues

The agency did note that many public comments submitted for the study argued that competition concerns, not copyright law, were the biggest issue facing the news publishing industry. The Copyright Office's report indicates that other federal agencies are in a better position to evaluate competition law-based models of additional protections for news publishers. The Office stated that a number of license agreements between those Big Tech companies and Australian publications had resulted from the Australian model, which includes a news media bargaining code mandating Google and Facebook to pay for the value of content reprinted on their platforms. The Journalism Competition and Preservation Act, a bill introduced last March and currently up for discussion in the U.S. Senate, would allow news publishers to withhold content from online content distributors for a four-year antitrust safe harbor. The Copyright Office also discussed French regulatory enforcement actions against Google.

The work-for-hire concept helps publishers by allowing them to maintain copyright to pieces authored by hired journalists, according to the Copyright Office, which was tasked with tracing the current copyright protections for news publishers under U.S. law.

The non-copyrightability of facts and ideas, the merger doctrine, which restricts copyright protections for original expression like headlines that can only be expressed in a few distinct ways, the short phrases doctrine, which denies copyright protection for works containing a de minimis amount of authorship, and the ramifications of the fair use doctrine, which governs how courts interpret fair use agreements, are some of the limitations on copyright protections for news publishers under U.S. copyright law.

Ancillary Protections for News Publishers Likely Contravene the Principles of the First Amendment

Concerns over the relative lack of negotiating power between news publishers and Google and Facebook, the two biggest news aggregation platforms operating in America, were raised in public comments that the Copyright Office received throughout the course of this investigation. Other criticisms centered on difficulties protecting dynamic content that is always changing when news organisations publish pieces to their websites due to problems with Copyright Office registration procedures.

In discussing whether it would be wise to adopt additional rights for news publishers under U.S. law, the Copyright Office discovered that these additional rights may not be necessary because U.S. copyright law already considers news publications to be "authors" for the purposes of copyright protection, reflecting some of the new protections established by Article 15 of the EU's Copyright Directive, including distribution and reproduction rights to published news content. The Berne Convention's provisions, which some contend contain a "right to quote" that would supersede new ancillary safeguards for news content, and classic First Amendment principles would also likely clash with extra ancillary rights for news publishers.

The research from the Copyright Office states, "The Copyright Office's decision not to suggest further copyright protections for press publishers should not be interpreted as a lack of concern about the future of journalism." The Office noted that other proposed mechanisms under competition law do not fall within the agency's area of expertise and that there is a wealth of data indicating "a sea change in the press publishing ecosystem," so the Office did not reach any conclusions regarding the viability of those potential legal frameworks.