Last week, the News Media Alliance urged Shira Perlmutter, the Register of Copyrights and Director of the US Copyright Office, to do more to strengthen the rights of publishers to prevent copyright violations by news aggregators like Google and Facebook. The Alliance, a nonprofit organization that represents the interests of close to 2,000 media organizations globally, originally submitted comments to the Copyright Office in November as the agency prepared for a Publishers’ Protection Study requested by Congress last year.
The Alliance felt the need to bolster its argument and respond to comments from other groups made during a December 9 roundtable discussion. The Publishers’ Protections Study Roundtable consisted of three sessions which addressed the effectiveness of current publisher protections, if additional protections are desired and, if additional protections are implemented, how they might impact current rights, limitations and obligations.
The sessions were attended by five staff members from the Copyright Office and representatives of different organizations including News Media Alliance, Copyright Alliance, Google, Niskanen Center, Axel Springer, Meta Platforms, Boston University, Re:Create, Copia Institute, National Writers Union, and Computer & Communications Industry Association, among others.
The Alliance followed up with a 15-page letter with 33 pages of supplemental material to make their case by the January 5, 2022 deadline. Among the comments made at the roundtable that the Alliance wanted to address were arguments that the use of news content by online aggregators is fair use and, therefore, does not infringe upon the rights of writers, reporters and publishers.
The Alliance said that such arguments are “substantially inaccurate,” and they have the potential to dilute long-established U.S. copyright protections. They also ignore fair use analysis on a case-by-case basis, and they misrepresent the nature and extent of how online aggregators are using news content produced by others.
“While the Constitution is intended to protect creative works, quality journalism is not adequately compensated by aggregators under our current legal system. News publishers make massive investments in reporters and newsrooms, and they must have the ability to exercise their rights and receive a return on that investment, including through the ability of publishers to receive fair compensation for the use of their content online,” said Danielle Coffey, Alliance executive vice president and general counsel, in a January 7, 2022 news release.
Specifically, the Alliance has asked the Copyright Office to:
- Agree that the reproduction and public display of news content by aggregators infringes on the copyright protections of the content owners.
- Implement changes to registration practices to better protect press publishers.
- Use Article 15 of the European Union’s Directive on Copyright in the Digital Single Market to help American publishers to benefit from and be paid for content used in the EU.
- Endorse the Journalism competition and Preservation Act of 2021 to better manage market abuse by dominant online platforms such as Google and Facebook.
Coffey also said that the imbalance that exists between dominant tech platforms and publishers “poses an existential threat to high-quality journalism.” In addition, solutions proposed by online platforms are not sufficient to benefit publishers or elevate professional journalism.
“The news media industry is in crisis – press publisher revenues have plummeted in the last fifteen years, causing tens of thousands of newsroom employees to lose their jobs and thousands of communities to lose their newspapers,” Coffey said in her letter to Perlmutter. “This is a fundamental challenge – largely fueled by the online platforms’ devaluating of journalism – not only for our communities’ continued access to high-quality journalism but also for a healthy democracy.”
In a December 16 article published by the Association of Research Libraries, Katherine Klosek shared three takeaways from the roundtable meeting.
- Roundtable panelists agree that high-quality journalism, especially local journalism, must be sustained, but the panelists could not agree on solutions to ensure the continuation of such journalism.
- The US Copyright “regime” believes in creativity and the dissemination of knowledge.
- The EU and Australia have battled similar challenges and have implemented solutions to help address them. However, those same solutions may not work in the US and should, therefore, not be taken at face value. Context needs to be considered.
This is an incredibly complex issue with many legal angles and considerations, and there will not be any single (or simple) solution that satisfies all parties. The US Copyright Office has a difficult job on their hands, and any additional restrictions or protections that are imposed will likely be challenged. We expect this to unfold slowly as the different sides prepare for battle.