This past October, the US Copyright Office (USCO) announced it would be undertaking “a public study to evaluate the effectiveness of current copyright protections for publishers in the United States, with a focus on press publishers.” The study, announced in the Federal Register, included a request for written submissions along with inviting stakeholders to participate in a virtual roundtable to be organized by the USCO. That roundtable was held last week, on December 9.  The inquiry was triggered by a Congressional request in response to ongoing financial challenges facing the news industry (over the past decade, a decline in the number of newsroom employees by 40 percent and the closing of one in five newspapers in the US), while at the same time online news aggregators have come to dominate the market for digital news consumers while controlling the digital ad market.

One of the concerns of news publishers is that, for many readers, the aggregators such as Google News provide a substitute for the publisher’s websites. Consumers can get sufficient information to satisfy their needs from the high-level excerpts posted by the aggregators without clicking through to the original source material. This creates a situation whereby those who invest the time, effort, and money to produce the news–not just reporting on facts but the storytelling that requires knowledge, expression and editorial decisions–derive only limited benefit while the lion’s share of audience attention, and thus ad revenue, goes to the aggregators. In effect, these platforms get a free ride. (The aggregators don’t view it that way, claiming they are providing a service to news providers by making their content more discoverable and that content providers can opt out of aggregation at any time).

While noting that current US copyright law provides several means by which news publications can protect their content, the USCO “Notice of Inquiry” reviews developments outside the United States with respect to the problem of free-riding by news aggregators. These actions fall into two categories. The first is ancillary copyright where news publishers have been given additional “neighbouring” rights, such as the exclusive right to make their work available to the public for commercial purposes. This is in addition to whatever other rights publishers may already hold under copyright such as rights to articles written by journalists, or photographs, where rights have been assigned. The press publication right is intended to provide the publishers with additional leverage in their negotiations with online platforms over the use of news content.  The poster child for ancillary rights is Article 15 of the EU Copyright Directive that provides news publishers with the right to authorize (or prohibit) reproduction of their content for two years following the date of publication. There are exceptions built into Article 15 such as non-commercial use, linking without reproduction, and limits on substantiality; individual words or very short extracts are exempt. EU member states are required to implement Article 15 in national law by mid-2022.

France was the first EU country to do so, and it is not coincidental that it is in France where a major struggle took place between news producers and Google. France backed up the provision of ancillary rights to news publishers with the application of competition law. Google was required to negotiate “in good faith” with French news providers and despite reaching agreement in January 2021 with some French publishers to pay for content, it was fined €500 million for its negotiating tactics. (Google is appealing). Recently it signed a five year deal with Agence France Press (AFP), one of the holdouts from the January deal.

The second international development noted by the US Copyright Office is the use of competition law to require negotiations between the dominant platforms and news producers. Australia is the most prominent example of a successful outcome using this approach. Both Google and Facebook dragged their feet and played chicken with the Australian competition regulator, the Australian Competition and Consumer Commission (ACCC), before finally beating a strategic retreat and reaching content deals with the majority of Australian media providers, both small and large. (For more on this saga, see here, here and here). Australia’s approach is not copyright based but it has been effective. Canada has stated that it will soon introduce legislation along the lines of the Australian model to deal with the news media/digital platform imbalance.

The USCO roundtable on December 9 brought together the “usual suspects” (aka key stakeholders) to explore the issues outlined in the Notice of Inquiry and to respond to questions posed by Copyright Office moderators. Among those represented were the News Media Alliance, Google, the Copyright Alliance, Public Knowledge, National Writers Union, representatives of the computer and telecommunications industry, academics, library representatives and legal experts. The roundtable examined a number of questions, including whether news content “scraped” by the platforms, such as headlines and snippets, was protectable under US copyright law, and if so, how fair use would apply.

Google took the position that news snippets are excluded from copyright protection, based on the “words and short phrases” doctrine spelled out in an interpretive bulletin issued by the USCO. However, Columbia law professor Jane C. Ginsburg, a noted copyright expert, demurred, arguing that the doctrine hinges on originality, not brevity. She pointed out that not only are photos, which are often included with news snippets, protected but that headlines can also be protected because of their originality. Examples were given of the same news story headlined in a number of different ways, using creativity and originality to catch reader attention. As to whether use of such snippets constituted fair use, there was considerable disagreement over how the four fair use factors would apply to such content. For those who don’t follow US copyright law, the four factors used in judging whether or not a use is fair are; the purpose and character of the use; the nature of the copyrighted work; the amount (substantiality) of the portion used; and the effect of the use on the potential market for, or value of, the work. With respect to the third factor (substantiality), both quantity and quality are considerations to take into account. As for the question of impact on the market, News Media Alliance argued there was substantial revenue diversion.

Considering that a substantial element of the USCO’s study is to examine the potential applicability of Europe’s ancillary copyright regime to the US, there was surprisingly little appetite for such a solution even from the principal potential beneficiary, the news content industry as represented by the News Media Alliance (NMA). In response to questions as to how the new press publishers right is working in Europe, the NMA’s response was that it is too early to tell. That said, it would not object if the right were extended to US content producers in Europe. At present, the new benefit is applicable only on a reciprocal basis and as a result, EU member states will not extend the press publication right to US content providers unless the US enacts a similar law. One solution proposed by the NMA is for the US to try to bring the right under national treatment if and when a US-EU trade agreement is ever negotiated. This would give US content providers the benefit of the European law even if the US failed to offer a similar provision. Any negotiations are a long way off, however.

Instead of pushing for additional ancillary rights, NMA is advocating primarily for greater ability to enforce existing copyright law as well as for an anti-trust exemption that would allow newspaper owners to be able to bargain collectively with big online platforms like Google. This exemption is currently before Congress in the form of draft legislation, the Journalism Competition and Preservation Act. If news industry to platform negotiations were to take place, they could involve not just payment for use of content but also access to audience data relevant to advertising, another concern of the publishers. With respect to existing copyright law, one area that could be improved for news publishers would be easier registration of “dynamic webpages”. Dynamic pages are the norm for news providers today, as news is continuously updated throughout the news cycle. While registration is not required to establish copyright, in the US registration is required for US citizens if they wish to bring legal action for infringement of a US work, thus difficulty in registering impedes enforcement action.

Regarding Google’s argument that news providers can opt-out of its content aggregation services, NMA’s position is that its members have neither authorized nor consented to the scraping of content by Google but opting-out is not really a choice because of the dominance of the platform. The ability to opt-out is a “Hobson’s choice”, an illusory rather than an actual choice. Either the content is buried and not found by readers, or else it is found by readers on an aggregation site but little or no benefit accrues to the content provider.

This is only a partial summation of the arguments pro and con but gives a flavour of the debate. The challenge facing news providers is complex, and likely no single remedy will suffice. There is also a wide disparity of views with–generally speaking–the internet platforms and tech companies on one side and content providers and the copyright community on the other, with other players taking various positions along the spectrum. All seem to agree that a healthy news and journalistic sector is vital to the preservation of democracy; debate centres around the source of the problems facing journalism and the solutions.

What happens next? Another round of written submissions to the USCO has been called for, due in early January 2022. After that, presumably the Office will report back to Congress with its conclusions. While the solution is not clear, judging by the submissions received so far and the discussion at the roundtable, it will likely not include establishment of a new ancillary copyright for press publishers in the US. What is clear, however, is that there are major challenges when it comes to the continued economic sustainability of professionally created and curated news sources, and the unlicensed use of news content by online aggregators is a significant part of that problem. Solutions are required. Given the ongoing efforts to come to grips with this issue in a number of countries, (and the ability of the quasi-monopoly platforms to comply when they find they have to), I find it hard to believe that the US will not be able to find a satisfactory way to ensure that news providers are dealt with fairly when it comes to the use of their content by dominant internet platform aggregators.

This article was first published on Hugh Stephens Blog