Last week the News Media Alliance urged Shira Perlmutter, of the Copyright Registry and director of the US Copyright Office, to do more to strengthen publishers’ rights to prevent copyright infringement by news aggregators like Google and Facebook. The Alliance, a non-profit organization that represents the interests of nearly 2,000 media organizations around the world, originally submitted comments to the Copyright Office in November as the agency prepared a study on the protection publishers requested by Congress last year.
The Alliance felt the need to strengthen its case and respond to comments from other groups made during a December 9 roundtable. the Round table on the study on the protection of publishers consisted of three sessions that focused on the effectiveness of current publisher protections, whether additional protections are desired, and, if additional protections are implemented, how they might impact current rights, limitations and obligations.
The sessions brought together five Copyright Office staff and representatives from 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 additional material to make their case before the January 5, 2022 deadline. Among the comments made during 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 the rights of writers, journalists and publishers.
The Alliance said such arguments are “essentially incorrect” and have the potential to dilute long-established US copyright protections. They also ignore fair dealing analysis on a case-by-case basis and misrepresent the nature and extent of how online aggregators use news content produced by others.
“While the Constitution seeks to protect creative works, quality journalism is not adequately compensated by aggregators under our current legal system. News publishers invest heavily in journalists and newsrooms, and they must be given the opportunity to exercise their rights and receive a return on that investment, including through the ability of publishers to receive fair compensation for use of their online content,” said Danielle Coffey. , Executive Vice President and General Counsel of the Alliance, in a Press release of January 7, 2022.
Specifically, the Alliance asked the Copyright Office to:
- Agree that the reproduction and public display of news content by aggregators infringes the content owners’ copyright protections.
- Implement changes to registration practices to better protect news publishers.
- Use Article 15 of the European Union’s Copyright Directive in the Digital Single Market to help US publishers benefit from and get paid for content used in the EU.
- Approve the Journalism Competition and Preservation Act 2021 to better deal with market abuse by dominant online platforms such as Google and Facebook.
Coffey also said the imbalance that exists between dominant tech platforms and publishers “poses an existential threat to high-quality journalism.” Moreover, the solutions offered by online platforms are not sufficient to benefit publishers or elevate professional journalism.
“The news media industry is in crisis – news publishers’ revenues have plummeted over the past fifteen years, resulting in tens of thousands of newsroom workers losing their jobs and losing their logs by thousands of communities,” Coffey said in his letter to Perlmutter. “This is a fundamental challenge – largely fueled by the devaluing of journalism by online platforms – not only to our communities’ continued access to quality journalism, but also to a healthy democracy.”
In a December 16 article published by the Association of Research Libraries, Katherine Klosek shared three takeaways from the roundtable.
- Roundtable panelists agree that quality journalism, especially local journalism, must be maintained, but panelists could not agree on solutions to ensure the continuation of such journalism.
- The American copyright “regime” believes in creativity and the dissemination of knowledge.
- The EU and Australia have faced similar challenges and implemented solutions to address them. However, these same solutions may not work in the United States and therefore should not be taken at face value. The context must be taken into account.
This is an incredibly complex issue with many legal angles and considerations, and there will be no single (or simple) solution that satisfies all parties. The US Copyright Office has a tough job to do, and any restrictions or additional protections imposed will likely be challenged. We expect this to unfold slowly as the various sides prepare for battle.