News Publishers Disagree With Tech Companies on Copyright
News publishers and tech companies disagreed whether online headlines, photos and story snippets need stiffer copyright protection, in a Copyright Office proceeding (docket ID COLC-2021-0006) and roundtable on publisher protections. Publishers choose to have their content included in news aggregators and social media, and benefit from the traffic, said Google Public Policy Manager Kate Sheerin. It’s a “Hobson’s choice” for news organizations, replied News Media Alliance General Counsel Danielle Coffey. “We are forced to waive our ability to enforce our rights because of the dominance of these platforms.” Additional comments on the study are due Jan. 5.
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Thursday’s roundtable is connected with a CO notice of inquiry on whether better copyright protection should be extended to news publishers to protect or monetize their content when it's shared by search engines or social medial platforms. The proceeding was kicked off by a May letter from Sen. Thom Tillis, R-N.C.
“Without adequate protections, news publishers will see continued threats to their ability to limit infringing use and rightfully monetize content on third-party platforms,” said NPR commented. Extending protections to links for headlines and brief story summaries “would undermine” the entire internet, said Sheerin. Ancillary copyright law for news publishers “is in fact inconsistent with international IP law, stands in sharp tension with United States constitutional protections,” and “violates international trade obligations,” wrote the Computer & Communications Industry Association and Internet Association. News organizations create Facebook pages and share their content on the platform, said Elizabeth Kendall, Facebook Public Policy Manager, IP Policy. “We are an opt-in social media platform.”
News organizations are struggling because of a variety of factors, including media consolidation and the shift toward digital advertising, said R Street Institute Senior Fellow Wayne Brough. “We should use the tools of economic policy rather than the tools of copyright.” History shows that most copyright owners don’t benefit from stiffer protections, said Boston University School of Law professor Jessica Silbey. The CO was tasked with studying whether copyright protections should be extended, not possible antitrust solutions, reminded Chris Weston, the office's senior counsel-policy and international affairs.
Several panelists said the issues could be addressed through the Journalism Competition and Preservation Act. JCPA (HR-1735) would allow news publishers to collectively negotiate with aggregators for the rights to their content. The power imbalance between a local news entity and Google favors the tech company, said Econ One Research Managing Director Hal Singer. “Google doesn’t need the Fort Worth Star-Telegram, but the Fort Worth Star-Telegram needs Google.” Without copyright protections, the JCPA wouldn’t be enough, said IP attorney Ole Jani, representing Politico parent Axel Springer. “Better bargaining is not helpful if there’s nothing to bargain about.”
Copyrighting headlines and short phrases would be difficult because short lines of text are less likely to be unique or original, said Public Knowledge Legal Director John Bergmayer. “A property right-based approach is simply the wrong approach.” Having different rules for a law professor with a blog than for a journalist’s article would be problematic, Brough said. The issue is also exacerbated by CO’s system for registering content, which is difficult to use for ever-changing news websites. The registration system must be revised, said Edward Hasbrouck, of the National Writers Union.
Some said proposed copyright protections are similar to measures enacted in Europe and Australia. Those countries reacted to news organizations shuttering during the COVID-19 pandemic even though their content was more in demand than ever, said Coffey. “It became clear” that news publishers are in a broken market, she said. The U.S. is different because it has the First Amendment, fair use rules and other legal and social considerations not present elsewhere, said CCIA Senior Policy Counsel Ali Sternburg. “Looking at other countries is not instructive.”