The US Copyright Office is conducting a study of current copyright protections for publishers, and how potential ancillary copyright protections for publishers might interact with current copyright law, particularly as it relates to news content. On December 9, the Copyright Office held a public roundtable discussion on these issues; three takeaways from the roundtable are below.
1) There is agreement that high-quality journalism—particularly local journalism—must be sustained, but no consensus on a solution.
According to UNC’s News Desert project, 200 counties in the United States do not have a local newspaper, and two-thirds of the counties do not have a daily newspaper. While roundtable panelists acknowledged the importance of local journalism, they did not coalesce around a solution, or even the cause of the problem. Instead, representatives of press publishers and news aggregators raised myriad issues like local press publishers receiving insufficient advertising revenue due to the loss of their historic monopoly over local advertising; distribution models that allegedly substitute for original news content; the market dominance of aggregators; and the lack of enforcement of existing rights available through existing copyright law. As Jonathan Band (representing the Library Copyright Alliance) pointed out, these are separate issues that each deserve specific and thoughtful consideration.
2) The US copyright regime prioritizes creativity and dissemination of knowledge.
In contrast with European copyright law, which is meant to protect investments, the objective of the US copyright regime is to incentivize creativity. Panelists described aspects of US copyright law that prohibit copyright protection for facts, ideas, short phrases, and headlines:
- The Intellectual Property Clause of the US Constitution establishes that the purpose of copyright is to promote the progress of science and the useful arts. The IP Clause grants Congress the authority to enact laws protecting the exclusive rights of authors to their original works, for a limited time. The requirement that works be original is baked into the Constitution and may not be repudiated, even by Congress.
- The idea/expression dichotomy codified in 17 USC 102(b) holds that copyright protection applies to original works of authorship fixed in any tangible medium of expression.
- The merger doctrine further bars protection for expression that has “merged” with an idea, to avoid giving a “backdoor” to a monopoly over the idea.
- In the 1991 case Feist v. Rural Telephone, the Supreme Court upheld that “no one may copyright facts or ideas,” prohibiting Congress from extending copyright protection to unoriginal material.
- Legal precedent in cases like Authors Guild v. Google established that displaying short phrases (or “snippets”) in response to search queries is a fair use.
- Headlines and lede sentences do not possess sufficient originality to constitute protected expression.
3) Laws implemented in the EU and Australia must be considered in the US context.
The US Copyright Office asked whether there are constitutional issues that would arise from implementing a law like Australia’s News Media Bargaining Code, in which dominant tech platforms like Google and Facebook must pay Australian news publishers for content that is published or linked to their platforms. Panelists also discussed Article 15 of the EU Directive on Copyright in the Digital Single Market, which extends copyrights to press publishers.
Ali Sternburg of the Computer & Communications Industry Association cautioned that looking at what other countries have done may not be instructive for the US, in part because Congress may not constitutionally require aggregators to carry content. Further, Australia’s law specifically targeted Facebook and Google, which Sternburg argues would trigger heightened or strict constitutional scrutiny in the US.
Josh Lamel of the Re:Create Coalition noted that ancillary copyright laws in Europe have resulted in unintended consequences. For instance, when Spain created its ancillary copyright, Google stopped aggregating the news. Without a must-carry obligation—which could be unconstitutional in the US—a law requiring aggregators to pay press publishers for their content may cause aggregators to simply walk away, eviscerating the public good that such laws ostensibly seek to preserve.
The Copyright Office seeks another round of comments to inform the study; the comments are due on January 5, 2022.