At the request of Congress, the Copyright Office recently agreed to undertake a public study to evaluate the effectiveness of current copyright protections for publishers in the United States, with a particular focus on press publishers. The Copyright Office issued a Notice of Inquiry seeking public comment on a variety of issues that could extend new protections to press publishers and other content creators beyond those afforded under existing copyright law.
In its letter requesting the study, Congress cited a recent directive by the European Union establishing “ancillary copyright” protections for press publishers. The Copyright Office has stated that its study will consider whether or not similar protections are warranted within the United States, as well as the potential scope, source, and appropriate beneficiaries of any such additional protections. Responsive comments from the public are due November 26, 2021. The Copyright Office will also hold a virtual public roundtable to discuss these and other related topics on December 9, 2021. A participation request form will be posted on the Copyright Office website by October 25, 2021.
The study could impact both traditional media outlets producing content and on digital media sharing of that content. It was specifically the impact of digital media on traditional content publishers that served as the impetus for the new study. The Copyright Office’s notice began with the observation that the internet has ushered in an era of disruption and transformation for the press-publishing ecosystem. It recites the financial impact that the internet has had on newspapers and other publishers. Specifically, the notice notes that newspaper advertising revenues enjoyed a steady increase for more than three decades during the years from 1970 to 2006, but have since suffered a precipitous 62% decline during the years from 2008 to 2018. From 2008 to 2019, the number of newspaper newsroom employees dropped by more than 40% and one in five (20%) newspapers closed.
The Copyright Office focused on digital “news aggregators” and their impact on publishers. The notice refers to the term “news aggregators” as an umbrella term loosely defined as an “online service that collects links to and sometimes snippets of third-party articles and makes them available to its readers.” According to the Copyright office, news aggregators, including search engines and social media, have now become the preferred or initial source of news for a majority of digital news consumers. These news aggregators create a potential problem termed the ‘‘substitution effect’’ by allowing readers to get the news (or at least gist of it) without visiting the press publishers’ websites, though the Copyright Office acknowledges that the empirical data on this issue is thin.
The notice turns from its discussion on the impact of news aggregators on publishers to a consideration of the possible additional, ancillary rights that could be enacted to assist publishers to overcome any negative impact of news aggregators. It begins with an overview of current protections for press publishers under existing copyright and related laws.
The notice explains that current copyright law allows a press publisher to control the distribution or reproduction of the content it produces. This control, however, is limited. Copyright generally protects only the actual expression in the content such as the written text of an article or the contents of a video. It does not protect the facts or information conveyed in the content itself or event to headlines, which fall into the titles and short phrases exception to copyright protection. Since the protection is limited to the actual content of the article itself, press publishers are not protected against third parties taking snippets of information from the articles or summarizing the content of an article as these are subject to recognized exceptions to copyright protection such as fair use.
The Copyright Office then explains that the purpose of the study is to determine whether these traditional protections should be expanded for instance by protecting headlines themselves or limiting the application of the fair use doctrine. The Copyright Office also examines several protections for press publishers afforded under the laws of other countries such as Germany, Spain, and Australia and even the recent Directive on Copyright in the Single Digital Market issued by the European Commission. We will continue to monitor the study and will cover the outcome of the study and any legislative changes that result.
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