[Federal Register Volume 86, Number 194 (Tuesday, October 12, 2021)]
[Notices]
[Pages 56721-56726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22077]
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LIBRARY OF CONGRESS
Copyright Office
[Docket No. 2021-5]
Publishers' Protections Study: Notice and Request for Public
Comment
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Notice of inquiry.
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SUMMARY: The United States Copyright Office is undertaking a public
study at the request of Congress to evaluate current copyright
protections for publishers. Among other issues, the Office will
consider the effectiveness of publishers' existing rights in news
content, including under the provisions of title 17 of the U.S. Code,
as well as other federal and state laws; whether additional protections
are desirable or appropriate; the possible scope of any such new
protections, including how their beneficiaries could be defined; and
how any such protections would interact with existing rights,
exceptions and limitations, and international treaty obligations. To
aid in this effort, the Office is seeking public input on a number of
questions. The Office also plans to hold a virtual public roundtable to
discuss these and related topics on December 9, 2021.
DATES: Comments are due on or before November 26, 2021.
ADDRESSES: The Copyright Office is using the regulations.gov system for
the submission and posting of public comments in this proceeding. All
comments are therefore to be submitted electronically through
regulations.gov. Specific instructions are available on the Copyright
Office website at http://www.copyright.gov/policy/publishersprotections/. If electronic submission of comments is not
feasible due to lack of access to a computer and/or the internet,
please contact the Office using the contact information below, for
special instructions.
The Office plans to hold the public roundtable on December 9, 2021,
from 9:00 a.m. to 5:00 p.m. Eastern Standard Time remotely using the
Zoom videoconferencing platform. A participation request form will be
posted on the Copyright Office website at https://www.copyright.gov/policy/publishersprotections/ on or about October 25, 2021. Requests to
participate as a panelist in a roundtable session should be submitted
by 11:59 p.m. Eastern Standard Time on November 12, 2021. If electronic
submission of requests for participation is not feasible, please
contact the Office using the contact information below for special
instructions. Attendees will be able to join the event online starting
at approximately 8:30 a.m., and it will run until approximately 5:00
p.m.
FOR FURTHER INFORMATION CONTACT: Kimberley Isbell, Deputy Director of
Policy and International Affairs, at [email protected], or Andrew
Foglia, Senior Counsel for Policy and International Affairs, at
[email protected]. Both can be reached by telephone at 202-707-
8350.
SUPPLEMENTARY INFORMATION: This notification focuses on press
publishers in particular, reflecting Congress's request that the Office
study developments in foreign jurisdictions regarding their rights. It
also includes a number of questions about publishers in other sectors,
authors, and the public, to assist in evaluating the appropriate scope
and definitions for any possible new protections.
I. Introduction
A. The Internet, Press Publishers, and News Aggregators
The internet has ushered in an era of disruption and transformation
for the press-publishing ecosystem. After rising steadily between 1970
and 2006,\1\ newspaper ad revenues plummeted
[[Page 56722]]
62% between 2008 and 2018.\2\ Total newspaper circulation, already
declining before the internet-era, in 2020 fell to its lowest point
since 1940.\3\ Digital distribution exposed city papers that once
enjoyed close to local monopolies to national competition from well-
heeled newsrooms like The New York Times. The combination of increased
competition, dwindling revenue, and high debt overhangs led to a wave
of bankruptcies, consolidations,\4\ and leveraged buyouts.\5\ From 2008
to 2019, the number of newspaper newsroom employees dropped by more
than 40%,\6\ and one in five papers closed.\7\
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\1\ See Michael Barthel & Kirsten Worden, Newspapers Fact Sheet,
Pew Research Center (June 29, 2021), https://www.journalism.org/fact-sheet/newspapers/. Newspaper ad revenue peaked in the early
internet era of the late 1990s and, after a brief dip in 2000-01,
peaked again in 2005 following a wave of consolidation in the
newspaper industry (including a steady decline in the number of
cities with competing daily newspapers). Id.; see also Media
Concentration (Part 2): Hearings Before the Subcomm. on Gen.
Oversight and Minority Enter. of the H. Comm. on Small Bus., 96th
Cong. 4-5 (1980) (statement of James M. Dertouzos, Economist, RAND
Corp.) (presenting data on consolidation in local news outlets).
\2\ Elizabeth Grieco, Fast Facts about the Newspaper Industry's
Financial Struggles as McClatchy Files for Bankruptcy, Pew Research
Center (Feb. 14, 2020), https://www.pewresearch.org/fact-tank/2020/02/14/fast-facts-about-the(-newspaper-industrys-financial-struggles/
.
\3\ Newspapers Fact Sheet--More Facts: The State of the News
Media, Pew Research Center (June 29, 2021), https://www.pewresearch.org/journalism/fact-sheet/newspapers/.
\4\ The post-2000 consolidations accelerated a trend that began
early in the 20th century. See Penelope Muse Abernathy, The Rise of
a New Media Baron and the Emerging Threat of News Deserts 20-21
(2016), http://newspaperownership.com/wp-content/uploads/2016/09/07.UNC_RiseOfNewMediaBaron_SinglePage_01Sep2016-REDUCED.pdf.
\5\ See Penelope Muse Abernathy, The Expanding News Desert
(2018), https://www.cislm.org/wp-content/uploads/2018/10/The-Expanding-News-Desert-10_14-Web.pdf; Russell Baker, Goodbye to
Newspapers?, N.Y. Rev. of Books (Aug. 16, 2007), https://www.nybooks.com/articles/2007/08/16/goodbye-to-newspapers/
(describing slashing of news staff at various newspapers under new
Wall Street owners).
\6\ See Elizabeth Grieco, Fast Facts About the Newspaper
Industry's Financial Struggles as McClatchy Files for Bankruptcy,
Pew Research Center (Feb. 14, 2020), https://www.pewresearch.org/fact-tank/2020/02/14/fast-facts-about-the-newspaper-industrys-
financial-struggles/ (``Newsroom employment at U.S. newspapers
dropped by nearly half (47%) between 2008 and 2018.''); Mason
Walker, U.S. Newsroom Employment Has Fallen 26% Since 2008, Pew
Research Center (July 13, 2021), https://www.pewresearch.org/fact-tank/2021/07/13/u-s-newsroom-employment-has-fallen-26-since-2008/
(``Newspaper newsroom employment fell 57% between 2008 and 2020 . .
. .'').
\7\ Lara Takenaga, More Than 1 in 5 U.S. Papers Has Closed. This
is the Result., N.Y. Times (Dec. 21, 2019), https://www.nytimes.com/2019/12/21/reader-center/local-news-deserts.html; Penelope Muse
Abernathy, The Expanding News Desert 12 (2018), https://www.cislm.org/wp-content/uploads/2018/10/The-Expanding-News-Desert-10_14-Web.pdf.
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Over the two decades during which press publishers' revenues have
declined, a new set of distributors has arisen in the form of online
news aggregators.\8\ This umbrella term covers a number of distinct
services that vary according to the sources they use, the topics they
cover, who performs the aggregation, and whether they add original
commentary, but in general refers to an online service that collects
links to and sometimes snippets of third-party articles and makes them
available to its readers.\9\ While some news aggregators focus
primarily or solely on the distribution of news content, others may
aggregate such content only as one part of a wider-ranging social media
service, for example by allowing users to share news stories or
promoting ``trending topics'' or ``news'' tabs and links. News
aggregators may or may not seek licenses for the third-party content
they use.
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\8\ See Eric Alterman, Out of Print: The Death and Life of the
American Newspaper, New Yorker (Mar. 24, 2008), https://www.newyorker.com/magazine/2008/03/31/out-of-print (describing,
among other things, the rise of Huffington Post and other news
aggregators).
\9\ See Kimberley A. Isbell & Citizen Media Law Project, The
Rise of the News Aggregator: Legal Implications and Best Practices
(2010), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1670339.
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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.\10\ Some commenters suggest that these sources
create a ``substitution effect'' by allowing readers to get the news
(or at least its gist) without visiting the press publishers'
websites.\11\ Others assert that news aggregators expand the market by
helping readers to discover new websites and tempting them to click on
more articles than they would otherwise read.\12\
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\10\ Nic Newman, Richard Fletcher, Antonis Kalogeropoulos, David
A.L. Levy & Rasmus Kleis Nielsen, Reuters Institute Digital News
Report 2018 14 (2018), http://media.digitalnewsreport.org/wp-content/uploads/2018/06/digital-news-report-2018.pdf?x89475; see
also Doh-Shin Jeon, Economics of News Aggregators (Toulouse Sch. of
Econ., Working Paper No. 18-912, 2018), https://www.tse-fr.eu/sites/default/files/TSE/documents/doc/wp/2018/wp_tse_912.pdf; Traffic
Overview: news.google.com, similarweb, https://www.similarweb.com/website/news.google.com/#overview (last visited August 5, 2021)
(showing that in 2021 Google News averages over 500 million visits
per day). Among aggregating services, one of the trends of the last
half decade has been the increasing dominance of the largest
platforms and the decline of standalone aggregators. In recent
years, Google and Facebook have continued to represent an outright
majority of aggregator web traffic and referrals, while BuzzFeed,
AOL, Yahoo and HuffPost have cut more than a thousand jobs, and
smaller sites such as Gawker, Mic, Refinery29, the Outline, and
PopSugar have shrunk, shuttered, or sold. Joshua Benton, Is Facebook
Really A `News Powerhouse' Again, Thanks to Coronavirus? (No More
Than It Was Before), NiemanLab (Mar. 24, 2020) https://www.niemanlab.org/2020/03/is-facebook-really-a-news-powerhouse-again-thanks-to-coronavirus-no-more-than-it-was-before/ (showing
that over the twelve preceding months, Google and Facebook accounted
for over 75% of outside referrals to news sites in the parse.ly
network); Paul Farhi, ``Top Editors Leave HuffPost and BuzzFeed News
Amid Growing Doubts About the Future of Digital News, Washington
Post (Mar. 12, 2020), https://www.washingtonpost.com/lifestyle/media/top-editors-leave-huffpost-and-buzzfeed-amid-growing-doubts-about-the-future-of-digital-news/2020/03/12/32cf09c0-6222-11ea-acca-80c22bbee96f_story.html.
\11\ See Eleonora Rosati, The German `Google Tax' Law: Groovy or
Greedy? 8(7) J. Intel. Prop. L. & Prac. 497, 497 (2013); Chrysanthos
Dellarocas, Juliana Sutanto, Mihai Calin & Elia Palme, Attention
Allocation in Information-Rich Environments: The Case of News
Aggregators, 62(9) Mgmt. Sci. 2543, 2543 (2015); Directive 2019/790,
of the European Parliament and of the Council of 17 April 2019 on
Copyright and Related Rights in the Digital Single Market and
Amending Directives 96/9/EC and 2001/29/EC, 2019 O.J. (L 130) 92,
103-04, https://eur-lex.europa.eu/eli/dir/2019/790/oj (``Publishers
of press publications are facing problems in licensing the online
use of their publications to the providers of those kinds of
services, making it more difficult for them to recoup their
investments.'').
\12\ See, e.g., Joan Calzada & Ricard Gil, What Do News
Aggregators Do? Evidence from Google News in Spain and Germany 1-2
(2018), http://diposit.ub.edu/dspace/bitstream/2445/150425/1/695577.pdf; Lisa M. George & Christiaan Hogendorn, Local News
Online: Aggregators, Geo-Targeting and the Market for Local News,
68(4) J. Indus. Econ. 780, 804 (2020) (finding that a redesign of
Google News adding geo-targeted local news links increased the level
and share of local news consumption).
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Empirical data available to date on the relationship between
aggregators and news sites is thin. Aggregators appear to drive a
significant amount of traffic to news websites, and therefore their
activities may serve to expand the market for press publishers.\13\ But
their referrals may lead to a relatively narrow range of news
sites,\14\ and they tend to drive traffic to individual articles rather
than homepages.\15\ So it is also possible
[[Page 56723]]
that their offerings substitute to some degree for the market for
newspapers as a whole, even while stimulating traffic to specific
articles. This concern has spurred policymakers in several countries to
consider legislation aimed at maintaining the viability of their news
industry, including by expanding press publishers' rights in the
content they publish.
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\13\ Doh-Shin Jeon, Economics of News Aggregators (Toulouse Sch.
of Econ., Working Paper No. 18-912, 2018), https://www.tse-fr.eu/sites/default/files/TSE/documents/doc/wp/2018/wp_tse_912.pdf
(reviewing empirical literature and concluding that Google News and
Facebook increase overall traffic to news sites); Kenny Olmstead,
Amy Mitchell & Tom Rosenstiel, Navigating News Online: Where People
Go, How They Get There and What Lures Them Away (2011), https://www.pewresearch.org/wp-content/uploads/sites/8/legacy/NIELSEN-STUDY-Copy.pdf.
\14\ Kenny Olmstead, Amy Mitchell & Tom Rosenstiel, Navigating
News Online: Where People Go, How They Got There, and What Lures
Them Away 22 (2011), https://www.pewresearch.org/wp-content/uploads/sites/8/legacy/NIELSEN-STUDY-Copy.pdf. (``According to the links
users follow, Google News sends most users on to a news destination,
but the range of those destinations is rather limited. Most of
visitors to Google News . . . do click to a news story. According to
the data, less than a third of news.google.com visitors headed to
Google.com or another Google service. The remainder followed a link
to a news site. But the benefactors are limited. Fully 69% of
visitors to news.google.com ended up 3 places: nytimes.com (14.6%),
cnn.com (14.4%) and abcnews.go.com (14.0%). Six additional sites
were each the destination for 7-10% of visitors during the time
period studied'').
\15\ See Doh-Shin Jeon, Economics of News Aggregators 18
(Toulouse Sch. of Econ., Working Paper No. 18-912, 2018), https://www.tse-fr.eu/sites/default/files/TSE/documents/doc/wp/2018/wp_tse_912.pdf. ([``N]ews aggregators reduce traffic to newspaper
home pages while increasing traffic to individual news articles.
Even if all empirical articles agree on the statement that the
business-stealing effect is dominated by the readership-expansion
effect, if this comes with a reduced traffic to home pages, it can
have a long-term consequence that is not captured by the empirical
studies.'').
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II. Protections for Press Publishers Under U.S. Law
A. Copyright Protection for News Content
Current U.S. copyright law gives publishers several means to
protect their news content. First, a press publisher typically owns the
copyright in the collective work, such as the print issue as a whole or
the website containing individual news articles.\16\ Second, the press
publisher may own or be able to assert rights in individual articles
that it publishes, through the work-made-for-hire doctrine,\17\
assignments of rights, or exclusive licenses.\18\
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\16\ The Copyright Act defines ``collective work'' as a work
``in which a number of contributions, constituting separate and
independent works in themselves, are assembled into a collective
whole.'' 17 U.S.C. 101. Additionally, collective works under the
Copyright Act are considered a type of compilation, which in turn is
defined as ``a work formed by the collection and assembling of
preexisting materials or of data that are selected, coordinated, or
arranged in such a way that the resulting work as a whole
constitutes an original work of authorship.'' 17. U.S.C. 101. The
website of a daily newspaper, which assembles various discrete
articles, photographs, and advertisements, could be an example of a
copyrightable digital ``collective work.''
\17\ ``Work made for hire'' is a category of works created for
an employer or commissioning party, for which the individual(s) who
create the work are not considered the author(s) and initial
owner(s) for copyright purposes. Instead, the author is either (1)
the employer of that individual, if the work is prepared within the
scope of employment; or (2) the entity who commissions or orders the
creation of the work, provided that the work fits within one of nine
specific categories, and the parties expressly agree in a signed
writing that ``the work shall be considered a work made for hire.''
17 U.S.C. 101. Among these nine categories is ``a contribution to a
collective work,'' meaning that a freelance article for a newspaper
or magazine may constitute a work-made-for-hire, if the author and
the publisher agreed to this in writing. 17 U.S.C. 101. In addition,
any article written by an employee of a newspaper or magazine as
part of their employment would clearly be a work-made-for-hire, with
the publisher having the legal status of author (and copyright
owner).
\18\ For freelance articles or photographs that are not works-
made-for-hire, the author--in whom all exclusive rights initially
vest--may transfer her rights to the publisher, either for a limited
time or for the duration of the copyright, and the transfer may
cover all or some of the exclusive rights. A transfer of rights may
take the form of an assignment (meaning that legal title is
transferred) or an exclusive license (meaning that exclusive
permission to use the right(s) is transferred). See Minden Pictures,
Inc. v. John Wiley & Sons, Inc., 795 F.3d 997, 1003 (9th Cir. 2015).
For both types of transfers, the transferee gains the right to bring
suit for infringement. See 3 Melvin B. Nimmer & David Nimmer, Nimmer
on Copyright sec. 12.02[B][1] (2021). In contrast, if the parties
only agree to a nonexclusive license--meaning that the author
remains free to license the work to other parties--then the grantee
cannot bring an infringement suit. See Minden Pictures, Inc. v. John
Wiley & Sons, Inc., 795 F.3d 997, 1003 (9th Cir. 2015).
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When a press publisher owns a copyright in either a collective work
\19\ or in an individual article, it has the exclusive right to do or
authorize the reproduction, preparation of derivative works,
distribution, public performance, and public display of that work.\20\
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\19\ The relationship between the copyright in a collective work
and in a particular contribution to a collective work is spelled out
in the Copyright Act, which sets forth three instances where a
publisher who does not own the copyright in an article may
nonetheless reproduce and distribute it as part of: (1) ``that
particular collective work,'' (2) ``any revision of that collective
work, and'' (3) ``any later collective work in the same series.'' 17
U.S.C. 201(c). In the 2001 Tasini decision, the Supreme Court
explicated section 201(c) as ``adjust[ing] a publisher's copyright
in its collective work to accommodate a freelancer's copyright in
her contribution. If there is demand for a freelance article
standing alone or in a new collection, the Copyright Act allows the
freelancer to benefit from that demand; after authorizing initial
publication, the freelancer may also sell the article to others.''
N.Y. Times Co. v. Tasini, 533 U.S. 483, 497 (2001).
\20\ See 17 U.S.C. 106(1)-(5). As the Copyright Office has
noted, these exclusive rights cover certain uses of copyrighted
materials online, including the making available of copyrighted
works for download or viewing via streaming. See generally U.S.
Copyright Office, The Making Available Right in the United States
(2016), https://www.copyright.gov/docs/making_available/making-available-right.pdf.
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These exclusive rights are not absolute. Under U.S. law, several
legal doctrines allow the use of news content in certain circumstances
without permission or payment.\21\ Most fundamentally, facts and ideas
are not copyrightable.\22\ Nor are titles and short phrases, including
headlines.\23\ Where there are only a few, limited ways of expressing
an idea, the merger doctrine bars protection for the expression in
order to avoid giving a backdoor monopoly in the idea itself.\24\ Even
where the content used is protectable, the fair use doctrine provides
considerable scope for quotation and allows certain other reasonable
uses.\25\
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\21\ Similar, though not identical doctrines may be found in
most countries' copyright laws. See, e.g., Berne Convention for the
Protection of Literary and Artistic Works art. 2(8), Sept. 9, 1886,
as revised July 24, 1971, and as amended Sept. 28, 1979, S. Treaty
Doc. No. 99-27, 1161 U.N.T.S. 3 (1986) (``Berne Convention'') (``The
protection of this Convention shall not apply to news of the day or
to miscellaneous facts having the character of mere items of press
information.''); Agreement on Trade-Related Aspects of Intellectual
Property Rights art. 9(2), Apr. 15, 1994, Marrakesh Agreement
Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S.
299 (1994), (``Copyright protection shall extend to expressions and
not to ideas, procedures, methods of operation or mathematical
concepts as such.''); WIPO Copyright Treaty art. 2, Dec. 20, 1996,
S. Treaty Doc. No. 105-17, 2186 U.N.T.S. 121 (``Copyright protection
extends to expressions and not to ideas, procedures, methods of
operation or mathematical concepts as such.'').
\22\ 17 U.S.C. 102(b) (``In no case does copyright protection
for an original work of authorship extend to any idea, procedure,
process, system, method of operation, concept, principle, or
discovery, regardless of the form in which it is described,
explained, illustrated, or embodied in such work.''); Feist Publ'ns,
Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991); see also
Baker v. Selden, 101 U.S. 99, 103 (1880) (describing idea/expression
dichotomy).
\23\ CMM Cable Rep., Inc. v. Ocean Coast Props., Inc., 97 F.3d
1504, 1519-20 (1st Cir. 1996) (titles and short phrases
uncopyrightable); Aryelo v. Am. Int'l Ins. Co., No. 95-1360, 1995 WL
561530 at *1 (1st Cir. Sept. 21, 1995) (per curiam, table,
unpublished) (``The non-copyrightability of titles in particular has
been authoritatively established''); 37 CFR 202.1(a) (excluding from
copyright protection ``[w]ords and short phrases such as name,
titles, and slogans'').
\24\ N.Y. Mercantile Exch., Inc. v. IntercontinentalExchange,
Inc., 497 F.3d 109, 116-17 (2d Cir. 2007); 4 Melvin B. Nimmer &
David Nimmer, Nimmer on Copyright sec. 13.03[B][3] (explaining that
``courts have invoked the doctrine of merger'' where ``rigorously
protecting the expression would confer a monopoly over the idea
itself, in contravention of the statutory command'').
\25\ See, e.g., Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P.,
756 F.3d 73, 84 (2d Cir. 2014) (explaining that fair use often,
though not always, supports direct quotation of copyrighted works in
news reporting context); Nunez v. Caribbean Int'l News Corp., 235
F.3d 18, 22-23 (1st Cir. 2000) (finding newspaper's use of
copyrighted photographs was fair where the photographs themselves
were the news story).
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Applying the fair use doctrine, courts have approved some forms of
aggregation of news content but not others. For example, fair use has
been found to permit the aggregation of copyrighted text or images by
search engines or other indexing processes where those services used
only snippets or low-resolution images that were unlikely to substitute
for the original copyrighted works.\26\ By contrast, the Second Circuit
has held that the aggregation of television news content into a
searchable index was not fair use, to the extent that the service
enabled users to watch and share ten-minute clips.\27\ Some news
aggregators have
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sought licenses instead of relying on a fair use defense, presumably
either because their use was more extensive than that permitted by fair
use or because they wanted to avoid the expense and uncertainty of
litigating.\28\
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\26\ See, e.g., Kelly v. Arriba Soft Corp., 336 F.3d 811, 818
(9th Cir. 2003) (finding defendant's reproduction of thumbnails of
plaintiff's photographs in defendant's search engine results was
transformative); Perfect 10, Inc. v. Amazon.com, Inc. 508 F.3d 1146,
1165 (9th Cir. 2007) (same); cf. Authors Guild v. Google, Inc., 804
F.3d 202, 229 (2d Cir. 2015) (finding Google's unauthorized display
of snippets of copyrighted works as part of a searchable index was
fair use).
\27\ Fox News Network, LLC v. TVEyes, Inc, 883 F.3d 169, 180-81
(2d Cir. 2018); see also MidlevelU, Inc. v. ACI Information Grp.,
989 F.3d 1205, 1222-23 (11th Cir. 2021) (denying judgment as a
matter of law on fair use defense where aggregated index of blog
content also allowed users to view full text of articles without
navigating to the original source); Associated Press v. Meltwater
U.S. Holdings, Inc., 931 F. Supp. 2d 537, 545 (S.D.N.Y. 2013)
(finding news monitoring service's reproduction and distribution of
excerpts of online news articles was not fair use). Cf. Video
Pipeline, Inc. v. Buena Vista Home Entmt., 342 F.3d 191, 200 (3d
Cir. 2003) (rejecting fair use defense of a service that compiled
movie clips into a commercial database of movie trailers).
\28\ See, e.g., Jeffrey A. Trachtenberg and Keach Hagey, Google
to Pay News Corp for Access to Its Publications' Content, Wall
Street J. (Feb. 17, 2021), https://www.wsj.com/articles/google-to-pay-news-corp-for-access-to-its-publications-content-11613592397
(reporting three-year licensing deal between Google and News Corp.);
Benjamin Mullin and Sahil Patel, Facebook Offers News Outlets
Millions of Dollars a Year to License Content, Wall Street J. (Aug.
8, 2019), https://www.wsj.com/articles/facebook-offers-news-outlets-millions-of-dollars-a-year-to-license-content-11565294575 (reporting
that Facebook was seeking licenses from news outlets for proposed
news section).
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B. ``Hot News'' Misappropriation
Separate from copyright, U.S. press publishers have at times
asserted ``hot news'' misappropriation claims to protect against the
taking of their time-sensitive news items. This cause of action,
established by the Supreme Court in International News Service v.
Associated Press \29\ during World War I, bars free riding on a
competitor's investment at the moment in time when the competitor was
poised to reap the rewards.\30\ Because International News Service was
based on no-longer extant federal common law \31\ and pre-dated the
1976 Copyright Act and modern First Amendment jurisprudence,\32\ this
tort's continued viability is unclear. In one of the first modern cases
to consider a hot news misappropriation claim under New York state law,
the Second Circuit in NBA v. Motorola held that only a narrow version
of the theory survived preemption by the Copyright Act.\33\ Indeed,
most courts faced with hot news misappropriation claims since Motorola
have found them to be either preempted or insufficiently proven.\34\
For example, in Barclays Capital, Inc. v. Theflyonthewall.com, Inc.,
the Second Circuit held that the Copyright Act preempted a hot news
misappropriation claim under New York law based on the defendant's
publication of plaintiff's time-sensitive stock recommendations,
notwithstanding the fact that the recommendations at issue may not have
been copyrightable.\35\ This holding suggests that even if a hot news
misappropriation claim could be brought against a news aggregator, it
would face a significant hurdle in avoiding preemption by the Copyright
Act.
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\29\ 248 U.S. 215 (1918).
\30\ Int'l News Serv. v. Associated Press, 248 U.S. 215, 230-31
(1918).
\31\ See United States Copyright Office, Report on Legal
Protections for Databases 82 (1997), https://www.copyright.gov/reports/db4.pdf (noting abrogation of federal common law generally
by the Supreme Court in Erie R.R. v. Tompkins, 304 U.S. 64, 78
(1938)).
\32\ See Abrams v. United States, 250 U.S. 616 (1919); Schenck
v. United States, 249 U.S. 47 (1919).
\33\ 105 F.2d 841, 845 (2d Cir. 1997) (limiting hot news claims
to cases where: ``(i) a plaintiff generates or gathers information
at a cost; (ii) the information is time-sensitive; (iii) a
defendant's use of the information constitutes free-riding on the
plaintiff's efforts; (iv) the defendant is in direct competition
with a product or service offered by the plaintiffs; and (v) the
ability of other parties to free-ride on the efforts of the
plaintiff or others would so reduce the incentive to produce the
product or service that its existence or quality would be
substantially threatened.''); see also id. at 853 (explaining that
the ``extra elements'' needed for a hot news claim to survive
preemption are ``(i) the time-sensitive value of factual
information, (ii) the free-riding by a defendant, and (iii) the
threat to the very existence of the product or service provided by
the plaintiff'').
\34\ See, e.g., Brantley v. Epic Games, Inc., 463 F. Supp.3d
616, 626 (D. Md. 2020); IPOX Schuster, LLC v. Nikko Asset Mgmt. Co.,
304 F. Supp. 3d 746, 757 (N.D. Ill. 2018); Thousand Oaks Barrel Co.
v. Deep S. Barrels LLC, 241 F. Supp. 3d 708, 725 (E.D. Va. 2017)
(holding Virginia does not recognize the tort of hot news
misappropriation); Scrappost, LLC v. Peony Online, Inc., No. 14-
14761, 2017 WL 697028, at *8 (E.D. Mich. Feb. 22, 2017); World Chess
US, Inc. v. Chessgames Servs. LLC, No. 16 CIV. 8629 (VM), 2016 WL
7190075, at *4 (S.D.N.Y. Nov. 22, 2016); Ste. Genevieve Media, LLC
v. Pulitzer Mo. Newspapers, Inc., No. 1:16 CV 87 ACL, 2016 WL
6083796, at *5 (E.D. Mo. Oct. 18, 2016). But see Dow Jones & Co. v.
Real-Time Analysis & News, Ltd., No. 14-CV-131 (JMF)(GWG), 2014 WL
4629967, at *7 (S.D.N.Y. Sept. 15, 2014), report and recommendation
adopted, No. 14-CV-131 (JMF)(GWG), 2014 WL 5002092 (S.D.N.Y. Oct. 7,
2014) (granting damages on plaintiff's hot news misappropriation
claim).
\35\ 650 F.3d 876, 902 (2d Cir. 2011). Applying the NBA v.
Motorola factors, the court found: (i) The recommendations were
works of authorship within the general subject-matter of the
Copyright Act; (ii) plaintiff's alleged ``hot news'' right in the
recommendations could be violated by copying and distribution that,
on their own, would violate the Copyright Act; and (iii) there was
no evidence that the defendants were ``free-riding'' in the sense
previously recognized in hot news cases. Id.
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III. International Developments
Citing concerns for the continued viability of their news
industries, several national and regional legislatures have considered
or enacted new forms of legal protection for press publishers in recent
years. These generally fall into one of two models: An extension of
copyright or copyright-like protections, or regulation of the terms of
competition and negotiation between the publishers and online
intermediaries.
A. Ancillary Copyright
In 2019, as part of the Directive on Copyright in the Single
Digital Market (``CDSM Directive''), the European Union required Member
States to grant press publishers an ``ancillary'' right in the content
of their press publications.\36\ The EU's approach took inspiration
from laws previously adopted in Germany and Spain. The German law,
enacted in 2013 and later invalidated on procedural grounds, provided
press publishers an exclusive right to make their work available to the
public for commercial purposes.\37\ The Spanish law, by contrast,
grants press publishers a non-waivable right of remuneration.\38\
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\36\ Directive 2019/790 of the European Parliament and of the
Council of 17 April 2019 on Copyright and Related Rights in the
Digital Single Market and Amending Directives 96/9/EC and 2001/29/
EC, 2019 O.J. (L 130) 92, 92-125, https://eur-lex.europa.eu/eli/dir/2019/790/oj. An ``ancillary'' or ``neighboring'' right is one that
does not belong to the author of the copyrighted work. See Meghan
Sali, What the Heck is Ancillary Copyright and Why Do We Call it the
Link Tax?, Open Media (May 5, 2016), https://openmedia.org/article/item/what-heck-ancillary-copyright-and-why-do-we-call-it-link-tax.
In this case, the term ``ancillary copyright'' arises because press
publishers are not the authors of the news materials at issue, but
will nonetheless have the right to authorize or prohibit certain
uses of the materials.
\37\ See European Parliament, Policy Department for Citizens'
Rights and Constitutional Affairs, Strengthening the Position of
Press Publishers and Authors and Performers in the Copyright
Directive 14 (2017) (providing an English translation of the German
press publisher statute), https://op.europa.eu/en/publication-detail/-/publication/9f45daff-c437-11e7-9b01-01aa75ed71a1/language-en/format-PDF/source-206447220. The law covered snippets, but did
not apply to individual words or ``very short text excerpts,'' or
mere linking. In 2019, the Court of Justice of the European Union
ruled the law was unenforceable for procedural reasons. See Jan
Bernd Nordemann & Stefanie Jehle (Nordemann), VG Media/Google:
German Press Publishers' Right Declared Unenforceable by the CJEU
for Formal Reasons--But It Will Soon Be Re-born, Kluwer Copyright
Blog (Nov. 11, 2019), http://copyrightblog.kluweriplaw.com/2019/11/11/vg-media-google-german-press-publishers-right-declared-unenforceable-by-the-cjeu-for-formal-reasons-but-it-will-soon-be-re-born/.
\38\ See Raquel Xalabarder, The Remunerated Statutory Limitation
for News Aggregation and Search Engines Proposed by the Spanish
Government: Its Compliance with International and EU Law (2014),
infojustice.org/wp-content/uploads/2014/10/xalabarder.pdf. In
response to the law, Google shut down Google News in Spain. Eric
Auchard, Google to Shut Down News Site in Spain Over Copyright Fees,
Reuters (Dec. 11, 2014), https://www.reuters.com/article/us-google-spain-news/google-to-shut-down-news-site-in-spain-over-copyright-fees-idUSKBN0JP0QM20141211. Both the law and Google News's shutdown
in Spain persist.
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[[Page 56725]]
Under Article 15 of the CDSM Directive, for two years following the
initial publication of press publications, publishers have the right to
authorize or prohibit third-party online service providers from
reproducing them or making them available to the public.\39\ This right
does not apply to: (i) Non-commercial uses by individual users; (ii)
hyperlinking to, without reproducing, news content; (iii) the use of
individual words or very short extracts; (iv) uses in works contained
in academic periodicals; (v) any uses otherwise permitted by EU
copyright law, such as the making of incidental copies as a result of
lawful transmissions or quotations for purposes of criticism or
commentary; or (vi) mere facts.\40\ Article 15 applies only to
``journalistic publications,'' and not to ``websites, such as blogs,
that provide information as part of an activity that is not carried out
under the initiative, editorial responsibility and control of a service
provider, such as a news publisher.'' \41\ This focus on news
publishers as the beneficiaries resulted from a public consultation
``on the role of publishers in the copyright value chain'' more
broadly.\42\
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\39\ See Directive 2019/790, of the European Parliament and of
the Council of 17 April 2019 on Copyright and Related Rights in the
Digital Single Market and Amending Directives 96/9/EC and 2001/29/
EC, art. 15(4), 2019 O.J. (L 130) 92, 92-125, https://eur-lex.europa.eu/eli/dir/2019/790/oj.
\40\ See Directive 2019/790, of the European Parliament and of
the Council of 17 April 2019 on Copyright and Related Rights in the
Digital Single Market and Amending Directives 96/9/EC and 2001/29/
EC, art. 15(1-4), 2019 O.J. (L 130) 92-125, https://eur-lex.europa.eu/eli/dir/2019/790/oj.
\41\ Directive 2019/790, of the European Parliament and of the
Council of 17 April 2019 on Copyright and Related Rights in the
Digital Single Market and Amending Directives 96/9/EC and 2001/29/
EC, 2019 O.J. (L 130) 92, 104, https://eur-lex.europa.eu/eli/dir/2019/790/oj.
\42\ See European Commission, Public Consultation on the Role of
Publishers in the Copyright Value Chain and on the `Panorama
Exception', European Commission, https://ec.europa.eu/eusurvey/runner/Consultation_Copyright?surveylanguage=EN#page1 (last visited
Aug. 11, 2021).
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EU Member States had until June 7, 2021 to fully implement the
CDSM. To date, Article 15 has been implemented by France, the
Netherlands, Hungary, Germany, Malta, and Denmark.\43\ The European
Commission has commenced legal proceedings against other member states
for failing to implement the CDSM by the deadline.\44\
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\43\ See DSM Directive Implementation Tracker, Communia (last
visited July 28, 2021), https://www.notion.so/DSM-Directive-Implementation-Tracker-361cfae48e814440b353b32692bba879. Italy has
adopted a ``delegation law'' implementing the CDSM. As noted above,
Spain has a press publisher's law that predates, but is in some
respects inconsistent with, Article 15 of the CDSM. French law
requires news aggregators to share with publishers data on how
readers use the reproduced press material. Loi 2019-775 du 24
juillet 2019 tendant [agrave] cr[eacute]er un droit voisin au profit
des agences de presse et des [eacute]diteurs de presse [Law 2019-775
of July 24, 2019 on the Creation of Neighboring Rights for the
Benefit of Press Agencies and Publishers], Journal Officiel de la
R[eacute]publique Fran[ccedil]aise [J.O.][Official Gazette of
France], July 26, 2019; Diana Passinke, An Analysis of Articles 15
and 17 of the EU Directive on Copyright in the Digital Single
Market: A Boost for the Creative Industries or the Death of the
internet? (Stanford-Vienna Eur. Union L. Working Paper No. 49,
2020), http://ttlf.stanford.edu. These laws have continued to
provoke controversy. Shortly before France's implementing law became
effective, Google announced that it would no longer display snippets
of results from European press publishers as part of search results
in France, unless a publisher opts in to the display free of charge.
French press publisher unions sued Google, and France's competition
authority declared that Google would have to negotiate remuneration
to press publishers in good faith. See Natasha Lomas, France's
Competition Watchdog Orders Google to Pay for News Reuse, TechCrunch
(Apr. 9, 2020), https://techcrunch.com/2020/04/09/frances-competition-watchdog-orders-google-to-pay-for-news-reuse/. Google
has since signed contracts with several French publishers. See Tom
Hirche, Google Signs Contracts with a Handful of French Publishers,
IGEL (Nov. 24, 2020), https://ancillarycopyright.eu/news/2020-11-24/google-signs-contracts-handful-french-press-publishers. In July of
2021, France's competition authority fined Google over $500 million
for failure to negotiate in good faith. See Associated Press, France
Fines Google $592M in a Dispute Over Paying News Publishers for
Content, NPR (Jul. 13, 2021), https://www.npr.org/2021/07/13/1015596060/france-fines-google-592m-in-a-dispute-over-paying-news-publishers-for-content.
\44\ See Most EU Countries Not Enacting Copyright Laws, Portugal
News (Jul. 26, 2021), https://www.theportugalnews.com/news/2021-07-26/most-eu-countries-not-enacting-new-copyright-laws/61315.
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B. Competition Law
The second, competition-law-based approach to addressing the
relationship between news publishers and online intermediaries can take
many forms,\45\ but the most-discussed initiative has been Australia's
mandatory bargaining law. In 2021 Australia passed a law requiring
Google and Facebook, specifically, to negotiate with press publishers
over compensation for the value the publishers' stories generate on the
two companies' platforms.\46\ Any news organization can notify Google
or Facebook of its intent to bargain under the law.\47\ Compensation
terms may account for the value the publisher derives from Google's or
Facebook's use of its material--in other words, Google can argue that
its royalty rate should be lower because it drives traffic to the
publisher's site.\48\ If, after three months of bargaining, the parties
have not reached an agreement, an arbitration panel makes a binding
decision on the rate of remuneration.\49\ Because Australia's law is
not copyright-based, the bargaining right applies to all news content,
including headlines and snippets, not just material protected by
copyright.\50\
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\45\ For example, in the United States, the proposed Journalism
Competition and Preservation Act of 2021 would create a four-year
safe harbor from antitrust laws for print, broadcast, or digital
news companies to collectively negotiate with online content
distributors. S. 673, 117th Cong. sec. 2 (2021).
\46\ Treasury Laws Amendment (News Media and Digital Platforms
Mandatory Bargaining Code) Bill 2021 (Cth) (Austl.), https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r6652_aspassed/toc_pdf/20177b01.pdf. The law also included a set of
minimum standards for providing advance notice of changes to
algorithmic ranking and presentation of news.
\47\ Treasury Laws Amendment (News Media and Digital Platforms
Mandatory Bargaining Code) Bill 2021 (Cth) (Austl.), https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r6652_aspassed/toc_pdf/20177b01.pdf.
\48\ Treasury Laws Amendment (News Media and Digital Platforms
Mandatory Bargaining Code) Bill 2021 (Cth) (Austl.), https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r6652_aspassed/toc_pdf/20177b01.pdf.
\49\ Treasury Laws Amendment (News Media and Digital Platforms
Mandatory Bargaining Code) Bill 2021 (Cth) (Austl.), https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r6652_aspassed/toc_pdf/20177b01.pdf.
\50\ Treasury Laws Amendment (News Media and Digital Platforms
Mandatory Bargaining Code) Bill 2021 (Cth) (Austl.), https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r6652_aspassed/toc_pdf/20177b01.pdf. Opponents of Australia's
approach, including Google, have argued that it rests on a
misunderstanding of the economic forces affecting press publishers
and undermines the ``principle of unrestricted linking between
websites.'' \50\ Mel Silva, Mel Silva's Opening Statement to the
Senate Economics Committee Inquiry, Google: The Keyeword (Jan. 22,
2021), https://blog.google/around-the-globe/google-asia/australia/mel-silvas-opening-statement/. Facebook initially protested the law
by blocking news sharing in Australia, but restored service after
Australia amended the law to include a two-month mediation period
and to accommodate pre-existing deals between Facebook and news
publishers. Elizabeth Dwoskin, Facebook, Australia Reach Deal to
Restore News Pages After Shutdown, Wash. Post (Feb. 23, 2021),
https://www.washingtonpost.com/technology/2021/02/22/facebook-news-australia-deal/; see also Kelly Buchanan, Australia: New Legislation
Establishes Code of Conduct for Negotiations between News Media and
Digital Platforms over Payments for Content, Libr. Congress: Global
Legal Monitor (Feb. 26, 2021), https://www.loc.gov/law/foreign-news/article/australia-new-legislation-establishes-code-of-conduct-for-negotiations-between-news-media-and-digital-platforms-over-payments-for-content/.
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Subjects of Inquiry: The Copyright Office seeks public input,
including empirical data where available, on the issues described
above. In particular, the Office invites written comments on three
issues: (i) The effectiveness of current protections for press
publishers under U.S. law; (ii) whether additional protections for
press publishers are desirable and, if so, what the scope of any such
protections should be; and (iii) how any new protections for press
publishers in the United States would relate to existing rights,
exceptions and limitations, and international treaty obligations.
[[Page 56726]]
A party choosing to respond to this Notice of Inquiry need not
address every issue, but the Office requests that responding parties
clearly identify and separately address each question for which they
submit a response. The Office also requests that responding parties
identify their affiliation and the factual or legal basis for their
responses.
The Effectiveness of Current Protections for Press Publishers
(1) Copyright ownership of news content.
(a) For a given type of news publication, what is the average
proportion of content in which the copyright is owned by the publisher
compared to the proportion licensed by the publisher on either an
exclusive or non-exclusive basis?
(b) For content in which the press publisher owns the copyright,
what is typically the basis for ownership: Work-for-hire or assignment?
(2) Third-party uses of news content.
(a) Under what circumstances does or should aggregation of news
content require a license? To what extent does fair use permit news
aggregation of press publisher content, or of headlines or short
snippets of an article?
(b) Are there any obstacles to negotiating such licenses? If so,
what are they?
(c) To what extent and under what circumstances do aggregators seek
licenses for news content?
(d) What is the market impact of current news aggregation practices
on press publishers? On the number of readers? On advertising revenue?
(e) Does the impact of news aggregation vary by the size of the
press publisher, or the type of content being published (e.g., national
or local news, celebrity news)? If so, how?
(f) Do third-party uses of published news content other than news
aggregation have a market impact on press publishers? What are those
uses and what is the market impact? Do such uses require a license or
are they permitted by fair use?
(3) Existing non-copyright protections for press publishers.
(a) What non-copyright protections against unauthorized news
aggregation or other unauthorized third party uses of news content are
available under state or federal law in the United States? To what
extent are they effective, and how often are they relied upon?
The Desirability and Scope of Any Additional Protections for Press
Publishers
(1) To what extent do the copyright or other legal rights in news
content available to press publishers in other countries differ from
the rights they have in the United States?
(2) In countries that have granted ancillary rights to press
publishers, what effect have those rights had on press publishers'
revenue? On authors' revenue? On aggregators' revenues or business
practices? On the marketplace?
(3) In countries that have granted ancillary rights to press
publishers, are U.S. press publishers entitled to remuneration for use
of their news content? Would adoption of ancillary rights in the United
States affect the ability of U.S. press publishers to receive
remuneration for use of their news content overseas?
(4) Should press publishers have rights beyond existing copyright
protection under U.S. law? If so:
(a) What should be the nature of any such right--an exclusive
copyright right, a right of remuneration, or something else?
(b) How should ``press publishers'' be defined?
(c) What content should be protected? Should it include headlines?
(d) How long should the protection last?
(e) What activities or third party uses should the right cover?
(f) If a right of remuneration were granted, who would determine
the amount of remuneration and on what basis? Should authors receive a
share of remuneration, and if so, on what basis?
(5) Would the approach taken by the European Union in Article 15 of
the CDSM, granting ``journalistic publications'' a two-year exclusive
right for certain content, be appropriate or effective in the United
States? Why or why not?
(6) Would an approach similar to Australia's arbitration
requirement work in the United States? Why or why not?
(7) If you believe press publishers should have additional
protections, should these or similar protections be provided to other
publishers as well? Why or why not? If so, how should that class of
publishers be defined and what protections should they receive?
The Interaction Between Any New Protections and Existing Rights,
Exceptions and Limitations, and International Treaty Obligations
(1) Would granting additional rights to publishers affect authors'
ability to exercise any rights they retain in their work? If so, how?
(2) Would granting additional rights to press publishers affect the
ability of users, including news aggregators, to rely on exceptions and
limitations? If so, how?
(3) Would granting additional rights to press publishers affect
United States compliance with the Berne Convention or any other
international treaty to which it is a party?
Other Issues
(1) Please provide any statistical or economic reports or studies
on changes over time in the economic value of a typical news article
following the date of publication.
(2) Please provide any statistical or economic reports or studies
that demonstrate the effect of aggregation on press publishers or the
impact of protections in other countries such as those discussed above
on press publishers and on news aggregators.
(3) Please identify any pertinent issues not mentioned above that
the Copyright Office should consider in conducting its study.
Dated: October 5, 2021.
Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.
[FR Doc. 2021-22077 Filed 10-8-21; 8:45 am]
BILLING CODE 1410-30-P