[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

[[Page 56724]]

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