Google and Facebook receive tremendous value from news publishers’ original content and provide limited return for publishers to reinvest in delivering high-quality journalism. Despite repeated pledges to support journalism, the platforms have failed to make any fundamental changes that would result in fair market value returned to news publishers.
But with several legislative proposals currently before Congress to address antitrust and other concerns, as well as an important initiative underway at the Copyright Office to strengthen publishers’ protections online, there is hope that the market imbalance can be restored.
Developments in other parts of the world offer valuable blueprints for the U.S. For example, in 2019, the European Union (EU) adopted the Directive on Copyright in the Digital Single Market, which created an ancillary copyright for news publishers to receive payment from the Big Tech platforms for the use of their content. France became the first EU member state to transpose this right into national law. Since then, Google has been forced to negotiate with news publishers, with the national competition authority recently fining the company $593 million for failing to do so in good faith.
Inspired by Europe’s success, last year Congress asked the U.S. Copyright Office to study the feasibility of creating an ancillary copyright for news publishers in the United States. The News Media Alliance submitted public comments highlighting the need for swift action to better protect news publishers.
We believe targeted findings by the Copyright Office regarding the “fair use” defense to payment and the existence of market imbalances, as well as changes to registration procedures and documents, would place American publishers on more equal footing. The Copyright Office could also study or offer input on other issues that would require changes in legislation, including clarifying the law around substantial takings, studying the need for sui generis protection, as well as guidance or action on the use of news content for artificial intelligence applications. While not required to resolve the fundamental marketplace imbalance issues addressed by the Journalism Competition & Preservation Act (see below), these recommendations would help clarify U.S. publishers’ copyright protections going forward.
In addition, Congress is currently considering a bipartisan bill, the Journalism Competition and Preservation Act (JCPA), that would allow news publishers to collectively negotiate with the online platforms for fair compensation. While not about copyright (it would not alter the fundamental balance of copyright or competition law), this bill would help address the most pressing threats to high-quality journalism while minimizing government intervention. The bill is being expanded to include a negotiating framework that will ensure small and local publishers are equitably compensated.
Australia introduced similar legislation last year, and as a result, publishers of all sizes have reached deals with the online platforms. In addition, Canada has pledged to pass similar legislation this year.
With many efforts underway, now is the time to act to ensure that Congress does not lose momentum when we are so close to seeing real and meaningful changes that would help sustain high-quality journalism.
Danielle Coffey is executive vice president and general counsel for the News Media Alliance, representing 2,000 news media outlets worldwide. She leads the organization’s advocacy and strategy.
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