Not Big, If True: Congress’s Proposed Changes Fail to Solve the Fundamental Problems with the JCPA

This month, The Wall Street Journal and Politico reported on new amendments to the Journalism Competition & Preservation Act. Unfortunately, the reported changes do nothing to address the harms of the bill, and may make them even worse.

Good journalism standards call for a reporter to have at least two sources for factual information before reporting a story. It’s on that basis that we’re writing this post to express our continued concerns about the Journalism Competition & Preservation Act (JCPA) making its way through Congress. 

On April 5, The Wall Street Journal reported (note: paywall) that a significant amendment to the JCPA is making its way through both houses of Congress. The current version of the bill, which we’ve criticized here and here and here, proposes to create a four-year “safe harbor” from antitrust law, allowing print, broadcast, and digital news companies to band together to negotiate compensation terms for their news stories with the largest online platforms. A day later, Politico’s Morning Tech newsletter reported (note: also paywalled content) that they had seen a revised draft and recapped what is new about it. Unfortunately, the sponsors have not released the language of their amendments and changes for the public to see yet, so all the public has to go on right now are reports from news outlets who also may benefit from the bill.

Taken together, the reports do nothing to address the concerns we’ve articulated about the bill. In fact, they may make them worse. One reported change – which, among others, had been rumored for weeks – would introduce a version of the same baseball-style arbitration process that exists in the Australian bargaining code upon which the JCPA is modeled. If publishers and tech giants can’t come to an agreement on payment for content after six months, publishers could initiate “final offer” arbitration, under which an arbitrator panel chooses one side’s final offer to settle the dispute. This provision, coveted by advocates for the bill, was intended to force and keep tech platforms at the negotiating table. 

Another proposed change to the bill is the addition of nondiscrimination provisions designed to ensure that size or viewpoint is not a constraint to participation or outcomes of the joint negotiations. This appears designed to address concerns expressed in hearings that conservative outlets might be disadvantaged in the negotiations. Another reported change is an extension of the antitrust exemption from four to ten years.

The last item mentioned in news reports was an amendment that would restrict the ability to negotiate jointly to publications with less than 1,500 employees. It was reported that the purpose of the size limit is to focus on helping small and local outlets, instead of larger ones that have the leverage and scale to negotiate on their own. 

These changes, if true, are beside the point of our (and others’) original concerns about the JCPA. To be very clear: These changes fail to address our concerns and, if anything, reinforce them.

Platforms may be forced to arbitrate over access to news content, and one purpose of the bill is to expressly allow qualifying publishers to collectively withhold content from platforms. But it is not at all clear what this would mean in practice. As we have pointed out before, advocates of the bill claim that it creates no new intellectual property (or similar) rights. However, it is easy to see how a framework like this could be interpreted to give publishers the right to restrict users of platforms from doing things that do not require any form of “license” or permission, and which currently rightsholders have no right to prevent. These include activities considered fair use (like excerpts and quotations from articles) or activities that fall outside the scope of copyright entirely (like linking). That would compound our concerns about the upending of copyright law and consumers’ access to information. 

The language related to a size limit for publications negotiating jointly appears to refer to individual news brands that have their own websites or apps. It may force the very largest and most powerful brands like The New York Times, Washington Post, and The Wall Street Journal to bargain on their own, but it does nothing to keep other individual news outlets that are part of giant news conglomerates from banding together. In the case of broadcasters, that would mean each of the more than 290 stations owned by Sinclair would be treated as a news outlet. For newspapers, the same would be true of the over 200 newspapers owned by Alden Capital. The carve-out for the country’s largest news giants also doesn’t keep the next-largest outlets from dominating the negotiations. We learned and wrote about this based on experiments with similar aims in Australia and France.

As far as we know, the amended bill still has no requirements and provides no guarantees that the funds gained through collective bargaining will be used to hire or retain journalists. And an extension of an additional six years compounds the issues.

We’re hoping that the next step for Congress is to widen the circle of stakeholder consultation from media to civil society groups, at which point we may revisit these impressions. We hope Congress will do the same. After all, good reporters get the facts, then either scrap the story or make corrections.