Over the past few months, Public Knowledge has watched closely for developments about the Journalism Competition & Preservation Act (JCPA), a legislative proposal to allow publishers to collectively bargain for payment from Google and Facebook for linking to news stories. Public Knowledge has a long history of advocacy for a vital and healthy free press, but we have significant concerns about the JCPA. (For the full description of our concerns about the JCPA, you can read this post. For a description of better policy proposals Public Knowledge has supported to help local journalism, read this one.)
A new development over the past few weeks has increased our concern that the JCPA, and particularly what would be required to enact it, would actually reduce free and open access to the internet, and the information available to citizens for civic engagement.
One of our concerns is that the law as drafted could be interpreted by courts to implicitly expand the exclusive rights that news publications enjoy in their material, beyond what any copyright owner has ever enjoyed. This would represent a major shift in copyright law (not to mention the nature of the internet, which is fundamentally built on links to content). If interpreted by courts in that way, the law would prevent internet users from linking to or sharing news articles on digital platforms and websites without some sort of payment, which would limit the availability of credible information online. Another possibility is the JCPA simply wouldn’t work, and there’d be a call for another new law with more explicit protections for news content. Either way, the outcome – limiting access to news – would be the opposite of the goal of most efforts to ensure a healthy free press.
Many proponents of the JCPA denied that this was a risk, and further, denied that the law itself implied a new, so-called ancillary copyright for news publishers. Our concerns remained significant enough that we joined five other consumer advocacy groups in a letter urging Congress to amend the JCPA to clarify that the bill does not expand copyright or grant new substantive rights to article links, and that internet users will not have to pay to link to or share articles, including headlines and snippets of articles. We suggested that Congress incorporate a savings clause – we even drafted one – that would make it clear that copyright protections wouldn’t be impacted by the law. Our assumption was that if a change in rights pertaining to news content wasn’t being contemplated, it would not be problematic to insert a clause to that effect.
The new development: a change in rights pertaining to news is being contemplated – but not in the JPCA itself.
Instead, it has taken the form of a notice and request from the U.S. Copyright Office, referring to “a public study to evaluate the effectiveness of current copyright protections for publishers in the United States”. The Office noted that a few Members of Congress (most notably, Senator Thom Tillis, Ranking Member of the Senate IP Subcommittee), in their letter requesting the study, had pointed to a recent European Union directive establishing “ancillary copyright” protections for press publishers. The Office will “consider whether or not similar protections are warranted in the United States, as well as the potential scope, source, and appropriate beneficiaries of any such protections.” They will include in their review “the potential impact of such protections on users, including news aggregators [emphasis ours], and the interaction between ancillary copyright and the United States’ international treaty obligations.”
This seems like pretty strong evidence that proponents of the JCPA, including some in Congress, are well aware that IP rights for news are required to give the legislation any teeth – and that they are determined to obtain copyright protections for news links and snippets.
The need for an ancillary copyright for news content in order to effectuate the JCPA was also discussed at a virtual public roundtable last week sponsored by the Office of Policy and International Affairs (Public Knowledge participated). At the roundtable, Dr. Ole Jani, an expert in copyright and media law speaking on behalf of the private equity firm KKR and its media and tech company Axel Springer, said, “better bargaining power [achieved through the JCPA] is of no value if there is nothing to bargain about, right? And if you have no enforceable rights, and if you don’t have any specificity on your assets and on your property, if people can just use it, there is no bargaining situation in the first place”. Dr. Jani goes on to note that the initiatives have to go hand in hand: first legal protection for the assets, and only then, a legal framework for balanced bargaining. This is how it was done in the European Union, he noted: first a “copyright step”, then a “competition step” (links to be provided when roundtable notes are available). In their written comments Axel Springer reiterated, “This can only be accomplished by way of introducing new rights for press publishers. And this is a question of changing the laws, not about applying existing laws”.
In its own 176-page set of comments to the Copyright Office, the News Media Alliance (NMA), the primary U.S. news organization lobbying for the JCPA, described its “uncertainty” regarding the scope of protections for news content under current copyright law. They essentially asked the Copyright Office to clarify whether they have such rights (a role assigned to courts, not the Copyright Office). Further, in the roundtable described above, NMA denied asking for a change in copyright law. But its argument that major news aggregators already infringe copyright is implausible. The NMA also asked the US Copyright Office to look to the European Union Directive on Copyright as a model for how American publishers could get paid for the consumption of their content in the EU – essentially pointing to a brand new right of the sort NMA claims is unnecessary in the US.
So we’re sorry, but we have to say “we told you so” about the JCPA – again. (In this previous post, we described how small publishers are struggling for a seat at the table for negotiations in Australia and France, which validated one of our other concerns).
For over a decade, Public Knowledge has advocated against too readily looking to copyright law as a tool to solve the problems faced by the journalism industry. There were and are multiple drivers for the financial downturn in news, and changing copyright law is the wrong way to address most of them. It risks undermining the open nature of information on digital platforms and elsewhere on the internet. A negotiation based on intellectual property rights will invariably favor and entrench the largest players.
And if the principle becomes established in law, we can expect it to expand, undermining the free and open access that makes the internet such an important medium of information, speech and civic engagement. It is a logical next step that individual internet users and smaller companies (not just dominant platforms like Google and Facebook) will see copyright demands placed on their linking and sharing of content based on an expanded ancillary copyright.
We acknowledge the market power of the dominant platforms and actively advocate for policy solutions that address it directly, like antitrust enforcement, competition policy, national privacy regulation, a dedicated digital regulator, and a Superfund for the Internet funded by a user fee from large platforms. But as Public Knowledge has written before, we need a public interest approach to news rather than one that reinforces every existing market failure in both the news business and the digital advertising business.