The Copyright Office, at the request of Congress, has initiated a study to examine the rights and protections of news publishers under copyright and related laws.  The Office issued a Notice of Inquiry seeking public comment on a variety of issues that could extend new protections to “press publishers” and perhaps other content creators that go beyond those accorded by traditional principles of copyright law.  The Office terms these protections “ancillary copyright protections.”  The Notice of Inquiry tees up several specific proposals for consideration, asks many specific questions, and solicits additional ideas that should be considered to protect publishers.  Comments are due November 26, 2021.  The Copyright Office will also hold a virtual public roundtable on December 9 to consider these issues.  This study could have an impact both on traditional media outlets who produce content, and on digital media that shares those comments.

The impact of digital media on traditional publishers of content – especially news content – was the trigger for this review.  The Notice begins with a recitation of the financial impact that the growth of the internet has had on newspapers and other publishers (“publication” under the Copyright Act is the distribution of a copy or recording of a work to the public by sale, rental, lease, or lending.  While a pure public performance does not constitute publication, digital subscription services and similar on-demand uses of content would likely fit within this definition).  In its opening paragraphs, the Notice focuses on digital “news aggregators” and their impact on publishers.  The Notice takes a broad view of the term aggregator – talking not just of headline clipping sites devoted to specific topics, but also to broader digital media sites like Facebook and Google that feature content from a variety of other sources.  While recognizing that aggregators can drive traffic to publisher’s digital content, the Copyright Office seeks comment on whether these aggregators also harm publishers by sending traffic only to specific articles and not to an index or home page for a publisher where a viewer might be inclined to view more content (and perhaps more of the publisher’s own ads).  From that opening discussion of news aggregators, the Notice looks at possible “ancillary” rights that may assist publishers in overcoming any negative impact of aggregators. These are discussed below.

Under current copyright law, the publisher of any news content has a right to control the distribution or reproduction of the articles or other media that it produces.  But that right covers only the actual written text of an article or the contents of a video or other expression of the publisher and its employees. Traditional copyright does not extend to the general facts or information conveyed in any publication – but instead just to the publisher’s expression of those facts.  The protections don’t traditionally apply to headlines, nor do they apply to a snippet of information that in a general way describes the content of an article.  And these rights are subject to exceptions provided under the Act, including fair use.

The Notice asks whether these traditional protections should be expanded.  Should headlines be covered by copyright laws?  From time to time courts have suggested that there might be a “hot news” right – where a competitor cannot “free ride” on the work of a publisher who spent time and money to develop a time-sensitive news report.  This right has been recognized in only some states and in a few cases.  The Notice asks whether that right should be recognized more generally and even expanded.  The Notice also asks if the application of the “fair use” doctrine, which has allowed descriptions of articles or even small, low-resolution pictures from an article to be used on an indexing site without permission of the copyright holder, should be further limited.

The Notice then asks for comments on broader rights recognized in Europe and Australia for publishers to have the right to block the use of their products by digital media sites, or to be compensated for that use. The Australian proposal would allow collective bargaining by publishers with digital media operators over compensation and, in situations where a voluntary agreement cannot be reached, a government panel would hear evidence and arrive at a fair compensation for the use of the content by the digital media sites.  We wrote about that law, and a Congressional proposal for US adoption of a limited version of that right to collectively negotiate, in an article here.

The Notice ends with a series of questions about these issues – including asking for comments on the impact that digital media has had on press publishers, the ability of those publishers to protect their works with current copyright protections, and what other protections would be helpful.  If new rights are established, what kinds of content should they cover?  Should they be limited just to news – or extend to other content as well?  How long should any such protection last, and how could such protections be implemented?  These and a host of other issues are raised by these questions – and the Copyright Office asks for economic analysis to support comments that are filed.

This broad inquiry could impact not just traditional print publications, but also any producer of content – including broadcasters.  It could also impact any company that operates a digital media site that features content that in any way originates with some other company.  In fact, any expansion of the “hot news” protections could impact the practices in many newsrooms in various electronic media – not just newer digital media sites – as there could be limitations on reporting on breaking news stories developed by other publishers, potentially restricting the flow of information to the public.  Any restrictions on fair use are usually controversial as well.  This is an extremely broad inquiry with many possible ramifications – and interested parties have a month to put together comments.

Watch as this far-reaching proposal is considered by the Copyright Office. The office itself does not have the legal authority to enact any rules that could implement changes proposed in response to the Notice – but it can suggest changes to Congress.  Many changes in copyright law have originated in proceedings such as this one (though there have also been many similar proceedings that have not led to any legislation being adopted).  But certainly this proceeding provides a forum to raise and vet ideas that will be considered in other branches of government, so this is an important proceeding to watch.   For more information about filing comments, see the Copyright Office’s webpage on the Notice, here.