Bucking a legal trend in Europe, the United States Copyright Office recently recommended against adopting additional copyright-like protections for news publishers that would require online news aggregators to pay publishers for news content shared on their platforms.  In a report published on June 30, 2022, the Office found such protections to be unnecessary in light of copyright protections currently held by publishers in connection with their works, and noted that any change to U.S. copyright law that would increase publishers’ ability to block or seek compensation for the use of their works by news aggregators would “necessarily avoid or narrow limitations on copyright that have critical policy and Constitutional dimensions.”  Instead, the Office suggested that funding challenges faced by publishers would be better solved through other legal means, such as changes to competition law or tax policy.
The report issued by the Office was requested by a bipartisan group of United States Senators in May 2021 following a series of hearings on digital copyright law reform.  During those hearings, publishers expressed support for the adoption of certain ancillary copyright protections for news content in line with reproduction and distribution rights recently implemented in Europe. Specifically, publishers expressed concern that although the consumption of news content primarily through digital devices has reached wider audiences at lower costs, it has also caused publisher revenues to plummet while granting news aggregators a “free ride” on publishers’ investment in their original reporting and photographs.  News aggregators, on the other hand, argued that they provide value to publishers by delivering unique visitors to publishers’ sites, which publishers can monetize through digital advertising.
The Office found that granting publishers new rights similar to those passed in Europe would be unnecessary in light of the fact that, under the current U.S. copyright scheme, publishers have ownership rights in the content they publish; thus, they already enjoy many of the protections offered by the new EU legislation.  Further, the Office noted that any new rights would likely be ineffective without a change in the underlying competitive landscape.  Publishers rely heavily on major aggregators for a significant percentage of their web traffic, which places them in a much weaker bargaining position vis-à-vis those news aggregators to negotiate favorable license agreements.
Accordingly, the Office recommended against ancillary copyright protections for publishers.  The Office noted that while other potential solutions discussed in its report fall outside the scope of its expertise, it remains committed to supporting the future of independent journalism and stands ready to assist should Congress seek to explore any non-copyright solutions to this pressing issue.
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