At the end of last month, the U.S. Copyright Office issued its Copyright Protections for Press Publishers report, examining the relationship between press publishers and news aggregators, applying copyright law cases and principles in the aggregated news content, and considering whether the United States should adopt a new ancillary right for press publishers to help better protect news content. While the report ultimately does not recommend adopting new ancillary rights for press publishers, it identifies major obstacles that make it difficult for press publishers to enforce their copyrights.
Importantly, the report makes clear that the evidence and comments suggested that the practice of aggregation is undermining markets for high-quality news. However, even after acknowledging the major obstacles news publishers face from aggregation and considering possible solutions for bolstering their ability to protect their content, the Office makes no material recommendations. Instead, the report concludes that many of the challenges facing press publishers may be better addressed through antitrust and competition reforms and simply says it’s “considering how to best address” the problem of a lack of a registration process for dynamic web content.
Report Finds That News Aggregation May Undermine Press Publishers’ Markets
In Part I of the report, the Office examines the effects of online news aggregation on press publishers and journalism. First recognizing that the internet has increased “access to high-quality journalism from around the globe,” the Office then notes that the internet’s broad reach has generally resulted in redirected ad revenues to internet and national ad networks, further cutting away at publishers’ traditional advertising models. The report further explains that such redirection has resulted in fewer opportunities for press publishers to cross-subsidize expensive reporting with services like sports box scores or movie showtimes, accelerating the “preexisting decline in newspaper circulation numbers.”
The report notes dissent among study participants—those that argue aggregated news content serves as a substitute for the original news content and those that claim aggregators provide great value to press publishers by driving readers to publishers’ websites (albeit, to specific articles and not a press publishers’ homepage). Recognizing that more empirical data is needed, the report admits that “even if aggregation services do not substitute for original publications, they may undermine the market for high-quality news.” While this conclusion is less than definitive, it’s based on substantial evidence and real-world examples provided by commenters.
Copyright Office Identifies Different Approaches to Addressing Aggregation, But Does Not Endorse Their Merits
In Part II of the report, the Office examines various international approaches to ancillary rights for press publishers, parsing the approaches into two categories—ancillary rights “that extend copyright or copyright-like protections and those that are based in competition law.”
The Office identifies Germany, Spain, and the European Union as the countries/regions that have proposed or implemented copyright law-style ancillary rights. Those ancillary rights either grant press publishers and authors the exclusive right to renumeration for news content or the exclusive right to make such content available, with various limitations and exceptions. The report also details the efforts of some countries to implement competition law-style ancillary rights for publishers, noting that France and Australia have used their antitrust authorities to effectuate negotiations between major platforms (Google and Facebook) and press publishers.
The report also details several non-copyright solutions proposed by commenters, such as an excise tax on digital advertising revenues. Recognizing that many commenters made strong and convincing arguments on the large impact and role of competition law could play in bolstering press publishers’ abilities to enforce their copyrights or negotiate meaningfully with aggregators, the Office ultimately defers to other federal agencies on the “merits of competition-based protections for press publishers” and did “not offer any findings or recommendations with respect to competition policy or alternative models for funding journalism.” While this deference may frustrate some stakeholders, it’s not entirely surprising given that the Office does not specialize in competition law and policy.
Report Finds that Despite Adequate Copyright Law Protection, Press Publishers Rights are Not Easily Enforced
The Office concludes that copyright law adequately protects press publishers’ rights in their news content through various copyright principles that guarantee the protection of news content, including article headlines, ledes, and short excerpts.The Office first notes that press publishers own the copyright in their textual news content (1) as a collective work or (2) through the work-made-for-hire doctrine, assignments of rights, or exclusive licenses. The report later relies on the existence of these rights to conclude that no U.S. ancillary right is needed since the justification for passage of the EU ancillary right was to grant press publishers similar ownership rights that they didn’t previously enjoy.
Copyright Limitations and Exceptions
The report then explores the familiar contours of several copyright law doctrines to analyze what parts of news content are and aren’t protected under copyright law.
- The Office finds that where an aggregator uses only headlines and ledes, it is less likely to reproduce the copyrightable expression of the news content and more likely to reproduce unprotectable ideas and facts (and thus, likely not infringing). However, the Office explains that headlines and ledes are not per se unprotectable because they may contain original expression protectable under copyright law. Further, the report warns that aggregation which includes an article’s “headline, lede, and accompanying photograph, for example, would ordinarily be a prima facie infringement of at least the photograph, regardless of whether the other elements contained protectable expression.”
- Though the Office finds that there is no case law applying the merger doctrine to news content, they state that “some headlines are close to bare statements of facts” and would be unprotectable under the merger doctrine. However, the Office also acknowledges that “different outlets often produce highly varied headlines for the same story,” stopping short of an overbroad and generalized suggestion that all headlines are per se unprotectable under the merger doctrine.
- The Office states that copyright protections for individual words, titles, and short phrases are limited as laid out in common law, and as spelled out in the Office’s Compendium and Circular 33 which states that the Office cannot register individual words or short phrases. The Office notes that “[s]hort phrases may be particularly vulnerable to merger with the underlying fact or idea” and that courts and some study participants were concerned about “locking up the ‘building blocks of creativity’” if such words/phrases are deemed protected by copyright.
- Lastly, the Office observes that aggregators generally seek to assert the server test defense to defend their practice of “in-line linking,” (whereby news content (headline, lede, photographs, etc.) are visible in the aggregator’s services, but hosted on the publishers’ server). However, the Office correctly observes that this judicially-created copyright limitation is not settled law, noting that courts in the Southern District of New York have started to reject this test.
Fair Use Guideposts for Aggregation of News Content
The Office notes that though “[c]ommenters did not agree on the extent to which fair use permits aggregation of news content” or whether “the scraping of headlines and lede sentences alone is  necessarily fair use,” there was a near consensus that “aggregation of large extracts or entire articles can exceed what is permitted.” The report analyzes various fair use cases involving aggregation and/or use of news content but misses some robust discussion on discussion of “qualitative taking” or use of a copyrighted work in its breakdown of factor three. Based on the case law analysis, the Office lays out several “guideposts” that may be applicable to the practice of aggregating news content.
The Office first notes that only “some, but not all, news aggregation is likely to qualify as fair use.” The report then goes on to state that news reporting purposes may weigh the use of the copyrighted work in favor of a fair use finding, but stops short of generalizing this guidepost by saying that courts would still analyze all the fair use factors regardless. While noting that several study participants pointed to the “allegedly transformative nature of linking and indexing,” the Office also states that incorporation of news materials into a searchable index could be considered “transformative” (under the first factor) in favor of a fair use finding. The Office lastly notes that an aggregator’s use of headlines and ledes alone covers a small percentage of the original news content (under the third factor) and that on occasion aggregated portions of the original work may not act as a substitute for the original work (under the first and fourth factors).
The Office states that when “aggregation provides a substitute that ‘satisfies most demand for the full original’ and decreases the resources available for original news reporting, this would cut against a finding of fair use.” The report goes on to discuss factors weighing against a fair use finding, including situations when an aggregator does not add anything to the original or further elaborate on the headlines and ledes being used in the aggregation—which would not serve a different purpose under the first fair use factor. The Office also acknowledged that widespread aggregation that significantly impedes the ability of press publishers to obtain payment for their protectable expressions would weigh against a finding of fair use.
Though the report mentions Harper & Row v. Nation Enterprises in relation to other fair use factors, it fails to fully analyze the critical “heart of the work” factor three test established by the Supreme Court case. Harper established the important principle that a qualitative taking, or a taking of the “heart” of a copyrighted work, would weigh heavily impact factor three of the fair use test (the amount and substantiality of the work being used) against a fair use finding. Strangely, the Office merely observes that a few commenters argued that headlines and ledes could be the “heart of news articles” and then dedicates just a few lines explaining that if the “aggregation provides a substitute that ‘satisfies most demand for the full original’ and decreases the resource available for original news reporting, this would cut against a finding of fair use.” It’s unclear why this crucial factor three analysis was given short shrift, especially since Harper involved news reporting and the publication of “newsworthy” content.
Copyright Office Does Not Recommend a New Copyright Ancillary Right for Press Publishers
Concluding that the new ancillary rights for press publishers are unnecessary, the Office finds that:
- Publishers in the U.S. have adequate rights and ownership to their news content (as detailed above through the work-made-for-hire doctrine and assignments), whereas publishers did not necessarily have rights or own their news content in the European Union, which was the basis for creating the publishers’ ancillary rights under EU’s Article 15.
- A new ancillary right in copyright law would not correct the apparent massive imbalances and disparities in the market in the bargaining power of Google and Facebook compared to the power of the press publishers.
- A new ancillary right, which does not have adequate free speech safeguards, would likely be subject to heightened First Amendment scrutiny. Because of the uncertainty over what form the ancillary right should take, the Office does not offer a view on what a hypothetical First Amendment challenge would look like, but that a challenge would be likely.
- There are uncertainties with the scope and requirements of the Berne Convention’s “quotation right” exception and whether aggregators’ activities qualify under the exception, which would lead to possible inconsistencies between an ancillary right and U.S. obligations under the treaty.
Further Steps the Copyright Office Can Take to Help All Creators
Though the Office has concluded its study on the issue of ancillary rights for press publishers, there is one crucial issue that study participants raised —that is the lack of a registration option for dynamic web content. As the agency tasked with facilitating registrations for creators, this is one area press publishers and other creators hoped the Office would have more meaningfully engaged in.
To enforce their rights, press publishers (and more generally, all creators) must be able to timely register their works. U.S. law requires that copyright owners register their works before suing for infringement in federal court, and timely registration is also ordinarily required for recovering statutory damages.
With the decline of print publications and a general shift in the creative community to digital mediums, press publishers now heavily rely on their websites to create and publish news content and drive readership. As such, press publishers frequently update their websites with new and updated content, some of which never appear in print or ePrint versions of the newspaper. However, there is currently no registration option that press publishers (or any other copyright owner) can use to register such dynamic content since the Office has deposit and best edition requirements that make it difficult for rapidly changing content to meet those requirements—even the group registration option for newspapers will not cover such content.
In the report, the Office acknowledges this gap in the registration system and states that it takes very seriously the difficulties press publishers face with enforcement of news content without the proper registration infrastructure. However, the Office declines to further opine or comment on the lack of such registration system and stated that it is “considering how best to address [these concerns] as part of its ongoing modernization initiative.” Especially with copyright owners and creators turning to digital means as a way of creating their works and exercising and enforcing their copyrights, it is crucial that the Office continue to examine ways to help copyright owners and creators register dynamic web content to protect the ability to enforce rights provided under the Copyright Act.
Though the Copyright Office ultimately does not recommend ancillary rights for press publishers, the study still illuminates the dire state of journalism in a digital environment where aggregators leverage their overwhelming market power to bully the press into giving creative news content at the press’ expense. But despite the study concluding, there are still other steps the Office can take to ensure the registration system provides meaningful enforcement for copyright owners. The Office should explore a registration option for dynamic web content, and the creative community stands willing and ready to provide input on the issue.
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