Copyright Protections for Press Publishers

united states copyright office

for Press Publishers

A RepoRt of the RegisteR of CopyRights june 2022

for Press Publishers

A RepoRt of the RegisteR of CopyRights june 2022

united states copyright office

The Honorable Thom Tillis

Ranking Member

Subcommittee on Intellectual Property

United States Senate

113 Dirksen Senate Office Bldg.

Washington, D.C. 20510

The Honorable John Cornyn

Subcommittee on Intellectual Property

United States Senate

517 Hart Senate Office Bldg.

Washington, DC 20510

The Honorable Amy Klobuchar

Chair

Subcommittee on Competition Policy,

Antitrust, and Consumer Rights

United States Senate

425 Dirksen Senate Office Bldg.

Washington, DC 20510

The Honorable Patrick Leahy

Chair

Subcommittee on Intellectual Property

United States Senate

437 Russell Senate Office Bldg.

Washington, D.C. 20510

The Honorable Mazie K. Hirono

Subcommittee on Intellectual Property

United States Senate

109 Hart Senate Office Bldg.

Washington, DC 20510

The Honorable Christopher A. Coons

Subcommittee on Intellectual Property

United States Senate

218 Russell Senate Office Bldg.

Washington, DC 20510

June 30, 2022

Dear Senators Leahy, Tillis, Hirono, Cornyn, Klobuchar, and Coons:

On behalf of the United States Copyright Office, I am pleased to deliver a copy of a report

entitled Copyright Protections for Publishers, which is available to the public on the Office’s

website.

Following a series of hearings on reforms to digital copyright law, you requested that the

implemented in Europe, that would require online news aggregators to pay publishers

for excerpts of content they provide for others to view.

In response to your request, the Office solicited the views of interested stakeholders via

the Federal Register and held a public roundtable to enable stakeholders to explain their

positions. The Office received comments from press publishers’ and authors' groups who

assert that news aggregators "free ride" on publishers' investment in original reporting.

In contrast, internet platforms, libraries, and users’ rights groups assert that aggregators

provide significant value to news publishers and to the public at large. These sets of

stakeholders disagree on how far copyright law permits aggregation of news headlines

and snippets. At the same time, both groups emphasize that they see the challenges

publishers face as more a matter of competition policy than copyright. The Office also

conducted extensive research into the legal standards governing news aggregation,

including both domestic copyright law and international treaty obligations.

After carefully evaluating the information provided, the Office does not recommend

adopting additional copyright-like rights for press publishers in the United States. We

have concluded that ancillary copyright protections have not been shown to be necessary

in light of publishers' existing rights, and would likely be ineffective so long as publishers

depend on news aggregators for discoverability. Moreover, to the extent that any

ancillary copyright protections would lack traditional copyright limitations and

exceptions, they would raise significant policy and Constitutional concerns.

The Office nevertheless continues to believe that the challenges facing journalism are

worthy of congressional attention. Stakeholders suggested a range of alternative

approaches Congress could pursue, from antitrust reform to tax policy. The Office leaves

assessment of these proposals to experts in the relevant fields but stands ready to assist

on any copyright-related issues.

Please do not hesitate to let me know if you have any questions regarding the report.

Respectfully,

Shira Perlmutter

U.S. Copyright Office

Enclosure

ACKNOWLEDGMENTS

I am pleased to deliver this Report addressing the issue of copyright protections for press

publishers in the digital age. The Report is the outcome of substantial work by many people

within the U.S. Copyright Office, in particular, in the Office of Policy and International Affairs.

Andrew Foglia and Chris Weston, Senior Counsels for Policy and International Affairs, along

with Melinda Kern, Barbara A. Ringer Copyright Honors Program Fellow, served as principal

authors.

Also critical to the success of this Report was the expertise of Kimberley Isbell, Deputy Director

of Policy and International Affairs, as well as the research assistance of Keyana Pusey, Barbara

A. Ringer Copyright Honors Program Fellow, and Law Clerks Narae Choi, Clara Dagenais,

Chris McMillan, Brandon Tuell, and Rachael Williams.

Suzanne Wilson, General Counsel and Associate Register of Copyrights, Jordana Rubel,

Assistant General Counsel, Jalyce Mangum, Attorney-Advisor, Robert J. Kasunic, Associate

Director of Registration Policy & Practice also contributed important insights. And from start to

finish, the entire staff in the Office of Policy and International Affairs and the Office of Public

Information and Education provided invaluable assistance.

Finally, I appreciate the essential contributions of the many individuals and organizations who

participated in the Roundtable and provided comments.

Shira Perlmutter

U.S. Copyright Office

U.S. Copyright Office    Copyright Protections for Press Publishers  
 
1 
 
TABLE OF CONTENTS 
 
I.  INTRODUCTION AND STUDY HISTORY ................................................................................. 5 
II.  BACKGROUND .................................................................................................................................. 7 
A.  The Internet and Press Publishers .................................................................................................. 7 
B.  The Rise of News Aggregators ...................................................................................................... 11 
III. RECENT COPYRIGHT AND COMPETITION LAW APPROACHES .................................. 17 
A.  International Adoptions of Ancillary Copyright ...................................................................... 17 
1.  Germany ........................................................................................................................................ 17 
2.  Spain .............................................................................................................................................. 20 
3.  European Union ........................................................................................................................... 22 
B.  Competition Law Approaches ...................................................................................................... 23 
1.  Australia ........................................................................................................................................ 24 
2.  France ............................................................................................................................................ 26 
3.  JCPA............................................................................................................................................... 27 
C.  Other Proposals .............................................................................................................................. 28 
IV. FINDINGS AND RECOMMENDATIONS ................................................................................. 29 
A.  Existing Protections for Press Publishers in the United States .............................................. 29 
1.  Copyright Protection for News Content .................................................................................. 29 
a)  Protectability ............................................................................................................................ 30 
(1)  Facts and Ideas ................................................................................................................... 30 
(2)  Merger ................................................................................................................................. 33 
(3)  Short Phrases ...................................................................................................................... 34 
b)  Fair Use ..................................................................................................................................... 37 
c)  The Server Test ........................................................................................................................ 45 
2.  Other Existing Protections for News Content ......................................................................... 46 
B.  Other Issues Raised by Commenters ........................................................................................... 48 
1.  Bargaining Power ........................................................................................................................ 48 
2.  Copyright Office Registration Policies ..................................................................................... 50 
C.  Effectiveness of Existing Protections........................................................................................... 51 
D.  Advisability of Adopting Additional Rights in the United States ......................................... 52 
1.  New Rights May Be Unnecessary ............................................................................................. 52 

U.S. Copyright Office    Copyright Protections for Press Publishers  
 
2 
 
2.  New Rights Are Likely to Be Ineffective .................................................................................. 52 
3.  Constitutional Concerns ............................................................................................................. 54 
4.  Treaty Issues ................................................................................................................................. 56 
5.  Additional Policy Concerns on Which This Report Makes No Findings ............................ 57 
V.  CONCLUSION .................................................................................................................................. 58 
 
APPENDICES 
Appendix A: Congressional Request Letter 
Appendix B: Notice of Inquiry – Publishers’ Protections Study: Notice and Request for Public 
Comment (October 12, 2021) 
Appendix C: Notice of Inquiry – Publishers’ Protection Study: Request for Additional 
Comments (November 9, 2021) 
Appendix D: Participants Who Submitted Comments in Response to the Notices of Inquiry 
Appendix E: Publishers’ Protections Study Roundtable Agenda 
 
   

U.S. Copyright Office Copyright Protections for Press Publishers

EXECUTIVE SUMMARY

At the request of Senators Leahy, Tillis, Cornyn, Hirono, Klobuchar, and Coons, the Copyright

Office undertook this Study to assess press publishers’ existing protections under U.S. copyright

law and to evaluate the advisability of adding new protections, such as those the European

Union has recently adopted, that are intended to strengthen publishers’ ability to demand

payment for third-party uses of their news content.

Part I of the Report describes the context and history of the Study. Part II provides factual

background, focusing on how the internet has changed the business of press publishing and

spurred the emergence of third-party services that aggregate news content. Part III surveys

recent experiments in other countries with adopting protections for press publishers beyond

existing copyright law and provides an overview of competition-based approaches that have

been adopted or are under consideration, including in the United States.

Part IV contains the Copyright Office’s findings and recommendations, as follows:

• Press publishers have significant protections under U.S. copyright law. They

generally own a copyright in the compilation of materials that they publish. In

addition, they often own the copyright in individual articles through the work-

made-for-hire doctrine and may also own rights in accompanying photographs.

This is in contrast with the context for adoption of a new “ancillary” right in the

European Union, where press publishers often lack ownership of the copyright in

the underlying materials.

• A press publisher would therefore likely have a prima facie case of copyright

infringement against an aggregator that reproduced extensive excerpts of news

articles. Copyright law does, however, permit certain unlicensed uses of news

content, by news aggregators or others. Facts and ideas are not protectable by

limited ways of expressing a particular fact or idea, and individual words, titles, and

short phrases are generally not protectable. Even where an aggregator reuses

protectable expression, the fair use doctrine may apply. As a result, press

publishers’ ability to rely on copyright to prevent third-party aggregators from using

their content depends on the specific circumstances, including the nature and

amount of the content used.

• Although press publishers also have certain protections beyond copyright rights,

notably legal prohibitions on circumvention of technical protection measures, the

relevant legal theories are untested in the context of news aggregation.

• The effectiveness of all of these protections appears, at least to some degree, to be

contingent on the competitive landscape. Publishers may have difficulty requiring

news aggregators to pay to use news content due to disparities in bargaining power.

• Given all of these variables, the Copyright Office does not recommend adopting new

U.S. Copyright Office Copyright Protections for Press Publishers

would meaningfully improve press publishers’ ability to block or seek remuneration

for news aggregators’ use of their works would necessarily avoid or narrow

limitations on copyright that have critical policy and Constitutional dimensions.

Additionally, we note that this Study revealed little demand for additional

to competition (antitrust) policy as a more effective means to improve the position of

press publishers in dealing with news aggregators.

The Office recognizes that adequate funding for journalism may currently be at risk, and that

there are implications for the press’s essential role in our system of government. But the

challenges for press publishers do not appear to be copyright-specific. It has not been

established that any shortcomings in copyright law pose an obstacle to incentivizing journalism

or that new copyright-like protections would solve the problems that press publishers face.

U.S. Copyright Office Copyright Protections for Press Publishers

I. INTRODUCTION AND STUDY HISTORY

The internet has multiplied the information sources accessible to many individuals and put

those sources in the palm of their hands. A majority of Americans now get their news from

digital devices, and a majority of those who do say their primary source is not a newspaper’s

website, but a search index, a social media feed, or a specialized service that aggregates news

from other sources.

Digital distribution enables these “news aggregators” to provide links to

and snippets of others’ published reporting at low cost and with a wide reach.

The transition to digital publishing has coincided with a marked decrease in press publisher

revenues.

The reasons for this decrease, the role of news aggregators, and the policy issues

raised, are discussed below. As a matter of current copyright law, the central questions are

whether the particular material copied, notably “snippets” of text such as headlines and ledes,

is protected by copyright, and if so, whether reproduction and distribution of this material is

permitted by the Copyright Act’s fair use exception.

Finally, to the extent that many acts of

aggregation are not infringing, should the law be changed?

The copyright issues associated with news aggregation are part of a longer discussion about the

viability of legacy press publishers and, more broadly, the survival of journalism in the internet

era, dating back to the early 2000s.

As this discussion gained more visibility, and other

See, e.g., NIC NEWMAN WITH RICHARD FLETCHER, ANTONIS KALOGEROPOULOS, DAVID A.L. LEVY & RASMUS KLEIS

NIELSEN, REUTERS INSTITUTE DIGITAL NEWS REPORT 2018 at 14 (2018), https://www.digitalnewsreport.org/survey/2018/.

In a 2020 Pew survey, respondents aged 18–29 identified social media as their main source of news. Elisa Shearer,

More Than Eight-in-Ten Americans Get News From Digital Devices, PEW RSCH. CTR. (Jan. 12, 2021),

https://www.pewresearch.org/fact-tank/2021/01/12/more-than-eight-in-ten-americans-get-news-fromdigital-devices/.

Many press publishers themselves have transitioned to a “digital first” or “digital only” model. See, e.g., Dan

Sabbagh, Guardian and Observer to Adopt 'Digital-first' Strategy, THE GUARDIAN (June 16, 2011),

https://www.theguardian.com/media/2011/jun/16/guardian-observer-digital-first-strategy; Tyler McCall, ‘InStyle’ to

End Print, Going Digital-Only, FASHIONISTA (Feb. 9, 2022), https://fashionista.com/2022/02/instyle-print-magazine-

ending-digital-only (noting that the magazines InStyle, Entertainment Weekly, EatingWell, Health, Parents, and People en

Español will be going digital-only in 2022).

See Estimated Advertising and Circulation Revenue of the Newspaper Industry, PEW RSCH. CTR. (June 29, 2021),

https://pewresearch.org/journalism/chart/sotnm-newspapers-newspaper-industry-estimated-advertising-and-

circulation-revenue/ (indicating that newspaper advertising revenue fell from a high of $49.4 million in 2005 to $9.6

million in 2020). Newsroom staff numbers have also decreased. See Mason Walker, U.S. Newsroom Employment Has

Fallen 26% Since 2008, PEW RSCH. CTR. (July 13, 2021), https://www.pewresearch.org/fact-tank/2021/07/13/u-s-

newsroom-employment-has-fallen-26-since-2008/.

See, e.g., Computer & Communications Industry Association (“CCIA”) and Internet Association (“IA”), Joint

Comments Submitted in Response to U.S. Copyright Office’s Oct. 12, 2021, Notice of Inquiry at 4 (Nov. 24, 2021)

(“CCIA-IA Joint Initial Comments”) (“Even where copyrighted material has actually been copied by a news

aggregator, that activity will typically constitute fair use. The four fair use factors strongly favor a finding of fair use

for the ordinary operation of news aggregators.”).

See generally, STEVEN WALDMAN, FED. COMMC’NS CMM’N, THE INFORMATION NEEDS OF COMMUNITIES 116‒33 (2011),

https://www.fcc.gov/sites/default/files/the-information-needs-of-communities-report-july-2011.pdf; DANA A. SCHERER

& CLARE Y. CHO, CONG. RSCH. SERV., R47018, STOP THE PRESSES? NEWSPAPERS IN THE DIGITAL AGE (2022),

https://crsreports.congress.gov/product/pdf/R/R47018.

U.S. Copyright Office Copyright Protections for Press Publishers

countries sought to address it through varied legal approaches, Congress asked the Copyright

Office to analyze the issue.

In a letter dated May 3, 2021, Senators Leahy, Tillis, Cornyn, Hirono, Klobuchar, and Coons

asked for a study of “ancillary copyright” protections for news publishers, such as have been

established by the European Union,

that would “require platform aggregators to pay

publishers for excerpts of content they provide for others to view.”

The letter instructed the

Office that:

[t]his study should assess the viability of adding specific protections to U.S.

such a study should analyze what the appropriate scope of such a right should

be and how that would coincide with existing rights such as those of underlying

writers or visual artists as well as any existing rights held by publishers. Finally,

the report should include a discussion of relevant exceptions such as “fair use”

or “quotation” exceptions, and any international treaty implications.

On October 12, 2021, the Office published a notice of inquiry seeking public comment on

questions related to the effectiveness of publishers’ existing rights in news content, the

desirability and potential scope of additional protections, and how any new protections would

interact with existing rights, exceptions and limitations, and international treaty obligations.

The Office received approximately thirty responsive comments.

On November 9, 2021, the Office published a second notice of inquiry inviting the public to

raise new issues related to the topic of the Study; amplify initial comments; present empirical

studies; or address, reply to, or expand upon any issues raised in the initial request for written

comments.

The Office received seventeen additional comments.

As part of its Directive on Copyright in the Digital Single Market (“Directive”), the European Union introduced a

measure granting press publishers a new, exclusive right to authorize the reproduction and communication to the

public of content they publish by commercial online services, with exceptions for hyperlinking and private uses. See

Directive 2019/790 of the European Parliament and of the Council of 17 April 2019 on Copyright and Related Rights

in the Digital Single Market and Amending Directives 96/9/EC and 2001/29/EC, art. 15, 2019 O.J. (L 130/92)

(“Directive”).

Letter from Senators Leahy, Tillis, Cornyn, Hirono, Klobuchar, and Coons to Shira Perlmutter, Register of

Copyrights, at 1 (May 3, 2021), https://www.copyright.gov/policy/publishersprotections/letter-to-the-copyright-

office.pdf.

Id.

Publishers’ Protections Study: Notice and Request for Public Comment, 86 Fed. Reg. 56,721 (Oct. 12, 2021).

Comments received in response to this notice of inquiry are available at https://www.regulations.gov/docket/COLC-

2021-0006/comments.

Publishers’ Protections Study: Request for Additional Comments, 86 Fed. Reg. 62,215 (Nov. 9, 2021).

Comments received in response to this notice of inquiry are available at

https://www.regulations.gov/document/COLC-2021-0006-0002/comment.

U.S. Copyright Office Copyright Protections for Press Publishers

The Office held a remote public roundtable on December 9, 2021, via Zoom. The roundtable

included 24 participants divided into three panels covering: (1) the effectiveness of existing

protections for press publishers, (2) the desirability of additional protections, and (3) how any

new protections might affect existing rights, limitations, and international obligations. A

transcript and a video recording of the event are available on the Office’s website.

In this Report, the Office addresses only the copyright aspects of press publishers’ protections.

Although we describe below the arguments made with respect to related antitrust proposals,

the policy issues they raise are beyond the scope of the Office’s expertise.

II. BACKGROUND

A. The Internet and Press Publishers

The internet has transformed the news business. No longer bound by the costs of printing or

the economics of paper routes, today’s press publishers can reach a larger audience at a lower

cost.

Individual journalists, too, can launch their own newsletter ventures via platforms like

Substack.

Readers have access to high-quality journalism from around the globe.

And

although the internet-fueled boom in “hyperlocal” journalism has had mixed results,

some

Study on Ancillary Copyright Protections for Publishers, U.S. COPYRIGHT OFFICE,

https://www.copyright.gov/policy/publishersprotections/.

Google, Comments Submitted in Response to U.S. Copyright Office’s Oct. 12, 2021, Notice of Inquiry at 4 (Nov. 24,

2021) (“Google Initial Comments”); Gabby Miller, A Hudson Valley Newspaper turns to Substack, Meta to Expand

Digitally, COLUM. JOURNALISM REV. (Feb. 22, 2022), https://www.cjr.org/tow_center/a-hudson-valley-newspaper-turns-

to-substack-meta-to-expand-digitally.php.

See Andrea Daniele Signorelli, Are Newsletters Really the Future of Publishing?, DOMUS (Feb. 27, 2022),

https://www.domusweb.it/en/news/2022/02/27/are-newsletters-really-the-future-of-publishing.html; Emily Writes,

Emily Writes on How Substack Changed Her Life, THE SPINOFF (Mar. 3, 2022), https://thespinoff.co.nz/media/03-03-

2022/emily-writes-on-how-substack-changed-her-life; Tr. at 133:2–14 (Dec. 9, 2021) (Joshua Lamel, Re:Create) (“[A]

lot of journalists are leaving the newspaper model and moving to the Substack-based model of practicing our

trades. . . . I’m not saying it’s a good thing, a bad thing . . . but it’s just how evolving things are.”).

See, e.g., Aisha Majid, Top 50 News Sites in the US in January: Growth Continues at Sun’s US Edition, PRESSGAZETTE

(Mar. 2, 2022), https://pressgazette.co.uk/most-popular-websites-news-us-monthly/ (showing BBC, Mail Online, and

Guardian websites in the top 15 news sites in the United States for January 2022); Sara Guaglione, The BBC will Double

Digital News Team in North America to Grow the Commercial Side of the Business, DIGIDAY (Feb. 16, 2022),

https://digiday.com/media/the-bbc-will-double-digital-news-team-in-north-america-to-grow-the-commercial-side-of-

the-business / (reporting the BBC wants to double its digital news team in the United States, reflecting the growing

importance of the U.S. market to the British media organization). On the other hand, technological progress has not

necessarily increased (or even sustained) U.S. news outlets’ coverage of international events. See Anup Kaphle, The

Foreign Desk in Transition, COLUM. JOURNALISM REV. (March/April 2015),

https://www.cjr.org/analysis/the_foreign_desk_in_transition.php (“Between 1998 and 2011, at least 20 US

newspapers and other media outlets eliminated all their foreign bureaus, according to American Journalism Review

(ajr). Elsewhere, the number and size of those bureaus of have shrunk dramatically.”).

See Brad Adgate, How Hyperlocal News Websites Are Surviving the Coronavirus Pandemic—And Some are Even Profitable,

FORBES (Apr. 27, 2022), https://www.forbes.com/sites/bradadgate/2020/04/27/some-hyperlocal-media-websites-are-

U.S. Copyright Office Copyright Protections for Press Publishers

observers still point to the promise of local blogs and listservs to cover news on a neighborhood

or block level—a level so minute that “[e]ven in the fattest-and-happiest days of traditional

media,” a city newspaper would not regularly have covered it.

But the internet has also shaken the foundations of newspaper financing. From an early 2000s

peak,

newspaper ad revenues plummeted 62% between 2008 and 2018.

Classified ads, which

once represented upward of 50% of a newspaper’s revenue, relocated to Craigslist, Facebook

Marketplace, and other internet services that offered free placement and a wider audience.

profitable/ (pointing to success of hyperlocals Patch and Nextdoor amid broad turmoil in local journalism); TENOR,

LONDON SCH. OF ECON. & POL. SCI., HYPERLOCAL NEWS: AFTER THE HYPE 8 (2018), https://www.lse.ac.uk/media-and-

communications/assets/documents/research/Polis-Hyperlocal-News-report-Jul-2018.pdf (“Even though there are a lot

of examples of innovation and ingenuity, studies on hyperlocals are full of examples of underperforming business

models, self-exploitation and failing ventures. Today, looking at this precarious sector, it is perhaps hard to

understand the hype around hyperlocal journalism as a future business model in the US some ten years ago.”

(footnote omitted)).

WALDMAN, FED. COMMC’NS COMM’N, THE INFORMATION NEEDS OF COMMUNITIES 16; see also María-Cruz Negreira-Rey

& Xosé López-García, A Decade of Research on Hyperlocal Media: An International Approach to a New Media Model, 11(3)

ONLINE J. COMMC’N & MEDIA TECH. e202111 at 1 (July 2021), https://www.ojcmt.net/download/a-decade-of-research-

on-hyperlocal-media-an-international-approach-to-a-new-media-model-11082.pdf.

See Michael Barthel & Kirsten Worden, Newspapers Fact Sheet, PEW RSCH. CTR. (June 29, 2021),

https://www.journalism.org/fact-sheet/newspapers/. Newspaper ad revenue was on an overall upward trajectory

between 1970 and 2006, peaking first in the early internet era of the late 1990s following a wave of consolidation in

the newspaper industry (including a steady decline in the number of cities with competing daily newspapers) and,

after a brief dip in 2000‒01, again in 2005. Id.; see also Media Concentration (Part 2): Hearings Before the Subcomm. on Gen.

Oversight and Minority Enter. of the H. Comm. on Small Bus., 96th Cong. 4–5 (1980) (statement of James M. Dertouzos,

Economist, RAND Corp.) (presenting data on consolidation in local news outlets). Earlier dips in advertising

revenue were attributed to increased competition from television and radio, and later direct mail, telephone

marketing, and catalogues. See Erinn Whitaker, What History Teaches Us: How Newspapers Have Evolved to Meet Market

Demands, U.N.C. HUSSMAN SCH. OF JOURNALISM & MEDIA, CTR. FOR SUSTAINABILITY IN LOC. MEDIA (2018),

https://www.cislm.org/digitalstrategy/sdme-chapter-2-the-story-behind-the-numbers/sdme-what-history-teaches-us-

how-newspapers-have-evolved-to-meet-market-demands/; Thomas B. Rosenstiel, The Newspaper Business is Full of

Awful Stories, L.A. TIMES (Apr. 23, 1990), https://www.latimes.com/archives/la-xpm-1990-04-23-fi-76-story.html

(noting the newspaper industry’s inability to raise advertising rates following the recent decline in sales as a result of

competition from direct mail, telephone marketing, and catalogues).

Elizabeth Grieco, Fast Facts about the Newspaper Industry’s Financial Struggles as McClatchy Files for Bankruptcy, PEW

RSCH. CTR. (Feb. 14, 2020), https://www.pewresearch.org/fact-tank/2020/02/14/fast-facts-about-the-newspaper-

industrys-financial-struggles/; see also ACCENTURE, USA NEWS MEDIA LANDSCAPE TRENDS 5 (2021), https://newsmedia-

analysis.com/wp-content/uploads/2021/06/accenture_analysis_USAnewsmedia.pdf (“Between 2004 and 2018 total

newspaper revenues fell by $30 billion, to $27.4 billion. This amounted to a 52% fall.” (emphasis added)).

From Town Criers to Bloggers: How Will Journalism Survive the Internet Age?: Before the Federal Trade Commission, Tr. at

59:5‒14 (Dec. 1, 2009) (Statement of Mark Contreras, Newspaper Assoc. of Am.) (“Over the last several decades, most

American newspapers developed a burgeoning stream of highly profitable classified advertising revenue which until

the last few years represented between 40 to 60 percent of advertising revenue and the lion’s share of our profits.

There are two reasons for the decline of classified advertising: [1] the advent of interactive tools that efficiently

connected buyers and sellers and [2] the increasing penetration of broadband Internet access in the United States.”);

see also Robert Seamans & Feng Zhu, Responses to Entry in Multi-Sided Markets: The Impact of Craigslist on Local

Newspapers, 60 MGMT. SCI. 476, 490 (2014), http://fengzhu.info/craigslist.pdf (describing the effect of Craigslist on

newspaper ad-rates, circulation, and subscription prices); ACCENTURE, USA NEWS MEDIA LANDSCAPE TRENDS 3 (noting

U.S. Copyright Office Copyright Protections for Press Publishers

Display advertisers followed suit, redirecting their budgets from print newspapers to the

internet and national ad networks to take advantage of better consumer targeting.

And while

digital ad revenue across all internet platforms soared, “half of all digital [display] revenue

went to just two tech companies,” Facebook and Google.

For newspapers, now reliant upon

these national ad networks to fill their digital pages rather than their in-house advertising

departments, the resulting flow of digital ad revenue has been too small to offset broader

declines in ad revenue.

Internet-based competition also appears to have accelerated a preexisting decline in newspaper

circulation numbers.

Just as the internet gave classified advertisers free alternatives for

reaching consumers, it gave readers free alternatives for accessing the news of the day. Popular

services like sports box scores or movie showtimes, which used to cross-subsidize more

expensive reporting, no longer required a newspaper subscription to access.

Readers moved

that the majority of the newspaper industry’s revenue decline was from the loss of classifieds revenue).

SCHERER & CHO, CONG. RSCH. SERV., R47018, STOP THE PRESSES? NEWSPAPERS IN THE DIGITAL AGE 5–6.

Michael Barthel, 5 Key Takeaways About the State of News Media in 2018, PEW RSCH. CTR. (July 23, 2019),

https://www.pewresearch.org/fact-tank/2019/07/23/key-takeaways-state-of-the-news-media-2018/; see also Digital

Content Next (“DCN”), Comments Submitted in Response to U.S. Copyright Office’s Oct. 12, 2021, Notice of Inquiry

at 2 (Nov. 26, 2021) (“DCN Initial Comments”) (“Between 2015 and 2019, Google and Facebook combined to capture

86% of the incremental US digital advertising growth. In 2020, the trend continued at 87%. Of the total US digital

advertising revenue in 2020, $40.6 billion went to Facebook and $68.4 billion went to Google while the entire rest of

the industry (publishers, ad tech, other) took home $30.8 billion.”); STAFF OF SUBCOMM. ON ANTITRUST, COMMERCIAL

AND ADMINISTRATIVE LAW, H. COMM. ON THE JUDICIARY, 116TH CONG., MAJORITY STAFF REP. ON INVESTIGATION OF

COMPETITION IN DIGITAL MARKETS 131 (Comm. Print 2020) (“Majority Staff Rep.”) (“Google and Facebook both have a

significant lead in the [digital advertising] market due to their significant collection of behavioral data online, which

can be used in targeted advertising.”).

ELAINE C. KAMARCK & ASHLEY GABRIELE, BROOKINGS, THE NEWS TODAY: 7 TRENDS IN OLD AND NEW MEDIA 4 (2015),

https://www.brookings.edu/wp-content/uploads/2016/07/new-media.pdf. Newspapers’ returns on digital

advertising have been described as “digital dimes” as compared to the dollars generated by print advertising.

Andrey Mir, The Press Now Depends on Readers for Revenue and That’s a Big Problem for Journalism, DISCOURSE (July 28,

2021), https://www.discoursemagazine.com/culture-and-society/2021/07/28/the-press-now-depends-on-readers-for-

revenue-and-thats-a-big-problem-for-journalism/; see also Michael Barthel, 5 Key Takeaways About the State of News

Media in 2018, PEW RSCH. CTR. (July 23, 2019), https://www.pewresearch.org/fact-tank/2019/07/23/key-takeaways-

state-of-the-news-media-2018/ (showing growth in digital ad revenue has not compensated for losses in print

revenue). In fact, advertising revenues have declined so precipitously that in 2020, circulation revenues topped

advertising revenues for the first time ever. See Michael Barthel, 6 Key Takeaways About the State of the News Media in

2020, PEW RSCH. CTR. (July 27, 2021), https://www.pewresearch.org/fact-tank/2021/07/27/6-key-takeaways-about-the-

state-of-the-news-media-in-2020/.

See Barthel & Worden, Newspapers Fact Sheet, PEW RSCH. CTR.

See Neil Weinstock Netanel, Mandating Digital Platform Support for Quality Journalism, 34 HARV. J.L. & TECH. 473, 491

(2021) (“In print newspapers, investigative reporting is bundled together with light entertainment. As a result, print

advertising revenues and subscriptions effectively cross-subsidize investigative reporting even if readers spend far

more time reading entertainment. But digital technology greatly diminishes newsrooms’ ability to bundle.”)

(footnote omitted); see also Library Copyright Alliance (“LCA”), Comments Submitted in Response to U.S. Copyright

Office’s Oct. 12, 2021, Notice of Inquiry at 5 (Nov. 24, 2021) (“LCA Initial Comments”).

U.S. Copyright Office Copyright Protections for Press Publishers

to free online sites, including in some cases the press publishers’ own sites, at the expense of

paid subscriptions.

Total newspaper circulation, already declining before the internet era, in

2020 fell to its lowest point since 1940.

Digital distribution exposed city papers that once

enjoyed close to local monopolies to national competition from well-resourced newsrooms like

The New York Times.

The combination of increased competition, dwindling revenue, and high

debt overhangs

led to a wave of bankruptcies, consolidations,

and leveraged buyouts among

local newspapers.

From 2008 to 2019, the number of newspaper newsroom employees

dropped by more than 40%,

and one in five papers closed.

NEWMAN ET AL., REUTERS INSTITUTE DIGITAL NEWS REPORT 2018 at 26 (“[T]he majority of online news consumption

still happens through free websites, largely supported by advertising (or through public subsidy).”); see also

KAMARCK & GABRIELE, BROOKINGS, THE NEWS TODAY: 7 TRENDS IN OLD AND NEW MEDIA 9 (“Facebook is virtually tied

with local television among ‘web users’ when asked where they get their news about government and politics. In

other words—news is still getting to people, just not through the traditional means.”).

Barthel & Worden, Newspapers Fact Sheet, PEW RSCH. CTR. Note that during this time period, overall circulation

revenues increased slightly, with higher subscription charges and growth in online circulation revenue offsetting

declines in print circulation. ACCENTURE, USA NEWS MEDIA LANDSCAPE TRENDS 9.

LCA Initial Comments at 5 (“Internet distribution has dramatically increased the competition faced by local and

regional newspapers. Every newspaper in the country now competes with the New York Times and the Washington

Post, as well as with every other newspaper in the country.”).

The double blow of advertising revenue evaporating and then 2008’s great recession left even profitable papers

with unsustainable levels of debt. See WALDMAN, FED. COMMC’NS COMM’N, THE INFORMATION NEEDS OF COMMUNITIES

40 (noting unusual circumstances where the Philadelphia Inquirer and Minneapolis Star Tribune, although profitable,

were forced to declare bankruptcy).

SCHERER & CHO, CONG. RSCH. SERV., R47018, STOP THE PRESSES? NEWSPAPERS IN THE DIGITAL AGE 7 (“From 2004 to

2020, the percentage of daily newspapers owned by the 25 largest newspaper publishers grew from less than a third

of the 1,472 dailies (including newspapers that have since decreased their publication frequency to weekly as well as

those that since ceased publication) to more than to 70% of the 1,260 dailies.”). The post-2000 consolidations

accelerated a trend that began early in the 20th century. See PENELOPE MUSE ABERNATHY, CTR. FOR INNOVATION &

SUSTAINABILITY LOC. MEDIA, THE RISE OF A NEW MEDIA BARON AND THE EMERGING THREAT OF NEWS DESERTS 20–21

(2016), http://newspaperownership.com/wp-content/uploads/2016/09/07.UNC_RiseOfNewMediaBaron

_SinglePage_01Sep2016-REDUCED.pdf.

See Michael Ewens, Arpit Gupta & Sabrina T. Howell, Local Journalism Under Private Equity Ownership (Nat’l Bureau

of Econ. Rsch., Working Paper No. 29743, 2022) (noting a sharp increase in the share of newspapers owned by private

equity funds, from about 5% in 2002 to 23% in 2019); PENELOPE MUSE ABERNATHY, CTR. FOR INNOVATION &

SUSTAINABILITY LOC. MEDIA, THE EXPANDING NEWS DESERT (2018), https://www.cislm.org/wp-

content/uploads/2018/10/The-Expanding-News-Desert-10_14-Web.pdf; Russell Baker, Goodbye to Newspapers?, N.Y.

REV. OF BOOKS (Aug. 16, 2007), https://www.nybooks.com/articles/2007/08/16/goodbye-to-newspapers/ (describing

slashing of news staff at various newspapers under new Wall Street owners).

Grieco, Fast Facts About the Newspaper Industry’s Financial Struggles as McClatchy Files for Bankruptcy, PEW RSCH. CTR.

This number has continued to rise. See Walker, U.S. Newsroom Employment Has Fallen 26% Since 2008, PEW RSCH. CTR.

(noting that newspaper newsroom employment fell 57% between 2008 and 2020, higher than the news industry

average of 26%).

Lara Takenaga, More Than 1 in 5 U.S. Papers Has Closed. This is the Result., N.Y. TIMES (Dec. 21, 2019),

https://www.nytimes.com/2019/12/21/reader-center/local-news-deserts.html; see also ABERNATHY, CTR. FOR

INNOVATION & SUSTAINABILITY LOC. MEDIA, THE EXPANDING NEWS DESERT 8.

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The damage has been most severe among local papers.

A Congressional Research Service

report found that “[t]he few daily newspapers with a national and/or international readership,

such as the New York Times, the Wall Street Journal, USA Today, and the Washington Post, have

experienced different advertising trends than those with a local or regional readership.”

Their

reach and readership allow them to attract advertisers that other papers cannot.

Of the 2,100

newspapers that have closed since 2005, losses have been concentrated among those serving

small and economically struggling communities.

These losses have left “news deserts”

without any local newspaper.

B. The Rise of News Aggregators

Over the two-plus decades during which press publishers’ revenues have declined, a new type

of distribution has arisen in the form of online news aggregation.

This umbrella term covers a

number of distinct services that vary according to the nature of the service, the sources the

See The R Street Institute (“R Street”) and Niskanen Center (“Niskanen”), Joint Comments Submitted in Response

to U.S. Copyright Office’s Oct. 12, 2021, Notice of Inquiry at 6 (Nov. 26, 2021) (“R Street-Niskanen Joint Initial

Comments”) (emphasizing crisis in local journalism).

SCHERER & CHO, CONG. RSCH. SERV., R47018, STOP THE PRESSES? NEWSPAPERS IN THE DIGITAL AGE 3. See also id. at 4

(“In 2020, for example, the New York Times generated approximately 58% of its advertising revenue from online

advertising. In contrast, for three leading publishers of local daily newspapers, Lee Enterprises Inc., DallasNews

Corp., and Tribune Publishing Company, the proportions of total advertising revenue generated by online

advertising in 2020 were 36.8%, 35.9%, and 27%, respectively.” (footnotes omitted)). One commenter raised the

possibility that consumers simply prefer reading national news brands to their local papers, a trend that would be

difficult to reverse via law. Tr. at 54:8–18 (Dec. 9, 2021) (Daniel Takash, Niskanen).

SCHERER & CHO, CONG. RSCH. SERV., R47018, STOP THE PRESSES? NEWSPAPERS IN THE DIGITAL AGE 3; see also WALDMAN,

FED. COMMC’NS COMM’N, THE INFORMATION NEEDS OF COMMUNITIES 21 (emphasizing that local journalism is

struggling, while national, and even hyperlocal, are not). Even larger metro papers without a national following saw

precipitous declines in their market valuation. Netanel, 34 HARV. J.L. & TECH. at 475 (market valuation for major

daily newspapers, including the Boston Globe/Worcester Telegram & Gazette, Chicago Sun-Times, and Minneapolis Star

Tribune, “dropped by more than 90% between the 1990s and early 2010s.” (citing JAMES T. HAMILTON, DEMOCRACY’S

DETECTIVES: THE ECONOMICS OF INVESTIGATIVE JOURNALISM 280 (2016))).

PENELOPE MUSE ABERNATHY, CTR. FOR INNOVATION & SUSTAINABILITY LOC. MEDIA, NEWS DESERTS AND GHOST

NEWSPAPERS: WILL LOCAL NEWS SURVIVE? 9 (2020), https://www.usnewsdeserts.com/wp-

content/uploads/2020/06/2020_News_Deserts_and_Ghost_Newspapers.pdf.

Id. at 8. Diminishing local coverage may come with social and economic costs. Research suggests that local paper

closures are associated with increased partisan polarization, corruption, and municipal borrowing costs. See, e.g.,

Joshua P. Darr, Matthew P. Hitt & Johanna L. Dunaway, Newspaper Closures Polarize Voting Behavior, 68 J. COMMC’N

1007, 1007–28 (2018); James M. Snyder Jr. & David Strömberg, Press Coverage and Political Accountability, 118 J. POL.

ECON. 355, 355–408 (2010); Mary Ellen Klas, Less Local News Means Less Democracy, NIEMAN REPORTS (Sept. 20, 2019),

https://niemanreports.org/articles/less-local-news-means-less-democracy/; Pengjie Gao, Chang Lee & Durmot

Murphy, Financing Dies in Darkness? The Impact of Newspaper Closures on Public Finance, 135(2) J. FIN. ECON. 445, 445–67

(2020); Dermot Murphy, When Local Papers Close, Costs Rise for Local Governments, COLUM. JOURNALISM REV. (June 27,

2018), https://www.cjr.org/united_states_project/public-finance-local-news.php.

See Eric Alterman, Out of Print: The Death and Life of the American Newspaper, NEW YORKER (Mar. 24, 2008),

https://www.newyorker.com/magazine/2008/03/31/out-of-print (describing, among other things, the rise of Huffington

Post and other news aggregators).

U.S. Copyright Office Copyright Protections for Press Publishers

service uses, the topics it covers, and whether it adds original commentary, but in general refers

to an online service that distributes links to and sometimes snippets of multiple third-party

news articles.

News aggregators aid the discoverability of news stories and allow consumers to customize

their news intake in a way that might otherwise require scanning a dozen different outlets.

Some publishers have sought to capitalize on these possibilities by offering their own daily

round-ups or aggregating content from social media.

One commenter described the

“immense value” of a news service with “trusted journalists acting as curators and aggregators”

to deliver one place where he and other readers could get “most of the news they need.”

Another commenter noted that “commercial news aggregators provide an important service

that significantly enhances individuals’ access to information.”

While news aggregators like Apple News focus primarily or solely on the distribution of

previously-reported news content, some aggregate such content only as one part of a wider-

ranging news service,

and others operate a general search engine that links users to web

content (e.g., Google) or a social media platform that allows users to share news stories or access

them through “trending topics” or “news” tabs and links (e.g., Facebook). News aggregators

may or may not seek licenses for the third-party content they use. As one commenter observed,

the sheer variety of these aggregation services makes generalizing hazardous.

The mechanics of aggregation can also vary. Many news aggregators deploy algorithms to pull

and then sort headlines and snippets from news outlets’ RSS feeds or APIs.

Google’s search

See KIMBERLEY A. ISBELL & CITIZEN MEDIA LAW PROJECT, THE RISE OF THE NEWS AGGREGATOR: LEGAL IMPLICATIONS AND

BEST PRACTICES (2010), Berkman Ctr. Res. Pub. No. 2010-10

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1670339.

See, e.g., Rachael Bade & Eugene Daniels, Politico Playbook: Covid’s Comeback Bursts the D.C. Bubble, POLITICO (Apr. 7,

2022) (“Playbook Reads” feature aggregating links to top stories from around the internet); Jack Greiner, Strictly

Legal: New York Federal Court Rejects Server Test, CINCINNATI.COM (Mar. 30, 2022),

https://www.cincinnati.com/story/money/2022/03/30/new-york-federal-court-rejects-server-test/7208588001/

(reporting on lawsuit arising from Newsweek’s aggregation of a photograph from social media); Goldman v. Breitbart

News Network, LLC, 302 F. Supp. 3d 585, 586–87 (S.D.N.Y. 2018) (describing facts of lawsuit arising from news

websites’ aggregation of a photograph from social media); Tory Barron, Men's NCAA Basketball Championship: Social

Media Reacts to Kansas' Historic Comeback Win over UNC, ESPN (Apr. 5, 2022), https://www.espn.com/mens-college-

basketball/story/_/id/33672054/men-ncaa-basketball-championship-social-media-reacts-kansas-historic-comeback-

win-unc (collecting Twitter reactions to championship basketball game).

Tr. at 81:18–25 (Dec. 9, 2021) (Joshua Lamel, Re:Create).

LCA Initial Comments at 1.

Library Copyright Alliance (“LCA”), Additional Comments Submitted in Response to U.S. Copyright Office’s Nov.

9, 2021, Notice of Inquiry at 1 (Jan. 5, 2021) (“LCA Additional Comments”) (describing Politico’s news aggregation).

Id. at 1 (noting the definition of “news aggregator” in the Office’s Notice of Inquiry “encompasses different kinds of

services that implicate different legal issues and arguably have different impacts on news publishers”); see also ISBELL

& CITIZEN MEDIA LAW PROJECT, THE RISE OF THE NEWS AGGREGATOR: LEGAL IMPLICATIONS AND BEST PRACTICES 2.

Alan Mohamed et al., News Aggregator and Efﬁcient Summarization System, 11 INT’L J. ADVANCED COMPUT. SCI. &

APPLICATIONS 636, 637 (2020),

U.S. Copyright Office Copyright Protections for Press Publishers

engine (distinct from the Google News service) aggregates by crawling the web for new or

updated pages and indexing those pages by content.

Social media services like Facebook and

Twitter typically do not scrape or index news content; rather, the services’ users, or sometimes

the news publishers themselves, share links to news stories on the platform.

According to

Meta, publishers control what image will accompany the link and how much text, if any, will

appear to Facebook users.

Among news aggregation services, one of the trends of the last half decade has been the

increasing dominance of the largest social media and search platforms and the decline of

standalone news aggregators, including those that provide original reporting and

commentary.

In recent years, Google and Facebook have consistently represented an outright

majority of news aggregator web traffic and referrals,

while BuzzFeed, AOL, Yahoo, and

HuffPost have cut more than a thousand jobs and smaller sites such as Gawker, Mic,

Refinery29, the Outline, and PopSugar have shrunk, shuttered, or sold.

https://www.researchgate.net/publication/342626761_News_Aggregator_and_Efficient_Summarization_System.

How Search Works for Site Owners, GOOGLE SEARCH CENTRAL (accessed Feb. 28, 2022),

https://developers.google.com/search/docs/basics/how-search-works.

See Meta Platforms, Inc. (“Meta”), Comments Submitted in Response to U.S. Copyright Office’s Oct. 12, 2021,

Notice of Inquiry at 5–6 (Nov. 26, 2021) (“Meta Initial Comments”); Tom Rosenstiel, Jeff Sonderman, Kevin Loker,

Maria Ivancin & Nina Kjarval, Twitter and the News: How People use the Social Network to Learn about the World,

AMERICAN PRESS INSTIT. (Sept. 1, 2015), https://www.americanpressinstitute.org/publications/reports/survey-

research/how-people-use-twitter-news/single-page/; Steven Tweedie, How to Use Snapchat’s New ‘Discover’ Feature,

INSIDER (Jan. 27, 2015), https://www.businessinsider.com/how-to-use-snapchat-discover-feature-2015-1.

Meta Initial Comments at 5.

See, e.g., DAVID ARDIA, EVAN RINGEL, VICTORIA SMITH EKSTRAND & ASHLEY FOX, ADDRESSING THE DECLINE OF LOCAL

NEWS, RISE OF PLATFORMS, AND SPREAD OF MIS- AND DISINFORMATION ONLINE, CTR. FOR. INFO., TECH., & PUB. LIFE (2020),

https://citap.unc.edu/local-news-platforms-mis-disinformation (describing meteoric rise of online platforms and their

advantages in competition over other media outlets); Paul Farhi, Top Editors Leave HuffPost and BuzzFeed News Amid

Growing Doubts About the Future of Digital News, WASH. POST (Mar. 12, 2020),

https://www.washingtonpost.com/lifestyle/media/top-editors-leave-huffpost-and-buzzfeed-amid-growing-doubts-

about-the-future-of-digital-news/2020/03/12/32cf09c0-6222-11ea-acca-80c22bbee96f_story.html (“Digital publishers

face the same issues that have beset, and decimated, whole swaths of the traditional media, particularly local

newspapers. . . . Looming over the entire business are the twin colossi, Facebook and Google, which collect about 60

percent of every dollar spent by digital advertisers.”).

Joshua Benton, Is Facebook Really A “News Powerhouse” Again, Thanks to Coronavirus? (No More Than It Was Before),

NIEMANLAB (Mar. 24, 2020), https://www.niemanlab.org/2020/03/is-facebook-really-a-news-powerhouse-again-

thanks-to-coronavirus-no-more-than-it-was-before/ (showing that over the twelve preceding months, Google and

Facebook reliably accounted for over 75% of outside referrals to news sites in the parse.ly network).

See, e.g., Charlotte Tobitt, Buzzfeed and Huffpost Deal: Charting the Rise and Fall of Two Digital News Giants as they Plan

for a Better Future Together, PRESSGAZETTE (Nov. 20, 2020), https://www.pressgazette.co.uk/buzzfeed-and-huffpost-

deal-charting-the-rise-and-fall-of-two-digital-news-giants-as-they-plan-for-a-better-future-together/ (describing post-

2017 missed revenue targets, cutbacks, sales, and declining web traffic at HuffPost); Jim Waterson, As HuffPost and

Buzzfeed Shed Staff, Has the Digital Content Bubble Burst?, GUARDIAN (Jan. 24, 2019),

https://www.theguardian.com/media/2019/jan/24/as-huffpost-and-buzzfeed-shed-staff-has-the-digital-content-

bubble-burst (describing fading fortunes of digital news outlets and their vulnerability to changes in Facebook

U.S. Copyright Office Copyright Protections for Press Publishers

News aggregators, including search engines and social media platforms, have now become the

preferred or initial source of news for a majority of digital news consumers.

The real-world

effect of this shift is contested: Some commenters argue that the aggregation of headlines and

snippets creates a “substitution effect” by allowing readers to get the news (or at least its gist)

without visiting press publishers’ websites.

In their view, by failing to compensate publishers

for the value their stories generate, aggregation risks undermining the incentive to produce

original reporting.

Others assert that news aggregators expand the market by driving readers

to press publishers’ websites, helping them discover new ones, and tempting them to click on

more articles than they would otherwise read.

Empirical data on the market effect of aggregation on news sites is thin. News aggregators

drive a significant amount of traffic to news sites, and therefore their activities may serve to

expand the market for press publishers.

One study found that, after the Google News home

algorithms).

NEWMAN ET AL., REUTERS INSTITUTE DIGITAL NEWS REPORT 2018 at 14–15; see also Doh-Shin Jeon, Economics of News

Aggregators 1–2 (Toulouse Sch. of Econ., Working Paper No. 18-912, 2018), https://www.tse-

fr.eu/sites/default/files/TSE/documents/doc/wp/2018/wp_tse_912.pdf; Traffic Overview: news.google.com, SIMILARWEB,

https://www.similarweb.com/website/news.google.com/#overview (last visited Aug. 5, 2021) (showing that in 2021

Google News averaged over 500 million visits per day); Axel Springer SE (“Axel Springer”), Comments Submitted in

Response to U.S. Copyright Office’s Oct. 12, 2021, Notice of Inquiry at 7 (Nov. 23, 2021) (“Axel Springer Initial

Comments”) (“In the European Union news aggregators and other digital services have become the main source for

consumers to receive news. In 2016, social media (22 percent), news aggregator (14 percent) and search engines (21

percent) accounted for 57 percent of such use.” (citing Commission Staff Working Document on Impact Assessment on the

Modernization of EU Copyright Rules – Part 1, at 157, SWD (2016) 301 final (Sept. 9, 2016), https://digital-

strategy.ec.europa.eu/en/library/impact-assessment-modernisation-eu-copyrightrules)).

See Eleonora Rosati, The German ‘Google Tax’ Law: Groovy or Greedy?, 8 J. INTEL. PROP. L. & PRAC. 497, 497 (2013);

Chrysanthos Dellarocas et al., Attention Allocation in Information-Rich Environments: The Case of News Aggregators, 62

MGMT. SCI. 2543, 2543 (2015); Directive recital 54 (“Publishers of press publications are facing problems in licensing

the online use of their publications to the providers of those kinds of services, making it more difficult for them to

recoup their investments.”); see also Netanel, 34 HARV. J.L. & TECH. at 492; Axel Springer Initial Comments at 11; News

Media Alliance (“NMA”), Comments Submitted in Response to U.S. Copyright Office’s Oct. 12, 2021, Notice of

Inquiry at 2–3 (Nov. 23, 2021) (“NMA Initial Comments”); News Corporation (“News Corp”), Comments Submitted

in Response to U.S. Copyright Office’s Oct. 12, 2021, Notice of Inquiry, at 4–5 (Nov. 26, 2021) (“News Corp Initial

Comments”).

NMA Initial Comments at 25.

See, e.g., Joan Calzada & Ricard Gil, What Do News Aggregators Do? Evidence from Google News in Spain and Germany

1–2 (2018), http://diposit.ub.edu/dspace/bitstream/2445/150425/1/695577.pdf; Lisa M. George & Christiaan

Hogendorn, Local News Online: Aggregators, Geo-Targeting and the Market for Local News, 68 J. INDUS. ECON. 780, 804

(2020) (finding that a redesign of Google News adding geo-targeted local news links increased the level and share of

local news consumption).

Jeon, Toulouse Sch. of Econ., Working Paper No. 18-912 (reviewing empirical literature and concluding that Google

News and Facebook increase overall traffic to news sites); KENNY OLMSTEAD ET AL., PEW RSCH. CTR.: PROJECT FOR

EXCELLENCE IN JOURNALISM, NAVIGATING NEWS ONLINE: WHERE PEOPLE GO, HOW THEY GET THERE AND WHAT LURES

THEM AWAY (2011), https://www.pewresearch.org/wp-content/uploads/sites/8/legacy/NIELSEN-STUDY-Copy.pdf;

Google Initial Comments at 4 (“Google services contribute significant value to news publishers by connecting users

to publishers’ websites more than 24 billion times per month.”). Each referral from Google is, according to one study,

U.S. Copyright Office Copyright Protections for Press Publishers

page began showing links to geo-targeted local news content, “local news consumption among

heavy Google News users rose by 25%, with no evidence that consumers were visiting Google

News rather than directly visiting the publishers’ platforms.”

But aggregator referrals may

lead to a relatively narrow range of news sites,

and they tend to drive traffic to individual

articles rather than homepages. Homepage visits are more valuable to publishers because they

encourage readers to browse additional articles and spend longer on the site.

So it is possible

that aggregators’ offerings substitute to some degree for the market for newspapers as a whole,

even while stimulating traffic to specific articles.

Moreover, even if aggregation services do not substitute for original publications, they may

undermine the market for high-quality news. Professor Neil Weinstock Netanel has argued

that digital platforms aggregating news stories (or simply allowing users to aggregate them)

worth 4–6 euro cents to the publisher. DELOITTE, THE IMPACT OF WEB TRAFFIC ON REVENUES OF TRADITIONAL

NEWSPAPER PUBLISHERS: A STUDY FOR FRANCE, GERMANY, SPAIN AND THE UK (2019),

https://www2.deloitte.com/content/dam/Deloitte/es/Documents/financial-advisory/The-impact-of-web-traffic-on-

revenues-of-traditional-newspaper-publishers.pdf. Google has previously stated that the format of its Google News

service was designed to have “readers spend as little time as possible on Google News and go to the websites of the

publishers,” and the service delivers “more than 10 billion visits to news publishers around the world” every month.

Luis Collado, Google y los editors [Google and publishers], GOOGLE: BLOG OFICIAL DE GOOGLE ESPAÑA (Feb. 28, 2014),

https://espana.googleblog.com/2014/02/google-y-los-editores.html; see also Tr. at 15:5–14 (Dec. 9, 2021) (Kate Sheerin,

Google) (“We [Google] send about 24 billion clicks a month to news publishers . . . .”). Two commenters, Engine and

Reddit, stressed that news aggregation and linking practices support specialized communities and startups based

around discussing current events. See generally Engine, Additional Comments Submitted in Response to U.S.

Comments Submitted in Response to U.S. Copyright Office’s Nov. 9, 2021, Notice of Inquiry (Jan. 5, 2022) (“Reddit

Additional Comments”). Another commenter, representing a tech policy blog, opined that aggregators helped the

blog draw an audience. Tr. at 79:12–15 (Dec. 9, 2021) (Cathy Gellis, Copia Institute) (“I think we’re not alone among

news outlets to say we can only succeed when we can connect with audiences, and that’s what these third party

services are doing, to help us connect with audiences.”).

SCHERER & CHO, CONG. RSCH. SERV., R47018, STOP THE PRESSES? NEWSPAPERS IN THE DIGITAL AGE 10 (citing Lisa M.

George & Christiaan Hogendorn, Local News Online: Aggregators, Geo-Targeting, and the Market for News, 68 J. INDUS.

ECON., 780, 780–818 (2020)).

OLMSTEAD ET AL., PEW RSCH. CTR.: PROJECT FOR EXCELLENCE IN JOURNALISM, NAVIGATING NEWS ONLINE: WHERE

PEOPLE GO, HOW THEY GOT THERE, AND WHAT LURES THEM AWAY 22 (“According to the links users follow, Google

News sends most users on to a news destination, but the range of those destinations is rather limited. Most of

visitors to Google News . . . do click to a news story. According to the data, less than a third of news.google.com

visitors headed to Google.com or another Google service. The remainder followed a link to a news site. But the

benefactors [sic] are limited. Fully 69% of visitors to news.google.com ended up 3 places: nytimes.com (14.6%),

cnn.com (14.4%) and abcnews.go.com (14.0%). Six additional sites were each the destination for 7–10% of visitors

during the time period studied.”); see also SCHERER & CHO, CONG. RSCH. SERV., R47018, STOP THE PRESSES? NEWSPAPERS

IN THE DIGITAL AGE 10 (citing George & Hogendorn, Local News Online: Aggregators, Geo-Targeting, and the Market for

News, 68 J. INDUS. ECON., 780, 780–818) (noting that some algorithms may give lower weight to content from local

newspapers).

See Jeon, Toulouse Sch. of Econ., Working Paper No. 18-912, 18 (“[N]ews aggregators reduce traffic to newspaper

home pages while increasing traffic to individual news articles. Even if all empirical articles agree on the statement

that the business-stealing effect is dominated by the readership-expansion effect, if this comes with a reduced traffic

to home pages, it can have a long-term consequence that is not captured by the empirical studies.”).

U.S. Copyright Office Copyright Protections for Press Publishers

“lack incentives to prioritize quality news content.”

Multiple parties have suggested that

aggregation, by disassociating news content from the outlet and journalists who produced it,

undermines publishers’ ability to build and profit from a distinct identity or a reputation for

quality.

Some argue that aggregators should compensate news publishers for the value that the

publishers’ news content contributes to their services. In their view, news aggregators “free

ride” on publishers’ investment in original reporting and photographs.

An economist acting

as a consultant to the News Media Alliance states that “when Google scrapes newspaper

content and offers detailed snippets, they can monetize this content without paying the content

creators.”

Others believe that aggregators do effectively compensate press publishers by

delivering visitors to their websites.

A Google representative described a “meaningful and

profound exchange of value” between publishers and Google, noting that press publishers

generally “opt in to have more of [their] content rather than less displayed on our services

because they understand the value that we provide. . . . And every time [users] click through to

[publishers’] sites, news publishers have an opportunity to monetize that through

advertising.”

The economist for the News Media Alliance responded that “that traffic flow is

being taxed at a monopoly rate by Google” and therefore delivers less value to publishers than

they might expect in a more competitive market.

Netanel, 34 HARV. J.L. & TECH. at 482.

See, e.g., id. at 490; News Corp Initial Comments at 4–5; see also WALDMAN, FED. COMMC’NS COMM’N, THE

INFORMATION NEEDS OF COMMUNITIES 17, 122–125. Another commenter warned that aggregation leads to repetitious

use of the same photographs, often out of context, providing readers with a narrower and sometimes misleading

perspective. Jessica Silbey, Comments Submitted in Response to U.S. Copyright Office’s Oct. 12, 2021, Notice of

Inquiry at 2 (Oct. 25, 2021) (“Silbey Initial Comments”).

Tr. at 96:14–24 (Dec. 9, 2021) (Ole Jani, Axel Springer SE (“Axel Springer”)) (“[N]ews aggregators are not

philanthropists. . . . And we have a situation where certain businesses are taking a free ride on other people’s assets”).

Tr. at 91:21–24 (Dec. 9, 2021) (Hal Singer, Econ One, consultant to News Media Alliance (“NMA”)).

See Tr. at 79:12–15 (Dec. 9, 2021) (Cathy Gellis, Copia Institute); Tr. at 15:7–8 (Dec. 9, 2021) (Kate Sheerin, Google).

Tr. at 101:1–16 (Dec. 9, 2021) (Annemarie Bridy, Google).

Tr. at 107:1–5 (Dec. 9, 2021) (Hal Singer, Econ One, consultant to NMA).

U.S. Copyright Office Copyright Protections for Press Publishers

III. RECENT COPYRIGHT AND COMPETITION LAW APPROACHES

Out of concern for the continued viability of their news industries, several national and regional

legislatures have in recent years considered or enacted new forms of legal protections for press

publishers. While these protections vary in form, they can be divided into those that extend

A. International Adoptions of Ancillary Copyright

1. Germany

In 2013, Germany enacted an “ancillary copyright” law for press publishers.

Producers of a

“press product” received an exclusive right “to make the press product or parts thereof

available to the public for commercial purposes” on the internet.

A “press product” was

defined as “the editorial and technical preparation of journalistic contributions in the context of

a collection published periodically on any media under one title, which, following an

assessment of the overall circumstances, can be regarded as largely typical for the publishing

house and the overwhelming majority of which does not serve self-advertising purposes.”

The new exclusive right applied only against “commercial operators of search engines or

commercial operators of services which edit the content,” including news aggregators.

It did

not extend to “individual words or very short text excerpts”

or to the mere act of linking, and

expired “one year after publication of the press product.”

When the law went into effect, Google changed its policy for news websites in Germany “with

regard to what [was] listed in Google News from an opt-out procedure[,]” whereby a website

Throughout this Report, we use the term “competition” as the more common international term for the body of law

generally known as “antitrust” in the United States.

Gesetz über Urheberrecht und verwandte Schutzrechte [Urheber-rechtsgesetz] [UrhG] [Copyright Act], Sept. 9,

1965, BGBL I at 1273, as amended by Achtes Gesetz zur Änderung des Urheberrechtsgesetzes, May 7, 2013, BGBL I at

1161, § 87f (Ger.),

https://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl#__bgbl__%2F%2F*%5B%40attr_id%3D%27

bgbl113s1161.pdf%27%5D__1642603369734.

Id. “Journalistic contributions are, more specifically, articles and illustrations which serve to disseminate

information, form opinions or entertain.” Id.

Id.

Id. § 87g(4).

Id. § 87f(2). The law did not define “very short text excerpts,” but the Arbitration Board under the Copyright

Management Act at the German Patent and Trade Mark Office held that the term imposes a “seven-word limit for

snippets, not taking into account used search terms for the maximum word limit.” GERMAN PATENT AND TRADE MARK

OFFICE, ANNUAL REPORT 2015 at 44 (2016), https://www.dpma.de/docs/english/jahresberichte/annualreport2015.pdf.

Gesetz über Urheberrecht und verwandte Schutzrechte [Urheberrechtsgesetz] [UrhG] [Copyright Act], Sept. 9,

1965, BGBL I at 1273, as amended by Achtes Gesetz zur Änderung des Urheberrechtsgesetzes, May 7, 2013, BGBL I at

1161, § 87g(2).

U.S. Copyright Office Copyright Protections for Press Publishers

could use the robots.txt file to exclude Google’s web crawler, “to an opt-in mechanism where

publishers [could] opt-in if they want their websites to be included in Google News.”

opting in, press publishers would renounce their right to compensation for use of their content

and would continue to be aggregated by Google News. Press publishers that did not opt in

alleged that Google “threatened” them with “delet[ion] [of] their publications from the results

on Google News if they did not grant a license to Google for free or if they would claim money

on this basis.”

Relying on the new law, several publishers joined a collective management organization, VG

Media, to assert their exclusive right against news aggregators and search engines.

VG Media

attempted to “establish[] a tariff for the usage of extracts of digital press products” and

published the tariff in the German Federal Gazette.

Google responded that it would “no longer

display snippets and thumbnails of some well-known websites such as bild.de, bunte.de or

hoerzu.de, i.e. those publishers that are organized in VG Media,” but instead would “only

display the link to the article and its heading.”

Philipp Zimbehl, German Copyright Reform: The First Part of the Third Basket, KLUWER COPYRIGHT BLOG (Oct. 18, 2013),

http://copyrightblog.kluweriplaw.com/2013/10/18/german-copyright-reform-the-first-part-of-the-third-basket/; see

also Gerrit Rabenstein, Google News bleibt offene Plattform für alle deutschen Verlage [Google News Remains an Open

Platform for All German Publishers], GOOGLE: THE KEYWORD DEUTSCHLAND (June 21, 2013) (Ger.),

https://blog.google/intl/de-de/unternehmen/engagement/google-news-bleibt-offene-plattform-fuer-verlage/ (“In the

light of this development and against the background of the legal uncertainty emanating from the law, we have

introduced a new confirmation system. With this, we offer German publishers another opportunity to tell us

whether their content should (still) be displayed on Google News.”). This change in policy apparently did not impact

the display of press publishers’ content through Google’s general search engine “as long as the publishers ha[d] not

prevented this with other technical measures.” Daniel Bouhs, Springer und das Leistungsschutzrecht: Mit Google

kuscheln, vorläufig [Springer and the Ancillary Copyright: Cuddle with Google, for the Time Being], TAZ (July 29, 2013) (Ger.),

https://taz.de/Springer-und-das-Leistungsschutzrecht/!5062286/.

Silke von Lewinski, Chronique d’Allemagne (première partie): évolutions législatives en Allemagne entre 2011 et fin 2017

[News from Germany (Part i) – Legislative Developments in Germany from 2011 Until the End of 2017], 255 REVUE

INTERNATIONALE DU DROIT D'AUTEUR [RIDA] 81 (2018) (Fr.), https://www.la-rida.com/fr/article-rida/3375?lang=fr; see

also Loek Essers, Google News Opt-in Is Not Good Enough, German Publishers Say, PCWORLD (June 25, 2013),

https://www.pcworld.com/article/452583/google-news-optin-is-not-good-enough-german-publishers-say.html (“The

new confirmed consent tool is designed for German publishers. This means: If a German publisher does not accept

the ‘confirm consent’ his content will not be shown any longer in any edition of Google News, e.g. also Swiss or

Austrian from August 1st on.” (quoting Google spokesperson)).

von Lewinski, 255 Revue Internationale Du droit d'Auteur [RIDA] at 81.

LSR AKTUELL, THE ANCILLARY COPYRIGHT FOR PRESS PUBLISHERS IN GERMANY P-08 (2017), https://www.lsr-

aktuell.de/sites/default/files/20170202_vg_media_lsra_broschuere_en.pdf; VG Media Tarif Presseverleger [VG Media

Tariff Press Publishers], June 13, 2014, BUNDESANZEIGER [BANZ] at 1 (Ger.) (on file with the Office) (establishing an

11% tariff for “all gross revenues, including foreign sales” for “directly and indirectly achiev[ing] . . . the making

available to the public excerpts from online press products”). In October 2014, the tariff was subsequently reduced to

6.0042%. See VG Media Tarif Presseverleger [VG Media Tariff Press Publishers], Oct. 17, 2014, BUNDESANZEIGER

[BANZ] at 1 (Ger.) (on file with the Office).

Philip Justus, News zu News bei Google [News about News at Google], GOOGLE: THE KEYWORD DEUTSCHLAND (Oct. 1,

2014) (Ger.), https://blog.google/intl/de-de/unternehmen/inside-google/news-zu-news-bei-google/.

U.S. Copyright Office Copyright Protections for Press Publishers

When tariff negotiations bogged down, VG Media initiated a series of lawsuits against Google

and other online service providers asserting both competition and copyright claims.

One

competition claim alleged that Google’s “over 90 percent” market share in digital search in

Germany, combined with its switch to an opt-in procedure that pressured publishers to offer

their content to Google for free, amounted to an abuse of market power.

The copyright claims

sought a judgment with respect to “whether or not the search engine should pay the publishers

to show their articles online.”

The Bundeskartellamt, the German Federal Cartel Office,

rejected the competition claim because the complaint did “not provide sufficient indications of

abusive conduct to initiate formal abuse of dominance proceedings against Google,” and was

“not based on a specific conduct of Google.”

On September 12, 2019, the Court of Justice of the

European Union (“CJEU”) held that the ancillary copyright law was unenforceable because

Germany had not properly notified the European Commission before passing the law.

Verlage beschweren sich beim Kartellamt über Google [Publishers Complain to the Cartel Office about Google], SPIEGEL

NETZWELT (June 24, 2014) (Ger.), https://www.spiegel.de/netzwelt/netzpolitik/leistungsschutzrecht-vg-media-geht-

gegen-google-vors-bundeskartellamt-a-977166.html; see also Greg Sterling, German Publisher Axel Springer: Loss Of

Snippets Caused 80 Percent Traffic Drop, SEARCH ENGINE LAND (Nov. 6, 2014), https://searchengineland.com/german-

publisher-axel-springer-says-removal-snippets-caused-80-percent-traffic-drop-207500 (noting that Axel Springer had

“to opt back in to snippets because of a significant traffic decline that would have potentially caused some of its

members ‘to go bankrupt’”).

Michelle Martin, German Publishers Have Filed Complaint Against Google: VG Media, REUTERS (Jan. 5, 2016),

https://www.reuters.com/article/us-google-media-germany-idUSKBN0UJ1KF20160105.

Complaint by VG Media Not Sufficient to Institute Formal Abuse of Dominance Proceedings Against Google,

BUNDESKARTELLANT (Aug. 22, 2014) (Ger.),

https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2014/22_08_2014_VG_Media.html.

When dismissing the complaint, the Bundeskartellamt stated that it was “closely monitoring Google’s conduct and

detectable reactions to assertions of the ancillary copyrights by individual publishers or VG Media itself from an

antitrust perspective. Where appropriate, it will consider instituting proceedings ex officio.” Id.; see also Till Kreutzer,

Weshalb das Kartellamt die Google-Beschwerde der VG Media ablehnt [Why the Cartel Office Rejects VG Media’s Google

Complaint], IRIGHTS INFO (Aug. 22, 2014) (Ger.), https://irights.info/artikel/bundeskartellamt-vg-media-google-

leistungsschutzrecht-schreiben/23847 (reporting on and providing a PDF of the Cartel Office’s decision). Later,

however, the Bundeskartellamt made a formal decision not to pursue competition charges against Google based on

its response to the ancillary copyright law. Bundeskartellamt [BKartA] [Federal Cartel Office] Sept. 8, 2015, B6-126/14

1 (Ger.), https://www.bundeskartellamt.de/SharedDocs/Entscheidung/EN/Fallberichte/Kartellverbot/2016/B6-126-

14.pdf; see also ORG. FOR ECON. CO-OPERATION AND DEV., ANNUAL REPORT ON COMPETITION POLICY DEVELOPMENTS IN

2015, at 9 (2016) (Ger.), https://www.bundeskartellamt.de/SharedDocs/Publikation/EN/Taetigkeitsberichte/OECD-

AnnualReport2015.pdf. At the outset, the Bundeskartellamt stated, “Google’s conduct most probably does not

violate the prohibition of abusive practices under competition law but [it] [did] not make any conclusive findings,”

and further asserted that it was “highly probable that neither the opt-in declaration required by Google nor the

alternative curtailed presentation of search results by omitting snippets and preview images fulfils the requirements

of discrimination and unfair hindrance, even if it is assumed that Google has a dominant position.”

Bundeskartellamt [BKartA] [Federal Cartel Office] Sept. 8, 2015, B6-126/14 2, 5 (Ger.),

https://www.bundeskartellamt.de/SharedDocs/Entscheidung/EN/Fallberichte/Kartellverbot/2016/B6-126-14.pdf.

See Case C-299/17, VG Media v. Google, ECLI:EU:C:2019:716 (Sept. 12, 2019).

U.S. Copyright Office Copyright Protections for Press Publishers

2. Spain

In 2014, the Spanish government approved a law adding a new publishers’ right to its

intellectual property law.

Unlike Germany’s approach, the law did not grant publishers the

right to exclude third-party uses but rather a non-waivable right to remuneration. The law

required aggregators to pay “equitable compensation” to press publishers for use of news

snippets.

Compensation would be collected and distributed by a collective management

organization.

The new provision did not apply to search engines’ use of “isolated words”

necessary to provide results for a specific search, if the information was made available to the

public without a commercial purpose and the search engine “include[d] a link to the page of

origin of the contents.”

After the bill’s approval, but before it went into effect, Google announced that it would shut

down Google News in Spain, starting on December 16.

According to Google:

Ley 21/2014, de 4 de noviembre, por la que se modifica el texto refundido de la Ley de Propiedad Intelectual,

aprobado por Real Decreto Legislativo 1/1996, de 12 de abril, y la Ley 1/2000, de 7 de enero, de Enjuiciamiento Civil

[Law 21/2014, of November 4, Amending the Consolidated Text of the Law on Intellectual Property, approved by

Royal Legislative Decree 1/1996, of April 12, and Law 1/2000, of January 7, on Civil Procedure] (B.O.E. 2014, 11404),

https://www.congreso.es/constitucion/ficheros/leyes_espa/l_021_2014.pdf.

Congreso de los Diputados, Proyecto de Ley por la que se modifica el Texto Refundido de la Ley de Propiedad

Intelectual, aprobado por Real Decreto Legislativo 1/1996, de 12 de abril, y la Ley 1/2000, de 7 de enero, de

Enjuiciamiento Civil [Draft Law amending the Consolidated Text of the Law on Intellectual Property, approved by

Royal Legislative Decree 1/1996, of April 12, and Law 1/2000, of January 7, on Civil Procedure], BOLETÍN OFICIAL DE

LAS CORTES GENERALES 8 (Feb. 21, 2014), https://www.congreso.es/public_oficiales/L10/CONG/BOCG/A/BOCG-10-A-

81-1.PDF) (“The making available to the public by electronic content aggregation service providers of non-significant

fragments of aggregated content which are disclosed in periodic publications or on websites which are regularly

updated, for the purposes of information, for creation of public opinion or entertainment, shall not require

authorization, without prejudice to the editor’s right, or if appropriate, other right holders to receive fair

compensation. This right shall be unwaivable and will be given effect by means of intellectual property rights

management entities.”). The draft law did not define “non-significant fragments.” Id. “[P]hotographic works” and

“ordinary photographs” were also included in the provision, but only required “authorization” when made available

by the aforementioned services and did not require equitable compensation. Id.

Id.

Id.; see also Raquel Xalabarder, The Remunerated Statutory Limitation for News Aggregation and Search Engines Proposed

by the Spanish Government — Its Compliance with International and EU Law 13–14 (Sept 30, 2014),

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2504596 (discussing the meaning and interpretations of Article

32.2).

Richard Gingras, Novedades acerca de Google Noticias en España [News About Google News in Spain], GOOGLE: BLOG

OFICIAL DE GOOGLE ESPAÑA (Dec. 11, 2014) (Spain), https://espana.googleblog.com/2014/12/novedades-acerca-de-

google-noticias-en.html (“[W]e will proceed to withdraw Spanish publishers from Google News and close Google

News in Spain.”). Reuters reported that as a result of Google’s decision, “readers in Latin America and around the

globe will no longer find links to articles from any Spanish news publishers on Google News.” Eric Auchard, Google

to Shut Down News Site in Spain over Copyright Fees, REUTERS (Dec. 11, 2014), https://www.reuters.com/article/us-

google-spain-news/google-to-shut-down-news-site-in-spain-over-copyright-fees-idUSKBN0JP0QM20141211.

U.S. Copyright Office Copyright Protections for Press Publishers

The reason [was] that this new legislation obliges any Spanish publication to

charge a remuneration whether it wants to or not, to services such as Google

News for showing the slightest fragment of its publications. Since Google News

is a service that does not generate revenue (we do not show advertising on the

website), this new approach is simply unsustainable.

Shortly after Google made its announcement, some Spanish news aggregators followed suit.

Studies conducted shortly after the law was implemented suggest that the law did not have its

desired effect. According to one study, “the fall in the number of visits to online newspapers,

due to the introduction of the new law (and the consequent exit of several aggregators), can be

estimated in the short term as 6.1%.”

This study determined that “smaller newspapers have

been the worst affected ones,” concluding that “depending on the size of the newspaper, . . .

with the 28 most important publishing titles, the traffic drop was [5.8]%, while the following 28

publishing titles in the sample show a [7.1]% decrease. For the 28 least read publishing titles in

the sample, the result is a decrease of [13.5]%.”

A second report authored by Chartbeat, a

content intelligence platform offering analytics tools, found an average traffic decrease

“between 10 and 15 percent” for Spanish news websites after Google News shut down.

Others

noted that, while online newspapers suffered decreases in January, “the written online media

keeps losing visitors [since the law’s enactment], but the rate is now slower, settling [down] at

around 4% and 6% for all newspapers sites, except for elpais.es.”

Richard Gingras, Novedades acerca de Google Noticias en España [News About Google News in Spain], GOOGLE: BLOG

OFICIAL DE GOOGLE ESPAÑA (Dec. 11, 2014) (Spain), https://espana.googleblog.com/2014/12/novedades-acerca-de-

google-noticias-en.html.

See Joan Calzada & Ricard Gil, What Do News Aggregators Do? Evidence from Google News in Spain and Germany 9

(2018), http://diposit.ub.edu/dspace/bitstream/2445/150425/1/695577.pdf (listing “Planeta Ludico, NiagaRank,

Multifriki, InfoAliment, and Beeeinfo” as news aggregators shutting down their services and listing “Planet Ubuntu,

Astrofisica, and Fisica” as news aggregators who modified their content).

PEDRO POSADA DE LA CONCHA ET AL., NERA ECONOMIC CONSULTING, IMPACTO DEL NUEVO ARTÍCULO 32.2 DE LA LEY DE

PROPIEDAD INTELECTUAL [IMPACT OF THE NEW ARTICLE 32.2 OF THE SPANISH INTELLECTUAL PROPERTY ACT] 46 (2015),

within https://www.asktheeu.org/en/request/3176/response/11308/attach/2/AnnexI.pdf.

Id. at 51 (“It is reasonable to expect that the fall in traffic in the long run will be higher, particularly for small digital

newspapers, once other aggregators close down and readers begin to focus on the big newspapers or even start to

turn to other different information media, given the deterioration of the digital media with regards to innovations,

variety of information, difficulty in locating content, etc.”). Other impacts included a “short-term impact on

producer surplus . . . estimated at €10 million per year, which will affect the sector unevenly, presumably more so the

smaller publishers, jeopardizing their financial viability.” Id. at 46.

Matthew Ingram, External Traffic to Spanish News Sites Plummets After Google Move, GIGAOM (Dec. 16, 2014),

https://gigaom.com/2014/12/16/traffic-to-spanish-news-publishers-plummets-after-google-move/. Chartbeat noted

that it “doesn’t track every Spanish news site or publisher, but it has enough data on them as a group to indicate just

how dramatic the traffic decline was.” Id.

Míchel Olmedo Cuevas, Spain: Did the “Google Tax” Really Change the Market?, IPKAT (Mar. 17, 2015),

https://ipkitten.blogspot.com/2015/03/spain-did-google-tax-really-change.html.

U.S. Copyright Office Copyright Protections for Press Publishers

Given the small number of studies and limited size of Spain’s market, any conclusions

regarding the impact of Spain’s right of remuneration for press publications must be

approached with caution.

It is fair to say, however, that existing evidence does not clearly

indicate that the new right generally increased traffic to news websites or remuneration to press

publishers.

3. European Union

On June 7, 2019, the European Directive on Copyright and Related Rights in the Digital Single

Market (“Directive”) entered into force.

Article 15 of the Directive requires Member States to

grant press publishers a new exclusive right, for two years after publication, to authorize or

prohibit the reproduction or making available to the public of press publications by third-party

online service providers.

In requiring an exclusive right, the EU’s approach is closer to

Germany’s earlier approach than to Spain’s right of remuneration. Article 15 does not cover

“private or non-commercial uses” by individual users; “hyperlinking”; “the use of individual

words or very short extracts” from a press publication;

reproduction by “[p]eriodical

publications published for scientific or academic purposes”; the copying of “mere facts”; or any

uses otherwise permitted by EU copyright law, such as quotations for purposes of criticism or

commentary.

100

The Directorate General of the European Commission explained the rationale

for Article 15 by stating that “it is only fair that press publishers are granted their own right in

order to relieve them of the burden of having to prove ownership of copyright in each

journalistic output,” noting that “[w]ithout such a right, press publishers’ abilities to license and

enforce rights in the digital environment is unduly complex . . . because they have to rely on

One commenter cautioned that the Spanish experience is not indicative of how other experiments with ancillary

(Ole Jani, Axel Springer) (“Spain was simply a market too small.”). This commenter states that Article 15 of the

European Union Directive on Copyright and Related Rights in the Digital Single Market has already given publishers

a “tailwind” and will yield better results. Tr. at 110:19–25 (Dec. 9, 2021) (Ole Jani, Axel Springer).

See PEDRO POSADA DE LA CONCHA ET AL., NERA ECONOMIC CONSULTING, IMPACT ON COMPETITION AND ON FREE

MARKET OF THE GOOGLE TAX OR AEDE FEE vii, 55–59 (2017),

http://clabe.org/pdf/Informe_NERA_para_AEEPP_(INGLES).pdf. But see NEWS MEDIA ALLIANCE, THE EFFECTS OF THE

ANCILLARY RIGHT FOR NEWS PUBLISHERS IN SPAIN AND THE RESULTING GOOGLE NEWS CLOSURE (2019),

http://www.newsmediaalliance.org/wp-content/uploads/2019/10/Final-Revised-Spain-Report_11-7-19.pdf (arguing

that Google News’ shutdown did not cause a permanent decrease in traffic or revenue to Spanish press publishers

and led to the growth of more valuable organic traffic).

Directive art. 31 and 32.

Id. art. 15. “Press publications” include “journalistic publications,” but does not cover “websites, such as blogs, that

provide information as part of an activity that is not carried out under the initiative, editorial responsibility and

control of a service provider, such as a news publisher.” Id. at recital 56. Publishers of press publications are

“understood as covering service providers, such as news publishers or news agencies.” Id. at recital 55. The right

does not apply to press publications published before June 6, 2019. Id. art. 15.

The Directive does not provide a definition for “very short extracts.”

100

Id. at recitals 45, 55–58 and art. 15.

U.S. Copyright Office Copyright Protections for Press Publishers

assignments and exclusive rights granted by those who contribute to the publications

(journalists or photographers).

101

Article 15 also provides rights to authors and other rightsholders whose works are incorporated

into press publications.

102

Authors are entitled to “receive an appropriate share of the revenues

that press publishers receive for the use of their press publications by information society

service providers.”

103

Article 29 required Member States to fully implement the Directive into their own national laws

by June 7, 2021.

104

While several countries have either completed transposition of the Directive

in full or have included Article 15 among those provisions that have been transposed to date,

105

implementation of Article 15 is still ongoing in a handful of Member States.

106

Empirical review of the effects of the Directive will have to await full implementation.

B. Competition Law Approaches

Developments in the United States and abroad have highlighted other, competition-based

approaches to addressing the relationship between news publishers and large news

aggregators. Many commenters in this Study argued that competition concerns (specifically, a

lack of competition in search, social media, and digital advertising), not copyright, are the

primary problem facing news publishers.

107

101

EUROPEAN COMMISSION, DIRECTORATE GENERAL FOR INTERNAL POLICIES OF THE UNION, POLICY DEPARTMENT FOR

CITIZENS’ RIGHTS AND CONSTITUTIONAL AFFAIRS, STRENGTHENING THE POSITION OF PRESS PUBLISHERS AND AUTHORS AND

PERFORMERS IN THE COPYRIGHT DIRECTIVE 15 (2017),

https://www.europarl.europa.eu/RegData/etudes/STUD/2017/596810/IPOL_STU%282017%29596810_EN.pdf.

102

Directive recital 59.

103

Id. art. 15(5). The entitlement to an appropriate share of revenues “should be without prejudice to national laws on

ownership or exercise of rights in the context of employment contracts, provided that such laws are in compliance

with Union law.” Id. at recital 59.

104

Id. art. 29(1). The Directive also requires “Member States [to] communicate to the Commission the text of the main

provisions of national law which they adopt in the field covered by this Directive.” Id. art. 29(2).

105

As of early June 2022, Austria, Croatia, Czech Republic, Estonia, Hungary, Ireland, Italy, Germany, Lithuania,

Luxembourg, Malta, Netherlands, Romania, and Spain have implemented the Directive in full, while the partial

implementations in Denmark and France included Article 15. See National transposition measures communicated by

the Member States concerning: Directive 2019/790, of the European Parliament and of the Council of 17 April 2019 on

O.J. (L 130) 92, 92–125, EUROPEAN COMMISSION, https://eur-lex.europa.eu/legal-

content/EN/NIM/?uri=CELEX:32019L0790.

106

See id.

107

See generally NMA, HOW GOOGLE ABUSES ITS POSITION AS A MARKET DOMINANT PLATFORM TO STRONG-ARM NEWS

PUBLISHERS AND HURT JOURNALISM 22 (2020), within NMA Initial Comments at Appendix: Part 1; Hal Singer,

Additional Comments Submitted in Response to U.S. Copyright Office’s Nov. 9, 2021, Notice of Inquiry (Dec. 13,

2021) (“Singer Additional Comments”); see also News Corp Initial Comments at 16 (“But any recalibration of

U.S. Copyright Office Copyright Protections for Press Publishers

Commenters disagreed on whether the Copyright Office ought to take any position on

competition-related issues. Some specifically requested that the Office endorse the Journalism

Competition and Preservation Act (“JCPA”).

108

Proponents of the JCPA maintain that the

legislation is within the scope of the Office’s work as related to the exercise of copyright rights,

comparing it to the Digital Millennium Copyright Act’s provisions concerning technical

measures that control access to copyrighted works.

109

According to these commenters, the JCPA

is “an access-based statute” that “doesn’t get into what can someone do with content they have

lawful access to. It doesn’t get into fair use . . . .”

110

Other commenters stated that the JCPA is

outside the scope of this Study and the Office “should refrain from taking any position.”

111

We believe that other agencies are better positioned to evaluate the merits of competition-based

protections for press publishers. For this reason, the Office does not offer any findings or

recommendations with respect to competition policy or alternative models for funding

journalism.

1. Australia

In February 2021, Australia adopted a news media bargaining code requiring Google and

Facebook, specifically, to negotiate with press publishers over compensation for the value the

publishers’ stories generate on the two companies’ platforms.

112

Any news organization can

publishers and republishers of news content is not remedied.”); Electronic Frontier Foundation (“EFF”), Comments

Submitted in Response to U.S. Copyright Office’s Oct. 12, 2021, Notice of Inquiry at 4–5 (Nov. 26, 2021) (“EFF Initial

Comments”) (“The harms facing news media are not those of aggregators and copyright. A far bigger factor is

monopoly control of online advertising. . . . Until there are more alternatives to the current online advertising market,

news media will continue to be at the mercy of large companies like Google and Facebook.”); Netanel, 34 HARV. J.L. &

TECH. at 475 (“Several factors have contributed to journalism’s tailspin. . . . But in recent years one factor looms

particularly large: the overwhelming market power of digital platforms, principally Google and Facebook.”); MPA

The Association of Magazine Media (“MPA”), Additional Comments Submitted in Response to U.S. Copyright

Office’s Nov. 9, 2021, Notice of Inquiry at 3 (Jan. 5, 2022) (“MPA Additional Comments”); National Press

Photographers Association (“NPPA”), Additional Comments Submitted in Response to U.S. Copyright Office’s Nov.

9, 2021, Notice of Inquiry at 4–5 (Jan. 5, 2022) (“NPPA Additional Comments”); National Public Radio, Inc. (“NPR”),

Comments Submitted in Response to U.S. Copyright Office’s Oct. 12, 2021, Notice of Inquiry at 8 (Nov. 24, 2021)

(“NPR Initial Comments); Public Knowledge, Comments Submitted in Response to U.S. Copyright Office’s Oct. 12,

2021, Notice of Inquiry at 12 (Nov. 26, 2021) (“Public Knowledge Initial Comments”).

108

See, e.g., News Corp Initial Comments at 16; NMA Initial Comments at 3, 22–23.

109

Tr. at 89:23–24 (Dec. 9, 2021) (Matthew Williams, NMA); cf. 17 U.S.C. § 1201 (“Circumvention of copyright

protection systems”).

110

Tr. at 89:23–90:03 (Dec. 9, 2021) (Matthew Williams, NMA). See also NMA Initial Comments at 23; Tr. at 68:14–

69:08 (Dec. 9, 2021) (Danielle Coffey, NMA); Tr. at 169:22–170:10 (Dec. 9, 2021) (Eric Schwartz, NMA); Tr. at 104:15–19

(Dec. 9, 2021) (Matthew Williams, NMA).

111

CCIA-IA Joint Initial Comments at 7–8; Tr. at 101:17–24 (Dec. 9, 2021) (Annemarie Bridy, Google); Tr. at 125:25–

126:11 (Dec. 9, 2021) (Peter Routhier, Internet Archive).

112

Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021 (Cth)

(Austl.), https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r6652_aspassed/toc_pdf/20177b01.pdf. Note,

however, that the law exempts platforms that reach bargains outside of the Code. Kelly Buchanan, Australia: New

Legislation Establishes Code of Conduct for Negotiations Between News Media and Digital Platforms Over Payments for

U.S. Copyright Office Copyright Protections for Press Publishers

notify Google or Facebook of its intent to bargain.

113

Compensation terms may account for the

value the publisher derives from Google’s or Facebook’s use of its material—in other words,

Google can argue that its royalty rate should be lower because it drives traffic to the publisher’s

site.

114

If, after three months of bargaining, the parties have not reached an agreement, an

arbitration panel makes a binding decision on the rate of remuneration.

115

Because Australia’s

law is not copyright-based, the bargaining right applies to all news content, including headlines

and snippets, not only material protected by copyright.

116

Since enactment of the code, several publishers have struck licensing deals with Google and

Facebook,

117

and several countries have discussed following Australia’s model.

118

Critics have

Content, LIBR. CONG. GLOB. LEGAL MONITOR (Feb. 26, 2021), https://www.loc.gov/item/gobal-legal-monitor/2021-02-

26/australia-new-legislation-establishes-code-of-conduct-for-negotiations-between- news-media-and-digital-

platforms-over-payments-for-content/. The law also includes a set of minimum standards for providing advance

notice of changes to algorithmic ranking and presentation of news.

113

Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021 (Cth)

(Austl.) Sec. 52ZE.

114

Id. Sec. 52ZZ1(b).

115

Id. Sec. 52ZIA.

116

Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021 (Cth)

(Austl.). Opponents of Australia’s approach, including Google, have argued that it rests on a misunderstanding of

the economic forces affecting press publishers and undermines the “principle of unrestricted linking between

websites.”

Mel Silva, Mel Silva’s Opening Statement to the Senate Economics Committee Inquiry, GOOGLE: THE KEYWORD

(Jan. 22, 2021), https://blog.google/around-the-globe/google-asia/australia/mel-silvas-opening-statement/. Facebook

initially protested the law by blocking news sharing in Australia, but restored service after Australia amended the

law to include a two-month mediation period and to accommodate pre-existing deals between Facebook and news

publishers. Elizabeth Dwoskin, Facebook, Australia Reach Deal to Restore News Pages After Shutdown, WASH. POST (Feb.

23, 2021), https://www.washingtonpost.com/technology/2021/02/22/facebook-news-australia-deal/; see also Buchanan,

Australia: New Legislation Establishes Code of Conduct for Negotiations Between News Media and Digital Platforms over

Payments for Content, LIBR. CONG.: GLOB. LEGAL MONITOR. Some commenters state that, because Australia’s

bargaining code covers unoriginal content, lacks exceptions like fair use, and compels Google and Facebook to

bargain regardless of whether they wish to carry the publisher’s content, a U.S. version of the law would violate the

First Amendment and U.S. treaty obligations. CCIA-IA Joint Initial Comments at 13–14, 23; Tr. at 175:17–25 (Dec. 9,

2021) (John Bergmayer, Public Knowledge); Tr. at 99:22–100:9 (Dec. 9, 2021) (Joshua Lamel, Re:Create).

117

See Jo Printz & Tyrone Dalton, Small News Publishers Band Together in Negotiations with Tech Giants Google, Facebook,

ABC CENTRAL VICTORIA (Nov. 29, 2021), https://www.abc.net.au/news/2021-11-30/independent-publishers-

beginnegotiations-with-tech-giants/100660660; Callum Jaspan, Country Press Australia Pens Agreement with Google on

Showcase Program, MUMBRELLA (Sept. 3, 2021), https://mumbrella.com.au/country-press-australia-pens-

agreementwith-google-on-showcase-program-701608.

118

See Andy Blatchford, Canada Wants Digital Giants to Compensate Local News Outlets, POLITICO (Apr. 5, 2022),

https://www.politico.com/news/2022/04/05/canada-digital-giants-compensate-local-news-00023113; William Turvill,

Canada’s News Industry Expects up to $150m Annual Windfall from Australia-style Big Tech Crackdown, PRESS GAZETTE

(Dec. 2, 2021), https://pressgazette.co.uk/canada-google-facebook-regulation-news-industry/ (“Prime minister Justin

Trudeau (pictured) has pledged to introduce a news media bargaining code for Canada within the next two

months.”); Theano Karanikioti, Following in Australia’s Footsteps: EU to Make Google and Facebook Pay for News?, THE

PLATFORM LAW BLOG (Feb. 12, 2021), https://theplatformlaw.blog/2021/02/12/following-in-australias-footsteps-eu-to-

make-google-and-facebook-pay-for-news/ (“Members of the European Parliament are eager to follow in Australia’s

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characterized the law as a “link tax” that will undermine a key feature of the internet

119

while

amounting to a windfall for only the largest publishers.

120

As the law is only a year old, it is too soon to evaluate its impact on Australia’s press publishing

ecosystem.

2. France

Anticipating France’s implementation of Article 15, Google announced that it would no longer

display snippets of results from European press publishers as part of search results in France,

unless a publisher opted in to the display free of charge.

121

French press publisher groups sued

Google, and France’s competition authority declared that Google would have to negotiate

payment in good faith.

122

Google subsequently signed contracts with several French news

publishers

123

and reached a framework agreement to pay $76 million over three years to a larger

group,

124

but in July of 2021, the competition authority fined Google over $500 million for failure

to negotiate in good faith.

125

Its chief said that Google’s practices “were likely to constitute an

abuse of a dominant position.”

126

In June 2022, Google settled this dispute.

127

Some commenters have pointed to France’s fines and Google’s license negotiations as showing

that combining ancillary rights and competition law can be effective in bolstering press

footsteps and force Google and Facebook to pay for news, the Financial Times reported. MEPs working on the Digital

Services Act (‘DSA’) and the Digital Markets Act (‘DMA’) could consider amending these instruments to reflect

aspects of the proposed Australian News Media and Digital Platforms Mandatory Bargaining Code.”).

119

Google Initial Comments at 9–10.

120

See Public Knowledge Initial Comments at 4–5.

121

See Thibault Larger & Laura Kayali, French Publishers Win Decisive Battle Against Google, POLITICO (Apr. 9, 2020),

https://www.politico.eu/article/french-publishers-windecisive-battle-against-google [https://perma.cc/T7J4-X9GC].

122

See Natasha Lomas, France’s Competition Watchdog Orders Google to Pay for News Reuse, TECHCRUNCH (Apr. 9, 2020),

https://techcrunch.com/2020/04/09/frances-competition-watchdog-orders-google-to-pay-for-news-reuse/; Larger &

Kayali, French Publishers Win Decisive Battle Against Google, POLITICO (Apr. 9, 2020),

https://www.politico.eu/article/french-publishers-windecisive-battle-against-google [https://perma.cc/T7J4-X9GC].

123

See Tom Hirche, Google Signs Contracts with a Handful of French Publishers, IGEL (Nov. 24, 2020),

https://ancillarycopyright.eu/news/2020-11-24/google-signs-contracts-handful-french-press-publishers.

124

Mathieu Rosemain & Ingrid Melander, France Fines Google 500 Mln Euros Over Copyright Row, REUTERS (July 13,

2021), https://www.reuters.com/technology/france-fines-google-500-mln-over-copyright-row-2021-07-13/.

125

See France Fines Google $592M in a Dispute Over Paying News Publishers for Content, NPR (Jul. 13, 2021),

https://www.npr.org/2021/07/13/1015596060/france-fines-google-592m-in-a-dispute-over-paying-news-publishers-for-

content.

126

Larger & Kayali, French Publishers Win Decisive Battle Against Google, POLITICO (Apr. 9, 2020),

https://www.politico.eu/article/french-publishers-windecisive-battle-against-google [https://perma.cc/T7J4-X9GC].

127

Gaspard Sebag, Google Avoids More Fines After Settling French News Dispute, BLOOMBERG (Jun. 21, 2022),

https://www.bloomberg.com/news/articles/2022-06-21/google-avoids-more-fines-after-ending-french-dispute-over-

news.

U.S. Copyright Office Copyright Protections for Press Publishers

publishers’ bargaining power.

128

Others have criticized this approach, where Google must pay

to display snippets and may be fined for not reaching agreements to do so, as creating a “must-

carry” regime that would be inconsistent with principles of U.S. law.

129

3. JCPA

The JCPA was introduced in March 2021 in both the Senate (S. 673) and the House (H.R.

1735).

130

As introduced, it would create a four-year safe harbor from antitrust laws for news

content creators “to collectively withhold content from, or negotiate with” online content

distributors about how they may distribute that content.

131

The bill defines news content

creators as “print, broadcast, or digital news organization[s]” who have a “dedicated

professional editorial staff that creates and distributes original news and related content . . . on

at least a weekly basis,” with “not less than 25 percent” of their total content consisting of

“original news and related content,”

132

as well as those that are licensed by the Federal

Communications Commission to “broadcast[] original news and related content.”

133

“Online

content distributors” are entities that “operate[] a website or other online service that displays,

distributes, or directs users to news articles, works of journalism, or other content on the

internet that is generated by third-party news content creators” and have no less than one

billion monthly active users “in the aggregate, of all of [their] websites or online services

worldwide.”

134

The bill sets out conditions for collective negotiations between news content

creators and online content distributors. The negotiations cannot be “limited to price” and must

“directly relate to the quality, accuracy, attribution or branding, and interoperability of

news.”

135

Negotiations must be “nondiscriminatory” with respect to other news content

creators and contain terms that “would be available to all news content creators.”

136

128

See NMA Initial Comments at 31.

129

See Public Knowledge Initial Comments at 4; see also LCA Initial Comments at 15 (outlining constitutional

objections to must-carry obligation). The ruling has also been criticized as it relates to EU law. See Giuseppe

Colangelo, Enforcing Copyright Through Antitrust? A Transatlantic View of the Strange Case of News Publishers Against

Digital Platforms 12–19 (Stanford-Vienna Transatlantic Tech. Law Forum, TTLF Working Papers No. 66, 2020),

https://law.stanford.edu/publications/no-66-enforcing-copyright-through-antitrust-a-transatlantic-view-of-the-

strange-case-of-news-publishers-against-digital-platforms/.

130

Journalism Competition and Preservation Act of 2021, S. 673, 117th Cong. (2021). The Journalism Competition and

Preservation Act was initially introduced in 2019. Journalism Competition and Preservation Act of 2019, S. 1700,

116th Cong. (2019).

131

Journalism Competition and Preservation Act of 2021, S. 673, 117th Cong. § 2(b) (2021).

132

Id. § 2(a)(2)(A)(i)–(a)(2)(B)(i) (2021).

133

Id. § 2(a)(2)(B)(ii) (2021).

134

Id. § 2(a)(3) (2021).

135

Id. § 2(b)(1)(A), (C) (2021).

136

Id. § 2(b)(1)(B), (D) (2021).

U.S. Copyright Office Copyright Protections for Press Publishers

Several organizations and individuals discussed the JCPA in their comments and during the

roundtable. Some commenters stated that the JCPA is “necessary” to “address the dominant

online platform problem” and could help “remove” the power imbalance that allegedly exists

between press publishers and online platforms.

137

Organizations representing writers and

photographers requested that their members, and not only the publishers, be represented in any

bargaining-based approach.

138

Other commenters warned that the JCPA could “create a form of

private ownership of facts” and would “exaggerate existing power differences” by “tend[ing] to

benefit large actors . . . and leaving smaller outlets and tech-enabled media startups behind.”

139

C. Other Proposals

Commenters and academics skeptical of changes to either copyright or competition law raised

several other proposals for supporting journalism. These included an excise tax on digital

advertising revenue, with proceeds directed to investigative journalism;

140

privacy reforms

aimed at increasing the value of the contextual advertising newspapers can provide;

141

assistance for local newspapers to reorganize as nonprofits;

142

and other direct support for

public media.

143

137

NMA Initial Comments at 3, 23; Singer Additional Comments at 7.

138

See, e.g., Authors Guild, Comments Submitted in Response to U.S. Copyright Office’s Oct. 12, 2021, Notice of

Inquiry at 6 (Nov. 26, 2021) (“Authors Guild Initial Comments”); NPPA Additional Comments at 5.

139

Public Knowledge Initial Comments at 12; Engine Additional Comments at 11. See also LCA Additional

Comments at 3 n.4 (“[E]ven if the JCPA succeeded in forcing news aggregators to pay to use headlines and ledes, it

would not meaningfully address the problem of local journalism. Only a small fraction of the additional revenue

collected would trickle down to the local news sites.”); Tr. at. 179:06–19 (Dec. 9, 2021) (Jonathan Band, LCA) (“[A]ll

the money will still go to the big publishers, and then, you know, some crumbs will go to the local publishers, and

that's not what we want.”); Netanel, 34 HARV. J.L. & TECH. at 509–10 (“[T]he proposed legislation would not prevent

leading global news publishers, like News Corp., from reaching individual licensing deals with the platforms,

leaving only small publishers that generate a truly negligible portion of the platforms’ overall business to bargain

collectively.”). But see Tr. at 118:14–119:03 (Dec. 9, 2021) (Hal Singer, Econ One, consultant to NMA) (“[I]f the JCPA

produces a pot of money, then approximates the fair market value contribution of all newspapers, including the

smalls and the large, right, then the smalls will get a portion of that pot based on their pro rata share of however the

coalition wants to break it up.”).

140

Netanel, 34 HARV. J.L. & TECH. at 516–19. Netanel states that there are rough parallels for an excise tax to support

journalism in France and Germany. Id. at 521. The economist Paul Romer has also proposed a tax on digital

advertising revenue, albeit a progressive tax aimed not at financing journalism but at reducing the political power of

the largest digital advertising companies. Paul Romer, Taxing Digital Advertising, PAUL ROMER (May 17, 2021),

https://adtax.paulromer.net/#modest.

141

Public Knowledge Initial Comments at 12–13.

142

R Street-Niskanen Joint Initial Comments at 5–6.

143

See Public Knowledge Initial Comments at 13; R Street-Niskanen Joint Initial Comments at 6–7.

U.S. Copyright Office Copyright Protections for Press Publishers

IV. FINDINGS AND RECOMMENDATIONS

Below, we outline existing copyright protections for press publishers under U.S. law and

evaluate their adequacy. We then assess the advisability of proposed additional copyright-like

protections.

A. Existing Protections for Press Publishers in the United States

1. Copyright Protection for News Content

Existing U.S. copyright law gives publishers several means to protect their news content.

144

First, a press publisher typically owns the copyright in the whole of its print issues or in

websites containing news articles as a collective work.

145

Second, the press publisher often owns

or can assert rights in individual articles that it publishes, through the work-made-for-hire

doctrine,

146

assignments of rights, or exclusive licenses.

147

The News Media Alliance estimates

144

News articles are literary works under 17 U.S.C. § 102(a)(1); news photographs are pictorial works under 17 U.S.C.

§ 102(a)(5); and television and radio news broadcasts, when fixed, are audiovisual works under 17 U.S.C. § 102(a)(6)

and sound recordings under 17 U.S.C. § 102(a)(7), respectively. That news materials are fact-based does not prevent

them from being protected by copyright in the first instance. Authors Guild v. Google, Inc., 804 F.3d 202, 220 (2d Cir.

2015) (“Those who report the news undoubtedly create factual works. It cannot seriously be argued that, for that

reason, others may freely copy and re-disseminate news reports.”).

145

The Copyright Act defines “collective work” as a work “in which a number of contributions, constituting separate

and independent works in themselves, are assembled into a collective whole.” 17 U.S.C. § 101. Additionally,

collective works under the Copyright Act are considered a type of compilation, which in turn is defined as “a work

formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or

arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” Id. See also id.

§ 201(c) (explaining that “[i]n the absence of an express transfer of the copyright or of any rights under it, the owner

of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing

the contribution as part of that particular collective work, any revision of that collective work, and any later collective

work in the same series.”). The website of a daily newspaper, which assembles various discrete articles,

photographs, and advertisements, could be an example of one or more copyrightable digital “collective works.”

146

“Work made for hire” is a category of works created for an employer or commissioning party, for which the

individual(s) who create the work are not considered the author(s) or initial owner(s) for copyright purposes.

Instead, the author is either (1) the employer of that individual, if the work is prepared within the scope of

employment; or (2) the entity who commissions or orders the creation of the work, provided that the work fits within

one of nine specific categories and the parties expressly agree in a signed writing that “the work shall be considered a

work made for hire.” Id. § 101. Among these nine categories is “a contribution to a collective work,” meaning that a

freelance article for a newspaper or magazine may constitute a work-made-for-hire, if the author and the publisher

agreed to this in a signed writing. Id. In addition, any article written by an employee of a newspaper or magazine as

part of their employment would clearly be a work-made-for-hire, with the publisher having the legal status of author

(and copyright owner).

147

For freelance articles or photographs that are not works-made-for-hire, the author—in whom all exclusive rights

initially vest—may transfer her rights to the publisher, either for a limited time or for the duration of the copyright,

and the transfer may cover all or some of the exclusive rights. A transfer of rights may take the form of an

assignment (meaning that legal title is transferred) or an exclusive license (meaning that exclusive permission to use

the right(s) is transferred). See Minden Pictures, Inc. v. John Wiley & Sons, Inc., 795 F.3d 997, 1003 (9th Cir. 2015). For

both types of transfers, the transferee gains the right to bring a suit for infringement. See 3 MELVIN B. NIMMER & DAVID

U.S. Copyright Office Copyright Protections for Press Publishers

that its members own the copyright in the majority of the content they publish, “including the

majority of individual works in their publications,” most often through the work-made-for-hire

doctrine.

148

Photographs may be an exception: the National Press Photographers Association

informs the Office that photographers usually retain the copyright in their works.

149

When a press publisher owns a copyright in either a print issue or website

150

or in an individual

article, it has the exclusive right to do or authorize the reproduction, preparation of derivative

works, distribution, public performance, and public display of that work, including on the

internet.

151

These exclusive rights are not absolute, however. Both U.S. law and international

treaties establish limits on copyright, including some applicable to news content. The Berne

Convention, for example, carves out “news of the day” from the protections it requires and

provides an exception for “quotations from newspaper articles and periodicals in the form of

press summaries.”

152

Under U.S. copyright law, several doctrines allow certain uses of news

content, by news aggregators or others, without the news publisher’s permission or payment of

licensing fees.

a) Protectability

(1) Facts and Ideas

One fundamental constraint on publishers’ ability to prevent reuse of their news content is that

facts and ideas are not copyrightable.

153

As a result, news publishers may not use their

NIMMER, NIMMER ON COPYRIGHT § 12.02[B][1] (Matthew Bender, Rev. Ed.) (“NIMMER ON COPYRIGHT”). In contrast, if

the parties only agree to a nonexclusive license—meaning that the author remains free to license the work to other

parties—then the grantee cannot bring an infringement suit. See Minden, 795 F.3d at 1003.

148

NMA Initial Comments at 24.

149

NPPA Additional Comments at 3.

150

The relationship between the copyright in a collective work and in a particular contribution to a collective work is

spelled out in the Copyright Act, which sets forth three instances where a publisher that does not own the copyright

in an article may nonetheless reproduce and distribute it as part of: (1) “that particular collective work,” (2) “any

revision of that collective work,” and (3) “any later collective work in the same series.” 17 U.S.C. § 201(c). In the 2001

Tasini decision, the Supreme Court interpreted section 201(c) as “adjust[ing] a publisher’s copyright in its collective

work to accommodate a freelancer’s copyright in her contribution. If there is demand for a freelance article standing

alone or in a new collection, the Copyright Act allows the freelancer to benefit from that demand; after authorizing

initial publication, the freelancer may also sell the article to others.” N.Y. Times Co. v. Tasini, 533 U.S. 483, 497 (2001).

151

See 17 U.S.C. § 106(1)–(5). As the Copyright Office has noted, these exclusive rights cover certain uses of

copyrighted materials online, including the making available of copyrighted works for download or viewing via

streaming or embedding. See generally U.S. COPYRIGHT OFFICE, THE MAKING AVAILABLE RIGHT IN THE UNITED STATES

(2016), https://www.copyright.gov/docs/making_available/making-available-right.pdf; see also Goldman, 302 F. Supp.

3d at 586 (holding that the embedding of an image on a website constitutes a public display of the work).

152

Berne Convention for the Protection of Literary and Artistic Works art. 2(8), Sept. 9, 1886, as revised July 24, 1971,

and as amended Sept. 28, 1979, S. TREATY DOC. NO. 99-27 (1986) (“Berne Convention”) (“The protection of this

Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press

information.”).

153

17 U.S.C. § 102(b) (“In no case does copyright protection for an original work of authorship extend to any idea,

U.S. Copyright Office Copyright Protections for Press Publishers

copyrights to exclude others from copying purely factual news content—meaning, for example,

that news aggregators may repackage the facts that publishers report.

The non-copyrightability of facts in news articles in particular was affirmed by the Supreme

Court over a century ago. In International News Service v. Associated Press,

154

the Court explained,

“[i]t is not to be supposed that the framers of the Constitution . . . intended to confer upon one

who might happen to be the first to report a historic event the exclusive right for any period to

spread the knowledge of it.”

155

As the Supreme Court reiterated nearly 80 years later in Feist

Publications v. Rural Telephone Service, “[t]he sine qua non of copyright is originality[,]”

156

and

“[t]he first person to find and report a particular fact has not created the fact; he or she has

merely discovered its existence.”

157

For this reason, the Supreme Court has noted that “all

facts—scientific, historical biographical, and news of the day . . . may not be copyrighted and are

part of the public domain available to every person.”

158

This limitation on copyright protection for facts does not, however, mean that news stories as

written may be freely copied.

159

The International News Service Court distinguished the literary

expression of a news article, which may be subject to copyright, from the news element—“the

information respecting current events contained in the literary production”—which may not.

160

procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it

is described, explained, illustrated, or embodied in such work.”); Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340,

345 (1991); see also Baker v. Selden, 101 U.S. 99, 102–03 (1880) (describing idea/expression dichotomy); cf. Harper & Row,

Publishers, Inc. v. Nation Enters., 471 U.S. 539, 589–90 (1985) (“To ensure the progress of arts and sciences and the

integrity of First Amendment values, ideas and information must not be freighted with claims of proprietary right.”).

This limitation has constitutional dimensions. See Harper & Row, 471 U.S. at 560 (noting “the First Amendment

protections already embodied in the Copyright Act’s distinction between copyrightable expression and

uncopyrightable facts and ideas”); see also Agreement on Trade-Related Aspects of Intellectual Property Rights art.

9(2), Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299

(“Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or

mathematical concepts as such.”); WIPO Copyright Treaty art. 2, Dec. 20, 1996, S. TREATY DOC. NO. 105-17, 2186

U.N.T.S. 121 (“Copyright protection extends to expressions and not to ideas, procedures, methods of operation or

mathematical concepts as such.”).

154

Int’l News Serv. v. Associated Press, 248 U.S. 215 (1918).

155

Id. at 234.

156

Feist, 499 U.S. at 345.

157

Id. at 347.

158

Id. at 348 (emphasis added); see also Associated Press v. Meltwater U.S. Holdings, Inc., 931 F. Supp. 2d 537, 549

(S.D.N.Y. 2013) (“The reporting of facts is not protectable under the Copyright Act since facts are never original to an

author.” (internal quotation marks omitted)).

159

Wainwright Secs. Inc. v. Wall St. Transcript Corp., 558 F.2d 91, 95 (2d Cir. 1977) (“It is, of course, axiomatic that ‘news

events’ may not be copyrighted. But in considering the copyright protections due a report of news events or factual

developments, it is important to differentiate between the substance of the information contained in the report, i.e.,

the event itself, and ‘the particular form or collocation of words in which the writer has communicated it.’” (cleaned

up)), abrogated on other grounds by Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010).

160

Int’l News Serv., 248 U.S. at 234. The Court ultimately analyzed the controversy between a news publisher and a

U.S. Copyright Office Copyright Protections for Press Publishers

In Harper & Row, Publishers, Inc. v. Nation Enterprises, the Court acknowledged that copyright

law permits the copying of facts but nonetheless held that the unlicensed publication of large

excerpts from Gerald Ford’s memoirs unfairly appropriated the author’s original expressive

contribution and was therefore prima facie infringing.

161

In the more recent case of Associated Press v. Meltwater U.S. Holdings, Inc., a district court

analyzed a news monitoring service’s reproduction of headlines and excerpts from news

articles.

162

The service delivered, in response to user searches, reports that displayed an article’s

headline, up to 300 characters of its lede, and up to 140 characters surrounding the “hit”

sentence responsive to the search.

163

The court held that these reports reproduced protectable

expression.

164

It noted that although “[t]he reporting of facts is not protectable under the

presentation of facts can display originality.”

165

And “[t]here is even more room for originality

in descriptions of facts.”

166

The risk that a third party’s reuse of news reporting takes original expression (and not only

unprotectable facts) rises with the quantity of material reused. In Nihon Keizai Shimbun, Inc. v.

Comline Business Data, Inc., the Second Circuit considered a service that translated and rewrote

news articles for republication to its customers.

167

Conducting a substantial similarity analysis

with respect to twenty-two “abstracts” the service created from Nikkei publications, the court

excluded facts from consideration.

168

It still found that most of the “abstracts” copied

protectable expressive choices, mirroring the original articles’ structure and organization and

much of the original language.

169

The court distinguished two of the defendant’s “abstracts” as,

competing service that had pirated its material as one of unfair competition law. Id. at 235.

161

Harper & Row, 471 U.S. at 548–49.

162

Meltwater U.S. Holdings, Inc., 931 F. Supp. 2d at 544–45. As the court explained, Meltwater offered a “news

monitoring service” that allows “users to monitor the news based on the presence of certain words or phrases in

news articles appearing on the Internet and to receive excerpts of those news articles.” Id. at 543. To make these

excerpts available to its users, Meltwater “use[d] automated computer programs or algorithms to copy or ‘scrape’ an

article from an online news source, index the article, and deliver verbatim excerpts of the article to its customers in

response to search queries.” Id.

163

Id. at 544–45.

164

Id. at 550.

165

Id. at 549–50 (cleaned up).

166

Id. at 549 (citing Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 70 (2d Cir. 1999)).

167

Nihon Keizai Shimbun, Inc., 166 F.3d 65.

168

Id. at 70 (“Here, Comline had every right to republish the facts contained in Nikkei's articles; in determining

substantial similarity, we must look only to the original elements in Nikkei's presentation of those facts.”).

169

Id. at 71 (“The Comline abstracts appear to be direct, if not word-for-word, translations of the Nikkei articles,

edited only for clarity. The average Comline abstract uses about two-thirds of the protectible material in the

corresponding Nikkei article. The abstracts track the information in the articles sentence by sentence, in sequence;

only occasionally do the abstracts combine two Nikkei sentences, divide a sentence, or rearrange the facts among

different sentences. Comline adopts, by and large, the exact same structure and organization of the facts reported by

U.S. Copyright Office Copyright Protections for Press Publishers

respectively, containing only the factual information in the corresponding Nikkei article

170

and

as copying only the first paragraph of six.

171

Taken together, these cases draw a few bright lines around an unsettled area for news

publishers and aggregators. A platform or service aggregating only the headline and lede of an

article is less likely to reproduce the article’s expressive content and more likely to reproduce

only facts or other unprotectable material.

172

To the extent that the headline and lede

themselves contain original expression, however, or the aggregator copies more of the content,

the aggregator runs an increased risk of infringing. A social media post aggregating 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.

(2) Merger

Even original expression is not always protectable. Where there are only a few, limited ways of

expressing an idea, the merger doctrine bars protection for the expression in order to avoid

giving a backdoor monopoly in the idea itself.

173

At least some basic headlines and ledes may be susceptible to merger. Functional

considerations, such as space and the need to stress key facts, may narrow the range of

expressive choices available for headlines and ledes, both of which are usually intended to

convey to the reader the most important aspects of the article.

174

Although different outlets

Nikkei.”).

170

Id.

171

Id.

172

Alfred C. Yen, A Preliminary First Amendment Analysis of Legislation Treating News Aggregation as Copyright

Infringement, 12 VAND. J. ENT. & TECH. L. 947, 953–63 (2010); 1 PAUL GOLDSTEIN, GOLDSTEIN ON COPYRIGHT § 2.14.4 (3d

ed. 2022) (“GOLDSTEIN ON COPYRIGHT”); but see Meltwater U.S. Holdings, Inc., 931 F. Supp. 2d at 550 (finding that the

reproduction of headlines, 300 characters of article ledes, and up to 140 characters surrounding the “hit” sentence

responsive to the user’s search copied protectable speech).

173

N.Y. Mercantile Exch., Inc. v. IntercontinentalExchange, Inc., 497 F.3d 109, 116–17 (2d Cir. 2007); Ets-Hokin v. Skyy

Spirits, Inc., 225 F.3d. 1068, 1082 (9th Cir. 2000) (“Under the merger doctrine, courts will not protect a copyrightable

work from infringement if the idea underlying the copyrighted work can be expressed in only one way, lest there be

a monopoly on the underlying idea.”); 4 NIMMER ON COPYRIGHT § 13.03[B][3][a] (explaining that “courts have invoked

the doctrine of merger” where “rigorously protecting the expression would confer a monopoly over the idea itself, in

contravention of the statutory command”). Similarly, the scènes à faire doctrine, which “exclude[s] from protection

against infringement those elements of a work that necessarily result from external factors inherent in the subject

matter of the work,” Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366, 1375 (10th Cir. 1997), reflects a concern with locking up

building blocks of creativity.

174

See Yen, 12 VAND. J. ENT. & TECH. L. at 956. The rise of aggregators and the resulting competition for eyeballs and

clicks on the internet, however, has spawned the opposite phenomena—an increasing prevalence of “clickbait”

headlines that seek to minimize the amount of information about the story that is conveyed, in order to induce a

reader to “click” on the headline to learn the full story. See Jason Hennessey, 12 Surprising Examples of Clickbait

Headlines That Work, SEARCH ENGINE JOURNAL (Apr. 22, 2020), https://www.searchenginejournal.com/12-surprising-

examples-of-clickbait-headlines-that-work/362688/. But see Steve Lohr, This Boring Headline is Written for Google, N.Y.

U.S. Copyright Office Copyright Protections for Press Publishers

often produce highly varied headlines for the same story,

175

some headlines are close to bare

statements of fact.

176

While the Office is unaware of any cases applying the merger doctrine to

news publications, the latter situation could lead a court to do so.

(3) Short Phrases

Another relevant limitation on the protectability of headlines and ledes is the words and short

phrases doctrine, under which courts generally refuse copyright protection to individual words,

titles, and short phrases.

177

The doctrine dates back to 19th century common law,

178

and the U.S.

179

This

prohibition is codified at 37 C.F.R. § 202.1(a). In addition, the Compendium of U.S. Copyright

Office Practices, Third Edition and Copyright Office Circular 33 both state:

Words and short phrases, such as names, titles, and slogans, are not

copyrightable because they contain a de minimis amount of authorship. See 37

C.F.R. § 202.1(a). The U.S. Copyright Office cannot register individual words or

TIMES (Apr. 9, 2006), https://www.nytimes.com/2006/04/09/

weekinreview/ideas-trends-this-boring-headline-is-written-for-google.html (describing how search engines find

stories with plain headlines more easily).

175

See Jane C. Ginsburg, Comments Submitted in Response to U.S. Copyright Office’s Oct. 12, 2021, Notice of Inquiry

at 10–24 (Nov. 23, 2021) (“Ginsburg Initial Comments”) (Appendix materials comparing diverse headlines for a

single event).

176

See, e.g., Hugo Martín, U.S. Mask Mandates on Planes, Buses will Likely Ease Soon. Just not Yet, L.A. TIMES (Mar. 10,

2022), https://www.latimes.com/business/story/2022-03-10/mask-mandate-extended-planes-buses-transit; Lori

Aratani, Ian Duncan, and Tyler Pager, Mask Mandate Extended for Air Travel and Public Transit, WASH. POST (Mar. 10,

2022), https://www.washingtonpost.com/transportation/2022/03/10/transportation-mask-requirement-air-travel/; cf.

Alexander Weaver, Comment, Aggravated With Aggregators: Can International Copyright Law Help Save the Newsroom?,

26 EMORY INT'L L. REV. 1161, 1184 (2012) (“Short headlines ‘generally seek to encapsulate the factual content of the

story,’ which would make the expression and facts inseparable and subject to the merger doctrine.” (citations

omitted)); Tr. at 158:14–17 (Dec. 9, 2021) (John Bergmayer, Public Knowledge) (“[I]f a man bites a dog and you say

man bites dog, even if you just posit that it is original and copyrightable, other people are allowed to say man bites

dog if a man bites a dog.”).

177

See Justin Hughes, Size Matters (or Should) in Copyright Law, 74 FORDHAM L. REV. 575, 581–82 (2005) (collecting

cases).

178

See 1 NIMMER ON COPYRIGHT § 2.01 [B][3]; Hughes, 74 FORDHAM L. REV. at 605 (noting that the 1879 Drone on

publication, is not a subject of copyright”). But see Jollie v. Jaques, 13 F. Cas. 910 (C.C.S.D.N.Y. 1850) (No. 7437)

(speculating that ‘in the case of a valid copy-right of the work[,] . . . . [i]t may be that the title should be considered as

falling within the purview of the statute, and that to protect the work the court would be required to secure the title

from piracy”).

179

See 21 Fed. Reg. 6,022 (Aug. 11, 1956); 37 C.F.R. § 202.1(a) (1959). Although not formalized in the Code of Federal

Regulations until the 1950s, the Office’s practice of denying registration to words and short phrases stretches back

another 60 years, to 1899. 2 WILLIAM PATRY, PATRY ON COPYRIGHT § 4.2 (2022) (“PATRY ON COPYRIGHT”).

U.S. Copyright Office Copyright Protections for Press Publishers

brief combinations of words, even if the word or short phrase is novel or

distinctive or lends itself to a play on words.

180

Multiple commenters, however, argue that the short phrases doctrine should not be interpreted

as a categorical bar to copyrightability, especially as applied to headlines and ledes.

181

In the

words of the News Media Alliance, “the categorical exclusion of words and short phrases has

the effect of conveying to potential infringers that the use of short news excerpts, including

scraping headlines, is permissible, even if it captures the heart of the infringed article that is

copyrightable as a whole.”

182

In a detailed analysis of the short phrases doctrine, Professor Jane C. Ginsburg offered three

arguments as to why some headlines and ledes should be protectable: first, that courts applying

the short phrases doctrine have focused on originality or functionality rather than brevity as

such, leaving open the possibility that a sufficiently original short phrase might be

copyrightable;

183

second, that the examples given by the Compendium of non-protectable words

and short phrases—names of individuals or organizations, titles, catchwords, or slogans—tend

either to lack all originality or be “considerably more brief than most headlines or ledes”;

184

and

third, that a rule based solely on brevity, without any guide as to how short is too short, could

be difficult to implement.

185

180

U.S. COPYRIGHT OFFICE, COMPENDIUM OF U.S. COPYRIGHT OFFICE PRACTICES § 313.4(C) (3d ed. 2021) (“COMPENDIUM

(THIRD)”); U.S. COPYRIGHT OFFICE, CIRCULAR 33: WORKS NOT PROTECTED BY COPYRIGHT (Mar. 2021),

https://www.copyright.gov/circs/circ33.pdf (less the source references provided in the Compendium). Registration

and copyrightability are not synonymous, and a work that the Copyright Office refuses to register may nonetheless

be deemed by a court to warrant copyright protection in the context of an infringement action. See 17 U.S.C. § 411(a)

(“[W]here the deposit, application, and fee required for registration have been delivered to the Copyright Office in

proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if

notice thereof, with a copy of the complaint, is served on the Register of Copyrights”).

181

See generally, Jane C. Ginsburg, Additional Comments Submitted in Response to U.S. Copyright Office’s Nov. 9,

2021, Notice of Inquiry (Jan. 5, 2022) (“Ginsburg Additional Comments”); see also News Corp Initial Comments at 7;

NMA Initial Comments at 19; Tr. at 11:12–15 (Dec. 9, 2021) (Jane C. Ginsburg, consultant to NMA) (“[W]hat we don’t

have, notwithstanding the words and short phrases bar, is a true prohibition on the copying of original, albeit

succinct, phrases, and I think it’s very important to take a closer look at the words and short phrases doctrine.”).

182

NMA Initial Comments at 26.

183

Ginsburg Additional Comments at 6–9 (collecting cases).

184

Id. at 5. The Office has not attempted a comprehensive survey of headline length.

185

Id. at 4. The arguments for and against the short phrases doctrine were discussed at length in Southco, Inc. v.

Kanebridge Corp., 390 F.3d 276 (3d Cir. 2004). There, the Third Circuit, sitting en banc, divided on the doctrine’s

application to a manufacturer’s product numbers. The majority held that the short phrases doctrine was an

independent grounds for rejecting the copyrightability of certain Southbridge product numbers. Id. at 286. It quoted

from the Copyright Office’s circular and regulations setting out the words and short phrases doctrine and noted that

“Congress has not disturbed the Copyright Office’s long-standing practice against registering short phrases, despite

repeated and extensive revisions of the copyright code.” Id. at 287 (internal quotation marks and citation omitted).

Two separate opinions took issue with the short phrases doctrine. The first, a concurrence by Judge Becker, joined by

Judges McKee and Smith, argued that the doctrine was ambiguous: it contained no explicit word count threshold but

also did not explain what else was required to identify a “short phrase.” Id. at 289 (Becker, J., dissenting in part). In

U.S. Copyright Office Copyright Protections for Press Publishers

Courts applying the short phrases doctrine have indeed focused more on originality than

brevity as such.

186

The Compendium reflects this focus by emphasizing short phrases’ de minimis

amount of “authorship” rather than their de minimis amount of text.

187

Courts do not attempt to

set a per se rule around a specific word count, and acknowledge that some short phrases may

exhibit creativity.

188

Likewise, the Office has avoided any suggestion that a work must contain a

specific number of words to be considered more than just a short phrase.

189

Lack of creativity is not, however, the sole justification for the short phrases doctrine. Short

phrases may be particularly vulnerable to merger with the underlying fact or idea.

190

Courts

have generally treated titles as uncopyrightable per se, regardless of any creativity their authors

claim they possess.

191

And some courts and commentators have expressed concern about the

practice, Judge Becker noted, courts, including those cited by the Office’s circular, fell back to originality analysis. Id.

Judge Becker suggested that the short phrases doctrine may nonetheless serve as a “rule of thumb” for copyright

examiners. A dissent by Judges Roth and Chertoff was equally emphatic in rejecting a purely length-based

understanding of the words and short phrases doctrine, declaring that “no court has relied on § 201.1(a) to hold that

an otherwise original expression was uncopyrightable just because it was brief enough to be deemed a short phrase.”

Id. at 298 (Roth, J., dissenting).

186

See, e.g., Clanton v. UMG Recordings, Inc., 556 F. Supp. 3d 322, 332 (S.D.N.Y. 2021) (“Words and short phrases,

including titles and slogans, rarely if ever exhibit sufficient originality to warrant copyright protection.” (quoting

McDonald v. West, 138 F. Supp. 3d 448, 454 (S.D.N.Y. 2015))); Stern v. Does, 978 F. Supp. 2d 1031, 1041 (C.D. Cal. 2011)

(“[T)he distinction between sentence and phrase is immaterial to the originality analysis. The focus must remain on

the presence of creativity. While a shorter work, ceteris paribus, is less likely to possess the creative spark necessary to

be accorded copyright protection, that will not always be the case.”); Allen v. Destiny's Child, No. 06 C 6606, 2009 WL

2178676, at *25–27 (N.D. Ill. July 21, 2009). Cf. 1 NIMMER ON COPYRIGHT § 2.01[B][3] (“[E]ven a short phrase may

command copyright protection if it exhibits sufficient creativity.”). But see Sega Enters v. Accolade Inc., 977 F.2d 1510,

1524 n.7 (9th Cir. 1992) (as amended Jan. 6, 1993) (noting that 20-bytes of code plus the letters S-E-G-A is of de minimis

length and therefore likely a “word” or “short phrase” that is not protected by copyright law).

187

COMPENDIUM (THIRD) § 313.4(C); see also J. Racenstein & Co. v. Wallace, No. 96 Civ. 9222, 1999 WL 632853, at *1

(S.D.N.Y. Aug. 19, 1999) (“The governing principle of law embodied by the Copyright Office regulation is that short

words and phrases tend to be too trivial or insignificant to exhibit the minimal level of creativity necessary to warrant

188

See CCM Cable Rep, Inc. v. Ocean Coast Props., Inc., 97 F.3d 1504, 1520 n.20 (1st Cir. 1996) (acknowledging that “not

all short, simple, declarative sentences fall within the meaning of [37] C.F.R. § 201.1(a)”); Syrus v. Bennett, 455 Fed.

App’x. 806, 809 (10th Cir. 2011) (“[A] short phrase may command copyright protection if it exhibits sufficient

creativity.” (quoting 1 NIMMER ON COPYRIGHT § 2.01[B][3])).

189

COMPENDIUM THIRD § 111.3(C) (“The 50-word limit” for the group registration option for short online literary

works “is not intended to establish a general threshold for evaluating the copyrightability of literary works.”); Group

Registration of Short Online Literary Works, 85 Fed. Reg. 37,341, 37,342 (June 22, 2020) (by adopting a “50-word

threshold” for the group registration option for short online literary works “the Office is not purporting to define a

word-count-based threshold to govern copyrightability determinations for literary works generally”).

190

See 1 GOLDSTEIN ON COPYRIGHT § 2.7.3 (“[T]he shorter the phrase, the less likely it is to have acceptable substitutes,

thus barring protection under the merger doctrine.”); Hughes, 74 FORDHAM L. REV. at 617–18 (“As the expression

becomes smaller and smaller, it becomes much more likely that it is the only reasonable expression of a simple idea.

What we call ‘merger’ must apply very frequently with short phrases.”).

191

See generally 1 NIMMER ON COPYRIGHT § 2.16 [A] (“Copyright Office Regulations place titles outside of statutory

copyright and judicial construction to that effect is plain.”); Duff v. Kan. City Star Co., 299 F.2d 320, 323 n.2 (8th Cir.

U.S. Copyright Office Copyright Protections for Press Publishers

risk of protection for short phrases locking up the “building blocks of creativity,” even if a third

party could ultimately defend its use of such phrases under the fair use doctrine.

192

b) Fair Use

Even protectable elements of news stories may be used without authorization under applicable

exceptions and limitations in the Copyright Act. The most relevant of these is the fair use

doctrine, codified at 17 U.S.C. § 107, which provides that:

[T]he fair use of a copyrighted work, including such use by reproduction in

copies or phonorecords or by any other means specified by that section [§ 106],

for purposes such as criticism, comment, news reporting, teaching (including

multiple copies for classroom use), scholarship, or research, is not an

infringement of copyright.

193

In evaluating the fairness of a particular use, courts must consider four nonexclusive factors:

“(1) the purpose and character of the use, including whether such use is of a commercial nature

or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount

and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the

1962) (“The right secured by the copyright laws is the right to use a literary composition—the product of the mind

and genius of the author—not the name or title given to it.” (quoting 2 HARRY D. NIMS, LAW OF UNFAIR COMPETITION

AND TRADE-MARKS § 272 (4th Ed. 1947)); Arvelo v. Am. Int’l Ins. Co., No. 95-1360, 1995 WL 561530, at *1 (1st Cir. Sept.

21, 1995) (“The non-copyrightability of titles in particular has been authoritatively established.”); Columbia Pictures

Corp. v. National Broadcasting Co., 137 F. Supp. 348, 353 (S.D. Cal. 1955) (holding that some materials which ordinarily

appear in copyrightable works, including titles, are not protectable). But see Johnston v. Twentieth Century–Fox Film

Corp., 82 Cal. App. 2d 796, 187 P.2d 474 (1947) (suggesting that a title may be entitled to protection if it is “arbitrary,

fictitious, fanciful, artificial, or technical”).

192

See ATC Distrib. Group, Inc. v. Whatever It Takes Transmissions & Parts, Inc., 402 F.3d 700, 709–10 (6th Cir. 2005)

(“Originality aside, there are other sound reasons for denying copyright protection to short ‘works,’ such as part

numbers[,]” where even with a fair use defense, “anyone using that number in a commercial context would face the

time-consuming and expensive prospect of having to defend themselves against such claims.”); Southco, Inc., 390 F.3d

at 286 (“Although the fair use defense would presumably protect [users] in most situations . . . fair use is an

affirmative defense and may impose an undue burden.”); Clanton, 556 F. Supp. 3d at 332 (refusing protection to a

lyric using the “ordinary building blocks” of the English language); McDonald, 138 F. Supp. 3d at 454 (“The principle

excludes from copyright the ‘raw materials’ of art, like colors, letters, descriptive facts . . . as well as previous creative

works that have fallen into the public domain. It likewise excludes the basic building blocks of music, including

tempo and individual notes.”). See also BENJAMIN KAPLAN, AN UNHURRIED VIEW OF COPYRIGHT 46 (1967) (allowing

(“[I]ndependent protection of these small creations would arguably do harm by diminishing the public domain and

producing unnecessary transaction costs through fragmentation of the copyright ‘markets.’”); Tr. 46:20–47:11 (Dec. 9,

2021) (Daniel Takash, Niskanen) (“I think, should that specific protection be extended [to headlines], you would

necessarily run into an interesting dynamic . . . where you would have competing news publishers reporting on the

same story and . . . mak[ing] editorial decisions based on concerns about litigation, or litigation should emerge

between publishers that would simply prevent proliferation. . . . [W]e certainly wouldn’t want to create a scenario

where the [news publishers] are fighting among themselves.”).

193

17 U.S.C. § 107.

U.S. Copyright Office Copyright Protections for Press Publishers

effect of the use upon the potential market for or value of the copyrighted work.”

194

Commenters did not agree on the extent to which fair use permits aggregation of news content.

While there was near-consensus among commenters that the aggregation of large extracts or

entire articles can exceed what is permitted,

195

news publishers maintained that the scraping of

headlines or lede sentences alone is not necessarily fair use; commenters representing libraries

and aggregators disagreed.

196

Skeptics of such aggregation as fair use emphasized facts that cut against fair use under one or

more of the statutory factors, such as the absence of commentary or criticism,

197

the centrality of

headlines and ledes to the value of news articles,

198

the systematic nature of the copying,

199

the

alleged substitutional impact of aggregation,

200

and the potential societal harms from

aggregators devaluing original reporting.

201

Commenters on the other side pointed to the

allegedly transformative nature of linking and indexing,

202

the relatively thin copyright

194

Id.

195

See, e.g., LCA Initial Comments at 2 (“If the aggregator displayed significantly more content, such as the first

paragraph or two of an article, the fair use analysis might yield a different result. Arguably, copying that much

content might harm the market for the article under the fourth fair use factor.”).

196

Compare NMA Initial Comments at 26, and SAM RICKETSON & JANE C. GINSBURG, INTELLECTUAL PROPERTY IN NEWS?

WHY NOT?, RESEARCH HANDBOOK ON INTELLECTUAL PROPERTY IN MEDIA AND ENTMT 13–19 (Megan Richardson & Sam

Ricketson eds., 2016), reproduced within NMA Initial Comments Appendix: Part III at 13–19, with Google Initial

Comments at 3 (citing the use of headlines and short snippets as an acceptable aggregation practice).

197

See, e.g., Ginsburg Initial Comments at 4 (“Aggregators collect and redistribute copied content; they do not

comment, criticize or analyze the material they copy.”); NMA Initial Comments at 13–15. This is not true of all

aggregators, however, as some websites typically considered to be “aggregators”—like the Huffington Post and

Gawker—have in the past added commentary to their summaries.

198

See, e.g., Ginsburg Initial Comments at 2 (“Headlines and ledes capture the heart of the news account.”); NMA

Initial Comments at 17.

199

See, e.g., Ginsburg Initial Comments at 3, 8–9; NMA Initial Comments at 17.

200

See, e.g., Ginsburg Initial Comments at 8–9 (“But the systematic verbatim copying involved in news aggregation

goes beyond providing information (e.g., announcing the topic), to capture the way the sources recount the

information, both with respect to the text and especially regarding the photographs. Substituting for ‘the author’s

manner of expression’ will weight the fourth factor against fair use.” (footnote omitted)).

201

See, e.g., id. at 9; NPR Initial Comments at 5 (“The problem of ‘free-riding’ is essentially the issue of news

aggregators using publisher content, in whole or in part, on their own sites to profit from such work. They take the

work of others and place advertising against it, making a profit without incurring any of the costs in gathering or

writing news. Without compensating the originators of the news content, this provides them a financial advantage

while taking support away from those who invest in newsgathering by drawing audience to their own sites in lieu of

those who created the original works.”).

202

See, e.g., Google Initial Comments at 4 (“Moreover, not only is there substantial public benefit from services that

aggregate news content, news aggregators’ transformative use of links and snippets drives profitable traffic to

publishers’ copyrighted articles, increasing rather than diminishing the value of those articles.”).

U.S. Copyright Office Copyright Protections for Press Publishers

protection afforded to factual content,

203

the small amount taken from the total original work,

204

the value aggregators may create for news publishers through increased referrals,

205

and the

asserted absence of market harm flowing from the use of any creative, rather than factual,

material.

206

Fair use is a fact- and context-specific analysis, and small changes in a fact pattern can produce

divergent results.

207

And there is considerable variety in aggregators, their techniques, and the

context in which they use news materials. Some aggregators only link to headlines; others

include multiple sentences or photographs. It is therefore not possible to determine how fair

use applies to “news aggregation” in general—only how it applies in specific circumstances.

Moreover, the Copyright Office is not aware of any copyright infringement suit brought by

press publishers based on the aggregation of headlines and ledes that has reached a final

judgment.

208

Case law does provide certain guideposts. Although “news reporting” is one of the illustrative

“fair” purposes listed in 17 U.S.C. § 107, and the fair use doctrine often permits quotation in a

news reporting context,

209

the mere fact that an entity is engaged in a form of news reporting

203

See, e.g., id. (“Any cognizable copyright in such heavily factual, previously published content must be exceedingly

thin.” (citing Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1197 (2021))); EFF Initial Comments at 3.

204

EFF Initial Comments at 3.

205

Google Initial Comments at 4–5 (citing a Deloitte study finding that the value of each referral from Google to news

publishers was worth between 4–6 euro cents).

206

In other words, if the fourth factor considers only harms that are “cognizable under the Copyright Act,” and

consumers use aggregated links for their uncopyrightable factual content, then, it is argued, any substitution should

not weigh against a finding of fair use. EFF Initial Comments at 3 (citing Google LLC v. Oracle Am., Inc., 141 S. Ct.

1183, 1206 (2021)).

207

See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (“The task [of fair use analysis] is not to be simplified

with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis. . . . All [statutory

factors] are to be explored, and the results weighed together, in light of the purposes of copyright.”). Cf. Google v.

Oracle Am., Inc., 141 S. Ct. 1183 (2021) (explaining that fair use’s “application may well vary depending upon

context”).

208

Cf. Shannon Henson, Google Settles Suit Over New Content, LAW360 (Apr. 9, 2007),

http://www.law360.com/articles/22235/google-settles-suit-over-news-content (reporting settlement of Agence France

Presse suit against Google based on aggregation of headlines and initial sentences). Uncertainty as to the application

of the above legal doctrines may have motivated some aggregators to negotiate with news publishers and may have

deterred news publishers from challenging some aggregation practices in court. See NMA Initial Comments at 25

(“The lack of clarity around what types of uses may properly be transformative, as opposed to substitutional, has left

press publishers with uncertainty that impedes their ability to enforce their exclusive rights in the online context.”).

209

See, e.g., Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 88 n.3 (2d Cir. 2014) (explaining that fair use

often, though not always, supports direct quotation of copyrighted works in a news reporting context); Payne v. The

Courier-J., Nos. 05-5942, 05-6066, 2006 WL 2075345, at *3 (6th Cir. July 25, 2006) (article profiling former basketball

player in prison that quoted from one of his books was fair use news reporting); Nunez v. Caribbean Int’l News Corp.,

235 F.3d 18, 22–23 (1st Cir. 2000) (holding newspaper’s publication of controversial photos of Miss Puerto Rico

Universe as part of story on controversy was fair use, in part because “the pictures were the story”); L.A. News Serv. v.

KCAL-TV Channel 9, 108 F.3d 1119, 1121–22 (9th Cir. 1997) (holding that first factor weighed in favor of new station’s

U.S. Copyright Office Copyright Protections for Press Publishers

does not resolve the fair use question.

210

Rather, courts’ analysis of the first factor, the purpose

and character of the use, varies with the context and character of the reporting.

In Harper & Row, the Supreme Court held that The Nation’s unauthorized printing of excerpts

from Gerald Ford’s soon-to-be-published memoir was infringing, notwithstanding the excerpts’

newsworthiness. The Court explained, “[i]n evaluating character and purpose we cannot

ignore The Nation’s stated purpose of scooping the forthcoming hardcover and Time abstracts.

The Nation’s use had not merely the incidental effect but the intended purpose of supplanting

the copyright holder’s commercially valuable right of first publication.”

211

By contrast, in

Swatch Group Management Services Ltd. v. Bloomberg L.P., the Second Circuit held that

Bloomberg’s publication of an audio recording and transcript of a Swatch Group earnings call

was fair, in part because Bloomberg’s purpose was not to “scoop” but “simply to deliver

newsworthy financial information to investors and analysts. . . . That kind of activity, whose

protection lies at the core of the First Amendment, would be crippled if the news media and

similar organizations were limited to sources of information that authorize disclosure.”

212

The

court distinguished earlier Second Circuit decisions involving conduct more like the

“scooping,” where a news services’ translation of Japanese news articles into English and a

ratings agency’s copying of a competitor’s information about bond redemptions were held not

to be fair use: “In all three of those cases . . . the defendants attempted to use the banner of

newsworthiness to supersede the core objects of original works whose production critically

depended upon copyright protection.”

213

Under the first factor, courts regularly ask whether the use of the copyrighted material is

“transformative.”

214

On the one hand, “[i]n the context of news reporting and analogous

rebroadcast of a competitor’s news footage even as other factors did not).

210

See, e.g., Harper & Row, 471 U.S. at 561 (“The fact that an article arguably is ‘news’ and therefore a productive use is

simply one factor in a fair use analysis.”); Swatch Grp. Mgmt. Servs. Ltd., 756 F.3d at 85 (“A news organization thus

may not freely copy creative expression solely because the expression itself is newsworthy.”); L.A. News Serv. v.

Reuters Television Int’l, Ltd., 149 F.3d 987, 993–94 (9th Cir. 1998).

211

Harper & Row, 471 U.S. at 561–62.

212

Swatch Grp. Mgmt. Servs. Ltd., 756 F.3d at 83–85. Although 17 U.S.C. § 107 includes among the first factor

considerations, “whether such use is of a commercial nature,” the Swatch Group Management Services court notes that

“[a]lmost all newspapers, books and magazines are published by commercial enterprises that seek a profit,” and

therefore asked instead whether the link between Bloomberg’s copying and its commercial gain was attenuated. Id.

at 83 (quotation marks and citations omitted). Finding that it was, the Second Circuit assigned little weight to the fact

that Bloomberg was a for-profit publication. Id.

213

Id. at 86 (citing Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65 (2d Cir. 1999); Wainwright Sec., Inc.

v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977); Fin. Info., Inc. v. Moody's Invs. Serv., Inc. (“FII”), 751 F.2d 501

(2d Cir. 1984)).

214

Swatch Grp. Mgmt. Servs. Ltd., 756 F.3d at 84 (“The Supreme Court has also instructed courts analyzing the first fair

use factor to consider the transformativeness of the use—that is, whether ‘the new work merely supersedes the

objects of the original creation, or instead adds something new, with a further purpose or different character, altering

the first with new expression, meaning, or message.’” (quoting Campbell, 510 U.S. at 579)). The Office notes that a fair

use case focused on what constitutes “transformative” use in the context of visual art is currently pending before the

U.S. Copyright Office Copyright Protections for Press Publishers

activities, . . . the need to convey information to the public accurately may in some instances

make it desirable and consonant with copyright law for a defendant to faithfully reproduce an

original work without alteration.”

215

On the other hand, while copying without alteration or

inclusion of commentary has been considered transformative in some contexts,

216

news

reporting uses that merely quote but do not add to or elaborate on copyrighted material are less

likely to be transformative.

217

In Los Angeles News Service v. Reuters Television International, Ltd.,

for example, Reuters retransmitted to other news organizations a small portion of an

independent news service’s footage of the Rodney King riots.

218

The Ninth Circuit affirmed the

district court’s findings that the copying was not fair because, among other things, Reuters did

not edit, explain, or otherwise elaborate on the footage.

219

Courts have described some forms of “aggregation” for indexing and search as transformative.

In Perfect 10, Inc. v. Amazon.com, the Ninth Circuit held that Google’s aggregation of copyrighted

photographs into a searchable index of low-resolution thumbnail images was “highly

transformative,” since “a search engine transforms the image into a pointer directing a user to a

source of information”

220

and delivers social benefit.

221

Similarly, in Authors Guild v. Google, Inc.,

the Second Circuit held that Google’s unauthorized digitization and display of snippets of

copyrighted books as part of a searchable index was “highly transformative.”

222

To summarize, a court analyzing the first fair use factor would not stop with the general “news

reporting” purpose but also examine the context and transformative character of the use. The

fact that aggregators’ purpose, by definition, is not to “scoop” a copyright owner’s right of first

publication could weigh in favor of fair use.

223

Whether aggregators’ compilation of links and

snippets could be found transformative would vary with the aggregators’ practices, but to the

extent some aggregators do not add anything to the original reporting or offer a product

distinct from the press publishers’, this could weigh against a finding of fair use.

Supreme Court. See U.S. Supreme Court Order List: 596 U.S. at 2 (U.S. Mar. 28, 2022),

https://www.supremecourt.gov/orders/courtorders/032822zor_f2bh.pdf (granting certiorari in Andy Warhol Found.,

Inc. v. Goldsmith et al., No. 21-869).

215

Swatch Grp. Mgmt. Servs. Ltd., 756 F.3d at 84.

216

See, e.g., Authors Guild, 804 F.3d at 216–17 (holding that Google’s copying of books for the purpose of enabling

search was “highly transformative purpose”); Swatch Grp. Mgmt. Servs. Ltd., 756 F.3d at 83–85 (finding news outlet’s

publication of audio transcript without commentary was transformative).

217

See Monge v. Maya Mags., Inc., 688 F.3d 1164, 1174 (9th Cir. 2012) (summarizing Ninth Circuit cases).

218

L.A. News Serv. v. Reuters, 149 F.3d at 993–94.

219

Id. at 990.

220

Perfect 10, Inc. v. Amazon.com, 508 F.3d 1146, 1168 (9th Cir. 2007).

221

Id. at 1165–66.

222

Authors Guild, 804 F.3d at 216–17.

223

The fact that copyright owners’ works have been published also relates to the second fair use factor because the

“scope of fair use is narrower with respect to unpublished works.” Harper & Row, 471 U.S. at 564.

U.S. Copyright Office Copyright Protections for Press Publishers

The second fair use factor, the nature of the copyrighted work, is less complex. In Google v.

Oracle America, the Supreme Court noted that copyright’s protection is thinner where the work

is factual rather than fictional and where it is bound up with uncopyrightable material.

224

Thinner protection for news articles would therefore weigh in favor of aggregators’ fair use

defense. But the second factor rarely plays a determinative role in fair use analysis,

225

and

courts often reject fair use defenses even where the copyrighted material was factual.

226

Accordingly, “thin” protection for news materials would not itself shield a news aggregator if

the other factors tilted against a finding of fair use.

The third fair use factor, the amount and substantiality of the portion used in relation to the

copyrighted work as a whole, has often carried significant weight in cases involving news

reporting. In Authors Guild v. Google, Inc., the Second Circuit found that the snippets Google

Books displayed from copied works showed “just enough context surrounding the searched

term to help [a searcher] evaluate whether the book falls within the scope of her interest

(without revealing so much as to threaten the author’s copyright interests).”

227

In so doing, the

snippets “add[ed] importantly to the highly transformative purpose of identifying books of

interest to the searcher.”

228

Courts have been more skeptical of fair use defenses by aggregators who took larger segments

of copyrighted works.

229

For example, in Fox News Network, LLC v. TVEyes, Inc., the Second

Circuit held that the aggregation of television news content into a searchable index was not fair

use, to the extent that the service enabled users to watch and share ten-minute clips.

230

The

concurrence distinguished TVEyes’ service from Google Books’ snippets based on the length of

the clips and their likelihood of substituting for the original works: “Certainly a ten minute clip

224

Google v. Oracle Am. Inc., 141 S. Ct. at 1197–98; see also 4 NIMMER ON COPYRIGHT § 13.05[A] [2][a] (“[C]opyright

protection is narrower, and the corresponding application of the fair use defense greater, in the case of factual works

than in the case of works of fiction or fantasy.”).

225

Authors Guild, 804 F.3d at 220 (citing WILLIAM F. PATRY, PATRY ON FAIR USE § 4.1 (2015)). But see Google v. Oracle Am.

Inc., 141 S. Ct. at 1201–02 (beginning fair use analysis with the second factor and concluding that the work at issue

was, if copyrightable at all, far from the core of copyright, weighing in favor of fair use). Cf. Robert Kasunic, Is That

All There Is? Reflections on the Nature of the Second Fair Use Factor, 31 Colum. J.L. & Arts 529 (2008) (discussing history

of second factor and proposing a more rigorous second-factor analysis).

226

See, e.g., Harper & Row, 471 U.S. at 561–62; Fox News Network, LLC v. TVEyes, Inc., 883 F.3d 169, 180–81 (2d Cir.

2018); L.A. News Serv. v. Reuters, 149 F.3d at 993–94.

227

Authors Guild, 804 F.3d at 218.

228

Id.

229

See, e.g., MidlevelU, Inc. v. ACI Info. Grp., 989 F.3d 1205, 1222–23 (11th Cir. 2021) (denying judgment as a matter of

law on fair use defense where aggregated index of blog content also allowed users to view full text of articles without

navigating to the original source); TVEyes, Inc., 883 F.3d at 180–81; Meltwater U.S. Holdings, Inc., 931 F. Supp. 2d at 561

(finding news monitoring service’s reproduction and distribution of excerpts of online news articles was not fair use).

Cf. Video Pipeline, Inc. v. Buena Vista Home Entmt., 342 F.3d 191, 203 (3d Cir. 2003) (rejecting fair use defense of a

service that compiled movie clips into a commercial database of movie trailers).

230

TVEyes, Inc., 883 F.3d at 180–81.

U.S. Copyright Office Copyright Protections for Press Publishers

in many, perhaps most, situations suffices for a user to view an entire news segment. . . . The

facts here thus differ from Google Books quite substantially.”

231

The Eleventh Circuit in

MidlevelU, Inc. v. ACI Information Group reached a similar conclusion, denying judgment as a

matter of law on a fair use defense where the defendant’s aggregated index of blog content

allowed users to view the full text of articles without navigating to the original source.

232

To be sure, the use of larger extracts is not necessarily decisive—in Swatch Group Management,

the copying of an entire recording did not weigh against fair use, because the court held its

publication was reasonable in light of the defendant’s purpose of disseminating important

financial information to investors and analysts.

233

But cases involving news reporting or

practices akin to aggregation are consistent with the general rule that “the more of a

copyrighted work that is taken, the less likely the use is to be fair.”

234

Analyzing the fourth fair use factor, the effect of the use upon the potential market for or value

of the copyrighted work, one question is how likely the aggregator’s use is to substitute for the

original.

235

In Kelly v. Arriba Soft and Authors Guild v. Google, courts found that low-resolution

thumbnail versions of modeling photographs and short snippets of books, respectively, were

unlikely to substitute for the copyrighted works, tipping the fourth factor toward fair use.

236

the other hand, courts found that the full-length clips and complete articles at issue in TVEyes

and MidlevelU were likely to substitute for the original works.

237

To be cognizable, the market harm must flow from damage to a protectable interest under

snippet substituted for the original book, it was likely to be because the snippet satisfied a

searcher’s need for uncopyrightable facts.

238

The Court held that Google was entitled to answer

231

Id. at 187–88 (Kaplan, D.J., concurring).

232

MidlevelU, Inc., 989 F.3d at 1222–23.

233

Swatch Grp. Mgmt. Servs. Ltd., 756 F.3d at 90.

234

Id. (citing Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104, 109 (2d Cir. 1998)).

235

Authors Guild, 804 F.3d at 223 (“The fourth fair use factor . . . focuses on whether the copy brings to the

marketplace a competing substitute for the original, or its derivative, so as to deprive the rights holder of significant

revenues because of the likelihood that potential purchasers may opt to acquire the copy in preference to the

original.”).

236

Kelly v. Arriba Soft Corp., 336 F.3d 811, 818 (9th Cir. 2003); Authors Guild, 804 F.3d at 224 (finding that because

“[s]nippet view, at best . . . produces discontinuous, tiny fragments, amounting in the aggregate to no more than 16%

of a book[,]” it was not an effective substitute for the original works). The Second Circuit found that the market harm

factor favored Google despite the fact that Google’s snippet function might cause some lost sales. Id. The court

explained that evidence of lost sales is not enough, and there “must be a meaningful or significant effect ‘upon the

potential market for or value of the copyrighted work.’” Id. (quoting 17 U.S.C. § 107(4)).

237

TVEyes, Inc., 883 F.3d at 180–81; MidlevelU, Inc., 989 F.3d at 1222–23.

238

Authors Guild, 804 F.3d at 224.

U.S. Copyright Office Copyright Protections for Press Publishers

a query about a historical fact, taking the information from the author’s book.

239

“The fact that,

in the case of the student’s snippet search, the information came embedded in three lines of [the

original text], which were superfluous to the searcher’s needs, would not change the taking of

an unprotected fact into a copyright infringement.”

240

Similarly, in Swatch Group Management,

the Second Circuit held that Bloomberg’s publication of a transcript and audio recording of

Swatch’s earnings call inflicted no harm to Swatch’s copyright interest in the content of the

earnings call, as distinct from the uncopyrightable facts contained therein.

241

The purpose and

character of the use appeared to influence the court’s determination of the fourth factor.

242

By contrast, in Los Angeles News Service v. KCAL-TV Channel 9, the Ninth Circuit placed decisive

weight on the fact that the plaintiff and defendant were in the same business and that

systematic unlicensed rebroadcasting of plaintiff’s news footage would “adversely affect

[plaintiff’s] creative incentives.”

243

And in Harper & Row, the possibility that readers satisfied

with The Nation’s copied excerpts from Gerald Ford’s biography might only be interested in the

facts did not prevent the Supreme Court from identifying both actual and potential market

harm under the fourth factor.

244

These guideposts indicate that some, but not all, news aggregation is likely to qualify as fair use.

On the one hand, a news reporting purpose generally weighs in favor of fair use,

245

incorporating news materials into a searchable index could be considered “transformative” in

the sense used in Perfect 10 and Authors Guild v. Google,

246

the use of headlines and ledes alone

covers a small percentage of a news article’s content, and the aggregated portion may at least in

some cases be unlikely to substitute for the original.

247

To the extent that a reader is satisfied

with the headline or lede, it is likely because, as the Second Circuit explained in Authors Guild v.

Google, the reader only wanted the unprotected facts they reported.

248

239

Id.

240

Id.

241

Swatch Grp. Mgmt. Servs. Ltd., 756 F.3d at 85–86.

242

The Second Circuit in Swatch distinguished Bloomberg’s conduct from that of copiers who published unauthorized

translations of foreign-language news articles, finding the latter had “severely impeded the ability of news and

research organizations to obtain payment for their expression, imperiling the economic foundation of vital

industries.” Id. at 86.

243

L.A. News Serv. v. KCAL-TV, 108 F.3d at 1121–23.

244

Harper & Row, 471 U.S. at 567.

245

See Swatch Grp. Mgmt. Servs. Ltd., 756 F.3d at 83.

246

See Perfect 10, Inc., 508 F.3d at 1165; Authors Guild, 804 F.3d at 216–17.

247

Kelly, 336 F.3d at 821–822; Authors Guild, 804 F.3d at 224.

248

Authors Guild v. Google, 804 F.3d at 224. One commenter made this argument at the public roundtable. Tr. 193:12–

17 (Dec. 9, 2021) (Jonathan Band, LCA) (“[I]f a person is satisfied by the headline, that obviously indicates that the

person only wanted the facts, wasn’t interested in the expression, certainly not in the expression in the underlying

article.”).

U.S. Copyright Office Copyright Protections for Press Publishers

On the other hand, as with the Los Angeles News Service cases,

249

aggregators are usually not

adding anything to the original headlines and ledes they take. In some cases, they use

photographs in addition to the headline and lede.

250

As to the amount taken, some

commentators argue that, qualitatively, headlines and ledes are often the heart of news

articles.

251

And widespread aggregation may significantly impede the ability of press

publishers to obtain payment for their expression. To the extent that aggregation provides a

substitute that “satisfies most demand for the full original[]” and decreases the resources

available for original news reporting,

252

this would cut against a finding of fair use.

253

c) The Server Test

One other defense that news aggregators seek to assert is the Ninth Circuit’s “server test.”

Where an aggregator provides an “in-line link” to a photograph, lede, or headline, meaning that

the material is visible from the aggregator’s service but still hosted solely on the news

publisher’s server, courts applying the server test might hold that the aggregator has not

reproduced the work and therefore not infringed one of the exclusive section 106 rights.

254

Courts in the Southern District of New York have lately rejected the server test, however, and

would find the aggregator infringed, barring some other defense.

255

One commenter supportive

of the these more recent rulings from the Southern District of New York states that “images

displayed as part of a news summary or ‘snippet’ should be licensed by the news aggregator if

viewable by the reader regardless of whether a code is used to link to the image or not.”

256

249

L.A. News Serv. v. Reuters, 149 F.3d at 993–94; L.A. News Serv. v. KCAL-TV, 108 F.3d at 1121.

250

Outside the search engine context analyzed in Perfect 10, 508 F.3d 1146 (9th Cir. 2007), and Kelly, 336 F.3d at 818,

copying of news photographs is more likely to be fair where the photographs themselves (as objects) are the story.

Compare Nunez, 235 F.3d at 22–23 (holding newspaper’s publication of controversial photos of Miss Puerto Rico

Universe as part of story on controversy was fair use, in part because “the pictures were the story”), with Monge, 688

F.3d at 1175 (finding defendant’s unauthorized publication of celebrity wedding photos was minimally

transformative because “[i]n contrast [with Núñez], the controversy here has little to do with photos”).

251

See Ginsburg Initial Comments at 2; NMA Initial Comments at 16–17.

252

See Ginsburg Initial Comments at 9.

253

The use of artificial intelligence in news aggregation raises additional issues. News publisher commenters

expressed concern about the systematic ingestion of news materials by artificial intelligence programs. See, e.g.,

News Corp Initial Comments at 14; MPA Additional Comments at 5; NMA, Additional Comments Submitted in

Response to U.S. Copyright Office’s Nov. 9, 2021, Notice of Inquiry at 14–15 (Jan. 5, 2022) (“NMA Additional

Comments”). Whether and when the systematic ingestion of copyrighted works for purposes of training an artificial

intelligence may be fair use are important questions, but not specific to the press-publishing space. The Office is not

aware of any infringement suit based on mass ingestion of copyrighted works to train an artificial intelligence.

254

See Perfect 10, Inc., 508 F.3d at 1160.

255

See Goldman, 302 F. Supp. 3d at 595–96; Nicklen v. Sinclair Broadcast Grp., Inc., 551 F. Supp. 3d 188, 195–96 (S.D.N.Y.

2021).

256

Digital Media Licensing Association, Additional Comments Submitted in Response to U.S. Copyright Office’s

Nov. 9, 2021, Notice of Inquiry at 4 (Jan. 5, 2022) (“Digital Media Licensing Association Additional Comments”).

U.S. Copyright Office Copyright Protections for Press Publishers

2. Other Existing Protections for News Content

Press publishers’ mechanisms for protecting their content are not limited to copyright law.

First, they have several technical and commercial means of preventing aggregation of their

content. They can lock it behind paywalls and control whether it is accessible to web crawlers

or how it can be shared on some services.

257

According to Google, “if a news site (or any other

site for that matter) does not want to show up or wants to control what is shown on Google,

they can choose to do so using the robots.txt exclusion protocol or other forms of standard

HTML markup.”

258

To the extent that aggregators ignore protective measures like paywalls or crawler exclusions,

press publishers may have legal recourse. Commenters noted that circumvention of

technological protection measures, such as a paywall, could lead to liability under section 1201

of Title 17.

259

If a publisher’s user license forbids aggregation, an aggregator might also be liable

for breach of contract or trespass to chattels.

260

One historical form of legal protection for press publishers that most commenters agreed is no

longer relevant is the tort of “hot news misappropriation.”

261

This cause of action, established

257

Meta states that it gives publishers the ability to determine what photo or article text, if any, will be displayed

when users share a link to their articles on Facebook. Meta Initial Comments at 5.

258

Google Initial Comments at 4. News publishers state that using the robots.txt exclusion would be “suicidal”

because it would not merely prevent Google from displaying snippets of the article in Google Search, but would

prevent the publisher’s content from being discoverable via Google Search at all. NMA, WHITE PAPER: HOW GOOGLE

ABUSES ITS POSITION AS A MARKET DOMINANT PLATFORM TO STRONG-ARM NEWS PUBLISHERS AND HURT JOURNALISM 22

(2020), reproduced within NMA Initial Comments Appendix: Part 1. A scholarly article appended to the News Media

Alliance’s initial comments called the robots.txt exclusion a “very blunt instrument” because it does not allow

publishers to make fine-grained distinctions about when to permit crawling of their content. RICKETSON & GINSBURG,

INTELLECTUAL PROPERTY IN NEWS? WHY NOT? 19, reproduced within NMA Initial Comments Appendix: Part 3. In 2006,

a federal district court held that a copyright owner’s knowing decision not to use a “no-archive” tag to instruct

Google not to cache his website amounted to an implied license for Google to provide access to his website via

cached links. Field v. Google, Inc., 412 F. Supp. 2d 1106, 1116 (D. Nev. 2006).

259

See LCA Initial Comments at 3; Tr. at 68:18–21 (Danielle Coffey, NMA) (“Under 1201 of the DMCA, we

[publishers] can actually protect access to our content, notwithstanding whether that content is protected by fair

use.”); see also MDY Indus., LLC v. Blizzard Entm't, Inc., 629 F.3d 928 (9th Cir. 2010) (discussing the parameters and

legislative history of § 1201). One commenter suggested that an aggregator who violated publishers’ technological

protection measures might also face liability under the Computer Fraud and Abuse Act or tort law. Tr. at 198:11–23

(Dec. 9, 2021) (Jonathan Band, LCA) (“If [publishers] use technological protections, you know, there’s the Computer

Fraud and Abuse Act, there’s trespass to chattel. . . . [E]very state, just about, I believe, has its own version of a

Computer Fraud and Abuse Act which prohibits unauthorized access to information.”). Cf. HiQ Labs v. LinkedIn

Corp., No. 17-16783, slip. op. at 40–42 (9th Cir. Apr. 18, 2022) (holding that the CFAA does not criminalize unwanted

scraping of public websites but noting that “state law trespass to chattels claims may still be available . . . [a]nd other

causes of action, such as copyright infringement, misappropriation, unjust enrichment, conversion, breach of

contract, or breach of privacy, may also lie”).

260

LCA Initial Comments at 3–4 (citing Register.com v. Verio, 356 F.3d 393 (2d Cir. 2004)).

261

See Tr. at 68:6–13 (Dec. 9, 2021) (Danielle Coffey, NMA) (“It is still viable in the states. However, because of a

string of court cases, it is not a useful tool.”); Tr. at 69:14–70:9 (Dec. 9, 2021) (Jane C. Ginsburg, consultant to NMA)

U.S. Copyright Office Copyright Protections for Press Publishers

by the Supreme Court in International News Service v. Associated Press during World War I, bars

free riding on a competitor’s investment in time-sensitive news gathering at the moment when

the competitor was poised to reap the rewards.

262

Because International News Service was based

on no-longer extant federal common law

263

and pre-dated the 1976 Copyright Act and early-

20th-century changes in First Amendment jurisprudence,

264

this tort’s continued viability is

unclear. In one of the first modern cases to consider a hot news misappropriation claim under

state law, the Second Circuit in NBA v. Motorola held that only a narrow version of the cause of

action survived preemption by the Copyright Act.

265

Most courts faced with hot news

misappropriation claims since Motorola have found them to be either preempted or

insufficiently proven.

266

(“[T]he hot news doctrine wouldn't really be applicable to news aggregation because, while some of its elements,

notably, the threat to the business of the source of the content, is present, at least many so say, the essential hotness,

heat or timeliness which underlies the hot news doctrine isn’t really at issue here.”).

262

Int’l News Serv., 248 U.S. at 230–31.

263

See Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938) (holding that there is no federal general common law).

264

See Abrams v. United States, 250 U.S. 616 (1919); Schenck v. United States, 249 U.S. 47 (1919).

265

NBA v. Motorola, Inc., 105 F.3d 841, 845 (2d Cir. 1997) (limiting hot news claims to cases where: “(i) a plaintiff

generates or gathers information at a cost; (ii) the information is time-sensitive; (iii) a defendant’s use of the

information constitutes free-riding on the plaintiff’s efforts; (iv) the defendant is in direct competition with a product

or service offered by the plaintiffs; and (v) the ability of other parties to free-ride on the efforts of the plaintiff or

others would so reduce the incentive to produce the product or service that its existence or quality would be

substantially threatened.”); see also id. at 853 (explaining that the “extra elements” needed for a hot news claim to

survive preemption are “(i) the time-sensitive value of factual information, (ii) the free-riding by a defendant, and (iii)

the threat to the very existence of the product or service provided by the plaintiff”).

266

See, e.g., Brantley v. Epic Games, Inc., 463 F. Supp. 3d 616, 626 (D. Md. 2020); IPOX Schuster, LLC v. Nikko Asset Mgmt.

Co., 304 F. Supp. 3d 746, 757 (N.D. Ill. 2018); Thousand Oaks Barrel Co. v. Deep S. Barrels LLC, 241 F. Supp. 3d 708, 725

(E.D. Va. 2017) (holding Virginia does not recognize the tort of hot news misappropriation); Scrappost, LLC v. Peony

Online, Inc., No. 14-14761, 2017 WL 697028, at *8 (E.D. Mich. Feb. 22, 2017); World Chess US, Inc. v. Chessgames Servs.

LLC, No. 16 CIV. 8629 (VM), 2016 WL 7190075, at *4 (S.D.N.Y. Nov. 22, 2016); Ste. Genevieve Media, LLC v. Pulitzer Mo.

Newspapers, Inc., No. 1:16 CV 87 ACL, 2016 WL 6083796, at *5 (E.D. Mo. Oct. 18, 2016). But see Dow Jones & Co. v. Real-

Time Analysis & News, Ltd., No. 14-CV-131, 2014 WL 4629967, at *7 (S.D.N.Y. Sept. 15, 2014), report and recommendation

adopted, No. 14-CV-131, 2014 WL 5002092 (S.D.N.Y. Oct. 7, 2014) (granting damages on plaintiff’s hot news

misappropriation claim). One commenter noted that, while the hot news doctrine is still a viable claim under state

and common law, “courts have narrowly limited International News Service, holding that federal copyright law’s

cardinal rule that facts may be freely copied preempts applications of the hot news misappropriation tort in cases that

are not on all fours with the 1918 ruling.” Netanel, 34 HARV. J.L. & TECH. at 499. Another commenter suggested that,

in order to restore protections for hot news and avoid the preemption problem, “Congress would have to amend the

doctrine to clarify that the idea and expression provisions do not apply to hot news facts, and to then note that hot

news stories would not be subject to the fair use provision for twenty-four hours after they are first published.” Ryan

T. Holte, Restricting Fair Use to Save the News: A Proposed Change in Copyright Law to Bring More Profit to News

Reporting, 13 J. TECH. L. & POL’Y 1, 22 (2008), reproduced within Hon F. Scott Kieff, Additional Comments Submitted in

Response to U.S. Copyright Office’s Nov. 9, 2021, Notice of Inquiry Attachment at 22 (Nov. 26, 2021) (“Kieff

Additional Comments”). The Office notes that the idea/expression dichotomy is constitutional in nature and could

not be abridged by a change to the fair use doctrine as codified at 17 U.S.C. § 107.

U.S. Copyright Office Copyright Protections for Press Publishers

Even assuming that a narrow version of the tort survives, Professor Ginsburg points out that it

would have little application to news aggregators, because they are not stealing press

publishers’ scoops by beating them to market but only acting after articles are published.

267

B. Other Issues Raised by Commenters

1. Bargaining Power

Many commenters linked publishers’ concerns about unlicensed aggregation to their relative

lack of bargaining power with respect to large digital platforms. They focused on two

companies in particular: Google and Facebook.

268

Google and Facebook are now among the

preferred news sources for many Americans and generate a majority of referrals to news sites,

269

while also running the national advertising networks that newspapers rely on to serve ads on

their websites.

270

Google has become the leader in online search.

271

According to a U.S. House Judiciary

Committee report, it is also a major player in the ad exchanges that advertisers and publishers

use to buy, sell, and place digital advertisements.

272

Facebook enjoys a similarly lofty position

267

Tr. at 69:14–70:9 (Dec. 9, 2021) (Jane C. Ginsburg, consultant to NMA); RICKETSON & GINSBURG, INTELLECTUAL

PROPERTY IN NEWS? WHY NOT? 24, reproduced within NMA Initial Comments at Appendix: Part 3.

268

See generally Singer Additional Comments (arguing Google and Facebook have monopsony power over press

publishers and push advertising revenue for publishers below competitive levels); NMA Initial Comments at 8–9

(describing Google and Facebook’s dominance over digital advertising and the significance of their aggregation

practices). See also NMA, WHITE PAPER: HOW GOOGLE ABUSES ITS POSITION AS A MARKET DOMINANT PLATFORM TO

STRONG-ARM NEWS PUBLISHERS AND HURT JOURNALISM 22, reproduced within NMA Initial Comments at Appendix: Part

1; Netanel, 34 HARV. J.L. & TECH. at 475 (“But in recent years one factor looms particularly large: the overwhelming

market power of digital platforms, principally Google and Facebook. As detailed below, digital platforms inflict

multiple wounds on news publishers.”).

269

Benton, Is Facebook Really A ‘News Powerhouse’ Again, Thanks to Coronavirus? (No More Than It Was Before),

NIEMANLAB (showing that over the twelve preceding months, Google and Facebook reliably accounted for over 75%

of outside referrals to news sites in the parse.ly network).

270

See Ben Morrisroe, GoogleAdX or AdSense? Which Advertising Platform is Better for You? PUBLIFT (Feb. 1, 2022),

https://www.publift.com/blog/google-adx-vs-google-adsense (describing Google’s advertising exchange platforms);

Ana Gotter, Everything You Need to Know About Facebook’s Audience Network, ADESPRESSO (Dec. 19, 2017),

https://adespresso.com/blog/facebook-audience-network/ (describing Facebook Audience Network).

271

See Singer Additional Comments at 9 (“As of July 2020, Google accounted for a combined 89 percent of the U.S

desktop search (81 percent) and mobile search (94) markets.”). Google has obtained default placement for its search

service in a majority of web browsers and mobile operating systems. MAJORITY STAFF REP. at 82; see also id. at 73

(noting that “[i]n October 2020, the Department of Justice Antitrust Division commenced litigation to challenge

several” of Google’s agreements establishing its search engine as the default on web browsers and mobile operating

systems). Google is also one of only two English-language search engines to maintain a comprehensive web page

index—most other search engines must negotiate access through Google. Id. at 78–79. Multiple governmental bodies

have characterized Google as a monopoly in general online search. See, e.g., id. at 177; Singer Additional Comments

at 8–9 (describing findings of UK, German, and Australian competition authorities).

272

MAJORITY STAFF REP. at 206. Google “runs the leading ad exchange, while also running buy-side and sell-side

intermediary platforms trade [sic] on the exchange.” Id. at 206. According to one estimate, Google is involved in

U.S. Copyright Office Copyright Protections for Press Publishers

among social media networks.

273

Google and Facebook’s preeminence in search and social

media makes them the largest sources of traffic to press publishers.

274

Reports from the U.S.

House Judiciary Committee and from Australia’s Competition and Consumer Commission both

described Google and Facebook as “gateways” to online news media.

275

Even some of the

largest and best-known publishers claim they depend on Google “for up to 80–95% of their

traffic.”

276

Under the circumstances, two scholars of digital journalism concluded that Google

nearly 70 percent of all online advertising technology transactions. See NMA Initial Comments at 8–9 (citing Desktop

& Mobile Search Engine Market Share United States of America, Jan. 2009 to Sep. 2020, STATCOUNTER,

https://gs.statcounter.com/search-engine-market-share/desktopmobile/unitedstates-of-america/#monthly-200901-

202009 (last visited Nov. 19, 2021); Jeff Desjardins, How Google Retains More Than 90% of Market Share, BUSINESS INSIDER

(Apr. 23, 2018), https://www.businessinsider.com/how-google-retains-more-than-90-of-market-share-2018-4; Big Tech

Says Publishers Keep Majority of Ad Revenue, But Experience Suggests Otherwise, NEWS MEDIA ALLIANCE (Nov. 16, 2020),

https://www.newsmediaalliance.org/google-ad-revenue-op-ed-70-percent/)).

273

According to one commenter, “[a]s of December 2019, Facebook had 1.8 billion monthly active persons (MAP),

[Facebook-owned] WhatsApp had 2.0 billion MAP, and [Facebook-owned] Instagram had 1.4 billion MAP.” Singer

Additional Comments at 10. Facebook’s closest social networking competitor had fewer than 600 million monthly

active users. See id. Like Google, Facebook also runs a large advertising network, taking in nearly 45% of all digital

display advertising revenues in 2020. Gale Stocking & Maya Khuzman, Digital News Fact Sheet, PEW RESEARCH

CENTER (July 27, 2021), https://www.pewresearch.org/journalism/fact-sheet/digital-news/ (Google came in second at

10% of digital display advertising revenue). A House Judiciary Majority Staff Report on competition in digital

markets found that Facebook has monopoly power in the market for social networking and advertising in the social

networking market. MAJORITY STAFF REP. 170.

274

See Rani Molla, Google Is Replacing Facebook’s Traffic to Publishers, VOX (Feb. 15, 2018),

https://www.vox.com/2018/2/15/17013618/google-facebook-traffic-publishers-amp-chartbeat (“Referral traffic made

up 47 percent of publisher traffic so far this year, according to Chartbeat, with Google and Facebook accounting for

most of it.”). By contrast, Google claims that news-related queries make up just 2 percent of queries on Google

Search globally and that Google does not make money on the majority of searches, implying that news aggregation is

a negligible part of its business. Tr. at 36:7–11 (Dec. 9, 2021) (Kate Sheerin, Google). As another commenter put it,

“Google doesn't need the Fort Worth Star Telegram, but the Star Telegram needs Google.” Tr. at 94:1–3 (Dec. 9, 2021)

(Hal Singer, Econ One, consultant to NMA). Press publishers disputed Google’s numbers and state that news

represents 36 percent of Google searches. Tr. at 37:1–5 (Dec. 9, 2021) (Danielle Coffey, NMA).

275

See MAJORITY STAFF REP. at 63 (“Due to their outsized role as digital gateways to news, a change to [Google’s or

Facebook’s] algorithm can significantly affect the online referrals to news publishers.”); AUSTL. COMPETITION &

CONSUMER COMM’N, DIGITAL PLATFORMS INQUIRY: FINAL REPORT 206 (2019),

https://www.accc.gov.au/system/files/Digital%20platforms%20inquiry%20-%20final%20report.pdf (“Google and

Facebook are the gateways to online news media for many consumers.”); see also OECD, DIRECTORATE FOR FINANCIAL

AND ENTERPRISE AFFAIRS, COMPETITION COMMITTEE, NEWS MEDIA AND DIGITAL PLATFORMS—NOTE BY THE UNITED STATES

3 (2021), https://one.oecd.org/document/DAF/COMP/WD(2021)72/en/pdf; NMA Initial Comments at 10 (“Due to the

gatekeeper role of the dominant platforms, publishers often have no other option but to allow aggregators to use

their content for free because they are dependent on even the minimal amount of traffic the aggregators send to

publishers’ websites.”); Netanel, 34 HARV. J.L. & TECH., at 475–76; Singer Additional Comments at 8–9; SCHERER &

CHO, CONG. RSCH. SERV., R47018, STOP THE PRESSES? NEWSPAPERS IN THE DIGITAL AGE 2 (“Business decisions by news

aggregators such as Apple News and Google News and by social media platforms such as Facebook also affect the

viability of newspapers.”); NPR Initial Comments at 8 (“And because large platforms control a large market share,

NPR must rely on these platforms to reach key portions of its audience. NPR and other news producers on these

platforms are at the mercy of these platforms if they unilaterally opt to change their platform rules.”).

276

MAJORITY STAFF REP. at 83. As an illustration of Google and Facebook’s influence, when Google updated its search

algorithm in June 2019, one major news publisher’s online traffic dropped “by close to 50%.” Id. at 63. Similarly, one

U.S. Copyright Office Copyright Protections for Press Publishers

and Facebook “now control what audiences see and who gets paid for their attention, and even

what format and type of journalism flourishes.”

277

Publishers commenting on this Study

identified this power imbalance as perhaps the most significant obstacle to asserting protections

against aggregation.

278

2. Copyright Office Registration Policies

Several news publishers in their comments voiced frustration that, even if their works are

protected by copyright, Copyright Office registration practices relating to dynamic website

content can make it difficult to enforce their rights.

279

The Copyright Act requires U.S.

rightsholders to register their works before suing for infringement.

280

To pursue statutory

damages, the rightsholder ordinarily must register either within three months of initial

publication or prior to the alleged infringement.

281

The Office’s current group registration policies for print and electronic versions of newspapers

282

do not cover dynamic websites.

283

Publishers raised concerns that this exclusion negatively

impacts the registration of articles that are updated repeatedly and never appear in the print or

ePrint versions of that day’s newspaper.

284

Publishers also assert that attempting to register

analytics firm found that Facebook algorithm adjustments in 2018 “has been estimated to have decreased referral

traffic from Facebook to news publishers’ sites by one third.” Singer Additional Comments at 3 n.6.

277

EMILY BELL & TAYLOR OWEN, COLUMBIA JOURNALISM SCH., TOW CTR. FOR DIGIT. JOURNALISM, THE PLATFORM PRESS:

HOW SILICON VALLEY REENGINEERED JOURNALISM 9 (2017),

https://academiccommons.columbia.edu/doi/10.7916/D8R216ZZ. At the public roundtable, there was some dispute

as to how advertising revenue is split between Google and news publishers. A Google representative reported that

news publishers “keep over 95 percent of the digital advertising revenue they generate when using Google Ad

Manager.” Tr. at 26:12–15 (Dec. 9, 2021) (Kate Sheerin, Google). A representative of a news publisher organization

claimed that the number was actually 30 percent. Tr. at 37:1–5 (Dec. 9, 2021) (Danielle Coffey, NMA).

278

See infra Section IV.C.

279

See, e.g., News Corp Initial Comments at 9–10; NMA Initial Comments at 19; MPA Additional Comments at 4.

280

See 17 U.S.C. § 411; Fourth Est. Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 892 (2019) (interpreting the

Copyright Act as requiring that the Copyright Office return a registration certificate, or refuse registration, before an

infringement suit is filed).

281

17 U.S.C. § 412; see also Southern Credentialing Support Servs., LLC v. Hammond Surgical Hosp., LLC, 946 F.3d 780, 786–

87 (5th Cir. 2020).

282

37 C.F.R. § 202.4(e) (allowing group registration of a month’s worth of issues in PDF form, with each issue being a

work made for hire).

283

Group Registration of Newspapers, 82 Fed. Reg. 51,369, 51,373 (proposed Nov. 6, 2017) (“By contrast, a newspaper

Web site would not satisfy this requirement. Newspaper Web sites typically add, archive, and/or replace content on

a continuing basis. As such, they are not fixed and distributed as discrete, self-contained works. Moreover, these

updates are rarely distributed on an established schedule, and rarely contain numerical or chronological designations

distinguishing one update from the next. For this reason, Web sites are not considered ‘newspapers’ for purposes of

registration.”).

284

See Tr. at 40:4–20 (Dec. 9, 2021) (Keith Kupferschmid, Copyright Alliance); see also Copyright Alliance, Additional

Comments Submitted in Response to U.S. Copyright Office’s Nov. 9, 2021, Notice of Inquiry at 11 (Jan. 5, 2022)

U.S. Copyright Office Copyright Protections for Press Publishers

individual articles would be time-consuming and potentially still leave gaps in coverage, if an

article were later updated and a third party infringed only the new, updated content.

285

The Office takes these concerns seriously and is considering how best to address them as part of

its ongoing modernization initiative.

C. Effectiveness of Existing Protections

Notwithstanding these limitations and concerns, news publishers have significant protections

under existing U.S. copyright law. Their articles and photographs are generally copyrightable

even if their constituent elements may not be.

286

While fair use allows a wide scope for

quotation and may permit other reasonable uses, particularly of short snippets, it is unlikely to

permit the use of long extracts or entire articles in most circumstances.

287

And outside of

288

To be sure, news publisher comments include some criticisms of existing protections. But the

most frequently recurring perspective in the comments, across all stakeholder groups, was that,

although news publishers do have legal protections against aggregation, those protections are

difficult to assert effectively for reasons unrelated to copyright law.

289

Reports indicate that Google

and Facebook drive a majority of referral traffic to publishers’ websites,

290

and press publishers

have—implicitly or explicitly—recognized the importance of this traffic by declining to utilize

robots.txt/opt out.

291

One trade association has opined that opting out would be “suicidal.”

292

The concern expressed by most news publishers is not particularly with Google and Facebook

aggregating their content, but with the licensing terms the two platforms have been willing to

offer. As Professor Ginsburg put it at the public roundtable: “All the copyright protection in the

(“Copyright Alliance Additional Comments”); MPA Additional Comments at 4.

285

See Tr. at 38:14–39:16 (Dec. 9, 2021) (Danielle Coffey, NMA) (describing website registration challenges).

286

See supra Section IV.A.1.a.

287

See supra Section IV.A.1.b.

288

See supra Section IV.A.2.

289

See, e.g., Tr. at 14:15–23 (Dec. 9, 2021) (Danielle Coffey, NMA) (“[W]e are forced to waive our ability to enforce our

[intellectual property] rights because of the dominance of the platforms.”).

290

See Molla, Google is Replacing Facebook’s Traffic to Publishers, VOX.

291

Google itself has noted that while publishers have control over whether their content appears on Google News

using tools such as robots.txt and metatags, it “receive[s] many more requests for inclusion in Google News than for

exclusion, because many publishers realize the advantage of their content being discovered by new readers or

viewers.” Collado, Google y los editors [Google and publishers], GOOGLE: BLOG OFICIAL DE GOOGLE ESPAÑA.

292

NMA Initial Comments at 22; Tr. at 45:5–13 (Dec. 9, 2021) (Danielle Coffey, NMA) (describing opting out of Google

in particular as a Hobson’s choice: “It’s like asking someone if they want air. Without it, we would receive no

revenue, no exposure.”).

U.S. Copyright Office Copyright Protections for Press Publishers

world is not going to help if the copyright owners have no choice but to agree to contractual

terms that are very unfavorable to them.”

293

D. Advisability of Adopting Additional Rights in the United States

1. New Rights May Be Unnecessary

A number of stakeholders argued that granting U.S. publishers a new right along the lines of

the EU’s Article 15 is unnecessary because U.S. copyright law already offers similar protections.

Article 15 gave EU press publishers reproduction and distribution rights in the content they

publish—at least vis-à-vis “information society service providers”—that they previously did not

have. As noted above, however, in the United States press publishers are in many cases

considered the “authors” of the work of their reporters as a result of the work-made-for-hire

doctrine.

294

In freelance situations, authors in the United States often assign ownership to the

publisher.

295

Thus, in the view of many press publishers, the primary rationale for establishing

Article 15 in the EU does not exist here, where they already have ownership rights in what they

publish.

296

The Office concurs that comparable concerns are not present in the United States.

2. New Rights Are Likely to Be Ineffective Without a Change in

the Competition Landscape

Multiple commenters made the point that neither changes to copyright law nor creation of an

ancillary press publishers’ right would be effective if press publishers lacked the bargaining

power to insist on remuneration. Press publishers themselves advised that the problems

journalism faces are primarily competition-related and that, as Professor Ginsburg put it, “even

if you have uncontroverted copyright protection, if you can’t effectively bargain, that’s not

going to get you very far.”

297

293

Tr. at 33:3–6 (Dec. 9, 2021) (Jane C. Ginsburg, consultant to NMA).

294

See, e.g., NMA Initial Comments at 24.

295

See, e.g., id.

296

See Tr. at 155:8–18 (Dec. 9, 2021) (Eric Schwartz, NMA) (“Yes, the EU adopted an ancillary right. But, if you pull

back from that and take a look at what rights already exist for publishers in the United States—reproduction,

distribution, public display—you'll see that they—that a lot of what the European Union did lines up very neatly

with what was already existing U.S. law. The main difference and the main motivator for the European Union is

ownership questions. The European Union doesn't have work for hire, whereas the U.S. law does.”).

297

Tr. at 50:7–9 (Dec. 9, 2021) (Jane C. Ginsburg, consultant to NMA). See also News Corp Initial Comments at 16

(“But any recalibration of copyright and related law to address those gaps [in intellectual property protection] likely

will prove ineffectual if the current imbalance in negotiating power between publishers and republishers of news

content is not remedied.”); Tr. at 30:4–7 (Dec. 9, 2021) (Danielle Coffey, NMA) (“However, the broken marketplace,

which is what we’re somewhat addressing here through copyright, but I think, in many ways, it’s more addressed

through competition law.”). Cf. U.S. INT’L TRADE COMM’N, GLOBAL DIGITAL TRADE 1: MARKET OPPORTUNITIES AND KEY

FOREIGN TRADE RESTRICTIONS 291–92 (2017), https://www.usitc.gov/publications/332/pub4716.pdf (“Small online

publishers have been reluctant to demand fees from online platforms because they rely on traffic from those search

engines, and industry experts have stated that ancillary copyright laws have not generated increased fees to

U.S. Copyright Office Copyright Protections for Press Publishers

This theme was, unsurprisingly, echoed by commenters who opposed the creation of an

ancillary press publishers’ right.

298

Some commenters went further and argued not only that

lack of competition, specifically in the online advertising space, was the primary problem for

journalism, but that copyright was not an issue at all. “So this is a competition problem,” said

one roundtable participant, “it’s not a copyright problem.”

299

Professor Netanel made a similar

point, asserting that:

Google and Facebook have devoured news publisher revenues due to the digital

platforms’ duopoly control of the digital advertising market. That would

happen even if there were no Google News or other news aggregators.

300

The publisher Axel Springer was the only commenter to wholeheartedly support the idea of the

United States enacting an ancillary right for press publishers.

301

It proposed a right similar to

Article 15 of the Directive, but broader.

302

Pointing to deals made in France and Germany since

the passage of the Directive, Axel Springer maintained that the Article 15 right has put pressure

on aggregators to conclude licensing agreements with press publishers,

303

and predicted that

the same result would obtain in the United States.

304

publishers; rather, they have acted as a barrier to entry for news aggregators.”). The News Media Alliance explained

that, while they were not advocating for an ancillary press publisher right, they were not opposing it either. See, e.g.,

NMA Initial Comments at 19–21; Tr. at 90:7 (Dec. 9, 2021) (Matthew Williams, NMA) (“We have not asked for an EU

publisher’s right.”); Tr. at 155:6–8 (Dec. 9, 2021) (Eric Schwartz, NMA) (“I think it would be helpful for the Copyright

Office to take a good look at Article 15 and a side by side with existing U.S. law.”). But see Axel Springer Initial

Comments at 9–10 (“The creation of an exclusive right for press publishers would be a powerful statement for the

protection of the publisher freedom, original journalism and ultimately the freedom of press towards dominant

online platforms.”).

298

See, e.g., R Street-Niskanen Joint Initial Comments at 2 (“Attempting to redefine copyright to regulate digital

platforms and their ability to aggregate news does little to address the changing market structure of news

distribution and consumption.”); Silbey Initial Comments at 1 (“More or stronger copyright—for press publishers or

photojournalists—will not lead to an equitable or efficient redistribution of market power within the internet

ecosystem.”).

299

Tr. at 91:16–17 (Dec. 9, 2021) (Hal Singer, Econ One, consultant to NMA).

300

Neil Weinstock Netanel, Comments Submitted in Response to U.S. Copyright Office’s Oct. 12, 2021, Notice of

Inquiry at 1 (Nov. 11, 2021) (“Netanel Initial Comments”).

301

See Axel Springer Initial Comments at 9. Other rightsholder commenters referred to Art. 15 of the Directive but

stopped short of advocating that it serve as a model for similar legislation in the U.S. See, e.g., Authors Guild Initial

Comments at 3; News Corp Initial Comments at 17. Additionally, while not endorsing an ancillary press publisher

right, NPR proposed that “high-value assets” of a press publisher receive federal “hot news”-like protections for 72

hours after their initial publication or broadcast. See NPR Initial Comments at 12–13.

302

See Axel Springer Initial Comments at 11–14 (explaining, for example, that its proposed right would include all

periodicals, encompass “small parts” of press publications, and last for four years).

303

See id. at 28–32.

304

See id. at 17. Axel Springer also makes the point that “a right which is functionally equal to the European

publishers’ right would clear the way for protection of U.S. press publishers in Europe based on reciprocity.” Id.

U.S. Copyright Office Copyright Protections for Press Publishers

The Office shares the view that establishment of a new ancillary right alone is not likely to affect

the licensing landscape. We note that, while Article 15 of the Directive does not itself mandate

any negotiation right for press publishers, in practice several EU Member States have reinforced

the right with competition law measures.

305

3. Constitutional Concerns

Some commenters expressed concerns about ancillary copyright evading traditional, First

Amendment-accommodating copyright limitations and thereby violating the First

Amendment.

306

The Supreme Court has confirmed that traditional limits on copyrightability

and exceptions to copyright protections—namely the idea/expression dichotomy and the fair

use doctrine—constitute “built-in First Amendment accommodations” in copyright law.

307

long as Congress does not alter these “traditional contours of copyright protection, further First

Amendment scrutiny is unnecessary.”

308

But statutes that attempt to evade or modify these

accommodations may trigger such scrutiny.

The Computer & Communications Industry Association (“CCIA”) and the Internet Association

(“IA”) maintain that these “traditional contours of copyright protection” would likely be absent

305

See supra section III.B.3 (discussion of France’s use of competition enforcement along with implementation of

Article 15); Ula Furgal & Giulia Priora, Empowered to Negotiate or Obliged to Contract? Lessons from the Italian

Implementation of the Press Publishers’ Right, KLUWER COPYRIGHT BLOG (Apr. 14, 2022),

copyrightblog.kluweriplaw.com/2022/04/14/empowered-to-negotiate-or-obliged-to-contract-lessons-from-the-italian-

implementation-of-the-press-publishers-right/ (“Under the Italian version of art. 15 Directive, not only press

publishers are given a specific neighboring right for the online use of their press content. Platforms are also under

the obligation to contract with the press publishers requesting so and pay them a fair remuneration.”).

306

The Library Copyright Alliance raised an additional concern about what Constitutional power Congress could use

to pass an ancillary copyright or similar law. See LCA Initial Comments at 9–13. In LCA’s view, Congress could not

pass such a law under Article I, Section 8, clause 8 of the Constitution (the Intellectual Property Clause), because the

Supreme Court has indicated that the Intellectual Property Clause does not permit protection of facts or unoriginal

expression. See Feist, 499 U.S. at 346. Cf. Graham v. John Deere Co., 383 U.S. 1, 5 (1966) (stating that the IP Clause

serves as “both a grant of power and a limitation”). LCA bases much of its analysis on a comparison between an

earlier attempt to create sui generis protection for databases and a putative ancillary right for press publishers. See

LCA Initial Comments at 9–11. If Congress could not enact an ancillary right under the Intellectual Property Clause,

LCA argues, it also could not enact it under a different enumerated power. LCA cites Railway Labor Executives’ Ass’n

v. Gibbons for the proposition that Congress cannot evade an affirmative limitation in one clause of the Constitution

by resort to another clause. See LCA Initial Comments at 11–13 (citing Gibbons, 455 U.S. 457, 468–469 (1982)). The

Gibbons and found that the legislation in question was a legitimate exercise of Commerce Clause power. See United

States. v. Moghadam, 175 F.3d 1269, 1280 (11th Cir. 1999) (upholding anti-bootlegging statute); United States v.

Martignon, 492 F.3d 140, 150–51 (2d Cir. 2007) (same).

307

See Eldred v. Ashcroft, 537 U.S. 186, 219–21 (2003); Golan v. Holder, 565 U.S. 302, 329 (2012). Cf. Harper & Row, 471

U.S. at 560 (rejecting First Amendment challenge “[i]n view of the First Amendment protections already embodied in

the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas, and the

latitude for scholarship and comment traditionally afforded by fair use”).

308

Eldred, 537 U.S. at 221.

U.S. Copyright Office Copyright Protections for Press Publishers

in an ancillary right, thus subjecting it to heightened First Amendment scrutiny.

309

For example,

Axel Springer proposed in its comments to this Study a sui generis right with no originality

requirement

310

that would extend to “the smallest parts”

311

of the press publication and not

include a fair use defense for online news aggregators.

312

This type of protection would likely

contradict copyright’s “traditional contours” and the Supreme Court’s holding that the

Constitution “leaves no room for a statutory monopoly over information and ideas.”

313

ancillary right similar to that in Article 15 of the Directive, which contains limitations on its

application to “mere facts”

314

and an exception for “quotation for purposes such as criticism or

review,”

315

on the other hand, would more closely track the “traditional contours” of U.S.

316

Given the

uncertainty over what form an ancillary right in the United States could take, the Office does

not offer a view on a hypothetical First Amendment challenge but merely notes that a challenge

would be likely.

309

See CCIA-IA Joint Initial Comments at 20 (“The measures discussed in the NOI would [alter the traditional

contours of copyright protection], regardless of whether they take the form of an amendment to the Copyright Act or

a new ancillary right. And they would do so in ways that reduce or eliminate precisely the ‘buil[t]-in free speech

safeguards’ that the Court suggested were critical to copyright law’s compatibility with the First Amendment.”).

310

Axel Springer Initial Comments at 12. Axel Springer’s version of the right would be an “expression of the

investment of the press publisher,” id. at 13, a clear departure from U.S. copyright law, which does not reward the

mere “sweat of the brow.” See Feist, 499 U.S. at 359–60.

311

Axel Springer Initial Comments at 12.

312

Id. at 9.

313

Harper & Row, 471 U.S. at 582, quoted in LCA Initial Comments at 14.

314

Directive recital 57.

315

Id. This exception to some extent parallels the opening text of the U.S. fair use doctrine codified as codified at 17

U.S.C. § 107. See 17 U.S.C. § 107 (“Notwithstanding the provisions of sections 106 and 106A, the fair use of a

copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by

that section, for purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research, is not an

infringement of copyright”).

316

The CCIA-IA joint comments cite several additional First Amendment concerns. For example, CCIA-IA argues

that any attempt to backstop an ancillary right with a requirement that aggregators carry (and therefore pay for)

certain content would trigger heightened scrutiny. CCIA-IA Joint Initial Comments at 23–25. But the Office notes

that an ancillary right standing alone would not entail a “must carry” obligation or compel speech. CCIA-IA also

asserts that an ancillary right for press publishers would trigger heightened scrutiny insofar as it singled out some

news media (aggregators) for differential treatment and treated the content category “news” differently from other

sorts of speech. Id. at 21–22. A detailed analysis of whether an ancillary copyright or similar law would face

heightened scrutiny and how it would fare would take this Report beyond the scope of Congress’ request, and, given

the other findings in this Report, the Office does not believe it is necessary.

U.S. Copyright Office Copyright Protections for Press Publishers

4. Treaty Issues

A new publishers’ right that set aside traditional copyright limitations could also raise

questions regarding consistency with the United States’ international obligations. As

mentioned above, the Berne Convention provides:

[I]t shall be permissible to make quotations from a work which has already been

lawfully made available to the public, provided that their making is compatible with fair

practice, and their extent does not exceed that justified by the purpose, including

quotations from newspaper articles and periodicals in the form of press summaries.

317

Some scholars have argued that this is a mandatory “right of quotation” and must be permitted

even with respect to sui generis protections such as ancillary copyright.

318

Assuming that Berne’s quotation exception must apply even to sui generis publisher protections,

there is still a debate as to its scope

319

and whether news aggregators’ conduct falls within it.

Professors Sam Ricketson and Jane C. Ginsburg argue that at least some aggregators will not

qualify for Berne’s quotation right because they fail to credit the authors of the aggregated

articles.

320

More broadly, quotation must be “compatible with fair practice,”

321

raising fact-

specific questions about the extent and nature of the use.

Given these interpretive uncertainties, a publishers’ right that prevented unlicensed

aggregation of headlines and ledes and lacked traditional copyright limitations might raise

questions as to its consistency with the Berne Convention.

317

Berne Convention art. 10(1).

318

TANYA APLIN & LIONEL BENTLY, GLOBAL MANDATORY FAIR USE: THE NATURE AND SCOPE OF THE RIGHT TO QUOTE

such as a newspaper article, cartoon or photograph, the press publishers’ right may not be invoked to restrict or

prevent such lawful quotation. Were it to do so, there would be a breach of Article 10(1) Berne.”); see also LCA Initial

Comments at 7–9. Other scholars suggest that the Berne quotation right might not preempt unfair competition law

remedies or a right of remuneration. RICKETSON & GINSBURG, INTELLECTUAL PROPERTY IN NEWS? WHY NOT? 22–23; see

also LCA Initial Comments at 8–9. Still other academics question whether the exception is, in fact, mandatory. See,

e.g., MIHÁLY FICSOR, THE LAW OF COPYRIGHT AND THE INTERNET ¶ 5.09 (2002); JØRGEN BLOMQVIST, PRIMER ON

INTERNATIONAL COPYRIGHT AND RELATED RIGHTS 159–60 (2014).

319

The precise scope of “quotation” is ambiguous (how much can be copied?), but Professor Sam Ricketson and Jane

Ginsburg assert that “even concepts of quotations limited to modest . . . excerpts would accommodate the copying of

an article’s headline and initial one or two sentences—so long as the national law did not consider the headlines to be

works in themselves.” RICKETSON & GINSBURG, INTELLECTUAL PROPERTY IN NEWS? WHY NOT? 20.

320

Id. at 22.

321

Berne Convention art. 10(1); RICKETSON & GINSBURG, INTELLECTUAL PROPERTY IN NEWS? WHY NOT? 21.

U.S. Copyright Office Copyright Protections for Press Publishers

5. Additional Policy Concerns on Which This Report Makes No

Findings

Commenters raised two additional policy concerns related to the adoption of an ancillary

relies on aggregation.

322

The second is that, due to transaction costs and the likely prioritization

by platforms of doing deals with major publishers, any revenue might flow to press

publications that already have large audiences, thus exacerbating the problem of “news

deserts.”

323

Other commenters disagreed, noting that a collective bargaining and management

framework could advance the interests of smaller publishers.

324

Because the Office does not

here recommend the adoption of a new copyright-related protection, we did not make any

findings with respect to these concerns.

Similarly, the Office made no findings with respect to the interaction between new protections

and the existing rights of authors and visual artists. The Office received few comments on the

subject and determined that further analysis was unnecessary at this time in light of our other

findings and recommendations.

322

See generally Engine Additional Comments; Reddit Additional Comments.

323

See, e.g., CCIA-IA Joint Initial Comments at 10; cf. SCHERER & CHO, CNG. RSCH. SERV., STOP THE PRESSES? NEWSPAPERS

IN THE DIGITAL AGE 13 (“For example, when Meta (formerly Facebook Inc.) launched a news section on its platform

Facebook, it reportedly paid licensing fees to only some of the publishers whose articles it republished, with the

amount depending on the size of the publisher.” (footnote omitted)); U.S. INT’L TRADE COMM’N, GLOBAL DIGITAL

TRADE 1: MARKET OPPORTUNITIES AND KEY FOREIGN TRADE RESTRICTIONS 291–92 (“[I]ndustry experts have stated that

ancillary copyright laws have not generated increased fees to publishers; rather, they have acted as a barrier to entry

for news aggregators.”).

324

See, e.g., Singer Additional Comments at 27–28; Tr. at 111:1–9 (Dec. 9, 2021) (Ole Jani, Axel Springer) (“[W]hether

this law benefits large publishers rather than small publishers, this is definitely not the case. It benefits them all, and

it's then a matter of how to enforce it.”).

U.S. Copyright Office Copyright Protections for Press Publishers

V. CONCLUSION

In this Study, the Copyright Office has evaluated existing copyright protections for press

publishers and considered the advisability of adding new protections, similar to those recently

adopted in Europe, designed to strengthen publishers’ ability to exclude third-party online

services from aggregating their news content.

The Office concludes that press publishers have significant protections under existing U.S.

ability to assert those protections is affected by their bargaining power vis-à-vis news

aggregators. Publishers often own the copyright in articles they publish; less frequently, they

may own rights in photographs accompanying those articles. All commenters agree that a

publisher would in many cases have a prima facie case of copyright infringement against an

aggregator that reproduced substantial excerpts of a news article.

others, under certain circumstances. Some elements of news articles are not protectable as a

matter of Constitutional law—because they are facts or because the expression merges with the

facts described. Smaller elements like headlines may not be copyrightable under the words and

short phrases doctrine. Even where an aggregator reuses protectable expression, the fair use

doctrine may offer a defense in many circumstances. These doctrines are more likely to allow

the reuse of news content where only the headline or the lede is taken. But notwithstanding

these limitations, case law suggests that press publishers can, in some instances, use copyright

to prevent third parties from using substantial excerpts of the publishers’ content.

Press publishers also have certain protections outside of copyright law. They have the technical

ability to prevent many forms of aggregation through paywalls, password protection, or use of

the robots.txt exclusion protocol to stop most web crawlers. In some cases, they likely have

legal causes of action to remedy violations of these non-copyright protections.

Despite these protections, press publishers assert that they cannot insist on aggregators paying

to reuse news content because of their relatively weak bargaining position. In particular, they

depend on the major platforms, Google and Facebook, for a critical percentage of their web

traffic. Preventing those platforms from aggregating their headlines and ledes would, in the

press publishers’ view, deny them the traffic they need to survive.

Based on the considerations detailed in this Report, the Copyright Office does not recommend

adopting a new ancillary copyright to bolster publishers’ protections. Almost all commenters

agreed that adopting an EU-like right is unnecessary inasmuch as U.S. law already confers

many of the same rights on press publishers, including via the work-made-for-hire doctrine.

For a new right to go beyond existing copyright protections, it would most likely need to avoid

existing copyright limitations, which would raise First Amendment and policy concerns.

Moreover, even such an expansive right would likely be ineffective in the current competition

landscape: commenters on both sides of this policy question agreed that whatever rights press

U.S. Copyright Office Copyright Protections for Press Publishers

publishers gained, they would feel compelled to waive them in order to ensure the flow of

traffic from the largest news aggregators.

The Copyright Office’s decision not to recommend additional copyright protections for press

publishers should not be mistaken for a lack of concern about the future of journalism.

Comments in this Study, participants at the public roundtable, and the extensive literature on

economic trends in the news industry all point to a sea change in the press publishing

ecosystem, with especially damaging consequences for local newspapers. Should Congress

wish to explore non-copyright measures for supporting journalism, the comments on this Study

offered several proposals, including the JCPA, a levy on digital advertising revenue, increased

public funding, or tax breaks for journalism. All of these proposals, however, lie beyond the

expertise of the Copyright Office, and we make no findings on their merits. We remain ready to

provide technical advice or other assistance on copyright-related aspects of this issue to

Congress going forward.

u.s. Copyright offiCe

appendix a CongRessionAl Request letteR

VIA ELECTRONIC TRANSMISSION

May 3, 2021

Ms. Shira Perlmutter

United States Copyright Office

Washington, D.C. 20559-6000

Dear Register Perlmutter:

We write you today to ask for a study of protections for publishers under copyright law. As you

know, last year the Senate Judiciary Committee Subcommittee on Intellectual Property held a

year-long series of hearings on reforms to digital copyright law. The purpose of these hearings

was to consider what reforms are needed to ensure the growth of creative industries without

undermining incentives for digital platforms and technologies.

During the course of these hearings, witnesses expressed support for the Copyright Office to

conduct a study on “ancillary copyright” protection for publishers. This issue stems from

ongoing developments in foreign copyright law which require platform aggregators to pay

publishers for excerpts of content they provide for others to view. As some have called for

similar protections to be included in U.S. law, we believe it would be valuable to have the

considering the differences between domestic and foreign copyright law.

To assist us as we consider what legislative reforms, if any, should be taken in this area of

the viability of adding specific protections to U.S. copyright law similar to those now being

implemented in Europe. Additionally, such a study should analyze what the appropriate scope of

such a right should be and how that would coincide with existing rights such as those of

underlying writers or visual artists as well as any existing rights held by publishers. Finally, the

report should include a discussion of relevant exceptions such as “fair use” or “quotation”

exceptions, and any international treaty implications.

We ask that you provide this report by no later than May 3, 2022. Thank you for your prompt

attention to this matter. We look forward to your reply, and to working with you on this

important issue.

Sincerely,

Thom Tillis Patrick Leahy

United States Senator United States Senator

John Cornyn Mazie K. Hirono

United States Senator United States Senator

Amy Klobuchar Christopher A. Coons

United States Senator United States Senator

u.s. Copyright offiCe

appendix B notiCe of inquiRy –

publisheRs’ pRoteCtions study:

notiCe And Request foR publiC

Comment (oCtobeR 12, 2021)

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Federal Register / Vol. 86, No. 194 / Tuesday, October 12, 2021 / Notices

See Michael Barthel & Kirsten Worden,

Newspapers Fact Sheet, Pew Research Center (June

29, 2021), https://www.journalism.org/fact-sheet/

newspapers/. Newspaper ad revenue peaked in the

early internet era of the late 1990s and, after a brief

dip in 2000–01, peaked again in 2005 following a

wave of consolidation in the newspaper industry

(including a steady decline in the number of cities

with competing daily newspapers). Id.; see also

Media Concentration (Part 2): Hearings Before the

Subcomm. on Gen. Oversight and Minority Enter. of

the H. Comm. on Small Bus., 96th Cong. 4–5 (1980)

(statement of James M. Dertouzos, Economist,

RAND Corp.) (presenting data on consolidation in

local news outlets).

ADDRESSES

: Written comments should

be sent to: Drug Enforcement

Administration, Attention: DEA Federal

Morrissette Drive, Springfield, Virginia

22152. All requests for a hearing must

be sent to: Drug Enforcement

Administration, Attn: Administrator,

8701 Morrissette Drive, Springfield,

Virginia 22152. All request for a hearing

should also be sent to: (1) Drug

Enforcement Administration, Attn:

Hearing Clerk/OALJ, 8701 Morrissette

Drive, Springfield, Virginia 22152; and

(2) Drug Enforcement Administration,

Attn: DEA Federal Register

Representative/DPW, 8701 Morrissette

Drive, Springfield, Virginia 22152.

SUPPLEMENTARY INFORMATION

: In

accordance with 21 CFR 1301.34(a), this

is notice that on August 18, 2019,

United States Pharmaceopeial

Convention, 7135 English Muffin Way,

Frederick, Maryland 21704, applied to

be registered as an importer of the

following basic class(es) of controlled

substance(s):

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substance

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Schedule

Lisdexamfetamine ............ 1205 II

The company plans to import the bulk

control substance for analytical testing

purposes. No other activity for these

drug codes is authorized for this

registration.

Approval of permit applications will

occur only when the registrant’s

business activity is consistent with what

is authorized under 21 U.S.C. 952(a)(2).

Authorization will not extend to the

import of the Food and Drug

Administration-approved or non-

approved finished dosage forms for

commercial sale.

Brian S. Besser,

Acting Assistant Administrator.

[FR Doc. 2021–22138 Filed 10–8–21; 8:45 am]

BILLING CODE 4410–09–P

DEPARTMENT OF JUSTICE

Parole Commission

Sunshine Act Meetings

TIME AND DATE

: 1:00 p.m. Thursday,

October 14, 2021.

PLACE

: U.S. Parole Commission, 90 K

Street NE, 3rd Floor, Washington, DC.

STATUS

: Open.

MATTERS TO BE CONSIDERED

1. Approval of July 13, 2021 Quarterly

Meeting Minutes.

2. Pandemic Updates since July

Quarterly Meeting from the Acting

Chairman, Commissioner, Acting Chief

of Staff/Case Operations Administrator,

Case Services Administrator, Executive

Officer, and General Counsel.

3. Update on the proposals voted forth

at July 2021 Quarterly Meeting.

4. Vote on Final Rule for 28 CFR

2.218(e).

CONTACT PERSON FOR MORE INFORMATION

Jacquelyn Graham, Staff Assistant to the

Chairman, U.S. Parole Commission, 90

K Street NE, 3rd Floor, Washington, DC

20530, (202) 346–7010.

Patricia K. Cushwa,

Acting Chairperson, U.S. Parole Commission.

[FR Doc. 2021–22254 Filed 10–7–21; 4:15 pm]

BILLING CODE 4410–31–P

LIBRARY OF CONGRESS

[Docket No. 2021–5]

Publishers’ Protections Study: Notice

and Request for Public Comment

AGENCY

: U.S. Copyright Office, Library

of Congress.

ACTION

: Notice of inquiry.

SUMMARY

: The United States Copyright

Office is undertaking a public study at

the request of Congress to evaluate

current copyright protections for

publishers. Among other issues, the

Office will consider the effectiveness of

publishers’ existing rights in news

content, including under the provisions

of title 17 of the U.S. Code, as well as

other federal and state laws; whether

additional protections are desirable or

appropriate; the possible scope of any

such new protections, including how

their beneficiaries could be defined; and

how any such protections would

interact with existing rights, exceptions

and limitations, and international treaty

obligations. To aid in this effort, the

Office is seeking public input on a

number of questions. The Office also

plans to hold a virtual public roundtable

to discuss these and related topics on

December 9, 2021.

DATES

: Comments are due on or before

November 26, 2021.

ADDRESSES

: The Copyright Office is

using the regulations.gov system for the

submission and posting of public

comments in this proceeding. All

comments are therefore to be submitted

electronically through regulations.gov.

Specific instructions are available on

the Copyright Office website at http://

www.copyright.gov/policy/

publishersprotections/. If electronic

submission of comments is not feasible

due to lack of access to a computer and/

or the internet, please contact the Office

using the contact information below, for

special instructions.

The Office plans to hold the public

roundtable on December 9, 2021, from

9:00 a.m. to 5:00 p.m. Eastern Standard

Time remotely using the Zoom

videoconferencing platform. A

participation request form will be

posted on the Copyright Office website

at https://www.copyright.gov/policy/

publishersprotections/ on or about

October 25, 2021. Requests to

participate as a panelist in a roundtable

session should be submitted by 11:59

p.m. Eastern Standard Time on

November 12, 2021. If electronic

submission of requests for participation

is not feasible, please contact the Office

using the contact information below for

special instructions. Attendees will be

able to join the event online starting at

approximately 8:30 a.m., and it will run

until approximately 5:00 p.m.

FOR FURTHER INFORMATION CONTACT

Kimberley Isbell, Deputy Director of

Policy and International Affairs, at

[email protected], or Andrew

Foglia, Senior Counsel for Policy and

International Affairs, at afoglia@

telephone at 202–707–8350.

SUPPLEMENTARY INFORMATION

: This

notification focuses on press publishers

in particular, reflecting Congress’s

request that the Office study

developments in foreign jurisdictions

regarding their rights. It also includes a

number of questions about publishers in

other sectors, authors, and the public, to

assist in evaluating the appropriate

scope and definitions for any possible

new protections.

I. Introduction

A. The Internet, Press Publishers, and

News Aggregators

The internet has ushered in an era of

disruption and transformation for the

press-publishing ecosystem. After rising

steadily between 1970 and 2006,

newspaper ad revenues plummeted

VerDate Sep<11>2014 16:50 Oct 08, 2021 Jkt 253001 PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 E:\FR\FM\12OCN1.SGM 12OCN1

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Federal Register / Vol. 86, No. 194 / Tuesday, October 12, 2021 / Notices

Elizabeth Grieco, Fast Facts about the

Newspaper Industry’s Financial Struggles as

McClatchy Files for Bankruptcy, Pew Research

Center (Feb. 14, 2020), https://

www.pewresearch.org/fact-tank/2020/02/14/fast-

facts-about-the(-newspaper-industrys-financial-

struggles/.

Newspapers Fact Sheet—More Facts: The State

of the News Media, Pew Research Center (June 29,

2021), https://www.pewresearch.org/journalism/

fact-sheet/newspapers/.

The post-2000 consolidations accelerated a

trend that began early in the 20th century. See

Penelope Muse Abernathy, The Rise of a New

Media Baron and the Emerging Threat of News

Deserts 20–21 (2016), http://

newspaperownership.com/wp-content/uploads/

2016/09/07.UNC_RiseOfNewMediaBaron_

SinglePage_01Sep2016-REDUCED.pdf.

See Penelope Muse Abernathy, The Expanding

News Desert (2018), https://www.cislm.org/wp-

content/uploads/2018/10/The-Expanding-News-

Desert-10_14-Web.pdf; Russell Baker, Goodbye to

Newspapers?, N.Y. Rev. of Books (Aug. 16, 2007),

https://www.nybooks.com/articles/2007/08/16/

goodbye-to-newspapers/ (describing slashing of

news staff at various newspapers under new Wall

Street owners).

See Elizabeth Grieco, Fast Facts About the

Newspaper Industry’s Financial Struggles as

McClatchy Files for Bankruptcy, Pew Research

Center (Feb. 14, 2020), https://

www.pewresearch.org/fact-tank/2020/02/14/fast-

facts-about-the-newspaper-industrys-financial-

struggles/ (‘‘Newsroom employment at U.S.

newspapers dropped by nearly half (47%) between

2008 and 2018.’’); Mason Walker, U.S. Newsroom

Employment Has Fallen 26% Since 2008, Pew

Research Center (July 13, 2021), https://

www.pewresearch.org/fact-tank/2021/07/13/u-s-

newsroom-employment-has-fallen-26-since-2008/

(‘‘Newspaper newsroom employment fell 57%

between 2008 and 2020 . . . .’’).

Lara Takenaga, More Than 1 in 5 U.S. Papers

Has Closed. This is the Result., N.Y. Times (Dec. 21,

2019), https://www.nytimes.com/2019/12/21/

reader-center/local-news-deserts.html; Penelope

Muse Abernathy, The Expanding News Desert 12

(2018), https://www.cislm.org/wp-content/uploads/

2018/10/The-Expanding-News-Desert-10_14-

Web.pdf.

See Eric Alterman, Out of Print: The Death and

Life of the American Newspaper, New Yorker (Mar.

24, 2008), https://www.newyorker.com/magazine/

2008/03/31/out-of-print (describing, among other

things, the rise of Huffington Post and other news

aggregators).

See Kimberley A. Isbell & Citizen Media Law

Project, The Rise of the News Aggregator: Legal

Implications and Best Practices (2010), https://

papers.ssrn.com/sol3/papers.cfm?abstract_

id=1670339.

Nic Newman, Richard Fletcher, Antonis

Kalogeropoulos, David A.L. Levy & Rasmus Kleis

Nielsen, Reuters Institute Digital News Report 2018

14 (2018), http://media.digitalnewsreport.org/wp-

content/uploads/2018/06/digital-news-report-

2018.pdf?x89475; see also Doh-Shin Jeon,

Economics of News Aggregators (Toulouse Sch. of

Econ., Working Paper No. 18–912, 2018), https://

www.tse-fr.eu/sites/default/files/TSE/documents/

doc/wp/2018/wp_tse_912.pdf; Traffic Overview:

news.google.com, similarweb, https://

www.similarweb.com/website/news.google.com/

#overview (last visited August 5, 2021) (showing

that in 2021 Google News averages over 500 million

visits per day). Among aggregating services, one of

the trends of the last half decade has been the

increasing dominance of the largest platforms and

the decline of standalone aggregators. In recent

years, Google and Facebook have continued to

represent an outright majority of aggregator web

traffic and referrals, while BuzzFeed, AOL, Yahoo

and HuffPost have cut more than a thousand jobs,

and smaller sites such as Gawker, Mic, Refinery29,

the Outline, and PopSugar have shrunk, shuttered,

or sold. Joshua Benton, Is Facebook Really A ‘News

Powerhouse’ Again, Thanks to Coronavirus? (No

More Than It Was Before), NiemanLab (Mar. 24,

2020) https://www.niemanlab.org/2020/03/is-

facebook-really-a-news-powerhouse-again-thanks-

to-coronavirus-no-more-than-it-was-before/

(showing that over the twelve preceding months,

Google and Facebook accounted for over 75% of

outside referrals to news sites in the parse.ly

network); Paul Farhi, ‘‘Top Editors Leave HuffPost

and BuzzFeed News Amid Growing Doubts About

the Future of Digital News, Washington Post (Mar.

12, 2020), https://www.washingtonpost.com/

lifestyle/media/top-editors-leave-huffpost-and-

buzzfeed-amid-growing-doubts-about-the-future-of-

digital-news/2020/03/12/32cf09c0-6222-11ea-acca-

80c22bbee96f_story.html.

See Eleonora Rosati, The German ‘Google Tax’

Law: Groovy or Greedy? 8(7) J. Intel. Prop. L. & Prac.

497, 497 (2013); Chrysanthos Dellarocas, Juliana

Sutanto, Mihai Calin & Elia Palme, Attention

Allocation in Information-Rich Environments: The

Case of News Aggregators, 62(9) Mgmt. Sci. 2543,

2543 (2015); Directive 2019/790, of the European

Parliament and of the Council of 17 April 2019 on

Market and Amending Directives 96/9/EC and

2001/29/EC, 2019 O.J. (L 130) 92, 103–04, https://

eur-lex.europa.eu/eli/dir/2019/790/oj (‘‘Publishers

of press publications are facing problems in

licensing the online use of their publications to the

providers of those kinds of services, making it more

difficult for them to recoup their investments.’’).

See, e.g., Joan Calzada & Ricard Gil, What Do

News Aggregators Do? Evidence from Google News

in Spain and Germany 1–2 (2018), http://

diposit.ub.edu/dspace/bitstream/2445/150425/1/

695577.pdf; Lisa M. George & Christiaan

Hogendorn, Local News Online: Aggregators, Geo-

Targeting and the Market for Local News, 68(4) J.

Indus. Econ. 780, 804 (2020) (finding that a redesign

of Google News adding geo-targeted local news

links increased the level and share of local news

consumption).

Doh-Shin Jeon, Economics of News Aggregators

(Toulouse Sch. of Econ., Working Paper No. 18–

912, 2018), https://www.tse-fr.eu/sites/default/files/

TSE/documents/doc/wp/2018/wp_tse_912.pdf

(reviewing empirical literature and concluding that

Google News and Facebook increase overall traffic

to news sites); Kenny Olmstead, Amy Mitchell &

Tom Rosenstiel, Navigating News Online: Where

People Go, How They Get There and What Lures

Them Away (2011), https://www.pewresearch.org/

wp-content/uploads/sites/8/legacy/NIELSEN-

STUDY-Copy.pdf.

Kenny Olmstead, Amy Mitchell & Tom

Rosenstiel, Navigating News Online: Where People

Go, How They Got There, and What Lures Them

Away 22 (2011), https://www.pewresearch.org/wp-

content/uploads/sites/8/legacy/NIELSEN-STUDY-

Copy.pdf. (‘‘According to the links users follow,

Google News sends most users on to a news

destination, but the range of those destinations is

rather limited. Most of visitors to Google News . . .

do click to a news story. According to the data, less

than a third of news.google.com visitors headed to

Google.com or another Google service. The

remainder followed a link to a news site. But the

benefactors are limited. Fully 69% of visitors to

news.google.com ended up 3 places: nytimes.com

(14.6%), cnn.com (14.4%) and abcnews.go.com

(14.0%). Six additional sites were each the

destination for 7–10% of visitors during the time

period studied’’).

See Doh-Shin Jeon, Economics of News

Aggregators 18 (Toulouse Sch. of Econ., Working

Paper No. 18–912, 2018), https://www.tse-fr.eu/

sites/default/files/TSE/documents/doc/wp/2018/

wp_tse_912.pdf. ([‘‘N]ews aggregators reduce traffic

to newspaper home pages while increasing traffic

to individual news articles. Even if all empirical

articles agree on the statement that the business-

62% between 2008 and 2018.

Total

newspaper circulation, already

declining before the internet-era, in

2020 fell to its lowest point since 1940.

Digital distribution exposed city papers

that once enjoyed close to local

monopolies to national competition

from well-heeled newsrooms like The

New York Times. The combination of

increased competition, dwindling

revenue, and high debt overhangs led to

a wave of bankruptcies, consolidations,

and leveraged buyouts.

From 2008 to

2019, the number of newspaper

newsroom employees dropped by more

than 40%,

and one in five papers

closed.

Over the two decades during which

press publishers’ revenues have

declined, a new set of distributors has

arisen in the form of online news

aggregators.

This umbrella term covers

a number of distinct services that vary

according to the sources they use, the

topics they cover, who performs the

aggregation, and whether they add

original commentary, but in general

refers to an online service that collects

links to and sometimes snippets of

third-party articles and makes them

available to its readers.

While some

news aggregators focus primarily or

solely on the distribution of news

content, others may aggregate such

content only as one part of a wider-

ranging social media service, for

example by allowing users to share

news stories or promoting ‘‘trending

topics’’ or ‘‘news’’ tabs and links. News

aggregators may or may not seek

licenses for the third-party content they

use.

News aggregators, including search

engines and social media, have now

become the preferred or initial source of

news for a majority of digital news

consumers.

Some commenters suggest

that these sources create a ‘‘substitution

effect’’ by allowing readers to get the

news (or at least its gist) without visiting

the press publishers’ websites.

Others

assert that news aggregators expand the

market by helping readers to discover

new websites and tempting them to

click on more articles than they would

otherwise read.

Empirical data available to date on the

relationship between aggregators and

news sites is thin. Aggregators appear to

drive a significant amount of traffic to

news websites, and therefore their

activities may serve to expand the

market for press publishers.

But their

referrals may lead to a relatively narrow

range of news sites,

and they tend to

drive traffic to individual articles rather

than homepages.

So it is also possible

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stealing effect is dominated by the readership-

expansion effect, if this comes with a reduced

traffic to home pages, it can have a long-term

consequence that is not captured by the empirical

studies.’’).

The Copyright Act defines ‘‘collective work’’ as

a work ‘‘in which a number of contributions,

constituting separate and independent works in

themselves, are assembled into a collective whole.’’

17 U.S.C. 101. Additionally, collective works under

the Copyright Act are considered a type of

compilation, which in turn is defined as ‘‘a work

formed by the collection and assembling of

preexisting materials or of data that are selected,

coordinated, or arranged in such a way that the

resulting work as a whole constitutes an original

work of authorship.’’ 17. U.S.C. 101. The website

of a daily newspaper, which assembles various

discrete articles, photographs, and advertisements,

could be an example of a copyrightable digital

‘‘collective work.’’

‘‘Work made for hire’’ is a category of works

created for an employer or commissioning party, for

which the individual(s) who create the work are not

considered the author(s) and initial owner(s) for

the employer of that individual, if the work is

prepared within the scope of employment; or (2) the

entity who commissions or orders the creation of

the work, provided that the work fits within one of

nine specific categories, and the parties expressly

agree in a signed writing that ‘‘the work shall be

considered a work made for hire.’’ 17 U.S.C. 101.

Among these nine categories is ‘‘a contribution to

a collective work,’’ meaning that a freelance article

for a newspaper or magazine may constitute a work-

made-for-hire, if the author and the publisher

agreed to this in writing. 17 U.S.C. 101. In addition,

any article written by an employee of a newspaper

or magazine as part of their employment would

clearly be a work-made-for-hire, with the publisher

having the legal status of author (and copyright

owner).

For freelance articles or photographs that are

not works-made-for-hire, the author—in whom all

exclusive rights initially vest—may transfer her

rights to the publisher, either for a limited time or

for the duration of the copyright, and the transfer

may cover all or some of the exclusive rights. A

transfer of rights may take the form of an

assignment (meaning that legal title is transferred)

or an exclusive license (meaning that exclusive

permission to use the right(s) is transferred). See

Minden Pictures, Inc. v. John Wiley & Sons, Inc.,

795 F.3d 997, 1003 (9th Cir. 2015). For both types

of transfers, the transferee gains the right to bring

suit for infringement. See 3 Melvin B. Nimmer &

David Nimmer, Nimmer on Copyright sec.

12.02[B][1] (2021). In contrast, if the parties only

agree to a nonexclusive license—meaning that the

author remains free to license the work to other

parties—then the grantee cannot bring an

infringement suit. See Minden Pictures, Inc. v. John

Wiley & Sons, Inc., 795 F.3d 997, 1003 (9th Cir.

2015).

The relationship between the copyright in a

collective work and in a particular contribution to

a collective work is spelled out in the Copyright

Act, which sets forth three instances where a

publisher who does not own the copyright in an

article may nonetheless reproduce and distribute it

as part of: (1) ‘‘that particular collective work,’’ (2)

‘‘any revision of that collective work, and’’ (3) ‘‘any

later collective work in the same series.’’ 17 U.S.C.

201(c). In the 2001 Tasini decision, the Supreme

Court explicated section 201(c) as ‘‘adjust[ing] a

publisher’s copyright in its collective work to

accommodate a freelancer’s copyright in her

contribution. If there is demand for a freelance

article standing alone or in a new collection, the

that demand; after authorizing initial publication,

the freelancer may also sell the article to others.’’

N.Y. Times Co. v. Tasini, 533 U.S. 483, 497 (2001).

See 17 U.S.C. 106(1)–(5). As the Copyright

Office has noted, these exclusive rights cover

certain uses of copyrighted materials online,

including the making available of copyrighted

works for download or viewing via streaming. See

generally U.S. Copyright Office, The Making

Available Right in the United States (2016), https://

www.copyright.gov/docs/making_available/making-

available-right.pdf.

Similar, though not identical doctrines may be

found in most countries’ copyright laws. See, e.g.,

Berne Convention for the Protection of Literary and

Artistic Works art. 2(8), Sept. 9, 1886, as revised

July 24, 1971, and as amended Sept. 28, 1979, S.

Treaty Doc. No. 99–27, 1161 U.N.T.S. 3 (1986)

(‘‘Berne Convention’’) (‘‘The protection of this

Convention shall not apply to news of the day or

to miscellaneous facts having the character of mere

items of press information.’’); Agreement on Trade-

Related Aspects of Intellectual Property Rights art.

9(2), Apr. 15, 1994, Marrakesh Agreement

Establishing the World Trade Organization, Annex

1C, 1869 U.N.T.S. 299 (1994), (‘‘Copyright

protection shall extend to expressions and not to

ideas, procedures, methods of operation or

mathematical concepts as such.’’); WIPO Copyright

Treaty art. 2, Dec. 20, 1996, S. Treaty Doc. No. 105–

17, 2186 U.N.T.S. 121 (‘‘Copyright protection

extends to expressions and not to ideas, procedures,

methods of operation or mathematical concepts as

such.’’).

17 U.S.C. 102(b) (‘‘In no case does copyright

protection for an original work of authorship extend

to any idea, procedure, process, system, method of

operation, concept, principle, or discovery,

regardless of the form in which it is described,

explained, illustrated, or embodied in such work.’’);

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S.

340, 345 (1991); see also Baker v. Selden, 101 U.S.

99, 103 (1880) (describing idea/expression

dichotomy).

CMM Cable Rep., Inc. v. Ocean Coast Props.,

Inc., 97 F.3d 1504, 1519–20 (1st Cir. 1996) (titles

and short phrases uncopyrightable); Aryelo v. Am.

Int’l Ins. Co., No. 95–1360, 1995 WL 561530 at *1

(1st Cir. Sept. 21, 1995) (per curiam, table,

unpublished) (‘‘The non-copyrightability of titles in

particular has been authoritatively established’’); 37

CFR 202.1(a) (excluding from copyright protection

‘‘[w]ords and short phrases such as name, titles, and

slogans’’).

N.Y. Mercantile Exch., Inc. v.

IntercontinentalExchange, Inc., 497 F.3d 109, 116–

17 (2d Cir. 2007); 4 Melvin B. Nimmer & David

Nimmer, Nimmer on Copyright sec. 13.03[B][3]

(explaining that ‘‘courts have invoked the doctrine

of merger’’ where ‘‘rigorously protecting the

expression would confer a monopoly over the idea

itself, in contravention of the statutory command’’).

See, e.g., Swatch Grp. Mgmt. Servs. Ltd. v.

Bloomberg L.P., 756 F.3d 73, 84 (2d Cir. 2014)

(explaining that fair use often, though not always,

supports direct quotation of copyrighted works in

news reporting context); Nunez v. Caribbean Int’l

News Corp., 235 F.3d 18, 22–23 (1st Cir. 2000)

(finding newspaper’s use of copyrighted

photographs was fair where the photographs

themselves were the news story).

See, e.g., Kelly v. Arriba Soft Corp., 336 F.3d

811, 818 (9th Cir. 2003) (finding defendant’s

reproduction of thumbnails of plaintiff’s

photographs in defendant’s search engine results

was transformative); Perfect 10, Inc. v.

Amazon.com, Inc. 508 F.3d 1146, 1165 (9th Cir.

2007) (same); cf. Authors Guild v. Google, Inc., 804

F.3d 202, 229 (2d Cir. 2015) (finding Google’s

unauthorized display of snippets of copyrighted

works as part of a searchable index was fair use).

Fox News Network, LLC v. TVEyes, Inc, 883

F.3d 169, 180–81 (2d Cir. 2018); see also MidlevelU,

Inc. v. ACI Information Grp., 989 F.3d 1205, 1222–

23 (11th Cir. 2021) (denying judgment as a matter

Continued

that their offerings substitute to some

degree for the market for newspapers as

a whole, even while stimulating traffic

to specific articles. This concern has

spurred policymakers in several

countries to consider legislation aimed

at maintaining the viability of their

news industry, including by expanding

press publishers’ rights in the content

they publish.

II. Protections for Press Publishers

Under U.S. Law

A. Copyright Protection for News

Content

Current U.S. copyright law gives

publishers several means to protect their

news content. First, a press publisher

typically owns the copyright in the

collective work, such as the print issue

as a whole or the website containing

individual news articles.

Second, the

press publisher may own or be able to

assert rights in individual articles that it

publishes, through the work-made-for-

hire doctrine,

assignments of rights, or

exclusive licenses.

When a press publisher owns a

or in an individual article, it has the

exclusive right to do or authorize the

reproduction, preparation of derivative

works, distribution, public performance,

and public display of that work.

These exclusive rights are not

absolute. Under U.S. law, several legal

doctrines allow the use of news content

in certain circumstances without

permission or payment.

Most

fundamentally, facts and ideas are not

copyrightable.

Nor are titles and short

phrases, including headlines.

Where

there are only a few, limited ways of

expressing an idea, the merger doctrine

bars protection for the expression in

order to avoid giving a backdoor

monopoly in the idea itself.

Even

where the content used is protectable,

the fair use doctrine provides

considerable scope for quotation and

allows certain other reasonable uses.

Applying the fair use doctrine, courts

have approved some forms of

aggregation of news content but not

others. For example, fair use has been

found to permit the aggregation of

copyrighted text or images by search

engines or other indexing processes

where those services used only snippets

or low-resolution images that were

unlikely to substitute for the original

copyrighted works.

By contrast, the

Second Circuit has held that the

aggregation of television news content

into a searchable index was not fair use,

to the extent that the service enabled

users to watch and share ten-minute

clips.

Some news aggregators have

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of law on fair use defense where aggregated index

of blog content also allowed users to view full text

of articles without navigating to the original

source); Associated Press v. Meltwater U.S.

Holdings, Inc., 931 F. Supp. 2d 537, 545 (S.D.N.Y.

2013) (finding news monitoring service’s

reproduction and distribution of excerpts of online

news articles was not fair use). Cf. Video Pipeline,

Inc. v. Buena Vista Home Entmt., 342 F.3d 191, 200

(3d Cir. 2003) (rejecting fair use defense of a service

that compiled movie clips into a commercial

database of movie trailers).

See, e.g., Jeffrey A. Trachtenberg and Keach

Hagey, Google to Pay News Corp for Access to Its

Publications’ Content, Wall Street J. (Feb. 17, 2021),

https://www.wsj.com/articles/google-to-pay-news-

corp-for-access-to-its-publications-content-

11613592397 (reporting three-year licensing deal

between Google and News Corp.); Benjamin Mullin

and Sahil Patel, Facebook Offers News Outlets

Millions of Dollars a Year to License Content, Wall

Street J. (Aug. 8, 2019), https://www.wsj.com/

articles/facebook-offers-news-outlets-millions-of-

dollars-a-year-to-license-content-11565294575

(reporting that Facebook was seeking licenses from

news outlets for proposed news section).

248 U.S. 215 (1918).

Int’l News Serv. v. Associated Press, 248 U.S.

215, 230–31 (1918).

See United States Copyright Office, Report on

Legal Protections for Databases 82 (1997), https://

www.copyright.gov/reports/db4.pdf (noting

abrogation of federal common law generally by the

Supreme Court in Erie R.R. v. Tompkins, 304 U.S.

64, 78 (1938)).

See Abrams v. United States, 250 U.S. 616

(1919); Schenck v. United States, 249 U.S. 47

(1919).

105 F.2d 841, 845 (2d Cir. 1997) (limiting hot

news claims to cases where: ‘‘(i) a plaintiff

generates or gathers information at a cost; (ii) the

information is time-sensitive; (iii) a defendant’s use

of the information constitutes free-riding on the

plaintiff’s efforts; (iv) the defendant is in direct

competition with a product or service offered by the

plaintiffs; and (v) the ability of other parties to free-

ride on the efforts of the plaintiff or others would

so reduce the incentive to produce the product or

service that its existence or quality would be

substantially threatened.’’); see also id. at 853

(explaining that the ‘‘extra elements’’ needed for a

hot news claim to survive preemption are ‘‘(i) the

time-sensitive value of factual information, (ii) the

free-riding by a defendant, and (iii) the threat to the

very existence of the product or service provided

by the plaintiff’’).

See, e.g., Brantley v. Epic Games, Inc., 463 F.

Supp.3d 616, 626 (D. Md. 2020); IPOX Schuster,

LLC v. Nikko Asset Mgmt. Co., 304 F. Supp. 3d 746,

757 (N.D. Ill. 2018); Thousand Oaks Barrel Co. v.

Deep S. Barrels LLC, 241 F. Supp. 3d 708, 725 (E.D.

Va. 2017) (holding Virginia does not recognize the

tort of hot news misappropriation); Scrappost, LLC

v. Peony Online, Inc., No. 14–14761, 2017 WL

697028, at *8 (E.D. Mich. Feb. 22, 2017); World

Chess US, Inc. v. Chessgames Servs. LLC, No. 16

CIV. 8629 (VM), 2016 WL 7190075, at *4 (S.D.N.Y.

Nov. 22, 2016); Ste. Genevieve Media, LLC v.

Pulitzer Mo. Newspapers, Inc., No. 1:16 CV 87 ACL,

2016 WL 6083796, at *5 (E.D. Mo. Oct. 18, 2016).

But see Dow Jones & Co. v. Real-Time Analysis &

News, Ltd., No. 14–CV–131 (JMF)(GWG), 2014 WL

4629967, at *7 (S.D.N.Y. Sept. 15, 2014), report and

recommendation adopted, No. 14–CV–131

(JMF)(GWG), 2014 WL 5002092 (S.D.N.Y. Oct. 7,

2014) (granting damages on plaintiff’s hot news

misappropriation claim).

650 F.3d 876, 902 (2d Cir. 2011). Applying the

NBA v. Motorola factors, the court found: (i) The

recommendations were works of authorship within

the general subject-matter of the Copyright Act; (ii)

plaintiff’s alleged ‘‘hot news’’ right in the

recommendations could be violated by copying and

distribution that, on their own, would violate the

the defendants were ‘‘free-riding’’ in the sense

previously recognized in hot news cases. Id.

Directive 2019/790 of the European Parliament

and Related Rights in the Digital Single Market and

Amending Directives 96/9/EC and 2001/29/EC,

2019 O.J. (L 130) 92, 92–125, https://eur-

lex.europa.eu/eli/dir/2019/790/oj. An ‘‘ancillary’’ or

‘‘neighboring’’ right is one that does not belong to

the author of the copyrighted work. See Meghan

Sali, What the Heck is Ancillary Copyright and Why

Do We Call it the Link Tax?, Open Media (May 5,

2016), https://openmedia.org/article/item/what-

heck-ancillary-copyright-and-why-do-we-call-it-

link-tax. In this case, the term ‘‘ancillary copyright’’

arises because press publishers are not the authors

of the news materials at issue, but will nonetheless

have the right to authorize or prohibit certain uses

of the materials.

See European Parliament, Policy Department

for Citizens’ Rights and Constitutional Affairs,

Strengthening the Position of Press Publishers and

Authors and Performers in the Copyright Directive

14 (2017) (providing an English translation of the

German press publisher statute), https://

op.europa.eu/en/publication-detail/-/publication/

9f45daff-c437-11e7-9b01-01aa75ed71a1/language-

en/format-PDF/source-206447220. The law covered

snippets, but did not apply to individual words or

‘‘very short text excerpts,’’ or mere linking. In 2019,

the Court of Justice of the European Union ruled the

law was unenforceable for procedural reasons. See

Jan Bernd Nordemann & Stefanie Jehle

(Nordemann), VG Media/Google: German Press

Publishers’ Right Declared Unenforceable by the

CJEU for Formal Reasons—But It Will Soon Be Re-

copyrightblog.kluweriplaw.com/2019/11/11/vg-

media-google-german-press-publishers-right-

declared-unenforceable-by-the-cjeu-for-formal-

reasons-but-it-will-soon-be-re-born/.

See Raquel Xalabarder, The Remunerated

Statutory Limitation for News Aggregation and

Search Engines Proposed by the Spanish

Government: Its Compliance with International and

EU Law (2014), infojustice.org/wp-content/uploads/

2014/10/xalabarder.pdf. In response to the law,

Google shut down Google News in Spain. Eric

Auchard, Google to Shut Down News Site in Spain

https://www.reuters.com/article/us-google-spain-

news/google-to-shut-down-news-site-in-spain-over-

law and Google News’s shutdown in Spain persist.

sought licenses instead of relying on a

fair use defense, presumably either

because their use was more extensive

than that permitted by fair use or

because they wanted to avoid the

expense and uncertainty of litigating.

B. ‘‘Hot News’’ Misappropriation

Separate from copyright, U.S. press

publishers have at times asserted ‘‘hot

news’’ misappropriation claims to

protect against the taking of their time-

sensitive news items. This cause of

action, established by the Supreme

Court in International News Service v.

Associated Press

during World War I,

bars free riding on a competitor’s

investment at the moment in time when

the competitor was poised to reap the

rewards.

Because International News

Service was based on no-longer extant

federal common law

and pre-dated

the 1976 Copyright Act and modern

First Amendment jurisprudence,

this

tort’s continued viability is unclear. In

one of the first modern cases to consider

a hot news misappropriation claim

under New York state law, the Second

Circuit in NBA v. Motorola held that

only a narrow version of the theory

survived preemption by the Copyright

Act.

Indeed, most courts faced with

hot news misappropriation claims since

Motorola have found them to be either

preempted or insufficiently proven.

For example, in Barclays Capital, Inc. v.

Theflyonthewall.com, Inc., the Second

Circuit held that the Copyright Act

preempted a hot news misappropriation

claim under New York law based on the

defendant’s publication of plaintiff’s

time-sensitive stock recommendations,

notwithstanding the fact that the

recommendations at issue may not have

been copyrightable.

This holding

suggests that even if a hot news

misappropriation claim could be

brought against a news aggregator, it

would face a significant hurdle in

avoiding preemption by the Copyright

Act.

III. International Developments

Citing concerns for the continued

viability of their news industries,

several national and regional

legislatures have considered or enacted

new forms of legal protection for press

publishers in recent years. These

generally fall into one of two models:

An extension of copyright or copyright-

like protections, or regulation of the

terms of competition and negotiation

between the publishers and online

intermediaries.

A. Ancillary Copyright

In 2019, as part of the Directive on

(‘‘CDSM Directive’’), the European

Union required Member States to grant

press publishers an ‘‘ancillary’’ right in

the content of their press publications.

The EU’s approach took inspiration

from laws previously adopted in

Germany and Spain. The German law,

enacted in 2013 and later invalidated on

procedural grounds, provided press

publishers an exclusive right to make

their work available to the public for

commercial purposes.

The Spanish

law, by contrast, grants press publishers

a non-waivable right of remuneration.

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See Directive 2019/790, of the European

Parliament and of the Council of 17 April 2019 on

Market and Amending Directives 96/9/EC and

2001/29/EC, art. 15(4), 2019 O.J. (L 130) 92, 92–125,

https://eur-lex.europa.eu/eli/dir/2019/790/oj.

See Directive 2019/790, of the European

Parliament and of the Council of 17 April 2019 on

Market and Amending Directives 96/9/EC and

2001/29/EC, art. 15(1–4), 2019 O.J. (L 130) 92–125,

https://eur-lex.europa.eu/eli/dir/2019/790/oj.

Directive 2019/790, of the European Parliament

and Related Rights in the Digital Single Market and

Amending Directives 96/9/EC and 2001/29/EC,

2019 O.J. (L 130) 92, 104, https://eur-lex.europa.eu/

eli/dir/2019/790/oj.

See European Commission, Public Consultation

on the Role of Publishers in the Copyright Value

Chain and on the ‘Panorama Exception’, European

Commission, https://ec.europa.eu/eusurvey/runner/

Consultation_Copyright?surveylanguage=EN#page1

(last visited Aug. 11, 2021).

See DSM Directive Implementation Tracker,

Communia (last visited July 28, 2021), https://

www.notion.so/DSM-Directive-Implementation-

Tracker-361cfae48e814440b353b32692bba879. Italy

has adopted a ‘‘delegation law’’ implementing the

CDSM. As noted above, Spain has a press

publisher’s law that predates, but is in some

respects inconsistent with, Article 15 of the CDSM.

French law requires news aggregators to share with

publishers data on how readers use the reproduced

press material. Loi 2019–775 du 24 juillet 2019

tendant a

cre

er un droit voisin au profit des agences

de presse et des e

diteurs de presse [Law 2019–775

of July 24, 2019 on the Creation of Neighboring

Rights for the Benefit of Press Agencies and

Publishers], Journal Officiel de la Re

publique

Franc

aise [J.O.][Official Gazette of France], July 26,

2019; Diana Passinke, An Analysis of Articles 15

and 17 of the EU Directive on Copyright in the

Digital Single Market: A Boost for the Creative

Industries or the Death of the internet? (Stanford-

Vienna Eur. Union L. Working Paper No. 49, 2020),

http://ttlf.stanford.edu. These laws have continued

to provoke controversy. Shortly before France’s

implementing law became effective, Google

announced that it would no longer display snippets

of results from European press publishers as part of

search results in France, unless a publisher opts in

to the display free of charge. French press publisher

unions sued Google, and France’s competition

authority declared that Google would have to

negotiate remuneration to press publishers in good

faith. See Natasha Lomas, France’s Competition

Watchdog Orders Google to Pay for News Reuse,

TechCrunch (Apr. 9, 2020), https://techcrunch.com/

2020/04/09/frances-competition-watchdog-orders-

google-to-pay-for-news-reuse/. Google has since

signed contracts with several French publishers.

See Tom Hirche, Google Signs Contracts with a

Handful of French Publishers, IGEL (Nov. 24, 2020),

https://ancillarycopyright.eu/news/2020-11-24/

google-signs-contracts-handful-french-press-

publishers. In July of 2021, France’s competition

authority fined Google over $500 million for failure

to negotiate in good faith. See Associated Press,

France Fines Google $592M in a Dispute Over

Paying News Publishers for Content, NPR (Jul. 13,

2021), https://www.npr.org/2021/07/13/

1015596060/france-fines-google-592m-in-a-dispute-

over-paying-news-publishers-for-content.

See Most EU Countries Not Enacting Copyright

Laws, Portugal News (Jul. 26, 2021), https://

www.theportugalnews.com/news/2021-07-26/most-

eu-countries-not-enacting-new-copyright-laws/

61315.

For example, in the United States, the proposed

Journalism Competition and Preservation Act of

2021 would create a four-year safe harbor from

antitrust laws for print, broadcast, or digital news

companies to collectively negotiate with online

content distributors. S. 673, 117th Cong. sec. 2

(2021).

Treasury Laws Amendment (News Media and

Digital Platforms Mandatory Bargaining Code) Bill

2021 (Cth) (Austl.), https://parlinfo.aph.gov.au/

parlInfo/download/legislation/bills/r6652_

aspassed/toc_pdf/20177b01.pdf. The law also

included a set of minimum standards for providing

advance notice of changes to algorithmic ranking

and presentation of news.

Treasury Laws Amendment (News Media and

Digital Platforms Mandatory Bargaining Code) Bill

2021 (Cth) (Austl.), https://parlinfo.aph.gov.au/

parlInfo/download/legislation/bills/r6652_

aspassed/toc_pdf/20177b01.pdf.

Treasury Laws Amendment (News Media and

Digital Platforms Mandatory Bargaining Code) Bill

2021 (Cth) (Austl.), https://parlinfo.aph.gov.au/

parlInfo/download/legislation/bills/r6652_

aspassed/toc_pdf/20177b01.pdf.

Treasury Laws Amendment (News Media and

Digital Platforms Mandatory Bargaining Code) Bill

2021 (Cth) (Austl.), https://parlinfo.aph.gov.au/

parlInfo/download/legislation/bills/r6652_

aspassed/toc_pdf/20177b01.pdf.

Treasury Laws Amendment (News Media and

Digital Platforms Mandatory Bargaining Code) Bill

2021 (Cth) (Austl.), https://parlinfo.aph.gov.au/

parlInfo/download/legislation/bills/r6652_

aspassed/toc_pdf/20177b01.pdf. Opponents of

Australia’s approach, including Google, have

argued that it rests on a misunderstanding of the

economic forces affecting press publishers and

undermines the ‘‘principle of unrestricted linking

between websites.’’

Mel Silva, Mel Silva’s

Opening Statement to the Senate Economics

Committee Inquiry, Google: The Keyeword (Jan. 22,

2021), https://blog.google/around-the-globe/google-

asia/australia/mel-silvas-opening-statement/.

Facebook initially protested the law by blocking

news sharing in Australia, but restored service after

Australia amended the law to include a two-month

mediation period and to accommodate pre-existing

deals between Facebook and news publishers.

Elizabeth Dwoskin, Facebook, Australia Reach Deal

to Restore News Pages After Shutdown, Wash. Post

(Feb. 23, 2021), https://www.washingtonpost.com/

technology/2021/02/22/facebook-news-australia-

deal/; see also Kelly Buchanan, Australia: New

Legislation Establishes Code of Conduct for

Negotiations between News Media and Digital

Platforms over Payments for Content, Libr.

Congress: Global Legal Monitor (Feb. 26, 2021),

https://www.loc.gov/law/foreign-news/article/

australia-new-legislation-establishes-code-of-

conduct-for-negotiations-between-news-media-and-

digital-platforms-over-payments-for-content/.

Under Article 15 of the CDSM

Directive, for two years following the

initial publication of press publications,

publishers have the right to authorize or

prohibit third-party online service

providers from reproducing them or

making them available to the public.

This right does not apply to: (i) Non-

commercial uses by individual users;

(ii) hyperlinking to, without

reproducing, news content; (iii) the use

of individual words or very short

extracts; (iv) uses in works contained in

academic periodicals; (v) any uses

otherwise permitted by EU copyright

law, such as the making of incidental

copies as a result of lawful

transmissions or quotations for purposes

of criticism or commentary; or (vi) mere

facts.

Article 15 applies only to

‘‘journalistic publications,’’ and not to

‘‘websites, such as blogs, that provide

information as part of an activity that is

not carried out under the initiative,

editorial responsibility and control of a

service provider, such as a news

publisher.’’

This focus on news

publishers as the beneficiaries resulted

from a public consultation ‘‘on the role

of publishers in the copyright value

chain’’ more broadly.

EU Member States had until June 7,

2021 to fully implement the CDSM. To

date, Article 15 has been implemented

by France, the Netherlands, Hungary,

Germany, Malta, and Denmark.

The

European Commission has commenced

legal proceedings against other member

states for failing to implement the

CDSM by the deadline.

B. Competition Law

The second, competition-law-based

approach to addressing the relationship

between news publishers and online

intermediaries can take many forms,

but the most-discussed initiative has

been Australia’s mandatory bargaining

law. In 2021 Australia passed a law

requiring Google and Facebook,

specifically, to negotiate with press

publishers over compensation for the

value the publishers’ stories generate on

the two companies’ platforms.

Any

news organization can notify Google or

Facebook of its intent to bargain under

the law.

Compensation terms may

account for the value the publisher

derives from Google’s or Facebook’s use

of its material—in other words, Google

can argue that its royalty rate should be

lower because it drives traffic to the

publisher’s site.

If, after three months

of bargaining, the parties have not

reached an agreement, an arbitration

panel makes a binding decision on the

rate of remuneration.

Because

Australia’s law is not copyright-based,

the bargaining right applies to all news

content, including headlines and

snippets, not just material protected by

Subjects of Inquiry: The Copyright

Office seeks public input, including

empirical data where available, on the

issues described above. In particular,

the Office invites written comments on

three issues: (i) The effectiveness of

current protections for press publishers

under U.S. law; (ii) whether additional

protections for press publishers are

desirable and, if so, what the scope of

any such protections should be; and (iii)

how any new protections for press

publishers in the United States would

relate to existing rights, exceptions and

limitations, and international treaty

obligations.

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Federal Register / Vol. 86, No. 194 / Tuesday, October 12, 2021 / Notices

A party choosing to respond to this

Notice of Inquiry need not address every

issue, but the Office requests that

responding parties clearly identify and

separately address each question for

which they submit a response. The

Office also requests that responding

parties identify their affiliation and the

factual or legal basis for their responses.

The Effectiveness of Current Protections

for Press Publishers

(1) Copyright ownership of news

content.

(a) For a given type of news

publication, what is the average

proportion of content in which the

compared to the proportion licensed by

the publisher on either an exclusive or

non-exclusive basis?

(b) For content in which the press

publisher owns the copyright, what is

typically the basis for ownership: Work-

for-hire or assignment?

(2) Third-party uses of news content.

(a) Under what circumstances does or

should aggregation of news content

require a license? To what extent does

fair use permit news aggregation of

press publisher content, or of headlines

or short snippets of an article?

(b) Are there any obstacles to

negotiating such licenses? If so, what are

they?

circumstances do aggregators seek

licenses for news content?

(d) What is the market impact of

current news aggregation practices on

press publishers? On the number of

readers? On advertising revenue?

(e) Does the impact of news

aggregation vary by the size of the press

publisher, or the type of content being

published (e.g., national or local news,

celebrity news)? If so, how?

(f) Do third-party uses of published

news content other than news

aggregation have a market impact on

press publishers? What are those uses

and what is the market impact? Do such

uses require a license or are they

permitted by fair use?

(3) Existing non-copyright protections

for press publishers.

(a) What non-copyright protections

against unauthorized news aggregation

or other unauthorized third party uses

of news content are available under

state or federal law in the United States?

To what extent are they effective, and

how often are they relied upon?

The Desirability and Scope of Any

Additional Protections for Press

Publishers

(1) To what extent do the copyright or