A strong new argument for Congress to help save local journalism came from an unexpected source.
The U.S. Copyright Office just declined to strengthen news copyright protections, after being asked by a group of senators if this could help struggling publishers.
This leaves Congress, and a critical bill expected to resurface next week, as the best hope for publishers seeking fair compensation from tech platforms making billions off their news content.
Meanwhile local papers are failing at a rate of two per week, misinformation is flourishing and Americans are losing their ability to have reasonable conversations about what’s happening in their community and country.
The senators asked the Copyright Office last year to study whether it could strengthen protections for news content. This would be similar to efforts in Europe to get tech companies aggregating news content to pay for its use.
The office decided outlets’ current protections are “significant” but compromised by their lack of bargaining power.
In short, it punted the issue back to Congress.
“The Office nevertheless continues to believe that the challenges facing journalism are worthy of congressional attention,” Director Shira Perlmutter wrote the senators on June 30.
At least the timing is good.
Two proposals to help save the press are at hand.
One would provide short-term tax credits for hiring and retaining local journalists. It has a dwindling chance of being included in the next budget reconciliation package.
The other would give news outlets, especially smaller ones, more leverage to negotiate content-licensing arrangements with tech giants. A strengthened version of this bill, the Journalism Competition and Preservation Act, is expected in the House this week.
The JCPA is similar to policies being enacted in other Western countries where policymakers believe that local news must be saved to preserve their democracies. They decided federal intervention is necessary to help news outlets succeed in a digital marketplace skewed by a few monopolistic companies.
After Australia last year gave publishers small and large more leverage to negotiate with platforms, all but a few secured regular payments for their work. Canada is pursuing a similar policy, while publishers in Spain and France reached deals with platforms.
For platforms, this is paying for material they’ve been taking for free, adding a relatively tiny line of expense.
For smaller news outlets, getting paid by big corporate users will save jobs and keep lights on. Most can’t pay for an adequate newsroom and agonize over which cities and counties they can no longer cover, and how many voters they’re leaving in the dark.
Everywhere this is happening, platforms use a similar playbook to resist or weaken the policies.
They threaten to drop services and sow doubt, confusion and nitpicky criticism through allies and grant recipients in academia and nonprofits. They also say these approaches will break the internet, which is getting silly now that they’re paying up in several countries where this dire prediction proved false.
Washington’s Congressional delegation is mostly supportive of the tax credits and JCPA, as is Senate leadership. But as I said last week, it still helps if they hear from constituents encouraging them to get these policies done.
The Copyright Office report did provide a primer on why publishers are struggling to build online businesses. It makes an especially strong case for the JCPA.
Although news content is protected by copyright law, it’s complicated by fair use provisions. News outlets are also trapped: To succeed online, they have no choice but to use tools and services of the dominant tech platforms.
“The effectiveness of all of these protections appears, at least to some degree, to be contingent on the competitive landscape,” the report said. “Publishers may have difficulty requiring news aggregators to pay to use news content due to disparities in bargaining power.”
It seems to me that publishers have a case to challenge “fair use” by aggregators.
One test of fair use gauges the amount of material used — are you quoting something or sharing a fact, or republishing millions of snippets so billions get the gist for free? Another considers harm to content creators, which is clear as thousands of newspapers closed and two-thirds of newsroom jobs vanished over the last 15 years.
Settling this would take a costly lawsuit. Even if a publisher had resources and resolve, there’s another loophole noted in the report.
The Copyright Office has yet to create a system for newspapers to register dynamic online works, such as websites where stories are constantly updated.
That’s a “huge problem in the world of content,” said Keith Kupferschmid, CEO of the Copyright Alliance, a group representing publishers, musicians, artists and other content creators.
Unable to register that digital content, publishers can’t pursue a case over it in federal court, he said.
“The Office takes these concerns seriously and is considering how best to address them as part of its ongoing modernization initiative,” the report said.
Asked for a timetable and when this work might begin, a Copyright Office spokesperson sent a statement repeating verbatim that line in the report.
Add that to the to-do list, after Congress passes the tax credits and JCPA.
There is no single solution to saving local journalism. Multiple things are needed to prevent more closures, sustain newsrooms and pursue sustainable business models.
Meanwhile, more people will feed their news diet with scraps found online, including bits of news reports skimmed and shared by rich and powerful tech giants.
This can’t go on much longer.
“Eventually the aggregators will not have anything to distribute,” Kupferschmid said, “because there won’t be any newspapers out there.”