Dangerous copyright ideas from a top newspaper group threaten free speech

Parker Higgins

Advocacy Director

Photo credit: Alan Foster

The News Media Alliance, the trade association that has represented newspaper publishers since 1887, released a whitepaper this month detailing its policy requests to the incoming president-elect Donald Trump. This represents the first time time the Alliance has made such a delivery—and it is addressed to a president elect with an avowed disdain for journalists.

Three of the eight policy areas pertain to expanding copyright restrictions, and unfortunately, each of the three suggestions from the Alliance would be a step backwards for publishers and, ultimately, press freedom.

The ‘Original’ Meaning of Fair Use

Perhaps the most disingenuous point in the entire document, the Alliance claims that sneaky courts have overstepped their boundaries to expand fair use, the legal doctrine that brings copyright restrictions into alignment with First Amendment. Fair use allows—for example—journalists to quote other news articles, share excerpts on social media, and remix news content to facilitate readership without running afoul of copyright law. The report calls back to fair use's statutory definition as its "original meaning," to say Congress should reel in the courts and dramatically restrict how fair use can be interpreted in the future.

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It's true that courts have played an active role in shaping fair use since the Copyright Act of 1976 was passed into law. What the Alliance fails to mention is that courts have also shaped the doctrine for more than a century prior to that, too. Our statutory language largely follows an influential 1840 copyright decision, and explicitly allows judges to consider factors beyond what is written into the law. The News Media Alliance may wish to “Make Fair Use Great Again”, but it has contorted the history of the doctrine beyond recognition to do so.

The Alliance's recommendation to constrict fair use is not just ahistorical but potentially disastrous. Journalists and publishers rely on fair use constantly—and may rely on it even more in the next four years. President Barack Obama, for example, faced widespread criticism for his practice of limiting images to those produced by his White House photographer, and even placing restrictions on how those photos could be used. (Generally, works of the U.S. government aren’t subject to copyright restrictions at all.)

The next administration could go even further in that direction, limiting releases of photos, speeches, statements, and even contracts and records of public- and private-sector transactions. When a president is more likely to speak to Fox News than at an open press conference, journalists are more likely to be quoting from and commenting on copyrighted material—and thus relying on fair use.

The wildly lopsided copyright law the News Media Alliance envisions would be yet another hurdle for the press to overcome.

A robust fair use doctrine is necessary for journalists reporting the news, as well as for readers understanding it. Given the spread of charges of "fake news," readers increasingly rely on the sort of annotation, analysis, and commentary that fair use enables. Even the venerable Snopes needs to quote from myths—sometimes extensively—and show the photos being debunked. Legislation to put fact-checking sites on shakier legal footing should be an absolute non-starter.

Although the policy aims in this category are too vague to criticize with any specificity, the premise is cause enough for concern. Calling out Google News in particular, the Alliance complains that new players are generating new revenue streams based on news content without contributing money back upstream, because the "industry is currently forced to give away much of its product for free."

That assertion has no basis in fact. Worse, the solution it hints at—a European-style "snippet tax" for licensing headlines and story description—has been tried before, with results ranging between useless and actively harmful. In Germany, publishers targeting Google News lobbied for such a tax, only to realize the value of being included in such aggregations. Almost immediately, publishers opted out of the snippet compensation system in order to stay listed.

A similar law in Spain went one step further, making the right to compensation for snippets unwaivable. Google News shut down entirely in the region, alongside multiple smaller local news aggregators. Traffic to Spanish news sites dropped significantly, costing publishers some $10 million, according to a study commissioned by the industry.

The study found no "theoretical or empirical justification" for the law. And yet the News Media Alliance seems to want replicate it in the United States.

This point is more technical than the other two, but it is just as misguided. Everyone agrees the Copyright Office needs to be modernized, but the Alliance conflates that modernization with a restructuring.

There is enormous public interest benefit to housing the Copyright Office within the Library of Congress. That institutional home helps to ensure that copyright policy works towards the constitutional mandate of promoting the progress of science and useful arts, and not the aims of any industry that captures it.

The press faces unprecedented challenges covering this administration and other news from around an unstable world over the next four years. A copyright law that balances the interests of journalists, publishers, and readers can help. But the wildly lopsided copyright law the News Media Alliance envisions would be yet another hurdle for the press to overcome.

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