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 copyright. The merger doctrine allows the use of original expression where there are 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 andamount 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
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