Authors Alliance Submits Reply Comment in Copyright Office Press Publishers’ Right Study

Posted January 12, 2022
Photo by Roman Kraft on Unsplash

Last week, Authors Alliance submitted a comment to the U.S. Copyright Office, responding to its new study about establishing a new press publishers’ right in the United States which would require news aggregators to pay licensing fees as part of their aggregation of headlines, ledes, and short phrases of news articles. Our comment, made in the second round of comments on this study, also responded to an initial round of comments from other stakeholders. Authors Alliance opposes a new press publishers’ right because it is contrary to the interests of our members and small press publications and moreover is inconsistent with longstanding principles of copyright law. 

A New Press Publishers’ Right Would Not Help Many Authors and Publishers

In our comment, we explained that Authors Alliance does not support the adoption of a new press publishers’ right. As a policy matter, making it more difficult for news aggregators to enhance the availability of news articles means that those articles will likely reach fewer readers. Authors Alliance represents the interests of authors who have among their highest goals seeing their works reach wide audiences, and takes the position that this new press publishers’ right would not serve the interests of these authors. 

While some commenters argued that news aggregation has led directly to a decline in author and publisher incomes, other commenters, such as the Copia Institute, publisher of the publication TechDirt, pointed out that news aggregation serves its interests by helping its news articles reach readers. As a small publisher, Copia’s business model depends on news aggregation to see its work make an impact, and making it harder for news aggregators to do this would thus not serve its interests. While larger publications may be able to extract licensing revenue under a new press publishers’ right, smaller publishers lose out on both licensing revenue and the wide audiences they can reach through news aggregation. And authors who publish in press publications are not a monolith: while some authors may prefer to prioritize maximizing licensing revenue from onward uses of their work, other authors, such as many of our members, instead prioritize seeing their works reach broad audiences. Reaching wide audiences can help authors accrue reputational capital and advance their careers, which are some authors’ primary goals. Authors may also themselves aggregate press publications for research and collaboration purposes, and depending on the contours of the proposed right, it could create liability for these authors.

A New Press Publishers Right Would Run Afoul of Copyright Law

To make matters worse, a new press publishers’ right threatens to undermine important exceptions and limitations to copyright, like the free use of uncopyrightable subject matter such facts and ideas, and the doctrine of fair use. Yet several commenters argued that aggregating headlines and ledes should require a license and corresponding payment. This was the case despite the fact that the Copyright Office stated in its Notice of Inquiry that titles and short phrases are not protected by copyright, a longstanding principle in copyright law. In fact, the idea that reusing snippets of copyrighted works for a different purpose than the original—such as to preview news articles from different publications on a given topic—has been affirmed in numerous court cases, notably Authors Guild v. Google. Proponents of a press publishers right attempted to avoid the issue of titles and short phrases not being copyrightable by arguing for a novel “qualitative vs. quantitative” inquiry as to whether these short excerpts are subject to copyright protection. Under such a theory, if a title or short phrase is extremely creative, it should be protected. But there is no basis for such a theory in copyright law, which instead establishes that short phrases and titles are not protected—full stop.

Similarly, proponents of a new press publishers’ right skirted the issue of requiring licensing for excerpts containing predominantly facts and ideas. Facts and ideas are not protected by copyright for reasons of public policy: these types of information are instead treated as “building blocks” of knowledge, free for others to use and build on. Because snippets of news articles tend to be quite fact-heavy, a new press publishers’ right could also undermine this important principle. 

Other Arguments Against A Press Publishers’ Right

In our comment, Authors Alliance also explained that a new press publishers’ right could be unconstitutional. If it were to require mandatory licensing for information which lacks the requisite originality for copyright protection, establishing this right could be beyond Congress’ authority. Yet some commenters argued that there should be no originality requirement for protecting headlines and ledes under a new press publishers’ right, which would be an improper expansion of the scope of what copyright protects.

Furthermore, we pointed out that establishing this right could violate U.S. treaty obligations under Article 10 of the Berne Convention. Often referred to as the “fair quotation right,” this provision requires all signatory countries to permit authors “​​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[.]” This means that mandatory licensing for short excerpts could violate this obligation. 

Other opponents of the proposed press publishers’ right presented a variety of compelling arguments that it should not be adopted. Many echoed Authors Alliance’s sentiments, and also emphasized the important First Amendment protections for the press which preserve press publishers’ and authors’ right to speak and make editorial decisions about their content. A new press publishers’ right could also stifle innovation and chill journalistic speech, requiring more legal review of headlines and ledes in order for publications to avoid legal liability.

Read our full comment below: