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Support Local Journalism Awards Reception photographs by Will Reintzell Photography.

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Arlington, VA – Eighty-four participants representing news publishers in 25 states across the country will meet with Senators and Representatives on Capitol Hill in Washington, D.C. today as part of a Support Journalism Fly-In hosted by the News/Media Alliance, a nonprofit trade association representing more than 2,000 print and digital news and magazine publishers in the U.S. The Fly-In is being held to advocate for the importance of quality journalistic and creative content and the need for legislative action in the United States.

“Our members are here in Washington today because they are passionate about quality journalism, and right now its future is at risk,” stated News/Media Alliance President & CEO Danielle Coffey. “Current marketplace imbalances and economic headwinds have created an environment where quality is no longer rewarded, and intermediaries benefit at the expense of those who invest in the creative process.  If we allow this to continue, we will lose the invaluable benefits of a free press, which is critical to an informed society and a functional democracy.”

In their meetings with Members of Congress, publishers will discuss the need for fair compensation from the Big Tech platforms in the form of the bipartisan Journalism Competition and Preservation Act (JCPA, S. 1094); protection from unlawful scraping of content by artificial intelligence systems; tax credits such as those stipulated in the Community News and Small Business Support Act (H.R. 4756); and privacy legislation.

Executives representing news publishers of all sizes will be in attendance.

Chris Argentieri, President of California Times, which includes the Los Angeles Times stated, “In times of crisis, in times of curiosity, and in times of concern, people turn to news organizations they trust to provide guidance and information on the news of the day.”

Debby Krenek, Publisher, Newsday Media Group, LLC stated, “Newsday’s reporters are the lifeblood of our communities on Long Island and help establish the bedrock of a healthy democracy by informing and empowering all Long Islanders. Local journalism is not a luxury. It’s a necessity and it is under existential threat.”

Grant Moise, CEO of DallasNews Corporation and President & Publisher of The Dallas Morning News stated, “The Dallas Morning News employs over 600 people, and these colleagues’ dedication and hard work helps keep North Texans informed and empowered daily. In the digital age, journalism faces many threats. We are here to ask you to support our industry, not just for us, but for all Americans.”

Last night the Alliance recognized Senator Amy Klobuchar (D-MN) for her contributions to preserving quality journalism at a “Support Local Journalism” reception held at the Washington Post ‘s headquarters. Senator John Thune (R-SD) will also accept an award for his contributions to sustaining quality journalism at a meeting with publishers today.

Coffey added, “We appreciate the hard work and dedication of Senators Klobuchar, Kennedy and Thune, and we look forward to working with them to save local journalism so that future generations can rely on timely, vetted news and information that impact their daily lives.”

###

Media Contact:
Lindsey Loving
Director, Communications
lindsey@newsmediaalliance.org

The News/Media Alliance is a nonprofit organization representing more than 2,000 news and magazine media organizations and their multiplatform businesses in the United States and globally. Alliance members include print and digital publishers of original journalism. Headquartered just outside Washington, D.C., the association focuses on ensuring the future of journalism through communication, research, advocacy, and innovation. Information about the News/Media Alliance can be found at www.newsmediaalliance.org.

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Introduction

AI developers and regulators have a unique opportunity to establish an ethical AI framework to boost innovation and create new business opportunities, while ensuring that AI develops in a way that is responsible and sustainable. To achieve this, it is essential that AI systems are trained on content and data which is accessed lawfully, including by appropriate prior authorisations obtained for the use of copyright protected works and other subject matter, and that the content and sources used to train the systems are clearly identified. This document sets out principles that the undersigned publisher organisations believe should govern the development, deployment, and regulation of Artificial Intelligence systems and applications. These principles cover issues related to intellectual property, transparency, accountability, quality and integrity, fairness, safety, design, and sustainable development.

The proliferation of AI Systems, especially Generative Artificial Intelligence (GAI), present a sea change in how we interact with and deploy technology and creative content. While AI technologies will provide substantial benefits to the public, content creators, businesses, and society at large, they also pose risks for the sustainability of the creative industries, the public’s trust in knowledge, journalism, and science, and the health of our democracies.

We, the undersigned organisations, fully embrace the opportunities AI will bring to our sector and call for the responsible development and deployment of AI systems and applications. We strongly believe that these new tools will facilitate innovative breakthroughs when developed in accordance with established principles and laws that protect publishers’ intellectual property (IP), valuable brands, trusted consumer relationships, and investments. The indiscriminate appropriation of our intellectual property by AI systems is unethical, harmful, and an infringement of our protected rights.

Our organisations represent thousands of creative professionals around the world, including news, magazine, and book publishers and the academic publishing industry such as learned societies and university presses. Our members invest considerable time and resources creating high-quality content that keeps our communities informed, entertained, and engaged. These principles – applying to the use of our content to train and deploy AI systems, as they are understood and used today – are aimed at ensuring our continued ability to innovate, create and disseminate such content, while facilitating the responsible development of trustworthy AI systems.

Intellectual Property

1) Developers, operators, and deployers of AI systems must respect intellectual property rights, which protect the rights holders’ investments in original content. These rights include all applicable copyright, ancillary rights, and other legal protections, as well as contractual restrictions or limitations imposed by rightsholders on the access to and use of their content. Therefore, developers, operators, and deployers of AI systems—as well as legislators, regulators, and other parties involved in drafting laws and policies regulating AI—must respect the value of creators’ and owners’ proprietary content in order to protect the livelihoods of creators and rightsholders.

2) Publishers are entitled to negotiate for and receive adequate remuneration for use of their IP. AI system developers, operators, and deployers should not be crawling, ingesting, or using our proprietary creative content without express authorisation. Use of intellectual property by AI systems for training, surfacing, or synthesising is usually expressly prohibited in online terms and conditions of the rightsholders, and not covered by pre-existing licensing agreements. Where developers have been permitted to crawl content for one purpose (for example, indexing for search), they must seek express authorisation for use of the IP for other purposes, such as inclusion within LLMs. These agreements should also account for harms that AI systems may cause, or have already caused, to creators, owners, and the public.

3) Copyright and ancillary rights protect content creators and owners from the unlicensed use of their content. Like all other uses of protected works, use of protected works in AI systems is subject to compliance with the relevant laws concerning copyrights, ancillary rights, and permissions within protocols. To ensure that access to content for use in AI systems is lawful, including through appropriate licenses and permissions obtained from relevant rightsholders, it is essential that rightsholders are able effectively to enforce their rights, and where applicable, require attribution and remuneration.

4) Existing markets for licensing creators’ and rightsholders’ content should be recognised. Valuing publishers’ legitimate IP interests need not impede AI innovation because frameworks already exist to permit use in return for payment, including through licensing. We encourage efficient licensing models that can facilitate training of trustworthy and high-quality AI systems

Transparency

5) AI systems should provide granular transparency to creators, rightsholders, and users. It is essential that strong regulations are put in place to require developers of AI systems to keep detailed records of publisher works and associated metadata, alongside the legal basis on which they were accessed, and to make this information available to the extent necessary for publishers to enforce their rights where their content is included in training datasets. The obligation to keep accurate records should go back to the start of the AI development to provide a full chain of use regardless of the jurisdiction in which the training or testing may have taken place. Failure to keep detailed records should give rise to a presumption of use of the data in question. When datasets or applications developed by non-profit, research, or educational third parties are used to power commercial AI systems, this must be clearly disclosed so that publishers can enforce their rights. Where developers use AI tools as a component into the process of generating knowledge from knowledge, there should be transparency on the application of these tools, including appropriate and clear accountability and provenance mechanisms, as well as clear attribution where appropriate in accordance with the terms and conditions of the publishers of the original content. Without limiting and subject to paragraphs 6 and 9, AI developers should work with publishers to develop mutually acceptable attribution and navigation standards and formats. Users should also be provided with comprehensible information about how such systems operate to make judgments about system and output quality and trustworthiness.

Accountability

6) Providers and deployers of AI systems should cooperate to ensure accountability for system outputs. AI systems pose risks for competition and public trust in the quality and accuracy of informational and scientific content. This can be compounded by AI systems generating content that improperly attributes false information to publishers. Deployers of AI systems providing informational or scientific content should provide all essential and relevant information to ensure accountability and should not be shielded from liability for their outputs, including through limited liability regimes and safe harbours.

Quality and Integrity

7) Ensuring quality and integrity is fundamental to establishing trust in the application of AI tools and services. These values should be at the heart of the AI lifecycle, from the design and building of algorithms, to inputs used to train AI tools and services, to those used in the  practical application of AI. A fundamental principle of computing is that a process can only be as good or unbiased as the input used to teach the system (rubbish-in-rubbish-out). AI developers and deployers should recognise that publishers are an invaluable part of their supply chain, generating high-quality content for training, and also for surfacing and synthesising. Use of high-quality content upstream will contribute to high-quality outputs for downstream users.

Fairness

8) AI systems should not create, or risk creating, unfair market or competition outcomes. AI systems should be designed, trained, deployed, and used in a way that is compliant with the law, including competition laws and principles. Developers and deployers should also be required to ensure that AI models are not used for anti-competitive purposes. The deployment of AI systems by very large online platforms must not be used to entrench their market power, facilitate abuses of dominance, or exclude rivals from the marketplace. Platforms must adhere to the concept of non-discrimination when it comes to publishers exercising their right to choose how their content is used.

Safety

9) AI systems should be trustworthy. AI systems and models should be designed to promote trusted and reliable sources of information produced according to the same professional standards that apply to publishers and media companies. AI developers and deployers must use best efforts to ensure that AI generated content is accurate, correct and complete. Importantly, AI systems must ensure that original works are not misrepresented. This is necessary to preserve the value and integrity of original works, and to maintain public trust.

10) AI systems should be safe and address privacy risks. AI systems and models in particular should be designed to respect the privacy of users who interact with them. Collection and use of personal data in AI system design, training, and use should be lawful with full disclosure to users in an easily understandable manner. Systems should not reinforce biases or facilitate discrimination.

By Design

11) These principles should be incorporated by design into all AI systems, including general purpose AI systems, foundation models, and GAI systems. They should be significant elements of the design, and not considered as an afterthought or a minor concern to be addressed when convenient or when a third party brings a claim.

Sustainable Development

12) The multi-disciplinary nature of AI systems ideally positions them to address areas of global concern. AI systems bear the promise to benefit all humans, including future generations, but only to the extent they are aligned to human values and operate in accordance with global laws. Long-term funding and other incentives for suppliers of high-quality input data can help to align systems with societal aims and extract the most important, up-to-date, and actionable knowledge.

Endorsing Organizations*

(Click image to expand)

*Additional organizations to endorse the Principles following publication include: AMI – Asociación de Medios de Información (Spanish News Media Association); APImprensa, the Portuguese Press Editors and Publishers Association; Association of Online Publishers (AOP) (UK); ARI, Asociación de Revistas (Spanish Magazine Media Association); TU – Swedish Media Publishers Association

Full list of organizations signing onto the Global AI Principles:

• AMI – Colombian News Media Association
• AMI – Asociación de Medios de Información (Spanish News Media Association)
• APImprensa, the Portuguese Press Editors and Publishers Association
• Asociación de Entidades Periodísticas Argentinas (Adepa)
• Association of Learned & Professional Society Publishers
• Association of Online Publishers (AOP) (UK)
• Associação Nacional de Jornais (Brazilian Newspaper Association) (ANJ)
• Czech Publishers’ Association
• Danish Media Association
• Digital Content Next
• European Magazine Media Association
• European Newspaper Publishers’ Association
• European Publishers Council
• FIPP
• Grupo de Diarios América
• Inter American Press Association
• Korean Association of Newspapers
• Magyar Lapkiadók Egyesülete (Hungarian Publishers’ Association)
• NDP Nieuwsmedia
• News/Media Alliance
• News Media Association
• News Media Canada
• News Media Europe
• News Media Finland
• News Publishers’ Association
• Nihon Shinbun Kyokai (The Japan Newspaper Publishers & Editors Association)
• Professional Publishers Association
• ARI, Asociación de Revistas (Spanish Magazine Media Association)
• STM
• TU – Swedish Media Publishers Association
• World Association of News Publishers (WAN-IFRA)

Related resources:

Joint G7 letter on development of global AI principles (News/Media Alliance, European Publishers Council, and Digital Content Next)

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On July 5, 2023, 18 publisher groups and media associations from around the world issued a joint statement in response to Google and Meta’s threat to take down news in Canada after Canada’s parliament passed the Online News Act (C-18) in June. See the full statement here.

The post Global Reaction to Google and Meta Threat to Take Down News in Canada appeared first on News/Media Alliance.

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The News/Media Alliance (NMA) represents the most trusted publishers in print and digital media based in the United States, from small, local outlets to national and international publications read around the world. Every day, these publishers invest in producing high-quality creative content that is engaging, informative, trustworthy, accurate and reliable. In doing so, they not only make significant economic contributions, but they also play a crucial role in educating, upskilling and informing our communities, building our democracy and economy, and furthering America’s economic, security and political interests abroad.

Introduction

As generative artificial intelligence (GAI) technologies become more prevalent, our membership believes these new tools must only be developed respecting journalistic and creative content, in accordance with principles that protect publishers’ intellectual property (IP), brands, reader relationships, and investments. The unlicensed use of content created by our companies and journalists by GAI systems is an intellectual property infringement: GAI systems are using proprietary content without permission. It’s also critical to acknowledge the societal risks associated with the proliferation of mis- and dis-information through GAI, which high-quality, original content, produced by skilled humans and trusted brands, can help to combat.

GAI developers and deployers must negotiate with publishers for the right to use their content in any of the following manners:

• Training: Including publishers’ content in datasets and using it for GAI system training and testing.
• Surfacing: The serving of publishers’ content in response to user inputs, possibly including a cover note generated by the GAI system of what is contained in the surfaced content.
• Synthesizing: Summaries, explanations, analyses etc. of source content in response to a query.

This document highlights the overarching principles that must guide the development and use of GAI systems as well as the policies and regulations governing them. These principles are founded on our understanding of these systems and technologies as they are currently used – and may therefore be amended as these technologies and uses develop – and apply equally to all publisher content, whether in text, image, audiovisual or any other format.

AI Principles

Intellectual Property

Developers and deployers of GAI must respect creators’ rights to their content. These rights include copyright and all other legal protections afforded to content creators and owners, as well as contractual restrictions or limitations imposed by publishers for the access and use of their content (including through their on-line terms of service). Developers and deployers of GAI systems—as well as legislators, regulators and other parties involved in drafting laws and policies regarding GAI—must maintain an unwavering respect for these rights and recognize the value of creators’ proprietary content. GAI developers and deployers should not use publisher IP without permission, and publishers should have the right to negotiate for fair compensation for use of their IP by these developers. Professional journalism is particularly valuable due to its reliability, accuracy, coherency and timeliness, enhancing GAI system outputs and improving perceptions of system quality. Absent permission and specific licenses, GAI systems are not simply using publishers’ content, they are stealing it.

Use of publishers’ IP requires explicit permission. Use of publisher content by GAI systems for training, surfacing and synthesizing is not authorized by most publishers’ terms and conditions, and authorization for search should not be construed as an authorization for uses such as training GAI systems or displaying more content than contemplated for or as used in traditional search.  GAI system developers and deployers should not be crawling, ingesting or using publishers’ proprietary content without express authorization; requiring publishers to opt out is not acceptable. Negotiating written, formal agreements is therefore necessary.  Industry standards should be developed to allow for automatic detection of permissions that distinguish among potential uses of crawled or scraped content.  These standards and usage agreements can also address other issues such as attribution, monetization, responsibility, and derivative uses.

Compensation agreements must account for harms GAI systems may cause publishers and the public. GAI system surfacing and synthesizing are providing much more proprietary content and information from the original sources than traditional search and often provide little or no attribution, and will exacerbate the growing trend toward zero-click, reducing or even eliminating value for publishers. GAI systems use publishers’ proprietary content to generate outputs that may replace their role in the consumer/information provider relationship. In addition to reducing traffic, this harms publisher brands that have taken years, decades, or even centuries to build.

Copyright laws must protect, not harm, content creators. The fair use doctrine does not justify the unauthorized use of publisher content, archives and databases for and by GAI systems.  Any previous or existing use of such content without express permission is a violation of copyright law. The Section 1201 triennial rulemaking process should not be used to allow for the bypassing of content protections for GAI development purposes. Exceptions to copyright protections for text and data mining (TDM) should be narrowly tailored to limited nonprofit and research purposes that do not damage publishers or become pathways for unauthorized uses that would otherwise require permission.  The U.S. also has made international law commitments in this area that protect its IP-based businesses across multiple sectors and these must be upheld in its approach to AI.

There is an existing market for licensing publishers’ news content. Valuing publishers’ legitimate IP interests need not impede GAI innovation because compensation frameworks (for example, licensing) already exist to permit use in return for payment. GAI innovation should not come at the expense of publishers, but rather at the expense of developers and deployers.  Publishers encourage the use of efficient ways to license through standard-setting organizations that can facilitate efficient training of GAI systems.

Transparency

GAI systems should be transparent to publishers. Publishers have a right to know who copied our content and what they are using it for. We call for strong regulations and policies imposing transparency requirements to the extent necessary for publishers to enforce their rights. Publishers have a legitimate interest in determining what content of theirs has been and is used in GAI systems. Using datasets or applications developed by non-profit, research, or educational third parties to power commercial GAI systems must be clearly disclosed and not used to evade transparency obligations or copyright liability.

GAI systems should be transparent to users. Direct relationships between users and publishers are critical for the sustainability of the news media and informational content sector. Surfaced and synthesized outputs should connect, not disintermediate, users with publishers. Members of the public should know the source of information that may affect them.  Generative outputs should include clear and prominent attributions in a way that identifies to users the original sources of the output and encourages users to easily and directly navigate to those products, as well as to let them know when content is generated by GAI. Transparency into GAI systems can also help prevent misuse and the spread of mis- and dis-information. Similarly, it enables the evaluation of GAI systems for unintended bias to avoid discriminatory outcomes.

Accountability

Deployers of GAI systems should be held accountable for system outputs. GAI systems pose risks for competition, the integrity of news and creative content, and for public trust in the journalistic and creative content. This is aggravated by the ability of AI applications to devalue publisher brands by generating content that attributes false or inaccurate information to publishers who have not published the information and who have processes in place to prevent such publication in the first place. Accordingly, deployers of GAI systems should not be shielded from liability for their outputs—to do so would be to provide deployers of GAI systems with an unfair advantage against which traditional publishers cannot compete and increase the danger to the public and institutions from the unchecked power of this technology.

Fairness

GAI systems should not create, or risk creating, unfair market or competition outcomes. Regulators should be attuned to ensuring GAI systems are designed, deployed, and used in a way that is compliant with competition laws and principles. Developers and deployers should also use their best efforts to ensure that GAI models are not used for anti-competitive purposes. The use of publisher content for GAI purposes without express permission from content owners by firms that have market power in online content distribution should be considered evidence of a violation of competition laws.  Regulators should be vigilant for other anti-competitive uses of GAI systems.

Safety

GAI systems should be safe and avoid privacy risks. GAI systems, including GAI models, should be designed to respect the privacy of users who interact with them. Early indications are that GAI tools will exacerbate trends towards digital platforms collecting large volumes of user data. The collection and use of personal data in GAI system design, training and use should be minimal and should be disclosed to users in an easily understandable manner so that users can make informed judgments about how their data is used in exchange for the GAI service. Users should be informed about, and should have the right to prevent, the use of their interactions with GAI systems for the purposes of training or collection of personal data.  Systems should also be designed in a way that means paywalled and otherwise protected content cannot be exposed (including but not limited to, for example, by membership inference methods).

Design

All of the principles discussed above should be incorporated in the very design of GAI systems, as significant elements of the design, and not considered as an afterthought or a minor concern to be addressed when convenient or when a third party brings a claim.

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When: Thursday, May 4, 2023, 8:15 a.m. – 6:30 p.m. EDT 

Where: Renaissance Hotel, Washington, DC

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The News/Media Alliance is happy to be partnering with Economic Liberties on the Anti-Monopoly Summit. We invite our Alliance members to attend the Summit on May 4, 2023 at the Renaissance Hotel in Washington D.C. This Summit will bring together the growing anti-monopoly movement in a marquee one-day conference to build power and engage with senior policymakers from across the country.

Description:

The anti-monopoly movement has swelled in prominence in recent years. Historic appointments at the Federal Trade Commission, the Department of Justice Antitrust Division, and the White House, alongside bipartisan leadership in Congress and President Biden’s July 2021 Executive Order on Promoting Competition in the U.S. launched a successful all-of-government agenda to arrest corporate power.

For more information, visit antimonopolysummit.org.

Keynote speakers include:

• Amy Klobuchar, Senator for the State of Minnesota
• Lael Brainard, Director, National Economic Council
• Lina Khan, Chair, Federal Trade Commission
• Jonathan Kanter, Assistant Attorney General, Antitrust Division, Department of Justice
• Jennifer Abruzzo, General Counsel, National Labor Relations Board
• Summer Lee, Representative for the State of Pennsylvania
• Doha Mekki, Principal Deputy Assistant Attorney General, Antitrust Division, Department of Justice
• Elizabeth Wilkins, Chief of Staff to the Chair and Director, Office of Policy and Planning, Federal Trade Commission
• Patrick Spence, CEO of Sonos
• More speakers coming soon.

Organizations supporting the event include Common Future, Demand Progress, Digital Content Next, Future of Music Coalition, International Brotherhood of Teamsters, National Community Pharmacists Association, National Grocers Association, News/Media Alliance, Small Business Majority, Economic Security Project, Kauffman Foundation, Omidyar Network.

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The below Q&A is from an interview with News/Media Alliance Executive Vice President & General Counsel, Danielle Coffey, published in the February 2023 edition of Editor & Publisher Magazine. The original article is available here.

Q: In what ways have copyright laws and compliance become more complicated in the digital, social media age?

A: There are two sides to this question. First, digital transformation has led to a proliferation in the availability of news sources and content for journalists and publishers, as well as the number of middlemen that publishers have to deal with regularly. As a result, publishers must pay more attention to due diligence — ensuring that they understand the relationships between the original copyright owner and any platforms or middlemen they may use and that they have the necessary rights to any content they publish.

For example, many publishers have recently struggled with the legal uncertainty around using embedded content on Instagram without explicit authorization from the original poster. Related to this, the increased availability of photos and videos taken by amateurs during news events — especially fast-moving ones where time is of the essence — raises important questions on how to acquire the necessary licenses while remaining on top of the newsworthy situation. These conditions require publishers to pay particular attention to ensuring they comply with applicable copyright laws.

Second, the digital age has also made it more complicated for publishers to protect their content against unauthorized uses. These uses range from the overly-expansive use of news content by search and social media platforms, which the Alliance has advocated against at length, to the use of news content for AI training purposes, to the unlawful posting of full-text articles on services often based abroad, often within minutes of publication, threatening the original publishers’ ability to benefit from subscription and digital advertising revenues. These uses are often systematic, and the infringers are hard to detect and locate, making enforcing copyright laws difficult, time-consuming and expensive.

Q: How have U.S. copyright laws and protections been challenged in the courts in recent years? Are there particular cases that news publishers should be familiar with — or concerned about?

A: There have been a few cases in the last five years with implications for news publishers, with some of the most important being Fox News Network v. TVEyes (2018), Goldman v. Breitbart (2018), and Warhol v. Goldsmith (ongoing).

TVEyes concerned a service that copied broadcasts from over 1,400 TV and radio stations and allowed its subscribers to search, download, watch and share clips of these programs. The District Court had found that both the search function and the watch function were fair use. Fox appealed the decision as it related to the watch function, and the Circuit Court reversed, finding the fourth fair use factor — related to potential market harm — decisive. This was a key victory for rightsholders, with the Court correctly noting that the market effect on the copyright owner should be a major factor in fair use analysis and giving leverage to the argument that even the use of clips of protected content can hurt the copyright owner and should be subject to serious scrutiny.

Meanwhile, Goldman focused on publishers’ ability to embed third-party content from social media. Specifically, the defendants had embedded a tweet with the plaintiff’s photograph of Tom Brady without the original poster’s authorization. Rejecting the Ninth Circuit’s “server test,” the Second Circuit agreed with Goldman, finding that the embedding violated his exclusive rights despite the image being hosted on a third-party server. Similar questions have since arisen in other cases, often concerning Instagram — which recently introduced an option to opt-out of embedding following discussions with the News/Media Alliance — with one publisher settling a case brought by a photographer in New York and Instagram managing to squash a class-action lawsuit against itself related to its embedding function in California. This remains an important debate for publishers to follow.

Lastly, we’re also eagerly awaiting the Supreme Court’s decision on Warhol, which concerns Andy Warhol’s paintings of Prince, based on a portrait taken by photographer Lynn Goldsmith for Vanity Fair before Prince became famous. Following Prince’s death, Goldsmith discovered that Warhol had made a whole series of paintings based on the photo without her permission. The case raises important questions about what amounts to “transformative use” within fair use analysis. The Alliance submitted an amicus brief in support of neither party, outlining some of the delicate considerations the case raises, including how an overly broad definition of “transformative use” could threaten the copied work right. The Court heard oral arguments in the case this past October, with the decision due this spring.

Q: Copyright was at the heart of the news publisher v. Big Tech negotiations in Europe. Can you share a synopsis of those negotiations and where things stand in Europe? Also, help us wrap some context around what’s happened in Europe and what it may mean for news publishers here in the States.

A: The European Union’s adoption in 2019 of its Directive on Copyright in the Digital Single Market, including Article 15, which requires member states to create a so-called “Publishers’ Right,” was a landmark development. It acknowledged the inability of publishers to effectively protect their content online against unauthorized uses by online platforms and provided publishers with an independent right to do so. In France, the first country to implement Article 15 in national law, publishers soon encountered problems negotiating with Google. In 2019, soon after the law’s adoption, Google refused to pay publishers and indicated it would stop showing excerpts in search results unless a publisher waived its right to compensation. Following a challenge by French publishers, the French competition authority issued an interim ruling, finding that Google likely engaged in anticompetitive behavior and required Google to engage in negotiations. While Google engaged in negotiations and reached some deals after the decision, the French competition watchdog issued a €500 million fine against Google a year later for failing to comply with the orders on conducting such negotiations. Following this fine, Google proposed commitments in early 2022 to change its practices and to resolve the investigation into its anticompetitive practices. The competition authority accepted Google’s commitments in June, with Google expected to negotiate with a broader selection of publishers in good faith.

From the publishers’ viewpoint in the United States, Europe established a precedent that Australia improved upon. The Alliance has embraced a model similar to Australia based on competition law, where the anticompetitive conduct and power of the monopolies are more squarely addressed. The Journalism Competition and Preservation Act, considered by Congress during the last session, would have adopted a similar approach in the U.S. to the Australian model, while Canada, the UK, and India are also considering similar approaches. All of the approaches attempt to address the disparities in the digital ecosystem that allow dominant online platforms not only to set the rules of the game but to reap the vast majority of rewards. Publishers need more leverage to negotiate fairer terms and compensation that help preserve high-quality journalism for future generations.

Q: Is the News/Media Alliance engaged in lobbying Congress for any changes to copyright law or protections granted to news publishers?

A: In comments submitted with the Copyright Office, the Alliance recommended that Congress explore a sui generis, or quasi-property right, that would recognize an exchange of value outside of the fair use factors but within copyright law. We are also actively advocating for changes that would allow publishers to register dynamic web content, which is currently impossible. This would significantly affect the publishers’ ability to register and protect their content online effectively.

Q: Who, typically or ideally, should be concerned with or tasked with copyright compliance at the news publisher?

A: This depends a lot on the type and size of the publication, with no easy one-size-fits-all answer. Some large publishers may have whole teams responsible for ensuring compliance with various laws, including copyright, while smaller outlets may rely on an individual person, such as an image editor. The most important thing is that whoever is responsible for compliance takes their job seriously, has the time and resources to do so properly, and has the authority to affect publishing decisions.

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On January 30, the News/Media Alliance filed comments with the Office of the United States Trade Representative (USTR) to inform their annual Special 301 Review. The Review, required by Congress pursuant to the Trade Act of 1975, highlights foreign countries, laws, policies, and practices that fail to protect and enforce intellectual property rights adequately and effectively. The Alliance’s comments were in response to and addressed arguments made by big tech stakeholders in previous years in response to various USTR proceedings, including Special 301, criticizing global efforts to level the playing field between publishers and the dominant online platforms and to require platforms to compensate publishers for the use of news content. The comments argued that not only were these policies – such as Canada’s proposed Online News Bill or Australia’s News Media Bargaining Code – outside the remit of the Special 301 Review, they are not discriminatory or in violation of international law. Instead, they are informed by an important public policy objective, shared by the United States, of protecting the sustainability of and our communities’ continued access to high-quality journalism. The comments urged the USTR to remain neutral on these policies in the Special 301 Report. Read the full comments here.

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Like most industries, news media outlets have made business decisions impacting revenue and the business landscape. Not all of those decisions have paid off.  One such decision was made almost twenty years ago to allow news content to be used on search and social platforms when the value exchange was fair, and traffic produced revenue through advertising. However, today, that value exchange is nearly nonexistent. It has been reported that 65 percent of users stay within the walled gardens and do not click through. And when few do click through, the ad tech tax is imposed, where the platforms take up to 70 percent of every digital advertising dollar because they also dominate the ad tech ecosystem, which feeds off the data collected inside their products and across the web. There is no longer a fair exchange of value, and no one publisher alone can alter this dynamic.

The White Paper outlines several ways in which Google uses news content to its advantage – and to news publishers’ detriment – across its products and services:

• The use of news content through AMP (Accelerated Mobile Pages), Google Discover, Google News app, Google Assistant, and Search have become a “walled garden” in which publishers and consumers are increasingly forced or encouraged to stay.
• Evidence that AMP, in which users read articles served by Google, benefits the platform to the detriment of news publishers who lose advertising revenue, reader data, and subscribers in comparison to organic search.
• Terms of Use are exclusionary and anticompetitive whereby consenting to the use of content for one product irrevocably binds the publisher to other products and services, some that directly compete with news publishers’ offerings.
• New evidence presented to the courts of anticompetitive practices around “header bidding” – an auctioning tool that competes against Google, producing a higher payout for publishers – was discouraged by Google as an intentional move to improve its financial gain in advertising auctions.
• Revelations that Facebook substantially curtailed its use of header bidding in return for Google giving Facebook a leg up in publishers’ web display and developers in app ad auctions, allocating a portion of the wins to Facebook and helping Facebook’s ad network, FAN, beat the competition.

As the Senate markup of the Journalism Competition & Preservation Act (JCPA) approaches (the Senate text was released in late August and it was listed to the Senate Judiciary Committee agenda for markup on September 8), critics of the bill have referred to it as a way to “prop up an industry that has largely failed to address its business problems” unrelated to the platforms. The White Paper proves this is not the case. If the platforms were required to come to the table and negotiate with news publishers for fair compensation for use of their content, as the JCPA specifies, it would address at least one critical piece of the gross marketplace imbalance with the dominant platforms.

Danielle Coffey, Executive Vice President and General Counsel at the News/Media Alliance said, “Google extracts revenue from valuable news content by deliberately and systematically delivering personalized information to users to keep them within their walled gardens. This fuels their engine of scraping reader data to sell their information and target them with ads.” Coffey continued, “There remains little bargaining power and, as a result, news publishers are forced to consent to nearly unlimited uses of their content in exchange for scraps to cover the tremendous investments it takes to produce quality journalism. If this continues, the production of quality local news content will be irreparably harmed.”

In the White Paper, the Alliance recommends passage of the Journalism Competition & Preservation Act, which would allow news publishers to collectively negotiate for fair compensation from the tech platforms.

The White Paper can be found here.

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Media Contact:
Lindsey Loving
Director, Communications
lindsey@newsmediaalliance.org

The post Statement: White Paper Shows Google’s Ongoing Use and Abuse of News Content, Why We Need the Journalism Competition & Preservation Act appeared first on News/Media Alliance.

There have been claims made that the JCPA will lead to job losses based on the notion that newspapers will “cut them to under 1,500 employees” to be eligible. Except The New York Times, The Washington Post, and The Wall Street Journal, no newspaper in America comes close to 1,500 employees.  In fact, the opposite will happen, as it did in Australia where newsrooms in some cases doubled because of the infusion of cash. Moreover, the JCPA on page 22 requires payments be tied to how many journalists you have. The more journalists you hire, the more compensation you will receive.

The bill at page 17 also requires public disclosure and transparency.  Each publication and broadcaster must publicly disclose how much is received and how it is used.

The bill does not impose a “link tax” and the internet is not going to break. Payments in Australia and Europe have resulted in no changes to the internet or links. The bill on page 24 only allows payment for the dominant platforms to access the news content by crawling publishers’ websites; linking is and will remain voluntary and free to platforms and consumers. News content creators already have separate, existing rights to prohibit unauthorized access to their content today. They do not do that because the platforms can live without access to any one given publisher, but publishers cannot independently live without access to Big Tech’s billions of users.

Lastly, the JCPA does not dictate what is news; the bill defines eligibility broadly at page 5 for publishers and page 3 for broadcasters, and is subject to challenge by the platforms, who currently decide what is news in the platforms today.

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Media contact:
Lindsey Loving
Director, Communications
lindsey@newsmediaalliance.org

The post Statement: False Claims about JCPA and Job Losses appeared first on News/Media Alliance.