Opinion: Can AI companies and media publishers work together?

Licensing agreements and permissions would protect the news industry’s work while delivering higher-quality AI content

Generative artificial intelligence has the potential to reshape the digital economy and alter the online experience for millions of consumers. Systems that rely on large language models have already ushered in rapid changes to the news media landscape, and many journalists today are using these tools. But as these technologies become more prevalent, we must develop appropriate guardrails that protect the intellectual property rights of media publishers.

Every day, publishers in print and digital media invest in the creation of high-quality content that is informative, trustworthy and engaging.

Click here to read the rest of the op-ed on The Mercury News‘s website.

Related:

News/Media Alliance Artificial Intelligence articles

AI White Paper: How the Pervasive Copying of Expressive Works to Train and Fuel Generative Artificial Intelligence Systems Is Copyright Infringement And Not a Fair Use

AI Principles

The post Alliance CEO Op-Ed: Can AI companies and media publishers work together? appeared first on News/Media Alliance.

Rawpixel Ltd / iStock/Getty Images Plus via Getty Images

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.

The post Q&A: Navigating Copyright Compliance Issues for News Publishers appeared first on News/Media Alliance.

Photo credit: rarrarorro / iStock/Getty Images Plus via Getty Images

Also published in America’s Newspapers’ e-newsletter here. 

Following the re-introduction of the Journalism Competition and Preservation Act (H.R. 1735 / S. 673) (JCPA) in 2021, the News/Media Alliance and its allies worked to advocate for the bill’s passage during the 117th Congress. The JCPA would allow small and local news publishers to come together to collectively negotiate with Google and Facebook for fair compensation for use of their content. News publishers, magazines and broadcasters currently do not have the ability to negotiate deals on their own, as the dominant tech platforms capture the majority of U.S. digital ad revenue, leaving little to reinvest in the production of high-quality journalism.

The Senate Judiciary Committee’s subcommittee on antitrust hosted a hearing for the JCPA in February of 2022, allowing for substantive conversation on the legislation, and garnering further interest from Congressional leaders. The Alliance and its allies followed up on this hearing by meeting with Congressional staffers and organizing grassroots outreach, resulting in over 2,000 touchpoints on Capitol Hill over the summer. These efforts led to a successful Senate Judiciary Committee markup on September 22, where the JCPA was reported favorably to the Senate floor with a committee vote of 15-7.

Policymakers are motivated to stand up for the vital public institution of journalism and push back against anticompetitive business practices. A thriving press performs a critical role in building and engaging local communities and holding government officials accountable. There is broad agreement in the U.S. – on both sides of the aisle, not only on the Hill but among members the public – that action is needed to protect local journalism. An April 2022 poll of 1,000 U.S. adults conducted by Schoen Cooperman Research for the News/Media Alliance found that 70 percent of Americans support Congress passing the JCPA.

In December, nine leading media and journalism organizations, including the Alliance, Americas Newspapers, National Newspaper Association, the American Economic Liberties Project, and others sent a joint letter to Congressional leaders calling on the Congress to pass the JCPA before the end of 2022. The groups underscored the importance of passing the JCPA as the best solution to ensuring news publishers are compensated fairly for use of their content by the dominant tech platforms.

Over the past few years, Australia and the European Union have witnessed the benefits of their recently enacted laws to protect journalism. The Australian model, which requires the dominant tech platforms to pay publishers for use of their original content, has prompted other countries including Canada, India and the UK to take steps towards adopting similar laws. The results in Australia have been transformative for journalism. As a result of its News Media Bargaining Code adopted in 2021, estimates suggest that the total compensation received by news publishers so far – $140 million, which translates to billions in the U.S. – would cover around 20% of the costs of Australian journalists’ salaries. In addition, Australian newspapers are recruiting more journalists, with journalism professors noting an oversupply of available positions for their students. This is despite the fact that no platform has yet been “designated” under the Code – an official determination requiring the designated platform to negotiate with eligible publishers. The mere threat of designation has resulted in successful negotiations between news publishers and the platforms and provides evidence of the value of an Australian-style model for other countries to follow.

The Alliance and its allies successfully advocated for inclusion of the JCPA in the NDAA in December, only to have it removed after Meta threatened to remove news from its platform and Republicans reversed support and demanded a “clean” bill. Threats like Meta made were attempted before the Australian government passed its Code – they were unsuccessful, and news publishers ultimately got paid. As the tech platforms compensate news publishers around the world, it demonstrates the demand and economic value for news.

In the 117th Congress, the JCPA garnered bipartisan support with 75 co-sponsors in the House and 15 in the Senate. The Alliance continues to hold conversations with the JCPA’s Congressional champions, who intend to reintroduce the bill in the 118th Congress. The congressional champions are eager to move the bill, mobilized after the momentum gained at the end of last year. The abuse of dominance by the tech platforms and threat to local journalism still exists, and leaders in Congress are still committed to fixing that problem. The Alliance remains dedicated to ensuring quality journalism prevails and intend to work alongside our allies to ensure a legislative solution moves forward in this Congress.

The post Big Tech Threat to Local Journalism Still Exists, Congress Committed to Fixing That Problem Through JCPA appeared first on News/Media Alliance.

mediaphotos / E+ via Getty Images

Some newspapers applying for the SBA’s PPP forgivable loan program using the affiliation waiver have experienced issues applying through their lenders. The News Media Alliance has been in contact with the SBA about this issue and we are offering assistance.

Newspapers that have applied for the SBA’s PPP forgivable loan program using the affiliation waiver can apply individually and separately from the parent owner, thereby circumventing employee count limitations.

If either of the following two situations applies to you, please see the instructions below to provide information that we will share with SBA:

1. If you have had trouble applying through your lender because your newspapers are applying separately but using the same EIN tax ID number as the corporate owner, the SBA has agreed to accept those loans manually. Their system will accept the combined loan application in their system under one EIN and I will provide them those which they can manually flag as compliant post-submission.

2. In addition, the SBA will make similar exceptions for second draw loans for newspapers that are unaffiliating themselves and applying as separate newspapers from the parent or group of newspapers in order to meet the loss requirements for a second draw (now allowable under the law). In those cases, banks have rejected some of the loans because the applicant name on the second draw loan is not the same as the first draw loan. SBA will make similar allowances here, manually. Their system will only allow a second draw loan if it has the same name as the first draw loan, and I will provide the EINs so that they can flag as compliant as separate newspapers under the second draw post-submission.

If you fall under either of the two categories above, please click here and provide the following information in order to allow for those loans to be accepted from the lender to the SBA:

• Your name / email
• EIN number
• Lender
• Full applicant name 
• Location (states) of newspapers 

Please contact News Media Alliance Senior VP and General Counsel, Danielle Coffey with any questions.

The post Assistance for Newspapers: SBA PPP Affiliation Waiver Loans appeared first on News/Media Alliance.

News publishers provide an essential public service by reporting the facts and keeping their communities informed during this time of uncertainty. Millions of people around the world get their information about the COVID-19 pandemic from trusted publishers, whose journalists risk their health and well-being for that mission every day. Though online traffic to news sites has spiked during the pandemic, far too many news publishers are still struggling. Thankfully, the recently enacted Coronavirus Aid, Relief and Economic Security (CARES) Act provides some relief for American businesses, including news publishers, during this challenging time.

The Alliance’s Stimulus Updates portal provides multiple resources dealing with the stimulus package, including the Alliance Stimulus Funds Guide, a members-only detailed overview of the CARES Act (member login required), but here is a short summary of the important provisions of the CARES Act.

The Small Business Administration’s (SBA) coronavirus relief programs now include four separate options: the Paycheck Protection Program, the Economic Injury Disaster Loans (EIDL) Emergency Advance, SBA Express Bridge Loans, and SBA Debt Relief (These are all SBA loans.)

The Paycheck Protection Program (PPP) is a completely new program that has been accepting applications since April 3. Similar to Economic Injury Disaster Loans (EIDL), newspaper publishers with less than 1,000 employees are eligible to apply for PPP loans. The loans are granted by SBA-approved lenders and provide a maximum amount of $10 million or 2.5 times the average monthly payroll, whichever is lower. Since this money is meant to incentivize keeping employees on payroll, SBA will forgive loans if all employees are kept on payroll for at least eight weeks and the money is spent on payroll, rent, mortgage interest or utilities. Due to expected high enrollment, SBA estimates that at least 75 percent of the forgiven amount must have been used for payroll.

Meanwhile, the EIDL, is an existing program that allows small businesses to apply for loans of up to $2 million. Under the CARES Act, many of the qualifying requirements have been waived, making it easier for businesses to receive help. While the general small business threshold is 500 or fewer employees, to be eligible for an EIDL loan, newspaper publishers must have 1,000 or fewer employees. In addition, through the EIDL Emergency Advance program, EIDL applicants can get an advance grant of up to $10,000 three days after approval, even if their EIDL loan application is denied, providing a fast way for a business to receive financial assistance. The advance does not need to be repaid. In addition to the advance, borrowers who have been affected by COVID-19 and have an existing relationship with an SBA Express Lender can apply for an Express Bridge Loan to get up to $25,000 quickly while they wait for their EIDL application to be approved.

The Treasury and Federal Reserve loan programs created under the CARES Act are designed to support larger businesses, as well as states and municipalities. In addition to direct loans to distressed businesses, the Treasury must “endeavor to seek the implementation” of a program to support bank and other lending to medium-sized businesses and nonprofits with 500-10,000 employees. While many of the details are still unclear, both of these loan programs come with many more obligations and restrictions than the SBA loans. The exact conditions vary by loan type, but include prohibitions on stock buybacks and dividend payments, requirements on workforce retainment and limitations on executive pay.

With regards to tax code changes, the CARES Act provides for employee retention tax credits. These provisions are designed to incentivize employers that were either fully or partially closed due to the pandemic, or suffered a 50 percent decline in gross receipts compared to the same quarter in 2019, to retain their employees. The provisions provide for a fully refundable tax credit of 50 percent of qualified wages paid to the business’s eligible employees between March 12, 2020 and January 1, 2021.

In addition to these major benefits, the CARES Act includes multiple other provisions designed to help struggling businesses, such as news publishers, including allowing businesses to carry net operating losses from 2018 to 2020 back five years in order to reduce prior years’ income, and removing the taxable income limitation. The Act also delays the payment deadlines of employer payroll taxes, allowing employers to pay 50 percent at the end of 2021 and 50 percent one year after that.

As well as payroll tax extensions, the Act allows employers with single employer pension plans to delay payments due in 2020 to January 1, 2021 (with interest), while also providing that the plan’s status for benefit restrictions as of December 31, 2019, will apply throughout 2020.

As for employees, the Act expands unemployment insurance to include independent workers who might not otherwise qualify for benefits, including independent contractors such as newspaper carriers. The Act also extends the maximum benefit period and provides an additional $600 per week for up to four months. This could impact news publishers’ retention of independent contractors during the period that increased unemployment benefits are available.

These are just some of the provisions in the CARES Act designed to help American businesses. The Alliance’s Stimulus Updates portal provides more information on these and other subjects. We will continue to monitor developments and keep our members informed of any opportunities that can help news publishers survive at this critical time.

This content is for informational purposes only. You should consult your financial experts or lawyers before making any decisions.

The post How News Publishers Can Benefit from Government Loan Programs During COVID-19 appeared first on News/Media Alliance.

The News Media Alliance applauds the Australian Competition & Consumer Commission (ACCC) for the findings of its long-awaited Digital Platforms Inquiry, released today. The ACCC investigation, launched in December 2017, focused on the impact of the dominant online platforms and aggregators on the media and advertising services. The investigation paid particular attention to the impact of the platforms on news and journalism. The Alliance commends the Commission for its work on the issue and the depth of insights reflected in the recommendations made in the final report. Among the 23 recommendations made by the ACCC, the final report suggests requiring designated online platforms to develop and implement codes of conduct that treat news organizations “fairly, reasonably and transparently,” and to provide for data and revenue sharing options.

News Media Alliance Senior Vice President, Strategic Initiatives and Counsel Danielle Coffey stated, “The findings of the ACCC’s study reflect the realities of the news business, not only in Australia, but around the world. Despite providing the high-quality journalism that the public needs and values, it is a few dominant platforms who gain most of the benefits and decide the rules of the game. The recommendations made in the report are an important step forward in addressing these challenges. We encourage the Australian Government to implement the proposed changes and hope that other governments and agencies will follow their lead.”

The post Statement: News Media Alliance Commends Findings of ACCC Digital Platforms Inquiry appeared first on News/Media Alliance.

Q: The new rules are in effect as of March 1, 2018.  Do the new rules to apply to newspapers that were circulated prior to March 1?

A: Yes, all newspapers that are submitted for group registration as of March 1 must comply with the new rules.  So, to the meet the three-month filing deadline, newspapers circulated in January must be filed by March 31 in PDF, February newspapers by April 30, and so on. There is, however, significant leniency for what constitutes an “attempt” at filing the PDF so as to comply with the new rules and allow for microfilm (as a voluntary, back-up submission) to satisfy the group registration during the transition period.  The Copyright Office will notify filers if the PDF is non-compliant.
 

Q: Would the Copyright Office/Library consider extending these new rules to apply to March 1 papers (to be filed via PDF by May 31), rather than retroactively, so that there is additional time to comply with these new rules?

A: No, the rules will not be extended, but there is leniency for what constitutes an “attempt” at filing the PDF so as to comply with the new rules and allow for microfilm to satisfy the group registration during the transition period.
 

Q: Will there be an automated way to push PDF files through an FTP site like the pilot program, or will the individual uploads be the only option for the foreseeable future?

A: No, there will not be an automated FTP site.
 

Q: Do the new rules apply to mandatory deposits of newspapers (deposit only, not copyright registration), and will the new system/process allow for PDF submissions to the Library for deposit-only submissions?

A: No, the new rules do not apply to deposit-only submissions.  For publishers only submitting newspapers to satisfy the Library of Congress’s mandatory deposit requirement may continue to submit microfilm for the foreseeable future.  The new system will not allow for deposit-only submissions of PDF at this time.
 

Q: Can members use their print ISSN numbers for the PDF submissions?

A: Yes, the Office will accept an application if the publisher uses their print ISSN in the file name for the PDFs.
 

Q: What happens to newspapers that fail to submit PDFs and submit microfilm-only instead.  Will they be notified?

A: Under the new rule, applicants must send PDFs, but may also send microfilm in case the PDF is deficient. If we only get a deficient PDF and no microfilm, the applicant will receive a refusal. If we get only microfilm, an applicant will receive a refusal. The transition period allows the microfilm as a backup to a deficient PDF.
 

Q: The instructions state: “The metadata for each file should contain the publication date in the “dc:date” field, and the ISSN for the newspaper in the “dc:identifier” or “xmp: identifier” fields.”  Do publishers need to actually insert this into each PDF file or is the fact that it appears on the paper enough?

A: No, there is no metadata required.  Only the file name, as specified in the “help text.”
 

Q: May third-party vendors submit periodicals on behalf of publishers for the registration process, including form, payment, and upload of PDFs?

A:  Yes, the Copyright Office and Library rules do not prevent third-party vendors from submitting on behalf of publishers.
 

Q:  While filing microfilm in tandem with the PDFs, will publishers have to pay twice?

A: File the PDF through the online system, create the form, pay the fee, and then print out the SR Number (which is a proof of payment with a tracking number) and send a copy in with the microfilm—no new form, no new check.
 

Q:  Are current microfilm submissions that are being sent to the following address: Register of Copyright, Copyright Off Lm438c/Copyright Acq Div, 101 Independence Ave SE., Washington, DC, 20559-6600, going to this address for the Copyright Office registrations or for deposits? 

A: All microfilm submissions should be sent to the following address:
Library of Congress
U.S. Copyright Office
Attn: 407 Deposits
101 Independence Avenue SE
Washington, DC 20559
Microfilm sent to this location may be used for purposes of satisfying the mandatory deposit requirement under section 407.
Microfilm sent to this address may also be used for purposes of registration, in addition to uploading the required PDF files. If a publisher sends microfilm and uploads PDF files to the electronic system, and if there are deficiencies in any of the PDFs, the Copyright Office may, in its discretion, allow the microfilm to be used to cure those deficiencies. The microfilm must be submitted at the same time as the application and PDF files, and the publisher must attach a “shipping slip” to the package containing the microfilm. If the publisher fails to attach a shipping slip to the microfilm, the Office will not be able to connect it with the group registration application.
To create a shipping slip, publishers should complete the online application, pay the filing fee, and upload the PDF files. Next, they should select the “Create Shipping Slip” button at the bottom of the Case Summary screen, and then open the link and print the shipping slip. For guidance on how to create a shipping slip, consult the tutorial on the U.S. Copyright Office’s website.
 

Q: For newspapers that currently maintain a deposit account with the Copyright Office, which gets charged the monthly fee when the certificate is issued, are those the same accounts to be used in the new system? If so, where in the system can the account holders access them? If not, how do account holders close the account and get the balance back?

A: Yes, the filing fee may be charged to an existing deposit account. Alternatively, it may be paid by credit card, debit card, or with an electronic check.
The filing fee must be paid through the government website, www.pay.gov. To access this site, select “Add to Cart” on the Review Submission screen. Then select “Checkout” on the “My Cart” screen.
Once the payment has been made, you will receive an email confirming the receipt of the application and deposit. To complete the submission process, the publisher then must upload a PDF copy of each issue being registered.
 

Q: The U.S. Copyright Fee website lists fees that the publisher must pay ($55, $25 per issue or $80 for daily newspapers). What criteria determines what each publisher pays? Are these one-time fees, monthly or per issue?

A: The filing fee for a group registration of newspaper issues is $80 for each group (not each issue). Publishers must pay the $80 filing fee for each application that is submitted through the electronic registration system. When the publisher reaches the website, the system will automatically charge the correct amount to their preferred payment method (e.g. credit card, debit card, bank account or deposit account).
 

Q: If the Copyright Office permits tear sheets to satisfy registration requirements, must that be replaced with PDFs?

A: Individual tear sheets are not acceptable.  Publishers must submit a complete copy of each issue published in the month specified in the application.  Each issue must be contained in a separate PDF file with the pages arranged in reading order.
 

The post Q&A: Transitioning to PDF Newspaper Filing appeared first on News/Media Alliance.