How The Generative AI Boom Proves We Need Journalism

Danielle Coffey, CEO and president of the News/Media Alliance, believes journalism and generative AI can play nice.

But first, generative AI companies must get real about the value journalism brings to their products.

“This doesn’t have to be a zero-sum game,” Coffey told AdExchanger. “These innovative technologies are very promising, but it doesn’t have to be at the expense of journalism.”

AI companies acknowledge the value of journalism, Coffey said… So, she argued, they should look at working with journalists as part of the cost of doing business – similar to how Netflix or Spotify compensate content creators for their IP.

Click here to read the rest of the Q&A on AdExchanger‘s website.

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Arlington, VA – The News/Media Alliance applauds the Canadian government for today’s deal with Google for its payment for the use of valuable news content on its Search platform. The amount negotiated is reported to be $100 million per year, down from the $172 million called for by the Canadian government.

The Canadian government passed legislation (C-18, the Online News Act) earlier this year that requires Big Tech platforms such as Google and Meta to pay news publishers for the use of their content. The Online News Act is due to take effect in December.

“This is a very big win for Canadian news publishers and shows that Google will commit to paying fair market value for quality journalism,” stated News/Media Alliance President & CEO Danielle Coffey. “This proves, yet again, that legislation is the only path to sustained right to payment for the fair market value of our quality content. The U.S. must stand up for our vibrant journalism industry and not fall behind other countries. Big Tech cannot continue to harm local news. Congress must protect our democracy and our constitutional right to a free press by implementing legislation that will help sustain quality journalism in America.”

Canada is the latest in a string of countries around the world that have recognized the need to protect quality journalism and passed legislation requiring the tech platforms to pay news publishers for use of their content, including Australia, the United Kingdom, and the European Union.

The Canada bill and today’s deal build momentum for the California Journalism Preservation Act (CJPA – AB 886, introduced earlier this year by California Assemblymember Buffy Wicks (D-Oakland)) – the goal of which will be discussed at an informational hearing next week – and the federal Journalism Competition and Preservation Act (JCPA) (S.1094, reintroduced in March by Senators Amy Klobuchar (D-MN) and John N. Kennedy (R-LA)) in the U.S. The Senate Judiciary Committee voted favorably in June for the JCPA, which would allow digital journalism providers to collectively negotiate with Google and Facebook for fair compensation for use of their valuable content.

The JCPA has broad support, not only in Congress in both the House and the Senate, but also from over 300 consumer interest groups, unions, conservatives, advocacy groups and third-party organizations that have sent letters of support for the JCPA to the bill sponsors.

The tech platforms are the dominant distributors of news content, reaping tremendous financial benefit without compensation to those who create the content. They also capture the majority of U.S. digital ad revenue, leaving local publishers with little to reinvest in the production of high-quality journalism.

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The News/Media Alliance is a nonprofit organization representing more than 2,200 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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The briefing discusses why these provisions are not applicable to the Online News Act in the first place and how, even if they were applicable, the bill would not be in violation of the relevant prohibitions. It also emphasizes the vital public welfare rationale behind the Act – and others, including the News Media Bargaining Code and the Journalism Competition and Preservation Act in the United States – and how this aligns with the Biden Administration’s all-of-government competition initiative. The briefing calls for the USTR to restrain from expressing reservations on the Act, noting that doing so would undermine similar efforts in the United States. Read the full briefing here.

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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.

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The Online News Act follows the Australian approach and establishes an arbitration mechanism.

“We are pleased to see Canada stand up to Big Tech and recognize that a free functioning democracy depends on independent and trustworthy news publishers, said Alliance President and CEO, Danielle Coffey. We hope to see this trend continue in the United States and abroad.”

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“Google and Meta have repeatedly attempted to avoid paying news publishers for the high-quality, local journalism that publishers invest significant resources into producing, while the platforms enjoy a steady stream of users and ad revenue and news publishers struggle,” stated Danielle Coffey, Executive Vice President and General Counsel of the News/Media Alliance. “First in Australia, then in the U.S., and now in Canada, Meta and Google have threatened to remove news from their platforms and risk harming the public rather than pay for content they did not create. We cannot continue to allow Big Tech to exert their dominance any longer. The stakes – the survival of local journalism – are too great.”

When Australia was considering its News Media Bargaining Code, Meta ‘deliberately caused havoc’ amid the COVID-19 pandemic to influence the law. Their threats didn’t work, and the News Media Bargaining Code has helped news publishers there reach deals with the platforms. Meta made similar threats when the Canadian legislature introduced the Online News Act (C-18) last year and fought similar bipartisan efforts in Congress to pass the Journalism Competition and Preservation Act (JCPA) in December. In addition, Google has been testing removing news from its platform in Canada in the event C-18 becomes law.

The Alliance deeply appreciates the President’s efforts to promote competition across the American economy and calls on every corner of the Administration to stand strong against Big Tech’s efforts to resist fair payment that will help keep newsrooms open across the United States and the world.

The Alliance encourages Congress to pass the JCPA in the United States, which would establish fair terms of engagement between news publishers and platforms such as Facebook and Google. America’s publishers continue to support the global efforts in Canada, the UK, India, and Taiwan to promote fairness between the companies who employ hardworking journalists and the dominant online platforms that seek to exploit news content and divert advertising dollars to their own bottom line.

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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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Particularly notable is the support from Australia where nearly 18 months ago, its parliament adopted legislation creating the News Media Bargaining Code, a code of conduct to address bargaining power imbalances between Australian publishers and Big Tech.

A new analysis from the News/Media Alliance states, “Like the JCPA… the Australian Code does not attempt to solve all the problems faced by news publishers in the online ecosystem. Instead, the sole purpose of both measures is to balance the playing field between publishers and online platforms, creating a more sustainable foundation for the preservation of high-quality journalism.”

The Australian media endorses U.S. efforts to pass the JCPA because they’ve seen the success of their own legislation firsthand. Thanks to the code, Facebook and Google have now paid over $140 million to qualifying publishers – publishers which employ an estimated 90-plus percent of Australian journalists. In a recent report, former Australian Competition and Consumer Commission (ACCC) Chair Rod Sims confirmed the success of the News Media Bargaining Code, estimating that the compensation accrued to date amounts to approximately 20 percent of Australian journalists’ salaries and likely more than 20 percent of eligible publishers’ combined earnings before interest, taxes, depreciation, and amortization.

In response to the recent progress on the JCPA, Sims stated, “I am delighted to see the JCPA advancing through the US Congress.  It will benefit US media significantly, and so will greatly strengthen the USA in so many ways.”

Similar legislation is also in the works in Canada, Europe and the United Kingdom. Canada’s Online News Act, a bill which aims to ensure fair compensation for news media, was introduced in April 2022 and, following the adoption of new laws in the European Union, publishers have had successful negotiations with Google, which signed deals to pay more than 300 publishers in May 2022. The UK is also likely to introduce new legislation in the coming months to combat Big Tech’s influence on local media by granting statutory powers to the Digital Markets Unit (DMU), its tech watchdog organization. We applaud their efforts to hold Big Tech accountable and make local news more sustainable.

As the JCPA moves forward in the U.S. Congress – the Senate text of the bill was released Monday and is on the agenda for Senate Judiciary Committee markup in September – we thank our international supporters for urging passage of the JCPA in both the Senate and House of Representatives.

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

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“If Meta is indeed moving away from its commitment to news, then they are not only hurting news publishers, but they are hurting themselves and their millions of users who want and need sources of reliable, trustworthy information,” stated Alliance President & CEO, David Chavern. “Quality journalism is an antidote to the mis- and disinformation that flourishes on their platform. Without it, their current problems will only get worse.”

Meta is also showing its unilateral market power. Recent legislation introduced around the world, including the News Media Bargaining Code that was signed into law last year in Australia and the Online News Act introduced in Canada in April prompted Facebook to threaten to remove news from its platform and to make other retaliatory moves such as suspending productive partnerships with news publishers. These actions only demonstrate even more why such legislation is needed, as left to their own devices, the dominant tech platforms will continue to refuse fair compensation to news publishers.

The Alliance encourages Congress to pass the Journalism Competition & Preservation Act (JCPA) in the United States, which would establish fair terms of engagement between news publishers and platforms such as Facebook and Google.

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The Online News Act follows the Australian approach and establishes an arbitration mechanism to ensure online platforms engage in good faith negotiations.

“Free and functioning democracy depends on independent and trustworthy news publishers,” said Alliance Executive Vice President and General Counsel Danielle Coffey. “The last few years have demonstrated the international resolve to stand up to big tech, who impose the rules and reap the benefits online, and protect high-quality journalism. We are pleased to see Canada follow the European Union and Australia in establishing clear rules governing the use of news content by the dominant platforms and hope the Parliament will move forward to swiftly pass the Online News Act.”

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