Even The Copyright Office Doesn’t Want What The JCPA Is Selling
It should not be this hard to stamp out a bad idea, but here we are, with the JCPA continuing to haunt the country like a zombie that simply refuses to die. The JCPA, for those just tuning in, is a bill designed to create a link tax. Its supporters sometimes blanch at that description, but it is an apt one, rooted in the perversely censorial notion that no one should be able to link to material available on the Internet (or facilitate others linking to material available on the Internet) without paying for the privilege.
There was a glimmer of hope last week that Senator Cruz may have accidentally driven a stake through its heart with his surprise amendment that upended Senator Klobuchar's cursed legislative apple cart, but her steadfast refusal to acknowledge any legitimate concerns about her bills has led her to keep trying to ram this one down America's throat.
But, notably, she is doing it without the support of the Copyright Office, which earlier this year considered whether the sort of monopoly power the JCPA creates was the sort of monopoly power copyright law either does, or should, create. Sensibly, it decided that it was not.
As it lays out in the Executive Summary, the Copyright Office noted that US copyright law already granted media outlets substantial protection.
Press publishers have significant protections under U.S. copyright law. They generally own a copyright in the compilation of materials that they publish. In addition, they often own the copyright in individual articles through the work-made-for-hire doctrine and may also own rights in accompanying photographs.
At the same time, copyright law also currently contains limits on the reach of its exclusionary power, sometimes for constitutional reasons and often for the benefit of the public, which a link tax scheme would conflict with, to the inevitable detriment of the public.
Copyright law does, however, permit certain unlicensed uses of news content, by news aggregators or others. Facts and ideas are not protectable by copyright. The merger doctrine allows the use of original expression where there are limited ways of expressing a particular fact or idea, and individual words, titles, and short phrases are generally not protectable. Even where an aggregator reuses protectable expression, the fair use doctrine may apply. As a result, press publishers' ability to rely on copyright to prevent third-party aggregators from using their content depends on the specific circumstances, including the nature and amount of the content used.
To nevertheless constrain public use of links via the use of this ancillary, or copyright-like, scheme, would require advancing new legal theories that are untested." And thus the Copyright Office could not recommend the exercise.
Given all of these variables, the Copyright Office does not recommend adopting new copyright protections for press publishers. Any change to U.S. copyright law that would meaningfully improve press publishers' ability to block or seek remuneration for news aggregators' use of their works would necessarily avoid or narrow limitations on copyright that have critical policy and Constitutional dimensions.
It further noted that the record simply didn't support the extreme regulatory approach of expanding copyright law to create this new monopoly power to forbid links. To the extent that the funding models for journalism stood to be improved, it was not copyright law, or something so much akin to it, that stood to appropriately improve them.
The Office recognizes that adequate funding for journalism may currently be at risk, and that there are implications for the press's essential role in our system of government. But the challenges for press publishers do not appear to be copyright-specific. It has not been established that any shortcomings in copyright law pose an obstacle to incentivizing journalism or that new copyright-like protections would solve the problems that press publishers face.
Indeed, even the Copyright Office's report referenced how self-defeating this sort of proposal seemed to be for journalism by making it harder for media outlets to connect with the audiences that are their lifeblood. (See, for instance, footnote 57 of the report.)
As we (and many others) have said many times, both on these pages and in comments for these regulatory studies, link tax proposals like those now pushed by the JCPA are no solution for journalism. Indeed, they will HURT journalism, especially the journalism by smaller media outlets who can no longer count on people being able to freely share links to their material, and thus no longer be able to count on having untaxed connections to audiences.
It is therefore an odd thing for any regulator to want, especially if they are genuinely sincere about making journalism a more economically viable endeavor, and not simply pushing laws like these in an effort to punish those who foster Internet use they simply don't like.