Modernizing Copyright Law

A “fair use” doctrine has not been fully integrated into international law.

In addition to countries (e.g., the Philippines, Israel, South Korea) that have different fair use criteria, and countries (e.g., Australia, Canada, South Africa) that have different systems for copyright exemptions such as “fair dealing”, there are also countries (e.g., Brazil, Mexico) that have no clear fair use or fair dealing frameworks in place. Further, “fair use” largely depends on common law or legal precedent that does not always exist in all contexts, making broad adoption of fair use exceptions particularly difficult.

Copyright restrictions may have unintended negative consequences for independent news consumption.

Research shows search engines and other aggregated news lists are major sources of traffic to news stories. If aggregators delisted outlets or opted out of sharing news altogether, news publishers would get less visibility and traffic to their sites. Further, using copyright restrictions as a means of aiding financial support for journalism may favor larger, more established publishers, leaving down-market outlets at risk of shrinking audiences and revenue. That would also leave the public with less access to and consumption of a wide range of quality news.

Determining who and what falls under copyright protection or fair use is complicated and could have lasting implications for fair use protections for journalists and the public.

Areas of concern include restrictive rights contracts being imposed upon freelancers who produce a vast amount of news content online, unfair competitive advantages for larger and/or legacy news outlets, and unclear definitions of what legally constitutes “news” or a “publisher.” For example, limiting the digital sharing of news headlines or snippets could mean that any online user sharing these – even with a link to the original content – would be subject to and in violation of that law. It could also limit what journalists themselves could use in their reporting, with particular risks for freelance journalists.

Existing and future news and technology business models clash over copyright.

Online news aggregation services and search engines often provide headlines and snippets of news stories in addition to links to the full stories housed on news websites. In the U.S., these headlines and snippets traditionally fall under the fair use rules of copyright law, leaving it up to users of aggregator sites to decide if they want to view the original content. Publishers argue that aggregators should pay them for the use of snippets, saying that tech companies’ use of the media industry’s original content for free undermines publishers’ efforts to develop online news business models. Aggregators and search engine businesses argue that their services provide a substantial amount of reach to publishers: If users follow a link to a full story, the publisher does get the value of a site visit. Part of the debate is over what level constitutes “enough traffic to the site” to count as payment.

New digital technologies (e.g., generative AI or the metaverse) are not adequately accounted for in current law or in debates on ways to modernize it.

Debates over modernizing copyright law will need to grapple with legal questions surrounding the training and output of generative AI systems. If you own the copyright for creative content used to train AI, can you have a legal claim over its output? Can you copyright AI output, and if so, who owns it? Allegations claim that AI art software, including Stable Diffusion and Lensa AI, find loopholes around EU and U.S. copyright infringement by developing the technology through nonprofit means to avoid licensing fees. These challenges illustrate how quickly new copyright questions will continue to emerge in the digital realm alongside technological advances.