CNTI’s Summary

Copyright laws must be modernized for the digital age. The methods of creating, citing and utilizing creative works have changed dramatically since current laws were written. The definition of “publisher” becomes nebulous when anyone with an internet connection can create and share their work. It is challenging to propose and debate modernization strategies without fully understanding who and what would be affected or how these challenges vary by country, which may harm journalists’ ability to participate in that process. More informed and comprehensive discussions among publishers, technology companies and policymakers are needed to structure new laws in a way that protects journalistic work while also recognizing the ways the public accesses and interacts with creative works in our digital societies.

The Issue

Copyright is a type of intellectual property that describes the legal rights a creator has over a wide range of content, including books, music, film, artwork, software and images. Copyrights give creators the ability to prevent others from using their work without permission and to be compensated for approved uses by others. Use of copyrighted works is dependent on copyright laws in the country of origin as well as various international copyright conventions and treaties that have been adopted to provide clearer rights for creators in a global economy.

Journalists and news publishers create original text, photo, audio and video content. They also incorporate copyrighted content into their work by quoting, paraphrasing or providing evidence from outside content. In many countries, “fair use” and “fair dealing” provisions or “quotation rights” allow for limited use of copyrighted material in circumstances such as journalism, research and teaching without the need to obtain permission from the copyright holder. But, depending on the legal system, these allowances vary significantly.

The digital age has introduced new copyright use cases that are not sufficiently addressed in current law. For example, now news aggregators, social media sites and search engines often publish headlines or snippets of and links to a publisher’s news story. Another new use case emerged with the creation of generative AI, which ‘learns’ from amassed digital content created by others to produce its own derivative content, which may or may not be considered original created work. Journalists increasingly use generative AI in news production, and the original content is also used to train AI tools.

Modernizing copyright law and fair use doctrine for the global digital age is increasingly central to an open internet and competitive news environment and raises a slew of new challenges. How will policy differentiate between snippets of licensed content in a citizen’s post or email, a news story, a freelancer’s news column, a search result, a news feed, and more? What elements of building a generative AI tool fall under fair use? How should societies define original work created in a global, digital environment? While questions surrounding AI and its use in journalism are addressed more fully in a separate issue primer, rapid technological developments reflect how important it is that copyright policy is forward-looking.

What Makes It Complex

State of Research

Research on issues of copyright for a free press has largely focused on media policy, with an overwhelming emphasis on U.S. fair use doctrine and European Union (EU) copyright reform. Work in this area has indicated a number of challenges facing intellectual property holders and journalists in the digital age, particularly with the rise of content aggregation, freelance work and changing media business models. Researchers note a lack of clarity around (1) what separates legitimate information-sharing from harmful copyright infringement and (2) how to define news or set professional standards for news aggregation. While protections of creative work will be critical to fulfill the mission of a free and robust press, research also cautions against the effects of copyright protection that is too strong—including press censorship and the restriction of competition, innovation and public access to information. 

In addition to global and comparative research in this area, it would be valuable for future work to explore how digital journalists understand and navigate complex and often opaque copyright regulations, the effects of enhanced copyright regulation on news audience behaviors and the implications of such provisions for smaller and/or down-market publishers and freelance news creators.

State of Legislation

Governments and intergovernmental bodies around the world are working to update copyright laws for the digital age and a global media environment. These efforts present new legal challenges and tensions for publishers, technology companies and those involved in the creation, flow and regulation of digital content. Much of the current work centers around the role of copyright in online searches and news aggregation. At times, copyrights are affected through copyright-adjacent legislation, such as Australia’s News Media Bargaining Code, while in others, such as the European Union copyright law, have been updated directly with the aim of increasing protections for news publishers and content creators. 

As research on these policies indicates, both indirect and direct copyright legislation can carry risks to an independent press, citizen journalism and other elements of an open internet. Specifically, research finds important deficiencies in current approaches, including a lack of clarity in defining what constitutes copyright protection, and raises questions about the effectiveness of these laws in reducing online copyright infringement. Further, little has been done yet to effectively address the rise of new technologies, such as generative AI, in online content creation and distribution.

Notable Legislation

Australia

In 2021, Australian regulators adopted the News Media Bargaining Code, which allows the government to designate digital platforms as subject to the code if publishers cannot reach reasonable agreements for use of their content. This provision does not explicitly address copyright issues – and, in fact, relies on antitrust rather than copyright law – but has nonetheless been used to establish publishers’ rights to be paid for news content.

European Union

In 2019, the EU Copyright Directive adopted copyright rules for digital platforms. Articles 15 and 17 require certain publishers to buy licenses and allow publishers the right to claim revenue from platforms (exempting the use of hyperlinking and short blurbs). Concerns include potential limits to free expression and access to information and blocks of legitimate content. The EU AI Act, adopted in June 2023, requires all copyrightable data used in AI model training to be published.

South Africa

Beginning in 2015, South Africa’s government began to introduce attempts at copyright reform via the Copyright Amendment Bill and the Performers’ Protection Amendment Bill, which included the introduction of fair use doctrine. After a significant amount of outside pressure from the U.S. and EU cultural industries, South African President Cyril Ramaphosa postponed the legislation in June 2020, citing constitutional concerns.

United States

The U.S. Copyright Office’s 2021 review of copyright protections for publishers in relation to news aggregators concluded that the challenges facing news funding do not appear to be solved by copyright reforms. In March 2023, the office announced a new initiative to study the impact of AI on the copyright system along with new copyright registration guidance. The reintroduced Journalism Competition and Preservation Act (JCPA) could also influence copyright law for some forms of linking.

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