Jonathan Band
The U.S. Copyright Office’s recently released study Copyright Protections for Press Publishers raises serious questions about the compatibility of ancillary copyright regimes with international copyright treaty obligations. The Copyright Office conducted the study at the request of members of Congress to assess the viability of establishing ancillary copyright protections in the United States similar to protections now being implemented in Europe. Under such regimes, online news aggregators must pay for publishers for excerpts of content they provide for others to view.
The Copyright Office declared that “a new press publishers’ right that set aside traditional copyright limitations could [] raise questions regarding to consistency with the United States’ international obligations.” The Office noted that article 10(1) of the Berne Convention provides a quotation right, and stated that “some scholars have argued that this is a mandatory ‘right of quotation,’ and must be permitted even with respect to sui generis protections such as ancillary copyright.” In support of this proposition, the Office cited Tanya Aplin and Lionel Bently’s 2020 book Global Mandatory Fair Use: The Nature and Scope of the Right to Quote Copyright Works.
The Office acknowledged that there are differing views, with some academics suggesting that the quotation right might not preempt unfair competition law, while others question whether the quotation right is, in fact, mandatory. Further, even if the Berne quotation right did apply to sui generis publisher protections, “there is still a debate as to its scope and whether news aggregators’ conduct falls within it.” In particular, Professors Sam Ricketson and Jane Ginsburg assert that under Berne, the quotation must be compatible with fair practice, thus “raising fact-specific questions about the extent and the nature of the use.”
The Office concluded that “given these interpretive uncertainties, a publishers’ right that prevented unlicensed aggregation of headlines and ledes and lacked traditional copyright limitations might raise questions as to its consistency with the Berne Convention.” This is an aggressive position for a U.S. government agency to take. In effect, the U.S. Copyright Office is casting doubt on the compatibility with international law of the ancillary copyright regimes required by Article 15 of EU Copyright in the Digital Single Market Directive, as well as the Australian news media bargaining code (which is ancillary copyright masquerading as a competition provision). Hopefully, other jurisdictions considering ancillary copyright, such as Canada, will heed the U.S. Copyright Office’s caution that such approaches may violate the Berne Convention.
