{"id":8570,"date":"2023-08-25T14:16:00","date_gmt":"2023-08-25T18:16:00","guid":{"rendered":"https:\/\/cntiwpedev.wpenginepowered.com\/?p=8570"},"modified":"2025-10-06T15:11:02","modified_gmt":"2025-10-06T19:11:02","slug":"modernizing-copyright-law","status":"publish","type":"post","link":"https:\/\/cnti.org\/issue-primers\/modernizing-copyright-law\/","title":{"rendered":"Modernizing Copyright Law"},"content":{"rendered":"\n
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CNTI’s Summary<\/h2>\n\n\n\n

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 \u201cpublisher\u201d 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\u2019 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.<\/p>\n\n\n\n

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The Issue<\/h2>\n\n\n\n

Copyright is a type of intellectual property<\/a> 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<\/a> copyright conventions and treaties that have been adopted to provide clearer rights for creators in a global economy.<\/p>\n\n\n\n

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, \u201cfair use<\/a>\u201d and \u201cfair dealing\u201d provisions or \u201cquotation rights\u201d 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.<\/p>\n\n\n\n

The digital age has introduced new copyright use cases that are not sufficiently addressed in current law<\/a>. For example, now news aggregators, social media sites and search engines often publish headlines or snippets of and links to a publisher\u2019s news story. Another new use case emerged<\/a> with the creation of generative AI<\/a>, which \u2018learns\u2019 from amassed digital content created by others to produce its own derivative content, which may<\/a> or may not<\/a> be considered original created work. Journalists increasingly use generative AI in news production<\/a>, and the original content is also used to train<\/a> AI<\/a> tools.<\/p>\n\n\n\n

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<\/strong>. How will policy differentiate between snippets of licensed content in a citizen\u2019s post or email, a news story, a freelancer\u2019s news column, a search result, a news feed, and more? What elements of building a generative AI<\/a> 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<\/a>, rapid technological developments reflect how important it is that copyright policy is forward-looking.<\/p>\n\n\n\n

A \u201cfair use\u201d doctrine has not been fully integrated into international law.<\/strong> In addition to countries (e.g., the Philippines, Israel, South Korea) that have\u00a0different<\/a>\u00a0fair use criteria, and countries (e.g., Australia, Canada, South Africa) that have different systems for\u00a0copyright<\/a>\u00a0exemptions<\/a>\u00a0such as \u201cfair dealing\u201d, there are also countries (e.g., Brazil, Mexico) that have no clear fair use or fair dealing frameworks in place. Further, \u201cfair use\u201d largely depends on\u00a0common law<\/a>\u00a0or legal precedent that does not always exist in all contexts, making broad adoption of fair use exceptions particularly difficult.<\/p>\n\n\n\n

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What Makes It Complex<\/h2>\n\n\n\n

A \u201cfair use\u201d doctrine has not been fully integrated into international law.<\/strong> In addition to countries (e.g., the Philippines, Israel, South Korea) that have\u00a0different<\/a>\u00a0fair use criteria, and countries (e.g., Australia, Canada, South Africa) that have different systems for\u00a0copyright<\/a>\u00a0exemptions<\/a>\u00a0such as \u201cfair dealing\u201d, there are also countries (e.g., Brazil, Mexico) that have no clear fair use or fair dealing frameworks in place. Further, \u201cfair use\u201d largely depends on\u00a0common law<\/a>\u00a0or legal precedent that does not always exist in all contexts, making broad adoption of fair use exceptions particularly difficult.<\/p>\n\n\n\n

Copyright restrictions may have unintended negative consequences for independent news consumption.<\/strong> Research<\/a>\u00a0shows 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\u00a0visibility<\/a>\u00a0and\u00a0traffic<\/a>\u00a0to 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\u00a0consumption<\/a>\u00a0of a wide range of quality news.<\/p>\n\n\n\n

Determining\u00a0who<\/em>\u00a0and\u00a0what<\/em>\u00a0falls under copyright protection or fair use is complicated and could have lasting implications for fair use protections for journalists and the public.<\/strong> Areas of concern include restrictive rights contracts being imposed upon\u00a0freelancers<\/a>\u00a0who produce a vast amount of news content online, unfair competitive advantages for\u00a0larger<\/a>\u00a0and\/or legacy news outlets, and unclear\u00a0definitions<\/a>\u00a0of what legally constitutes \u201cnews\u201d or a \u201cpublisher.\u201d For example, limiting the digital sharing of news headlines or snippets could mean that\u00a0any<\/em>\u00a0online user sharing these \u2013 even with a link to the original content \u2013 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.<\/p>\n\n\n\n

Existing and future news and technology business models clash over copyright.<\/strong> Online news\u00a0aggregation<\/a>\u00a0services 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\u2019 use of the media industry\u2019s original content for free undermines publishers\u2019 efforts to develop online news\u00a0business models<\/a>. 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\u00a0does<\/em>\u00a0get the value of a site visit. Part of the debate is over what level constitutes \u201cenough traffic to the site\u201d to count as payment.<\/p>\n\n\n\n

New digital technologies (e.g.,\u00a0generative AI<\/a>\u00a0or the\u00a0metaverse<\/a>) are not adequately accounted for in current law\u00a0or<\/em>\u00a0in debates on ways to modernize it.<\/strong> Debates over modernizing copyright law will need to grapple with\u00a0legal<\/em>\u00a0questions<\/a>\u00a0surrounding the\u00a0training<\/a>\u00a0and 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\u00a0loopholes<\/a>\u00a0around 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.<\/p>\n\n\n\n

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State of Research<\/h2>\n\n\n\n

Research on issues of copyright for a free press has largely focused on media policy, with an overwhelming emphasis on U.S.<\/a> fair use doctrine and European Union<\/a> (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<\/a>, freelance<\/a> 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<\/a> news or set professional standards<\/a> 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\u2014including press<\/a> censorship<\/a> and the restriction of competition,<\/a> innovation and public access<\/a> to information. <\/p>\n\n\n\n

In addition to global and comparative research in this area, it would be valuable for future work to explore how digital journalists understand<\/a> 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.<\/p>\n\n\n\n

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Notable Studies<\/strong><\/p>\n\n\n\n

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