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Lawmakers released new text for the Journalism Competition and Preservation Act (S. 673) Monday, seeking to protect small newspapers that face diminishing subscriptions and advertisement revenue. The Senate Judiciary Committee will consider the bipartisan measure, which was first introduced in March 2021, during the first week of September, according to a lobbyist.
The legislation, sponsored by Sens. Amy Klobuchar (D-Minn.) and John Kennedy (R-La.), gives publishers and broadcasters an extended eight-year safe harbor to negotiate collectively for compensation from online platforms. During that period, which was previously set at four years, publishers could partner up to withhold their content and collectively negotiate with platforms without being liable under antitrust laws.
Reps. David Cicilline (D-R.I.) and Ken Buck (R-Colo.) sponsored companion legislation (H.R. 1735) and, in a press release, said they back the new Senate version
In the updated bill, senators aimed to alleviate concerns raised by several public interest groups such as the Electronic Frontier Foundation and Public Knowledge that the legislation would give publishers the ability to restrict third parties from linking to external content, which would go beyond any copyright owner’s benefits.
“Expanding copyright in this way harms the free flow of information by “protecting” things like facts, or even links to facts, from being shared without paying first. Additionally, having the government determine what is and what isn’t news is a dangerous precedent,” Fight for the Future Director Evan Greer said in an Aug. 2 release.
The latest bill includes language explicitly stating the measure wouldn’t affect copyright law.
Good Faith Negotiations
The bill now includes requirements for platforms, news publishers, and broadcasters to negotiate in good faith and provides multiple examples of “bright-line violations,” such as refusal to meet to negotiate. The language would ensure all news publishers and broadcasters, including small outlets, are compensated, bill sponsors say.
Publishers, broadcasters, and tech platforms would have to make reasonable offers, and courts could impose penalties for violations.
The measure would require journalism providers to be transparent about the annual amount of compensation received under the agreements, and use those funds to support ongoing news production.
Definition of Journalist
The definition of digital journalism provider is refined in the bill to mean entities that “engage professionals to create, edit, produce, and distribute original content concerning local, national, or international matters of public interest,” among other criteria.
Bill sponsors say an inclusive and neutral definition of providers will ensure viewpoints across the ideological spectrum can negotiate pay. The bill would prohibit tech companies from discriminating against a digital journalism provider because of its size or the views expressed in its content. If tech companies violate this prohibition, a provider would be able to directly sue them, an avenue known as private right of action.
The definition of “online platform” is also revised to include dominant websites with 50 million US-based users, and a market cap greater than $550 billion or not fewer than 1 billion worldwide monthly active users that aggregate, display, provide, distribute, or direct users to news publishers’ and broadcasters’ content.
Tech companies would be prohibited from retaliating against publishers by refusing to index content or by lowering search rankings. The bill also would limit compensation negotiations to individual publications — not groups — with 1,500 employees or fewer.
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