What Is the JCPA “Link Tax” and Why Is It Being Proposed?
On March 10, 2021, House Resolution 1735 was introduced in the U.S. Congress. Simultaneously, a similar bill, S. 673, was filed in the U.S. Senate. The Journalism Competition and Preservation Act of 2021 (JCPA) bill has since been going back and forth on the Hill, going through numerous amendments and revisions.
But what exactly is the JCPA, why do we need it, and why is it stirring up controversy in digital media?
Bringing Small News Organizations Together
According to theU.S. Congress summary on H.R. 1735:
This bill creates a four-year safe harbor from antitrust laws for print, broadcast, or digital news companies to collectively negotiate with online content distributors (e.g., social media companies) regarding the terms on which the news companies' content may be distributed by online content distributors.
If this passes into law, it allows for an exemption in antitrust law for news organizations. That means they can band together and force online content platforms, like Facebook and Google, to pay them for linking to or sharing snippets from their published content.
Why Is the JCPA Being Proposed?
One of the reasons the bill is proposed in the U.S. Congress and Senate is because of the negative social media platforms have on news organizations. With published news now easily readable online for free, many traditional news outlets lost their subscription and sales revenue.
This is further compounded by the fact that online sources, especially from major news organizations andtop unbiased and independent global news outfits, are readily sharable, especially on social media.
According to theUNC Hussman School of Journalism and Media, the U.S. has lost almost 1,800 newspapers since 2004. That means almost 200 counties in the U.S. aren’t covered by any media entity, thus leaving its residents in the dark, especially about local issues. Nevertheless, somelocal news apps still let you stream for free.
By allowing smaller news organizations to band together, Congress hopes they’ll have enough mass and clout to negotiate with tech giants like Google and Facebook for remuneration when linking to their content. Theoretically, this would allow these small media companies to survive and thrive by ensuring they’re paid when online platforms link to their content.
Furthermore, this isn’t the first time issues surrounding link taxes for online journalism have arisen. In 2021, the Australian government passed a law with a similar focus to the JCPA, causing afall-out between Microsoft, Google, and Facebook.
Support for the JCPA
The JCPA receives support fromNews Media Alliance (NMA). They say that despite the increased traffic to news sites, many are struggling financially. The NMA claims that platforms take 70% of the revenue in digital advertising and charge publishers “ad-tech tax,” thus leaving new publishers with little to no revenues.
NMA even published a whitepaper on how Google abuses its market-leading position to have a monopoly on news. The report recommends the JCPA as a way “to address this extreme market and legal failure.”
Unintended Consequences
While the spirit of the law wants to reinvigorate the industry of small newspapers in the U.S., journalists are wary of unintended consequences. Their main concern is that this law would fundamentally change U.S. copyright law—specifically, the ownership of links and snippets.
They say that if news organizations limit who can link to their content, it could stifle the free flow of information. Furthermore, adding snippets from the linked article, typically found to be permissible under fair-use considerations, could be banned under the new law.
TheElectonic Frontier Foundationeven pointed out the following:
…one draft even requires companies to display certain links whether they want to or not, raising serious free speech concerns…
However, it is unclear if this provision has been removed from the latest versions of H.R. 1735.
Other journalist groups also point out that this new law could benefit big news corporations and the largest online platforms without substantial gains for smaller news outfits. Thus, it would entrench monopolies in both the media and internet space.
Free Pressalso pointed out several flaws in the JCPA in a letter, like the law not focusing on the kind of news organizations communities need, the disparity in how news organizations and online platforms value news, and the difficulty in enforcing it, should it become law.
JCPA Is a Double-Edged Sword
According to some polls, many Americans believe that big tech companies take advantage of news organizations for its own gain. Thus, they welcome the JCPA to help keep competition alive while helping news organizations survive and thrive.
However, other news organizations say H.R. 1735 should be revised to ensure that it doesn’t go beyond current copyright law and even overstep the first amendment. They’re also wary that the JCPA could stifle the free flow of information that the internet facilitates.
The Journalism Competition and Preservation Act aims to help news organizations stand a chance against big tech companies. However, it could unwittingly create a news cartel with sole control of online news information. As such, the U.S. Congress and Senate should tread carefully and ensure that the JCPA works for the greater good of the American people.
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