I 117TH CONGRESS 1ST SESSION H. R. 1735 To provide a temporary safe harbor for publishers of online content to collectively negotiate with dominant online platforms regarding the terms on which content may be distributed. IN THE HOUSE OF REPRESENTATIVES MARCH 10, 2021 Mr. CICILLINE (for himself, Mr. BUCK, Mr. DESAULNIER, Mr. RASKIN, Mrs. SPARTZ, Ms. SCANLON, Ms. WILD, Mr. STEUBE, and Mr. GAETZ) intro- duced the following bill; which was referred to the Committee on the Ju- diciary A BILL To provide a temporary safe harbor for publishers of online content to collectively negotiate with dominant online platforms regarding the terms on which content may be distributed. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Journalism Competi- 4 tion and Preservation Act of 2021’’. 5 VerDate Sep 11 2014 19:32 May 03, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H1735.IH H1735 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 1735 IH SEC. 2. SAFE HARBOR FOR CERTAIN COLLECTIVE NEGO- 1 TIATIONS. 2 (a) DEFINITIONS.—In this section: 3 (1) ANTITRUST LAWS.—The term ‘‘antitrust 4 laws’’— 5 (A) has the meaning given the term in 6 subsection (a) of the first section of the Clayton 7 Act (15 U.S.C. 12); and 8 (B) includes— 9 (i) section 5 of the Federal Trade 10 Commission Act (15 U.S.C. 45) to the ex- 11 tent that section applies to unfair methods 12 of competition; and 13 (ii) any State law (including regula- 14 tions) that prohibits or penalizes the con- 15 duct described in, or is otherwise incon- 16 sistent with, subsection (b). 17 (2) NEWS CONTENT CREATOR.—The term 18 ‘‘news content creator’’ means— 19 (A) any print, broadcast, or digital news 20 organization that— 21 (i) has a dedicated professional edi- 22 torial staff that creates and distributes 23 original news and related content con- 24 cerning local, national, or international 25 VerDate Sep 11 2014 19:32 May 03, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1735.IH H1735 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 1735 IH matters of public interest on at least a 1 weekly basis; and 2 (ii) is marketed through subscriptions, 3 advertising, or sponsorship; and 4 (B)(i) provides original news and related 5 content, with the editorial content consisting of 6 not less than 25 percent current news and re- 7 lated content; or 8 (ii) broadcasts original news and related 9 content pursuant to a license granted by the 10 Federal Communications Commission under 11 title III of the Communications Act of 1934 (47 12 U.S.C. 301 et seq.). 13 (3) ONLINE CONTENT DISTRIBUTOR.—The 14 term ‘‘online content distributor’’ means any entity 15 that— 16 (A) operates a website or other online serv- 17 ice that displays, distributes, or directs users to 18 news articles, works of journalism, or other con- 19 tent on the internet that is generated by third- 20 party news content creators; and 21 (B) has not fewer than 1,000,000,000 22 monthly active users, in the aggregate, of all of 23 its websites or online services worldwide. 24 VerDate Sep 11 2014 19:32 May 03, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1735.IH H1735 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 1735 IH (b) LIMITATION OF LIABILITY.—A news content cre- 1 ator may not be held liable under the antitrust laws for 2 engaging in negotiations with any other news content cre- 3 ator during the 4-year period beginning on the date of en- 4 actment of this Act to collectively withhold content from, 5 or negotiate with, an online content distributor regarding 6 the terms on which the news content of the news content 7 creator may be distributed by the online content dis- 8 tributor, if— 9 (1) the negotiations with the online content dis- 10 tributor— 11 (A) are not limited to price; 12 (B) are nondiscriminatory as to similarly 13 situated news content creators; 14 (C) directly relate to the quality, accuracy, 15 attribution or branding, and interoperability of 16 news; and 17 (D) pertain to terms that would be avail- 18 able to all news content creators; 19 (2) the coordination between the news content 20 creators is directly related to and reasonably nec- 21 essary for negotiations with an online content dis- 22 tributor that are otherwise consistent with this Act; 23 and 24 VerDate Sep 11 2014 19:32 May 03, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1735.IH H1735 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 1735 IH (3) the negotiations do not involve any person 1 that is not a news content creator or an online con- 2 tent distributor. 3 (c) RULE OF CONSTRUCTION.—Except as provided in 4 this Act, this Act shall not be construed to modify, impair, 5 or supersede the operation of the antitrust laws. 6 Æ VerDate Sep 11 2014 19:32 May 03, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6301 E:\BILLS\H1735.IH H1735 pamtmann on DSKBC07HB2PROD with BILLS