Full Text of SB3591 103rd General Assembly
SB3591 103RD GENERAL ASSEMBLY | | | 103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024 SB3591 Introduced 2/9/2024, by Sen. Steve Stadelman SYNOPSIS AS INTRODUCED: | | | Creates the Journalism Preservation Act. Provides that specified online platforms shall track and record, on a monthly basis, the total number of times the online platform's websites link to, display, or present a digital journalism provider's news articles, works of journalism, or other content that are displayed or presented to Illinois residents and remit a journalism usage fee payment to each digital journalism provider who has satisfied specific requirements. Sets forth provisions concerning notice requirements; fee payments; calculation of fees; arbitration; non-retaliation; funding for journalists and support staff; reporting requirements; preservation of rights; and severability. |
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| | A BILL FOR |
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| 1 | | AN ACT concerning journalism. | 2 | | Be it enacted by the People of the State of Illinois, | 3 | | represented in the General Assembly: | 4 | | Section 1. Short title. This Act may be cited as the | 5 | | Journalism Preservation Act. | 6 | | Section 5. Findings. | 7 | | (a) A free and diverse fourth estate was critical in the | 8 | | founding of our democracy and continues to be the lifeblood | 9 | | for a functioning democracy. | 10 | | (b) Every day, journalism plays an essential role in | 11 | | Illinois and in local communities, and the ability of local | 12 | | news organizations to continue to provide the public with | 13 | | critical information about their communities and enabling | 14 | | publishers to receive fair market value for their content that | 15 | | is used by others will preserve and ensure the sustainability | 16 | | of local and diverse news outlets. | 17 | | (c) Communities without newspapers lose touch with | 18 | | government, business, education, and neighbors. They operate | 19 | | without journalists working to keep them informed, uncover | 20 | | truth, expose corruption, and share common goals and | 21 | | experiences. | 22 | | (d) Over the past 10 years, newspaper advertising has | 23 | | decreased 66%, and newsroom staff has declined 44%. |
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| 1 | | (e) Ethnic media has long been a distinctive genre of | 2 | | journalism and communications, informing, engaging, and | 3 | | advocating on behalf of communities underserved by both the | 4 | | for-profit and not-for-profit general media market. It plays a | 5 | | unique role in upholding the fourth estate in our democracy by | 6 | | facilitating cross-racial and cross-ethnic communications to | 7 | | facilitate social integration, promote civic engagement, and | 8 | | address inequalities among all of the underserved communities. | 9 | | (f) Given the important role of ethnic media, it is | 10 | | critical to advance State policy that ensures their publishers | 11 | | are justly compensated for the content they create and | 12 | | distribute. An example is the historic preamble, "We Wish to | 13 | | Plead Our Own Cause," a document penned by the | 14 | | African-American journalist and abolitionist Samuel Cornish in | 15 | | 1827. It marked a significant milestone in the history of the | 16 | | Black press as it highlighted the urgent need for African | 17 | | Americans to have their own platform to voice their | 18 | | grievances, advocate for their rights, and challenge racial | 19 | | inequality. This call to action spurred the establishment of | 20 | | numerous Black-owned newspapers and publications, solidifying | 21 | | the role of the Black press as a powerful tool for empowerment | 22 | | and social change, and laid the groundwork in our country for | 23 | | other ethnic media to plead their own cause. | 24 | | (g) Quality local journalism is key to sustaining civic | 25 | | society, strengthening communal ties, and providing | 26 | | information at a deeper level that national outlets cannot |
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| 1 | | match. | 2 | | (h) When surveyed, 73% of adults in the United States say | 3 | | they have confidence in their local newspaper. | 4 | | Section 10. Definitions. As used in this Act: | 5 | | "Access" means to acquire, to crawl, or to index content. | 6 | | "Advertising revenue" means revenue generated through the | 7 | | sale of digital advertising impressions that are served to | 8 | | customers in this State through an online platform, regardless | 9 | | of whether those impressions are served on websites or | 10 | | accessed through online or mobile applications. | 11 | | "Allocation share" means the percentage of a covered | 12 | | platform's journalism usage fees that an eligible digital | 13 | | journalism provider is entitled to receive for a particular | 14 | | month computed by dividing (1) the total number of the covered | 15 | | platform's Internet web pages displayed or presented to | 16 | | Illinois residents during the month that link to, display, or | 17 | | present the eligible digital journalism provider's news | 18 | | articles, works of journalism, or other content, or portions | 19 | | thereof by (2) the total number of the covered platform's | 20 | | Internet web pages displayed or presented to Illinois | 21 | | residents during the month that link to, display, or present | 22 | | any eligible digital journalism provider's news articles, | 23 | | works of journalism, or other content, or portions thereof, | 24 | | less (3) any compensation received by an eligible digital | 25 | | journalism provider through commercial agreement prior to |
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| 1 | | commencement of arbitration for access to content by the | 2 | | covered platform. | 3 | | "Covered platform" means an online platform that, at any | 4 | | point during a 12-month period, either: | 5 | | (1) has at least 50,000,000 United States-based | 6 | | monthly active users or subscribers on the online | 7 | | platform; or | 8 | | (2) is owned or controlled by a person that either | 9 | | has: | 10 | | (A) net annual sales in the United States or a | 11 | | market capitalization greater than $550,000,000,000, | 12 | | adjusted annually for inflation on the basis of the | 13 | | Consumer Price Index published by the United States | 14 | | Bureau of Labor Statistics; or | 15 | | (B) at least 1,000,000,000 worldwide monthly | 16 | | active users on the online platform. | 17 | | "Covered platform" does not mean an organization exempt | 18 | | from federal income taxation under Section 501(c)(3) of the | 19 | | Internal Revenue Code of 1986. | 20 | | "Eligible broadcaster" means a person that: | 21 | | (1) holds or operates under a license issued by the | 22 | | Federal Communications Commission under 47 U.S.C. 301 et | 23 | | seq.; | 24 | | (2) engages professionals to create, edit, produce, | 25 | | and distribute original content concerning local, | 26 | | regional, national, or international matters of public |
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| 1 | | interest through activities, including conducting | 2 | | interviews, observing current events, analyzing documents | 3 | | and other information, or fact checking through multiple | 4 | | firsthand or secondhand news sources; | 5 | | (3) updates its content on at least a weekly basis; | 6 | | and | 7 | | (4) uses an editorial process for error correction and | 8 | | clarification, including a transparent process for | 9 | | reporting errors or complaints to the station. | 10 | | "Eligible digital journalism provider" means an eligible | 11 | | publisher or eligible broadcaster that discloses its ownership | 12 | | to the public. | 13 | | "Eligible publisher" means a person that publishes a | 14 | | qualifying publication. | 15 | | "News journalist" means a natural person who: | 16 | | (1) is employed for an average of at least 30 hours per | 17 | | week during a calendar year by an eligible digital | 18 | | journalism provider; and | 19 | | (2) is responsible for gathering, developing, | 20 | | preparing, directing the recording of, producing, | 21 | | collecting, photographing, recording, writing, editing, | 22 | | reporting, designing, presenting, distributing, or | 23 | | publishing original news or information that concerns | 24 | | local, regional, national, or international matters of | 25 | | public interest. | 26 | | "Notifying eligible digital journalism provider" means an |
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| 1 | | entity that has provided notice to a covered platform as | 2 | | described in Section 15 that the entity is an eligible digital | 3 | | journalism provider. | 4 | | "Online platform" means a website, online or mobile | 5 | | application, digital assistant, or online service that: | 6 | | (1) accesses news articles, works of journalism, or | 7 | | other content, or portions thereof, generated, created, | 8 | | produced, or owned by an eligible digital journalism | 9 | | provider; and | 10 | | (2) aggregates, displays, provides, distributes, or | 11 | | directs users to content described in paragraph (1) of | 12 | | this definition. | 13 | | "Qualifying publication" means a website, online or mobile | 14 | | application, or other digital service that: | 15 | | (1) does not primarily display, provide, distribute, | 16 | | or offer content generated, created, produced, or owned by | 17 | | an eligible broadcaster; | 18 | | (2) provides information to an audience in this State; | 19 | | (3) performs a public information function comparable | 20 | | to that traditionally served by newspapers and other | 21 | | periodical news publications; | 22 | | (4) engages professionals to create, edit, produce, | 23 | | and distribute original content concerning local, | 24 | | regional, national, or international matters of public | 25 | | interest through activities, including conducting | 26 | | interviews, observing current events, analyzing documents |
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| 1 | | and other information, or fact checking through multiple | 2 | | firsthand or secondhand news sources; | 3 | | (5) updates its content at least 52 weeks in a | 4 | | calendar year; | 5 | | (6) has an editorial process for error correction and | 6 | | clarification, including a transparent process for | 7 | | reporting errors or complaints to the publication; and | 8 | | (7) meets any of the following criteria: | 9 | | (A) generated at least $100,000 in annual revenue | 10 | | from its editorial content in the previous calendar | 11 | | year; | 12 | | (B) had an International Standard Serial Number | 13 | | assigned to an affiliated periodical before submitting | 14 | | notice to a covered platform under Section 15; or | 15 | | (B) is owned or controlled by an organization | 16 | | exempt from federal income taxation under Section | 17 | | 501(c)(3) of the Internal Revenue Code of 1986; | 18 | | (8) has at least 25% of its editorial content | 19 | | consisting of information about topics of current local, | 20 | | regional, national, or international public interest; or | 21 | | (9) is not controlled, or wholly or partially owned | 22 | | by, an entity that: | 23 | | (A) is a foreign power or an agent of a foreign | 24 | | power, as those terms are defined in 50 U.S.C. 1801; | 25 | | (2) is designated as a foreign terrorist | 26 | | organization under 8 U.S.C. 1189; |
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| 1 | | (3) is a terrorist organization, as defined in 8 | 2 | | U.S.C. 1182; | 3 | | (4) is designated as a specially designated global | 4 | | terrorist organization under federal Executive Order | 5 | | 13224; | 6 | | (5) is an affiliate of an entity described in | 7 | | subparagraph (1), (2), (3), or (4); and | 8 | | (6) has been convicted of violating, or attempting | 9 | | to violate 18 U.S.C. 2331, 2332b, or 2339A. | 10 | | "Representative" means a labor organization designated as | 11 | | the exclusive bargaining representative of news journalists or | 12 | | support staff for the purposes of collective bargaining in | 13 | | accordance with State or federal law. | 14 | | "Support staff" means a natural person who performs | 15 | | nonexecutive functions, including payroll, human resources, | 16 | | fundraising and grant support, advertising and sales, | 17 | | community events and partnerships, technical support, | 18 | | sanitation, and security. | 19 | | Section 15. Notice requirements for journalism usage fee | 20 | | payments. | 21 | | (a) On or before January 1, 2025, all eligible digital | 22 | | journalism providers that want to receive journalism usage fee | 23 | | payments under this Act shall submit notice to a covered | 24 | | platform as described in subsection (b). All eligible digital | 25 | | journalism providers that submit the notice shall receive |
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| 1 | | journalism usage fee payments from covered platforms as | 2 | | described in Section 20 beginning no later than 30 days after | 3 | | the end of the arbitration process described in Section 25. | 4 | | Digital journalism providers may provide notice to a covered | 5 | | platform as described in subsection (b) after the initial | 6 | | arbitration has concluded; however, notice received from an | 7 | | eligible digital journalism provider after January 1, 2025, | 8 | | shall not prompt any adjustment to the percentage of | 9 | | advertising revenue that has previously been determined under | 10 | | the most recent arbitration proceeding conducted as described | 11 | | in Section 25. | 12 | | (b) The notice described in subsection (a) shall: | 13 | | (1) identifies the eligible digital journalism | 14 | | provider and the authorized representative of the eligible | 15 | | digital journalism provider; | 16 | | (2) certifies, not under penalty of perjury, that the | 17 | | eligible digital journalism provider reasonably believes | 18 | | that it is either an eligible broadcaster or an eligible | 19 | | publisher; and | 20 | | (3) identifies the root uniform resource locators for | 21 | | the websites associated with the eligible digital | 22 | | journalism provider's digital content. | 23 | | (c) No later than 30 days after submitting a notice | 24 | | described in subsection (b), the eligible digital journalism | 25 | | provider shall distribute a copy of the notice to the news | 26 | | journalists and support staff that it employs and their |
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| 1 | | representatives, if any, and publish a copy of the notice | 2 | | online in a text-searchable format. | 3 | | (d) No later than 30 days after the deadline described in | 4 | | subsection (a), or after receiving a notice as described in | 5 | | subsection (a), the covered platform shall send a reply notice | 6 | | to the authorized representative identified in subsection (b) | 7 | | to acknowledge the receipt of the notice. | 8 | | (e) A covered platform that receives as described in | 9 | | paragraph (b) may, within 30 days after receiving the notice, | 10 | | challenge: | 11 | | (1) the sufficiency of the notice; and | 12 | | (2) the noticing party's qualification as an eligible | 13 | | digital journalism provider. | 14 | | Section 20. Journalism usage fee calculations. | 15 | | (a) A covered platform shall track and record, on a | 16 | | monthly basis, for each eligible digital journalism provider | 17 | | that submits a notice as described in Section 15, the total | 18 | | number of times the covered platform's websites link to, | 19 | | display, or present the eligible digital journalism provider's | 20 | | news articles, works of journalism, or other content, or | 21 | | portions thereof, and that the covered platform has displayed | 22 | | or presented to Illinois residents, regardless of whether the | 23 | | content appears in a language other than English. | 24 | | (b) A covered platform shall, on a monthly basis, use the | 25 | | data collected under subsection (a) to calculate the |
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| 1 | | allocation share for each notifying eligible digital | 2 | | journalism provider. | 3 | | (c) One percent of the journalism usage fee shall be paid | 4 | | to eligible digital journalism providers that produce at least | 5 | | 30,000 annual search occurrences in Illinois searches or | 6 | | 10,000 annual social media impressions from Illinois. | 7 | | (d) Within 10 days after the end of each month, a covered | 8 | | platform shall remit a journalism usage fee payment to each | 9 | | notifying eligible digital journalism provider that is equal | 10 | | to a percentage of the covered platform's advertising revenue | 11 | | generated during that month multiplied by the eligible digital | 12 | | journalism provider's allocation share for that month. | 13 | | (e) If an eligible digital journalism provider fails to | 14 | | comply with Section 40, a covered platform may withhold | 15 | | journalism usage fee payments until the eligible digital | 16 | | journalism provider has provided a copy of the report | 17 | | described in subsection (a) of Section 40 to the covered | 18 | | platform and has published a copy of the report online as | 19 | | described in subsection (b) of Section 40. | 20 | | Section 25. Arbitration. | 21 | | (a) The percentage of the covered platform's advertising | 22 | | revenue remitted to notifying eligible digital journalism | 23 | | providers shall be determined as described in this Section. | 24 | | Eligible digital journalism providers shall jointly | 25 | | participate in the final offer arbitration process described |
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| 1 | | in this Section with each covered platform to determine a | 2 | | single percentage of advertising revenue from which future | 3 | | monthly allocation shares will be allotted. | 4 | | (b) Within 10 days after the receipt of the reply notice | 5 | | required by subsection (d) of Section 15, an eligible digital | 6 | | journalism provider may initiate, under Rule R-4 of the | 7 | | American Arbitration Association's Commercial Arbitration | 8 | | Rules and Mediation Procedures, a final offer arbitration | 9 | | against the covered platform for an arbitration panel to | 10 | | determine the percentage of the covered platform's advertising | 11 | | revenue remitted to the notifying eligible digital journalism | 12 | | providers. | 13 | | (c) The arbitration procedure authorized by this | 14 | | subsection shall commence 10 days after the receipt of the | 15 | | reply notice described in subsection (d) of Section 15. | 16 | | (d) The arbitration procedure authorized by this | 17 | | subsection shall be decided by a panel of 3 arbitrators under | 18 | | the American Arbitration Association's Commercial Arbitration | 19 | | Rules and Mediation Procedures and the American Arbitration | 20 | | Association-International Centre for Dispute Resolution Final | 21 | | Offer Arbitration Supplementary Rules, except to the extent | 22 | | they conflict with this Section. | 23 | | (e) The covered platform and the eligible digital | 24 | | journalism providers shall each pay one-half of the cost of | 25 | | administering the arbitration proceeding, including arbitrator | 26 | | compensation, expenses, and administrative fees. |
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| 1 | | (f) The arbitrators shall be appointed in accordance with | 2 | | the American Arbitration Association's Commercial Arbitration | 3 | | Rules and Mediation Procedures. | 4 | | (g) During a final offer arbitration proceeding under this | 5 | | Section, all of the following shall apply: | 6 | | (1) Eligible digital journalism providers and the | 7 | | covered platform may demand the production of documents | 8 | | and information that are non-privileged, reasonably | 9 | | necessary, and reasonably accessible without undue | 10 | | expense. Documents and information shall be exchanged no | 11 | | later than 30 days after the date the demand is filed. | 12 | | (2) Rules regarding the admissibility of evidence | 13 | | under the American Arbitration Association's Commercial | 14 | | Arbitration Rules and Mediation Procedures shall apply. | 15 | | (3) Eligible digital journalism providers and the | 16 | | covered platform shall each submit a final offer proposal | 17 | | for the remuneration that the eligible digital journalism | 18 | | providers should receive from the covered platform for | 19 | | access to the content of the eligible digital journalism | 20 | | providers during the period under arbitration based on the | 21 | | value that access provides to the platform. The final | 22 | | offer proposals shall include backup materials sufficient | 23 | | to permit the other party to replicate the proffered | 24 | | valuation. | 25 | | (4) A final offer proposal under this Section shall | 26 | | not address whether or how the covered platform or any |
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| 1 | | eligible digital journalism provider displays, ranks, | 2 | | distributes, suppresses, promotes, throttles, labels, | 3 | | filters, or curates the content of the eligible digital | 4 | | journalism providers or any other person. | 5 | | (h) No later than 60 days after the date proceedings begin | 6 | | as described in subsection (c), the arbitration panel shall | 7 | | determine the percentage of the covered platform's advertising | 8 | | revenue remitted to notifying eligible digital journalism | 9 | | providers from a final offer from one of the parties without | 10 | | modification. | 11 | | (1) In making a determination, the arbitration panel | 12 | | shall: | 13 | | (A) refrain from considering any value conferred | 14 | | upon any eligible digital journalism provider by the | 15 | | covered platform for distributing or aggregating its | 16 | | content as an offset to the value created by that | 17 | | eligible digital journalism provider, unless the | 18 | | covered platform does not automatically access and | 19 | | extract information from an eligible digital | 20 | | journalism provider's website; | 21 | | (B) consider past incremental revenue | 22 | | contributions as a guide to the future incremental | 23 | | revenue contribution by any eligible digital | 24 | | journalism provider; | 25 | | (C) consider the pricing, terms, and conditions of | 26 | | any available, comparable commercial agreements |
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| 1 | | between parties granting access to digital content, | 2 | | including pricing, terms, and conditions relating to | 3 | | price, duration, territory, and the value of data | 4 | | generated directly or indirectly by the content | 5 | | accounting for any material disparities in negotiating | 6 | | power between the parties to those commercial | 7 | | agreements; | 8 | | (D) if submitted with a final offer proposal, | 9 | | consider the eligible digital journalism provider's | 10 | | previous compliance with Section 40, if applicable; | 11 | | and | 12 | | (E) issue a standard binding arbitration award of | 13 | | the percentage of the covered platform's advertising | 14 | | revenue remitted to notifying eligible digital | 15 | | journalism providers. | 16 | | (2) Any party to the arbitration proceeding may elect | 17 | | to appeal the decision of the arbitration panel as | 18 | | described in subsection (j) on the grounds of a procedural | 19 | | irregularity. | 20 | | (i) If the covered platform and any eligible digital | 21 | | journalism providers have given notice under Section 15 reach | 22 | | a settlement in lieu of arbitration, the settlement shall not | 23 | | waive the eligible digital journalism provider's obligations | 24 | | as described in Section 40 and shall not settle for an amount | 25 | | other than the final offer proposals submitted by the parties | 26 | | as described in paragraph (3) of subsection (g). |
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| 1 | | (j) No fewer than 24 months after the end of an arbitration | 2 | | proceeding, any party to the proceeding may elect to restart | 3 | | the arbitration process. | 4 | | Section 30. Non-retaliation. | 5 | | (a) A covered platform shall not retaliate against an | 6 | | eligible digital journalism provider for asserting its rights | 7 | | under this Act by refusing to index content or changing the | 8 | | ranking, identification, modification, branding, or placement | 9 | | of the content of the eligible digital journalism provider on | 10 | | the covered platform. | 11 | | (b) An eligible digital journalism provider that is | 12 | | retaliated against may bring a civil action against the | 13 | | covered platform. | 14 | | (c) This Section does not prohibit a covered platform | 15 | | from, and does not impose liability on a covered platform for, | 16 | | enforcing its terms of service against an eligible journalism | 17 | | provider. | 18 | | Section 35. Funding for journalists and support staff. | 19 | | (a) An eligible digital journalism provider shall spend at | 20 | | least 70% of funds received under this Act on news journalists | 21 | | and support staff employed by the eligible digital journalism | 22 | | provider, except that an eligible digital journalism provider | 23 | | with 5 or fewer employees shall spend at least 50% of funds | 24 | | received under this Act on news journalists and support staff |
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| 1 | | employed by the eligible digital journalism provider. | 2 | | (b) No later than 30 days after the end of an arbitration | 3 | | proceeding described in Section 25 or upon reaching a | 4 | | settlement in lieu of an arbitration proceeding, the eligible | 5 | | digital journalism provider shall provide notification in | 6 | | writing of its plan to comply with subsection (a) to the news | 7 | | journalists and support staff employed by the eligible digital | 8 | | journalism provider and any representatives of those news | 9 | | journalists or support staff. | 10 | | (c) The eligible digital journalism provider's plan to | 11 | | comply with subsection (a) shall include a good faith estimate | 12 | | of the number of news journalists and support staff, if any, | 13 | | expected to be hired, details regarding proposed compensation | 14 | | adjustments, if any, and a disclosure if either hiring or | 15 | | compensation adjustments are not expected. | 16 | | Section 40. Reporting requirements. | 17 | | (a) No later than one year after the end of an arbitration | 18 | | proceeding described in Section 25 or reaching a settlement in | 19 | | lieu of an arbitration proceeding, and each year thereafter, | 20 | | the eligible digital journalism provider shall compile a | 21 | | report that includes: | 22 | | (1) an attestation as to whether the eligible digital | 23 | | journalism provider has complied with subsection (a) of | 24 | | Section 35; | 25 | | (2) the text of the digital journalism provider's plan |
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| 1 | | to comply with subsection (a) of Section 35; | 2 | | (3) the total number of journalism usage fees received | 3 | | from covered platforms; | 4 | | (4) the name of each covered platform paying the | 5 | | eligible digital journalism provider a journalism usage | 6 | | fee and a description of how the eligible digital | 7 | | journalism provider spent the journalism usage fee | 8 | | payment, including any amount of journalism usage fees | 9 | | remaining unspent; and | 10 | | (5) the total number of news journalists and support | 11 | | staff employed by the eligible digital journalism | 12 | | provider, including the number of news journalists and | 13 | | support staff hired or terminated during the previous | 14 | | year. | 15 | | (b) No later than one year after the end of an arbitration | 16 | | proceeding described in Section 25 or reaching a settlement in | 17 | | lieu of an arbitration proceeding, and each year thereafter, | 18 | | the eligible digital journalism provider shall publish a copy | 19 | | of the report described in subsection (a) online in a | 20 | | text-searchable format and provide a copy to the news | 21 | | journalists and support staff employed by the eligible digital | 22 | | journalism provider, any representatives of those news | 23 | | journalists or support staff, and the covered platforms paying | 24 | | journalism usage fees to the eligible digital journalism | 25 | | provider. |
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| 1 | | Section 45. Preservation of rights. | 2 | | (a) Nothing in this Act shall be construed as amending or | 3 | | repealing the ability of an eligible digital journalism | 4 | | provider or a covered platform to seek a preliminary or | 5 | | permanent injunction or any other existing remedy at law or | 6 | | equity. | 7 | | (b) This Act does not modify, impair, expand, or in any way | 8 | | alter rights pertaining to the federal Lanham Act (15 U.S.C. | 9 | | 1051 et seq). | 10 | | (c) This Act does not abridge or impair rights otherwise | 11 | | reserved by news journalists, support staff, or their | 12 | | representatives according to applicable law or existing | 13 | | collective bargaining agreements. | 14 | | Section 50. Severability. The provisions of this Act are | 15 | | severable. If any provision of this act or its application is | 16 | | held invalid, that invalidity shall not affect other | 17 | | provisions or applications that can be given effect without | 18 | | the invalid provision or application. |
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