The issue of whether news publishers should receive compensation when their content is used by “others” (such as internet platforms, specifically Facebook and Google) has become a hot topic in a number of countries of late. It has arisen because of the near financial collapse of much of the print media, particularly newspapers and news magazines, as the bulk of advertising has gone online. The lion’s share of ad revenues now goes to the platforms that aggregate content rather than produce it themselves. Some shrug and say that just as Gutenberg’s printing press put scribes and illuminators of Bibles out of business, one cannot stop the march of technology. In their view, the old-fashioned news business will just have to adjust or go the way of the dodo.
Historical Challenges to News Publishing
It is a historical fact that news publishers have been challenged and required to adapt multiple times over the centuries as business practices and technology have evolved. Some fairly recent instances include the introduction of the telegraph, then radio and TV, and now the internet. Although in the past, publishers adapted and reached accommodations that enabled them to survive, one cannot help but wonder if this time they’ll be able to stay in business without legislation or regulation requiring compensation for use of their content. If we are no longer able to live in a world with a vibrant Fourth Estate as a result of the monopolization of advertising revenues by the major internet platforms, what will be the implications for our society and for democracy?
The Challenge Today: Different Responses in Different Countries
The issue has been hotly debated in Germany, Australia, France, Canada, the US and elsewhere, with different remedies coming forward. These range from the EU approach of granting the publishers a new “neighbouring right” over their content for a limited duration (two years from date of publication) to legislation in Australia that approaches the issue from the perspective of competition law, requiring specified quasi-monopoly platforms (Facebook, Google) to negotiate in good faith with publishers to pay for use of content, failing which government will arbitrate. The newly elected Trudeau government in Canada pledged in its party platform that it would “introduce legislation, within 100 days, that would require digital platforms that generate revenues from the publication of news content to share a portion of their revenues with Canadian news outlets”, based on the Australian model, while allowing publishers to work together to bargain collectively. To date, the results in various countries have been mixed. The question has also been raised (“Who Should Pay for the News?”) as to the impact the funding of news publications by internet platforms or government might have on journalistic integrity and editorial independence.
Google and Facebook have grudgingly come to the table and begun discussions with some publishers in some countries over payment for use of content. Threat of government action has been the catalyst to make these negotiations happen. While progress is being made in terms of indirectly flowing back to news publishers some of the advertising revenues that their content generates for the platforms by attracting and retaining users, this begs the question of what the news content providers are actually “selling”, and what they actually “own”. At the end of the day, who owns the news?
Who Actually “Owns” the News?
This is not a new issue; in fact it has been debated for centuries. A full and recent exposition of this question is found in the aptly named book, “Who Owns the News? A History of Copyright”, by Professor Will Slauter (Stanford University Press, 2019). In his book, Slauter takes readers back to Tudor and Stuart England, when the rights to publish certain forms of news (prices of commodities, deaths, news from abroad) were granted as licensed monopolies. Not surprisingly, others not awarded the prized licences argued that they too should be able to report the news, given the public’s interest. By the 18th century in Britain, after the passage of the Statute of Anne in 1710, the battle over copyright and news was launched. The argument was made that those who had acquired the news through their own efforts and expense merited protection (a monopoly on the news they had so laboriously obtained) for a limited period of time to allow them to harvest the fruits of their labour. Their work was not original but deserved protection because of belief in the “sweat of the brow” doctrine. Copyright was one potential means to achieve this protection.
But there were many opposed to granting news monopolies, especially those who benefitted from the “free ride”. They argued that “news” is a public good, and the facts that constitute news cannot be protected. This reflects the legal position today; facts cannot be copyrighted. The 1886 Berne Convention, the first international copyright treaty, explicitly excluded “news of the day” from copyright protection, an exclusion maintained to this day in Berne’s revised 20th century text (although what constitutes “news” can be debated). However, back in the 18th century, the factual news of the day was not always readily available, and in many cases had to be obtained through considerable effort.
A Reward for “Breaking News”?
As an example, if Ruritania declares war on Grand Fenwick, that is a fact. But in earlier times, this fact only became known because a major paper, let’s call it the London Morning Standard, maintained a correspondent in the capital of one of those faraway places. That correspondent, on learning of the declaration of war, hired a coach and driver to take his dispatch to the nearest seaport, where it was entrusted to the captain of the fastest ship available. Upon arrival in England, the captain conveyed the news report to a despatch rider who rode post-haste to enable the Standard to break the news in its morning edition. The Standard had a scoop, but only for a few hours because when the evening and provincial papers came out, they simply rewrote or often simply copied the story from the Standard, sometimes with attribution, sometimes not. There is a vague analogy here to internet platforms profiting from the hard work of professional journalists and publishers without payment, while selling advertising against the “free” content.
One solution at the time might have involved extending copyright law to cover content in newspapers, although the Statute of Anne was conceived primarily for literary works. Despite action by some owners to gain copyright protection for newspaper or magazine content by entering editions at Stationer’s Hall (a requirement for copyright protection), most publishers freely reprinted content obtained from rival papers. The prevailing business practices did not support exclusivity. Almost all editors engaged in some form of copying (and took pride in their selection of what to copy).
Cut and Paste in the Newspaper Business
“Scissors and paste” remained a common practice in newspaper publishing in both Britain and the US through much of the 19th century, but lack of attribution was considered by many to be plagiarism. Some editors got revenge by baiting copyists with false news. Slauter (pp.111-112) cites one example where the Courier of New York, whose carefully acquired news reports of the Russian victory in the Polish-Russian War of 1831 had been copied without attribution, struck back by sending a bogus version of their morning edition to the offices of their competitors claiming that the previous day’s news was erroneous and that in fact the Polish people had emerged victorious. Several papers fell for the bait, stopped press and printed editions announcing the Polish victory. But the victory was pyrrhic; the Courier’s editors were denounced for printing false news! Or was it “fake news”? Despite this gamesmanship, there was little interest in trying to copyright news content. However, by the late 19th century, and the advent of the telegraph and press associations that led to pooling of content, attitudes began to change.
Changing Attitudes to Copying
Slauter recounts how by the early 20th century in Britain, a series of court rulings had confirmed that newspaper articles could be protected by copyright but, as is the case today, a distinction was made between the facts of news (not protected) and the expression of those facts (subject to copyright protection). Attempts to establish a special, limited duration (18-48 hours) copyright protection for news were not successful although a Bill to this effect passed the Lords in 1900 but was not adopted by the House of Commons. In the 1911 Imperial Copyright Act, fair dealing was introduced allowing portions of copyrighted works to be reproduced for purposes of research, criticism, review or “newspaper summary”. In the US, with the formation of press associations, the thrust was to protect “exclusivity” in news through competition law. The US Supreme Court ruled it was unfair competition to use the exclusive content (hot news) of another agency until such time as the exclusivity was no longer commercially exploitable.
The Challenge of Radio
The advent of radio brought another challenge, and a struggle over who could control the news. The situation played out in different ways in different countries. In Britain, the BBC was granted a government charter and a broadcast monopoly (which lasted until 1972 in radio) but initially its ability to cover news was heavily restricted. Its news coverage had to be drawn from wire service copy and no news broadcasts were permitted before 7 p.m. in order to avoid competing with the newspapers for subscribers. As a public funded government monopoly, it did not compete with newspapers for advertising.
In the US, broadcasting remained in private hands (as it was initially in Britain), and did seek advertising dollars. While some newspaper publishers acquired broadcast licences, others did not. This set the stage for competing views of whether radio should be allowed to broadcast news. Originally, many broadcasters simply read newspaper headlines on the air (and remember, facts are not protected by copyright). Many newspapers tried to restrict what material broadcasters could use, thus beginning the so-called “press-radio war” of the 1930s. The two major US radio networks at the time, NBC and CBS, initially agreed to restrict news broadcasts to two 5 minute broadcasts a day, one no earlier than 9:30 am (to protect the morning papers) and one no earlier than 9 pm (to protect the evening dailies). The brief broadcasts were to whet the appetite of listeners to go out and buy papers. The networks also agreed to give up their own news gathering operations and instead to receive copy from Associated Press. However, the agreement (Biltmore Agreement of 1933) lasted less than two years before it began to fall apart primarily because independent radio stations refused to play the game. They decided to broadcast news at the time and in the format that suited their listeners and advertisers. News is an elusive commodity to corral.
News Reporting involves Creativity, Skill and Judgement
While attempts to monopolize the news were unsuccessful because of the generic nature of factual information, there is no question that news reporting can be protected as intellectual property. It is the essence of the fact/expression dichotomy in copyright. An investigative news report, carefully researched and written, perhaps illustrated with exclusive photos, is certainly the expression of what that news item is about—and is protectable by copyright. When the CBC recently sued the Conservative Party of Canada for using CBC television clips of interviews with Liberal Party leader Justin Trudeau to create political attack ads, the Federal Court recognized the CBC’s ownership of the clips. As I noted in a recent blog on this subject, the Court found that the broadcast incorporated “the artistic design, production services (lighting, camera work, audio, etc.) and journalistic decisions (i.e. the flow of discussions and the election and posing of questions) which are the skill and judgment of the CBC and their employees”, making it a creative work subject to protection even though what Justin Trudeau had said was a matter of public record. The fact that it held the copyright on the broadcast material did not lead to a successful outcome for the CBC, however, because the judge ruled that the Conservative Party’s use of the clips fell under fair dealing. Nonetheless, the ownership of the news material was not in doubt.
Some Key Questions
This brings us back to the questions posed in the title of this blog posting. Do publishers “own” news content, and if so, what exactly do they own? Should internet platforms that “scrape” content from publishing sites (headlines and short excerpts) be required to compensate the creators of the content? These are not easy questions to answer.
While it is by now well established that publishers, broadcasters and journalists can exercise copyright over news reports that involve creative expression, the separation of facts from expression is not always straightforward. What about a news headline? Does it just convey the facts or is it, as Agence France Presse (AFP) contended in its 2005 suit against Google, a creative expression capturing qualitatively the most important aspects of a story, painstakingly created. (The case was settled out of court, leading to a licensing agreement for AFP content). If a piece of content is protected by copyright, does reproduction of a snippet constitute fair use or fair dealing, or does the publication of the snippet reveal the essence of the content and undermine the publisher’s economic rights? Is the best solution to empower publishers with the creation of a new neighbouring right, as has been done in the EU, or is the most effective solution the application of competition law to ensure that the market power and economic dominance of the major platforms is constrained? And what about that thorny question of journalistic independence? If a major publication is taking money from, say, Google, will this influence its coverage of Google when it comes to anti-competitive practices, for example?
What is the Way Forward?
Each country has to find its way forward in a way that is compatible with international legal frameworks (for copyright and competition law) and treaty obligations, and which takes account of political realities and domestic politics. But the trend is clear; either the platforms find a way to strike deals with news publishers or governments will make it happen, one way or the other. In the struggle of the news industry to survive, various remedies have been proposed. Requiring giant, dominant internet platforms that aggregate and display news content to reach licensing deals with content providers is an important part of the answer. It is part of the continuum of the history of news, and who “owns” it.
© Hugh Stephens 2021. All Rights Reserved.
Coincidentally, as I was posting this blog, the US Copyright Office announced a “a public study at the request of Congress to evaluate current copyright protections for publishers. Among other issues, the Office will consider the effectiveness of publishers’ existing rights in news content, including under the provisions of title 17 of the U.S. Code, as well as other federal and state laws; whether additional protections are desirable or appropriate; the possible scope of any such new protections, including how their beneficiaries could be defined; and how any such protections would interact with existing rights, exceptions and limitations, and international treaty obligations.” Public input is sought on a number of questions. Comments are due on or before November 26, 2021.