Fair Use, Aggregation, and the Future of News

A Columbia Law School Kernochan Center Discussion Considers Copyright Reforms that May Boost Media Profits
New York, March 3, 2015—As the traditional media business reels amid newspapers’ decline, governments around the world are considering strategies to help sustain journalism based on original reporting. One widely-discussed approach, implemented in various forms throughout Europe, is copyright reform that imposes a toll on news aggregators like Google News in hope of allowing news outlets to more profitably monetize their content.
A Feb. 17 talk at Columbia Law School hosted by the Kernochan Center for Law, Media and the Arts explored this controversial question. Brad Greenberg, a Kernochan Center Intellectual Property (IP) Fellow, and Sherwin Siy, vice president of legal affairs at open Internet nonprofit Public Knowledge, discussed whether limiting news aggregation might be a viable means of protecting and fostering professional reporting, and the potential costs of doing so.

While American jurisprudence has not definitively resolved whether news aggregation is fair use, Greenberg said, the U.S. has taken a more hands-off approach than some in Europe.

“Many would argue that Google News and other aggregators are engaged in transformative use of the news content,” he said.

Several European nations have moved to provide ancillary rights for the press, Siy explained, ranging from laws in Germany limiting how much content can be aggregated to laws in Spain requiring aggregators to pay a fee for using content. Google News recently pulled out of Spain in response to that country’s law.

Siy argued that increasing IP rights for news content would likely benefit third parties who figure out how to exploit the system more than news providers themselves.

“Copyright is a form of subsidy, and these policies hand over property rights to incentivize news,” Siy said. “But monetization of news is very different from the news itself. Creating new rights is not necessarily what we want to do to tackle these problems.”

Greenberg and Siy agreed that aggregation is only part of what ails the news business, with other challenges including the decline of classified advertising.

“Traditional newspapers are still responsible for most professional reporting, and the information they generate is essential for democracy,” said Greenberg. “The challenge is how to monetize what is still considered a valuable product but that few are willing to pay for.”