Hyperlocal news publishers that rely on aggregation or content from other sites need to think carefully about how they present it. Threats by large media companies over aggregation of their content and this month’s highly profiled spat at the Poynter Institute over attribution highlight the perils that publishers face when they rely on third-party content.
This month, Jim Romenesko, who covered media news for the Poynter Institute for 12 years, resigned after a run-in with the Institute over attribution. Romenesko was not accused of plagiarism, but Julie Moos, Poynter’s director of Poynter Online, claimed he did not provide adequate attribution for his sources. “Too many of those posts also included the original author’s verbatim language without containing his or her words in quotation marks, as they should have,” Moos posted on her blog. It should be noted that not everyone at Poynter agreed with Moos. “I disagree with my bosses on the egregiousness of Jim Romenesko’s aggregation practices,” Kelly McBride, Senior Faculty for Ethics declared.
In addition, large media entities such as News Corp have recently launched a public relations assault on sites that aggregate news content, such as Google News. Rupert Murdoch, News Corp’s chairman, has accused such sites of “looting news articles.” The Associated Press threatened it would “pursue legal and legislative actions” against certain content aggregators. Cook’s Source, a cooking magazine, shut down its Facebook page and site after Monica Gaudio discovered that the magazine had copied her entire article from her blog without her authorization.
These examples show the perils that publishers of all kinds face when they rely on third-party content without proper authorization or proper attribution. Copyright law and best practices come into play. There’s a misperception that content on the web is free to use. On the contrary, content on the web — including content produced by hyperlocal news publishers and their contributors — is protected by copyright law. The U.S. Copyright Act protects “original works of authorship.” Copyright law does not protect facts or ideas, but it protects the way such facts or ideas are expressed by the author. The owner of the copyright has complete control over how the content can be copied, changes, distributed or made into other works.
What are the options? Publishers can get permission to use the content. Such permission may come from the right to use RSS Feeds; some sites’ terms may permit linking with attribution; or the publisher can negotiate an agreement with another site. This topic will be covered in more depth in future columns.
Most publishers rely on an exception under the copyright act known as the “fair use” doctrine, located in the Copyright Act at 17 U.S.C. § 107, in which excerpts from copyrighted works may be used for news reporting, criticism, educational and commentary purposes. No permission is needed from the owner of the copyright. Four factors are considered for fair use:
(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. The scale tips away from fair use if the content is used for commercial purposes, which likely will affect most hyperlocal news publishers.
(2) The nature of the copyrighted work. The scale tips in favor of fair use if most of the work involves facts rather than fiction.
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole. The less used, the better. For example, the U.S. Supreme Court ruled in Harper & Row v. Nation Enterprise (1985) that The Nation magazine’s publishing of several hundred words from the manuscript of President Gerald Ford’s autobiography “A Time to Heal” before Harper & Row published the book was not fair use of the excerpt. The Supreme Court ruled that the excerpt constituted 13% of the book, which was substantial and, considering The Nation’s commercial use of the transcript, was not fair use of the manuscript.
(4) The effect of the use upon the potential market for or value of the copyrighted work. This is probably the most critical aspect of the fair use analysis. If use of the content deprives the original source of its economic value in the content, then the use of such content likely would not be fair use.
Under fair use, commentary is fine. But a publisher should make sure it takes the smallest amount of what is necessary to drive home a point. Wholesale copying inexorably replaces — and takes away the value — of the protected economic value of the original work.
What are best practices from an industry perspective? In an e-mail interview with Street Fight, Jeff Fruit, director of the School of Journalism and Mass Communication at Kent State University, said he emphasizes the importance of transparency to his students: “Follow the grammatical standards for attribution that have stood the test of time and new platforms may develop new standards, so long as they are clear and transparent,” he said.
Regarding new platforms, such as micro-blog sites like Twitter, Professor Fruit advised “With truncated communication forms like texting and tweeting, standards which evolved for prose on paper may not be adequate or functional. Language and style are living, breathing things, not immutable etchings in stone. So I lean toward the clear and transparent. For blogs, using quotation marks remains effective and crystal clear. For texting and tweeting, though, the functionality of quotation marks seems inadequate.”
This column provides general information only, and does not give legal advice. Since content acquisition and content syndication plays a critical role in the life of a hyperlocal news publication, this column will continue to provide from time-to-time additional articles on content acquisition, including, obtaining rights to use content and other aspects of fair use.
Brian Dengler is an eMedia attorney and journalist who covers legal issues in eMedia. He is a former Vice President of AOL, a former newspaperman and EMMY-winning TV journalist. He teaches eMedia management as an adjunct at Kent State University.
Photo Credit: Flickr user desiitaly.