Canard Number 11 — Owning Facts
Monday, April 13th, 2009 by Patrick RossA few months back I wrote a series of blog posts compiled into a paper attacking ten common myths, or canards, about copyright. One I didn’t address, because it seemed obviously false, is “Copyright is an attempt to lock down facts.” Uh, no. Facts are not copyrightable. But expressions are. A website publisher in a recent post on a Knight Digital Media Center blog demonstrated how confused people can be on this point.
Robert Niles seems convinced that “big media” is out to control not just expression of news but news itself; it’s a common enough fear among some in the free culture movement, even though I don’t recall a time in my life when “big media” was less powerful, and the Internet is responsible for that. Still, as a commenter in the post notes, Niles sets up a straw man with this poorly reasoned analysis:
Newspaper companies became gatekeepers of information due to the happenstance of technology. They happened to own what was, for several decades, the most efficient medium by which to transmit large quantities of information to local audience – the printing press and gobs of newsprint.
Now, the Internet provides a better, cheaper and faster, alternative. But I fear that too many managers in the newspaper industry have conflated their ownership of a news medium with ownership of the news itself. That belief cannot stand. People must have the right to talk about the news, to link to it and to report upon it on their own.
Of course, he provides no evidence whatsoever that anyone in the newspaper industry in any way feels news can in fact be owned. There is no effort to keep people from talking about the news, linking to news stories, or reporting news on there own. NONE. In fact, newspapers would love for more folks to link to stories on their web sites, because that means the news will be read there, where the online ads are. Please do this.
Niles seems agitated at concerns among some publishers about unauthorized reprinting of actual reporting, reporting that involves human beings — reporters, editors, copyeditors — and costs time and money. He at first admits this is copyrightable, then demonstrates his lack of understanding of the issue by saying that the Associated Press can just do notice-and-takedown requests of sites reprinting AP copy.
First, the Digital Millennium Copyright Act only provides safe harbor to hosts of content if they don’t know they’re hosting infringing material. Many sites reprint newspaper copy intentionally, so no safe harbor. However, even if this is a user-generated-content situation where a third party is posting copyrighted work, news copy has a value based on immediacy. By the time the DMCA notice-and-takedown process worked, the damage would have been done. Niles, as a website operator, has to know this, so its disingenuous of him not to mention it.
He may not be aware of the “hot news” principle, something in the law dating back about 100 years for just this problem, namely that news copy is at its most valuable immediately after publication. In fact, a recent court decision reaffirmed “hot news” when it comes to online infringement, in a case involving AP.
It’s not entirely clear to me what outcome Niles is hoping for here. No one is trying to own news itself. Publishers are merely trying to preserve their copyrights over their own original works. No one is being prevented from reporting on the news separately, from commenting on the news stories (fair use) or linking to newspaper web sites. He cites growing alternatives to “mainstream” news, but that only reinforces the point that there are alternatives, so “big media” apparently is a really incompetent gatekeeper. In fact, there doesn’t appear to be anything wrong here at all.
Of course, that is true with all of these canards. Upon further examination they are meaningless, yet some of us have to keep addressing them. Let’s make “Copyright is an attempt to lock down facts” the first canard in my sequel paper, which I wish I didn’t have to write.
