If Tech Hurts Newspapers, Can Tech Save Them?
Published December 2020
One of the many developments that have hurt newspapers is tech companies and their websites that collect and display headlines and story ledes from websites of newspapers and other news sources. The tech companies have argued that they drive traffic to the news organizations’ web sites from users who click on the headlines and ledes on their sites, which lead the users to the news organizations sites to read the full stories: users that the news sites can monetize.
But news organizations have complained that many users of the aggregator sites do not click on the links to the full stories, with the headlines and ledes being enough to fulfill their desire the keep informed.
Legally, the tech companies have justified their use of the media material as a “fair use” under copyright law. The principle allows for limited use of copyrighted materials without permission of the copyright owner. There is no set standard for determining what is fair use, although the federal copyright statute lays out four factors to be considered in making this determination: the nature of the use, the nature of the original work, how much of the original work is used and the impact of the use on the potential or actual economic value of the original work.
For the third factor, it is important to note that there is no “magic formula” or limit to how much of the original work can be used; it all depends on the circumstances. And since the primary purpose of copyright is protect the economic incentive to make and profit from creative works, courts will often emphasize the fourth, financial factor in determining whether a particular use is infringement or fair use.
Several news publishers believe that the aggregators should pay for use of their headlines and ledes. But this has been hampered by the general understanding in the United States that while news organizations have copyrights in their entire stories, the headlines and ledes have only minimal creative content and thus are not strongly protected by copyright.
Despite the precarious legal stance of the publishers, last year Facebook approached several publishers to license their content for its “Facebook News” feature. While some publishers praised Facebook’s efforts to compensate news publishers for using their content, others complained that the fees were only going to the largest, most prominent news organizations, not the smaller news organizations whose ledes and headlines are also featured on Facebook and other sites, which usually are in more dire financial condition.
Outside the U.S., other countries have been more aggressive in requiring aggregators to pay for news content. In April, French anti-trust regulators ordered Google to pay publishers for use of their content, which was recently upheld by an appeals court. And in Australia, proposed legislation would require aggregator sites to negotiate with news sites for use of their content, leading Facebook to threaten to remove news from its sites in the country.
Meanwhile, in the face of pressure from Europe Union regulators, in early July Google agreed to pay news sites $1 billion over three years for use of their content in its “News Showcase” feature, in which the news to be shared will be curated by the news organizations themselves. To start, Google announced agreements with 200 publications in countries including Germany, Brazil, Argentina, Canada, the United Kingdom and Australia.
Google has not announced when – and whether – it will expand the program to the United States. But in the U.S there is a different issue: calls to revise and enforce anti-trust laws against the major tech companies. One Congressional proposal would give print news companies a limited, four-year exemption from anti-trust laws to allow them to collectively negotiate fees for usage of their content by online aggregators.
In the United States, requiring aggregators to pay news sources for use of their content would likely be subject to a First Amendment challenge. But the tech companies will likely face increasing pressure to pay for their use of news content, in a context where government officials are more skeptical of their operations and their impact.
Eric P. Robinson focuses on media and internet law as assistant professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 20 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not of his employers.