Extra! Extra! The Scoop on Copyright & the News

Extra! Extra! The Scoop on Copyright & the News


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law. *** Ask>>Extra extra, the scoop on
copy right and the news. Please welcome acting register,
Karen Temple. [ Applause ]
>>KAREN: Thank you very much. Welcome to the 19th copyright
matters event. This is to discuss and highlight the
importance of copyright in our everyday lives. Since then, we have had 18
events highlighting such things as copyright and the American
song writer, best practices in fair use, and women in
innovation and creativity. Today we are excited to have an event
highlighting the relationship between copyright and journalism, extra
extra, the scoop on copyright in the news. With that, I will turn
it over to associate register for public information and education, Katie
Rolin, who will say a little bit more about our program. Thank
you very much. [ Applause ]
. >>KATIE: Thank you. Today we
will be talking about the unique relationship between journalism and the free press and copyright
. Most of you are familiar with the free press in our country. It’s enshrined in the first
amendment of the constitution. The quality of the constitution
and journalism are deeply entwined. What you may not be familiar
with is the relationship between copyright and journalism. The first copyright back in 1709
would pave the way for printers to print without fear of censorship from
the king. Founding fathers took note, and
they established the first amendment as well as the progress clause FL. They have maintained
their relationship. Over the years, publishers and journalists have used to fund
their business models and worked with
copyrighted materials themselves. Journalists and the
use reporters often use the works of others as well
as create their own. The copyright act is made so
that it will deal with this issue easily. It has exempted
facts from coverage so that as many journalists and
photographers as want can go ahead and report on the news of the day. News reporting is singled out as
something that may be fair use. Today we will talk about
copyright law and journalism are working
together, the benefits, and the new age of the
internet. We have a lawyer here at the copyright office, but
that’s his second career. He previously was a reporter for
five years, so I will welcome him up
to introduce your panelists. Thank you, Brad. [ Applause ] >>BRAD: Good morning, and thank you for
joining us here at the library of congress. I am thrilled to be
doing this event, and I can say personally, I am
too, as Katie mentioned. This is a unique intersection of my
interests, and it is a pleasure and delight to welcome the panel
we are have here today to discuss the issue of copyright
and the news with you. I’m going to start by giving a brief introduction for those here. On
my right is Jonathan. He has represented clients with respect to numerous federal and state
law s. Jonathan is an adjunct professor
at Georgetown university of law professor. In 2017, he received the ALA’s
L. Ray Paterson copyright award . P- His research and specialtists
are answer national law and cyber
laws. As Michael discussed a little,
he is also a founding member of creative comments, and is on the
board of directors of the public library of science. To Mike’s
right is Sharon farmer. She served as director of White
House photography office from 1999 to 2001. Before that, she
had been at the White House for six years as a
photographer. Sharon has been a professional photo journalist
for 40 years and has shot news stories, political
campaigns, stories and events, culture and conferences for the likesovers
of the Washington post and the
Smithsonian and more. Robert LaVign is a journalist
who writes about the digital — as well as privacy. He is the
author of free ride. How digital parasites are
destroying the culture business . To report’s right, at the end
of the panel is Tom Curly. He is a former newspaper journalist
like myself, who also made the interesting decision to go to
law school. He serves as associate general
counsel for one of the largest newspaper companies in the country . Tom is responsible for liebel
and more. With that, the panel is each going to spend five to
seven minutes or so discussing an issue related to copyright
and the news that they are interested in or they want to
share with you, and after that we’re going to discuss as a
panel a little more, and then we’re going to go to audience
questions. So, with that, I believe Michael is going to
start us off. » Great. Good morning, everyone.
I was asked to talk a little about this relationship between copyright
and news gathering. And I think as both Karyn and
Katie got us started. The copyright act imagines that
we will give authors exclusive rights. The power of those
exclusive rights is necessary for certain publishing
models . With news ATH gathering,
relationships is different . That’s less of a business
threat to me, so copyright is not playing
as essential of a role in that manner. So historically,
newspapers were not spending time registering their claims to
copyright. And in fact, it’s technology that made copyright become more relevant . The international news service
is gathering the stories and telegraphing that out to the
western United States ahead of the associated press, even
though these were associated press stories. A lawsuit followed, and the
supreme court created a quasi property
right in the news, which meant that you could exclude your competitors from
using the facts, but the rest of us could
use the news. It was free of the air, as the court would say.
That evolved. The telegraph and other
electronic communications made the competitive risk of copying
more salient. And so news gathering organizations started to rely more on
copyright vis-a-vis their competitors. That became more
intense as we got the internet . They realized that they had
competitors that are like let’s just take news stories and republish
news STORT stories and commenting on
them. And a number of organizations successfully sued saying that
entire re-publication is not fair use. Total news created a
sort of frame around the website of news
sites, and sold ads in the frame. But adding no new value
themselves. And they also were shut down. So copyright was
important for some of these digital competitors, but
it’s still an ad-supported business .
We see the “New York Times” figuring out a business model
where they increased subscriptions that
rely on the exclusive rights of copyright as part of the ability to sell news to
subscribers. I think a lot of organizations are struggling to
figure that out. Within the industry, a copyright has played
an important role because you have employees who, under the
work made for hire, create copyrighted works that are owned
by the news organizations. But you have a lot of
freelancers and stringers who are independent contractors who
may own their own copyrights and sign agreements with the news
organizations, and that’s how they get paid, because they are
authors under the copyright act .
So when we see other digital transition problems, a case
involves a right under the copyright act of publishers of
collective works to revise those automatically without having to
go back and revisit those contracts. The question was,
when you take all of those print publications and put them in a digital database, does that
count as a revision or not? And the number of freelance authors sued the New York times and
other publishers saying that it was
not . So, I hope to have more to
say. But the last thing I want to
say, we’ll hear more about this, but the thing I love about this
topic, and thanks to the copyright it also shows the importance of
needing the ability to use the works of
others . So, exclusive rights and fair
use live side by side in the journalism
model. And we know that the ability to quote has been it was the quotation of
Gerald ford’s memoir to say that the
court went too far. The same thing happened again with Hillary Clinton’s first men
memoir where an excerpt of her book was printed and we had
exactly the same lawsuit. I thought that was interesting.
Thanks, Brad. » That is a great segue to
Sharon Farmer who worked in the Clinton White House for eight
years and has been a freelancer before and since then.
» They are scaring me about copyright, about what can happen
with your work. When you work for government, you’re not worried about that, because
you know it belongs to y’all. It’s about you, the taxpayer . So, America owns my work. As
time goes on, and you look back at what you’ve done, you go
that’s historical. Here we are having lunch with
the king of Jordan and president Clinton
had orchestrated this. They wouldn’t talk to each other. So, they sat down and had a few
pleasantries, pulled the napkins out, and I watched the president
look at the king of Jordan, and the king looks at the president,
and the president gets up. Okay. We’re going to leave you guys
here to figure it out. Enjoy your lunch, and they were
like hmmm. As we all leave, president Clinton is telling the
secret service, nobody goes in, I don’t care if it’s their guys
or not. And we leave them in an hour and a half by themselves . You appreciate people that know government
matters. I’m a fly on the wall. I’m also furniture. You don’t
talk to the furniture. This is at the U.N., and Nelson Mandela
and a government who is going to take his place in south Africa,
and we’re walking along. These guys got together all the
time. He always had ways to talk to people who did not want to
talk to him. President Clinton was one of the friendliest
people I ever met in my life. If you put barriers up, he steps
across them. Air Force one is like a big office building, but it’s fun, because
we’re on a mission. So, I get to take pictures of people who work
around the president, who work for the president. The people who have issues . Am I worried about copyright?
No. I’m worried about history. And the wonderful thing about as
old as I get, we get to go back to places I started at. This is when the Cleveland
Indians dedicated their new stadium in Cleveland, and the
guy on the left is Michael White, who was mayor at the
time. Michael went to Ohio state with
me. And there’s nothing like going, you did good. I’m telling
Michael he did good, and he’s like you with him? You did goo good, too, Sharon.
When you come back home, all through your career, I’ve taken
pictures of everything, including this great
panther here. She helped make sure the seniors
had Medicaid and Medicare . So, that keeps me up in the
weird hours of the night. From 1:00 to 4:00 four days a
week, I’m up sifting through what I call the old stuff. But
the old stuff is important stuff, because it’s the history
of a community of the nation. But yet, my stuff from the
president lives on in the archives. The presidential
library. Am I worried about that stuff? Huh-uh. Am I worried
about myself. Uh-huh. Thank you. [ Applause ]
» Okay. I think Robert LaVign now is going to talk a little
more about what Sharon is worried about.
» That’s a tough act to follow. I feel like I should
have been introduced on the panel as the journalist who
wasn’t smart enough to go to law school . I want to start out with a
quick story. I wrote a book called “freeFree
Ride.” I think it’s right in some ways and wrong in others,
which is about average for predicting the future. But right
when it came out in 2011, I met a silicon valley entrepreneur. I
knew him already. He congratulated me on the book.
And he said you know, I’m a little surprised that you’re so
conservative in your views on the media business. What about the world of
Wikipedia? Collective creation, citizen
journalism? All of the stuff that at the time was pretty
exciting. It still is pretty exciting. I think we’re more
realistic about it now. It’s important, but it’s not
everything. Musicians will make money on
tour. I said what about writers? He said writers will make money
speaking about their books. I will pause here to add that I’m
not being paid and I came here on my own dime, so that hasn’t
been such a great — anyway… [ Laughter ]
I asked him about newspapers. He said citizens
can gather news. And that’s true. What about Iraq ? He said people there will
document what’s going on around them . We think of the news as a
public good, and it is. But it’s a living to some people. Not a
great living, but it’s a living. You need that incentive that
copyright provides . How do you know the person who
says he’s reporting from Iraq, the Iraqi is reporting
accurately? How do you know he’s even in Iraq? Was it a 400-pound guy from NJ? New Jersey? You never know. He
said I was cynical. Maybe so. I didn’t predict any of our
current troubles with the media. It would have been beyond me to
even try. There’s a lot of things about the world today
that I think are sort of unpredictable, but there is a
point here. Over the years there’s been a lot of talk about
how the news business didn’t need copyright as much anymore.
Everything was going to be freon line. And all of these forces
were going to remake the news business, our
nation-based journalism, citizen journalism. I think those things
are important. They have done a lot of good. Pro-publica is good, Wikipedia
is fantastic. There’s a lot of great stuff. But I think even now in 2018,
the model of for-profit news is surprisingly dominant. If you
look at the major scoops this year, a lot of them have been in
the New York City times and the
Washington post. Old newspapers, broad sheets
read by, you know, not spring chickens,
shall we say? The upward demographic. Once you’re over 34, advertisers
just lose interest. And it’s interesting. You know, this idea
that bloggers were going to change things. Bloggers have changed things,
but the discussion about what’s going on is still largely driven by print media, or media
originated in print, but a lot of it is read
online . In 2010, when I was reporting
the book, I went to the American society of newspaper editors.
Picture 2010. Eric Schmidt was the keynote speaker and talked
about how much Google was going to help the newspaper business. Most of the editors awes
applauded. They didn’t ask tough questions. At one of the
panels, a staffer from the FTC talked about the
excitement around innovation in journalism. Patrick, who ran overstock. com was starting deepcapture.
com. And everyone nodded. Well, if you know about Patrick Burn
and overstock.com, you might be able to guess what was on the news site that he funded . It was mostly investigations
that were not entirely true about journalists that were
reporting on him. Not going to say what Patrick
Burns does or why, because he’s a
litigeous man, but you can decide whether
that’s a good thing. I don’t want to make fun of it. There has always been news done
for partisan reasons for people who wanted to set an agenda. I
don’t think we could stop that. I don’t think we want to . I don’t think we could
legally. But it’s important that for-profit news continues to
exist, and I think that copyright supports that. The main way is through
advertising. Increasingly now, we’re talking
about selling content. If you remember a few years ago, when the “New York Times” put up a
pay wall, people acted like it was the end of the “New York
Times”. What’s going to happen to these guys? Now it’s half of
their revenue. And I think what Michael said was very important,
which is that the tradition of the news business was a lot of
the reporting done by the print media always supported other
businesses. Time magazine started out
summarizing a lot of newspapers. Drive time radio are essentially
summarizing newspapers. This was never an issue, because they were not competing to sell the
same ads. Now they are. Time magazine, the “New York Times”,
drive time radio show, they’re all selling online ads, many of
them to a similar audience in a similar format. Suddenly, copyright becomes a
lot more important. And I think that fair use and exceptions and
limitations are very important. You know, as a journalist, I
take advantage of them all the time. At the same time, there is this
idea that fair use is called an
exception for a reason people have an idea of
we’re going to take that photo and put
it in a scroll-through collection of
photos, and that’s transformative. Maybe not. You want to have a situation where
photographers and journalists get paid for their work so
they’re incentivized to do more. It doesn’t just keep them
creating, but keeps the other sites that depend on them
healthy. » Thank you, Robert. I think
Jonathan is going to talk more about exceptions and limitations
in copyright that are relevant and thousand they support
journalism. » Thank you very much. So, what
I’ll do is amplify a little bit on some of the various themes
that some of the previous speakers have alluded to. So, we have in copyright, a
balance. On the one hand you have the exclusive rights that
are granted under the copyright act, and then you also have
exceptions and limitations. And that is — especially in the
news business, those SENGSs and limitations are critical so the fact of what the score
was in the football game last night,
you know, when the Patriots were playing
against the Chiefs, and won by three
points? Okay. That is a fact. And an article that explains the
details of the game, any fact in that article is free, and other
people can use it. But the expression of those
facts is not protected. And that’s critical, because as
we’ve heard, we have all of these scoops over the past year
by the “New York Times” and “The Washington Post”, but
everyone else can then write about those scoops and build on
the scoops and certainly can investigate and so forth. The
post and the times don’t own those facts. Those facts belong
to all of us. And that’s, again, you can’t
have a news industry if you can’t have
other people using the facts uncovered
by other organizations . Mike alluded to the correct
news doctrine. And more recent case law calls
into question whether the hot news
doctrine still exists. But that was also a very specific example of, you know, people
sort of copying not individual facts,
but entire AP news feed and retransmitting
it as such without really developing
their own stories and investing any
additional labor and effort. But again, the key is that
excluding facts from protection are critical to the copyright
industry. Similarly, you have the idea expression dichotomy,
that copyright protects the expression, but not the ideas.
So, and again, these are all
metaphysical distinctions . The fact that ideas, various
concepts and principles that are articulated by one person or one organization,
one newspaper, the editorial in one newspaper where someone else
can use some of those idea s in subsequent publication . One ironic wrinkle here is
there is case law that suggests that discovered facts are not
protected by copyright, creative facts may
be . So, fake news might be
copyrightable, whereas the real news, the real facts might not
be. But that’s a discussion for
another day . That is incredibly important
to the vitality of the news industry that works that are
created by the U.S. government’s employees can be freely used. So, it’s whether it’s the
photographs that Sharon took while she worked at the White
House or the U.S. government publications that are used by journalists, having
that limitation is important. Another limitation that is
essential in the digital age is the safe
harbors. That allows a platform to allow
other organizations with the news organizations have
websites. So, it’s not necessarily citizen
journalists. That’s a subject for another panel about how effective that may or
may not be. But it certain ly — and thereby achieve wide
distribution lowers the cost for people to enter the news business . They need to find a business
model or a revenue source. But certainly the ability to have that reaches a large
audience at low cost is a fantastic development. The number of professional
bloggers and professional news channels — again, who knows how
much money they necessarily make, but they seem to be making
enough money for them to exist. That can only exist by having
platforms that allow them to upload their content. And that, in turn, typically
relies on these safe harbors so that the platform is not secondarily liable and that reduces the cost significantly of distribution . The final point I want to make
how about copyright exceptions play
an important role in the eco-system, and particularly
relevant to us being here at the library of congress is
that, you always hear that newspapers are the first
draft of history, but it’s a critical draft of history,
because later historians go back and look at newspapers to find
out what people are talking about and thinking about at a
given time. But they can only do that if the newspaper is
preserved. It’s one thing if the news PAP SER stillpaper is still
around. It may have archives. But a lot of these smaller
newspapers go out of business. And it’s the library that
preserves them. And a library preserves them by copying them. In the old days it was micro
fiche. Other people have mentioned fair use. I’m going to
say it’s really important and take it to Tom to explain why.
» Thank you . I started out as a newspaper
reporter, and then I died and went to law school, and I came back, and I’m now working at a newspaper
called cadet. They publish in places like
Cincinnati, Des Moines, Indianapolis, New
Jersey, phoenix, Arizona, all other the country. And in some
ways, what we do is very different from the big city
newspapers. Just to give a little perspective and to talk
about fair use, too, as you may have picked up from what other
FOERK folks were saying, there’s a bit of attention from media
companies and journalists when it comes to copyright. We can’t live without it in
terms of protecting what we create. But on the other hand,
we are one of an entity that relies on fair use, on taking
things that are out in the world and making them our own. Perhaps more than any other
creator. Certainly among the creators who
take the greatest advantage of fair use. And it’s very
important that facts can’t be copyrighted. It’s very important
that we can report on things we haven’t witnessed first-hand or
digest the things that are first reported by others . We can’t live without fair use
but on the other hand, we can’t live without protection for our product . It is not intended as a
criticism . They deserve credit for what
they’ve accomplished, but it’s somewhat unique in terms of what
the situation is, which is to say there’s a dwindling number
of folks who are still passionate about print. I’m glad
some are still on the stage with me. But most people get their
news online, right ? And most people get their news
from not only your website , but they may get it through
Google and Facebook, and Google and Facebook are largely immune due to federal
law to libel suits. They can pass the news on without
incurring risks or libel or privacy from doing so. And they’re largely immune from
copyrights. Not completely, but largely. So, they’re in a good
position, a position that we’re not. We’re proud to stand behind
our journalism and defend libel suits, but they’re in a
different position. The other thing that’s different is the
advertising model. When I started, we — our distribution vehicle was usually a truck and
a bunch of burly fellow s who brought
that truck to a central point. If you
wanted to buy an advertisement, you HAUD to talk had to talk to
us. Most of the digital advertising is going to
platforms and media companies are only getting a small part of
that. Again, it’s not intended as a
criticism of Google or Facebook. They have come up with a model.
They have built a better mouse trap and people want it. But
what’s the effect of that? The effect of that is a real
challenge for newspapers to finance the
kind of journalism that I think people in this room want. I’m
not so worried about the Washingtons or New Yorks of the
world or the, you know, the big city ies in terms of whether a single
newspaper can survive and thrive or whether there is a
billionaire who wants to purchase one or start a
nonprofit to do investigative journalism. But I’m worried
about more the cities outside of the largest cities in the United States and what they need . I don’t know how many of you
are familiar with the story of the teen physician for USA gymnastics who
was accused of sexually abusing hundreds of young women. It was
a huge national story, right? And the doctor was convicted to
spend the rest of his life behind prison. That story, I doubt maybe any of
you know was broken by the
Indianapolis star, which spent months investigating, talking to
gymnasts, going through court filings and lawsuits. They broke
that story, and it led directly to hundredsover other women coming forward and indictments
and conviction. I would say the reason they did that story was because a particular gymnastics federation was based
in Indianapolis of other women coming forward
and indictments and conviction. I would say the reason they did
that story was because a particular gymnastics federation
was based in Indianapolis. That’s the kind of reporting
that I am afraid would be affected . Maybe some of my colleagues on
stage will have ideas for that. But I — there is not any doubt
in any mind that it’s important and that it’s important to a
Democratic society, and if we figure out a way to do it,
people will pay for it. » I have a different opening
question for the panel. I want to start with what Tom was just
talking about. This is something I’ve published
a few articles on business models and
legal mechanisms for the newspaper industry, and the news
industry, but really newspapers, because those continue to be the primary gatherers of new
information. The news that no one wants to pay for, the news
that doesn’t get paid for because it doesn’t generate
national or international clicks, but local news,
investigative news, and stuff that is costly with a narrow
interest. The question I have is what role does copyright play
uniquely in the story of news being local?
» If you don’t have local news, why on earth do you want
to let people go coast to coast being crazy when you got stuff
right in your own backyard that needs your aDENGSttention.
Details in communities are still the most important thing. It helps us grow up to be good
citizens. It makes USSs us read. If we have to only deal with the
New York times and Washington post, a lot of wonderful little
people get left out of the equation of how things are done.
What kind of goals can we set if the community paper is not
pushing this stuff? » And I think what I was talking about, the platforms and the
safe harbors for the platforms is a critical piece of that, because, you
know, I live in Rockville, and so there’s a
local website — it’s not local, but
accessible everywhere. But there’s a website that says that
in rockville and other areas of
Montgomery county, it’s a two or three-person operation. In the
past it probably would have been a much bigger operation, but
it’s able to survive with two or three people because, you know,
they don’t have to worry about distribution. They don’t have to
have the burly guys. They don’t have to print. They are just
able to upload things directly. Now, they can cover all of the
short-term local news pretty well. The local football games and,
you know, the — what’s happening with the
mall. I don’t know about the longer term investigative
journalism. In that piece, I’m not sure they
would have done that in the past, either. But they may be
more of an issue. So, part of the solution is the
maintaining the safe harbors that allow the platforms to allow the very
low cost production and distribution. But you still need to find new
business models, advertise inging might be one and
foundations might be another. It seems that where copyright would
come into play is making sure that the platforms are able to
make space available without liability.
» I think one of the problems with local news is it’s harder to
sell. Think about the news that people are willing to pay for. The Times and Washington post
has had good success with pay walls . Local news, Kansas city,
Indianapolis, Cincinnati, it’s hard tore
harder to charge. If you think about the ad base that supported those papers, the “New
York Times” and Washington post were running a lot of national ads, movie
openings, stuff like that. They were competing with magazines
and television. The Cincinnati paper, phoenix
paper, they were running ads that national media — they were not well
suited for national media. The Toyota ad that was a co-op
with the dealership, the local department
store, not the fashion ad that’s caught up with the local department store in
that city . They had that business to
themselves. That’s not the case anymore. If you’re on Google or
Facebook looking at national news from Cincinnati, they can
serve you up that ad equally well. Those papers don’t have
much protection. And the other thing, and I don’t have an
answer to this, you know, like every journalist, I rely on —
my work is built on the work of other
journalists. Intellectually. I don’t copy anything more than
I’m supposed to, but I rely on other
work to give what DOI I do context, just
like everyone I work with does. But if you look at what the
Indianapolis Star did, I’m assuming that took months, maybe
more than one person. That’s an enormously expensive
undertaking. And you know, it’s especially relevant to
Indianapolis. I knew that that paper broke the story. I had no
idea why. You now see that story in vanity fair and “New York
Times”. People who are reading that story, most Americans,
they’re getting that news from honestly whoever gains
the Google search results the best. So, what is in it for the
Indianapolis Star to invest so much in that
reporting, knowing that they’re not getting as much out of it as
other entities? That’s a very tough question. It probably sort of supercedes
this idea of the platforms. It’s something that really is
especially pressing now, because those competitive barriers are
gone. It’s like everyone against
everyone. The online advertising business is brutal.
» Yes. I think that’s all true. I think we face
challenges. And there are other issues as work, as you said.
The department stores that used to be dominant or facing Amazon.
» Not local department stores.
» There are a few. But I mean, bringing it back to
copyright, and I don’t mean to suggest this is necessarily a
solution, but you are starting to see, for example, in Europe, the idea of a
publisher’s copyright. A license for that little digest, the two
or three lines and the headline and the thumbnail photograph,
and that’s one idea they’ve turned to there. Another issue
that lurks and that the news media alliance, which is the
trade organization that represents the news media has
looked at is, you know, collective action in terms of
being able to negotiate advertising rates with the platforms . That would require an
anti-trust exemption to do so. This is increasing a dedicated
revenue stream to make this kind of journalism possible.
» I think, you know, I’m worried about this press publisher’s
rights in Europe. It’s asking copyright to solve a problem
that’s based on the advertising market. That was tried in Germany and
Spain and it did not produce revenues, because Google said if
you don’t want your publication in Google news, that’s fine. And oh wait, I do want my
publication in Google news . I think this is really hard. I think taking the point that
each creator of local news is an author, and thinking about
different business models in which you can get groups of
authors to work together and have enough financial incentive
would be the future. I think using technology, artificial
intelligence and other data-driven journalism, where if
we had local governments that had to produce publy records in LIlic records in ways
that AI could digest, we could use AI to
do the first pass and find the patterns. But it’s still not
going to solve the revenue problem unless people are
willing to pay. And they’re either going to pay with their
eyeballs or with their pockets. And maybe some ability to
aggregate the content and maybe combine it with your internet
service. There are other ways to think about doing this, but some form of
bundling strikes me as a way to get
people to pay. » So we were talking before this
program began, and I mentioned that I entered journalism in
2004, and these were sort of the last days of
pretty outrageous profit margins for most newspapers. Nobody has
those profit margins anymore. They may have sold buildings and
selling papers and staff into retirement, right? But now, you know, newspapers
and news organizations and this is across the board, really, are struggling.
It’s not just copyright, right? We would be really narrow-minded
to suggest that because this is a copyright office event this is
all about copyright. There are other challenges and changes
that quite a few people have mentioned the changes in subscriptions and
in ad rates. The phrase I always think of is
digital dimes versus print dollars. The value is just not
there as much. The ad is more targeted, the
eyes aren’t as captive. But, in the past 20 years, I’d
like the panel to discuss how news organizations and
individual journalists have changed their understanding of
the importance of copyright law to news, and how
much that’s had to do with changes in technology and how
much that has had to do with changes in business
models. » I would like to — when you
talk about the understanding
individual journalists have of copyright —
» I’m making an assumption. » I’m going to say this. You
shouldn’t presume that individual journalists have any
understanding of copyright. Journalists, because of sort of
— I don’t want to say that a group of people has a systemic bias, but I think
that certain occupations give you a certain way of looking at
the world. Not that everybody looks at it that way. But there’s a tendency —
journalists tend to be absolutists. I think
that’s healthy and natural, but in some ways it can give you a
pretty poor understanding of what the journalism business is
about. You know, when I talked to other journalists, they think
that, you know, they’re going to sell ads harder
if only the ad sales guy would sort of
sell harder, everything would be fine. And that’s just really not
the way it works . The “New York Times” has a
good idea of what an individual reader is reading in the “New
York Times”. They know I’m reading a lot of stories about
music and not a lot about sports, so they probably think
I’m a young woman. That’s what they know. Google and Facebook
know — I mean, they know what I had for breakfast this morning. The newspapers, you have to
stand behind everything you publish. I can’t imagine the
libel threats you get. I get libel threats, and I don’t
even have any money. You want to sue me, have fun! But, there’s the tilt there.
Companies that know more about their readers have an advantage
in selling ads. CPMs, cost per thousand per
advertising is declining. As a gatherer of news, you are
bearing expenses that platforms do not bear. The competitive
playing field is not even. How much of that problem is
created by anti-trust enforcement? How
much is created by copyright? What the solution is, is very
difficult. But, when you talk about just
how journalists understand it, people tend to see this as
copyright and this as anti-trust. Even the people who cover these
things, I have to say, it’s very
complicated. People don’t have a sense of how they interact. And it’s a problem, because they
tend to see it as the issue of the day. This is anti-trust; this is
copyright. They don’t see how all of these
things interact. » I think it would be more
helpful if more newspapers spelled it out like that. There ought to be a page that
says these are simple answers to your
complicated questions. Here are five questions and our
five answers. That would be so helpful. My head is spinning
just listening to you guys talk about all this
stuff. What am I going to do when I go home tonight?
» Go to the copyright website. That’s what I’m gonna do .
» I think you’re right. But it is — there are the
journalists who said this model looks like
it’s not working out. Are there other models? I think the
journalists have decided to launch things like Pr opublica, or decided that you
can make a living as a blogger if you have a niche area that you’re an expert in . But I think it doesn’t solve
the problem that we’re all collectively worrying about,
which is the traditionally, more financially intense I-
organization. tensive organization. And I don’t know
that individual line journalists have changed that
much. » I would say, particularly when
I started as a journalist, the
understanding I had of copyright is that it would be fatal to my career
if I copied someone else’s work and didn’t properly attribute
it. But I understood that to be
plagiarism . — I think journalists have a
greater appreciation because they see
greater numbers being employed. Which is sad, when you see the
stunning work that you had up earlier and how beautiful that
is. There’s another issue of copyright which we haven’t
touched upon that we see a lot, and it’s probably
uppermost on journalists’ mind, and that is when they engage in
fair use. I’m saying most of the copyright questions that I get,
and we have 3,000 journalists and one lawyer for
copyright — me. So, I get a lot of questions. Most of their
concerns are about getting sued themselves. That’s where their
focus is. Because there’s certain categories of copyright holders that can be,
you know, verily TIJeous . litigious. And so, we’re very focused on
that. The copyright act, as many of
you may know, provides for not only
actual damages — what you can prove
and what your license lost, which is
usually a few hundred dollars, but also statutory damage . So, we are getting a lot of
claims directed at us saying what you’re doing is not fair
use with respect to a video or a photo or even print
articles. There’s been a real cottage industry there. When it
comes to journalists, most of the questions are about avoiding
being sued themselves. » That’s actually a big deal. I was joking about it earlier,
but as a freelancer, you know, first of all, a lot of you who
are attorneys, you wouldn’t believe the freelance contracteous signs you sign. You
have all the legal responsibility for everything.
They own the work and perpetuity for all media yet to be invented
on any planet we’ve yet to discover. The contracts are
brutal. And the legal responsibility
matters, I mean, I cover issues of law. So,
I may be more terrified than some. But, you know, I was — I guess
a couple of years ago, billboard asked me to do a story on copyright
related fraud that had to do with music that had taken place in Singapore, and I said
— my impression, I could be wrong, but some of the former British
territories have libel laws that are plaintiff friendly. And I
said I will not start that story unless you write me in the
contract that you will stand behind me in the event that I
get sued. And they said do you really think you’re going to get
sued? I said, no, I don’t think I will
get sued, but just in case, you have the assurance on my end,
why don’t I have it on my end? You would have thought that I
asked if I could start going to meetings dressed in a spiderman costume . It’s scary out there. That’s
scarry, too. This is not a platform. Someone had uploaded it and was
giving it away. I sent an e-mail that said hey, can you take this
down. The e-mail came back why. I said well, you know, it’s my
book. I don’t want to have to have a
lawyer send you a note. Can you just take it down. He said but
people want to read it. But yeah, I get that. And you know,
if you want me to send you a copy, I’ll send you a copy. You know, someone from Brazil
was giving me a hard time on Twitter and said we can’t get the book in
Brazil and I said I would send it. It was $20 to spend by mail, but
I did it. It’s hard to navigate this stuff to defend your
rights. I think the case act is interesting, because it gives
you a way to have lower stakes litigation, which will let
freelancers and photo journalists defend their rights.
It can be really terrifying. More and more journalists,
people don’t talk about freelancers. But more and more of journalism
is done by freelancers, and their legal protection is scary.
» If you don’t write your own deal, you’re going to forget
something that they put in there. And if you sign their
deal, and you missed a corner of some dot or what’s next, you’re in trouble . When they say I’m going to
send a contract, I tell them to, and I’m sure I’m going to rework
it. And now I have a book to protect me. Now that I know what
the copyright office can do, imma get them to
help. » I’m about to turn it over to
audience questions, so I’ll give the mic runners a chance to get
up. One point of clarification, when Robert mentioned the case
act, this is the small claims bill that is in congress right
now, and it would make it a lot easier to bring small claims
rather than federal claims in federal court . It was wonderful to get paid
during law school. But you mention the terror of
trying to navigate legal situations on your own. I’m
almost embarrassed to discuss what I used to think fair use
meant, and what my fair use best practices were in my head. I
will say that the office has a nice resource for those who want
to learn a little more about fair use, and that’s the overarching theme is public
education. We have the fair use index on our website. And if you
want to not get legal opinions, but to learn more about what
courts have said is or is not fair use, check that out. If
you’re a blogger, you really might want to check out the Morell
case, because posting photos that appear on Twitter is not
fair use. With that, can we get the
audience questions ?
» Is there any defense by the copyright in paper form or video form or
online anything ? That series should be?
» I don’t know that anyone up here has the answer to that
question, but our public information office or
Whitney behind you can probably answer that. If you, afterwards, want to talk
to Whitney, I think she can direct you to the right place. » It’s not often all the
people who run this place are all together.
[ Laughter ]>>Hi . Tom made a good case for
what’s happening in the newspaper industry in that it’s
hard to monetize the content when there’s tremendous
investment going into the investigative journalism behind
it. I wanted to ask the two
gentlemen, I believe Jonathan and Robert —
I’m sorry. And Michael, can you go — you
talked a little bit about the hot news
doctrine, and the INS case. And I was wondering if you think
that that same theory applies today, the technology that
misappropriates content. What we could do if we could resurrect
it. How that could work and how it would protect the content that we have
today . » The doctrine was created at a
time that newspapers were not relying on copyright. But under the 1976 act, congress
preempted state laws that are in conflict with copyrights. And so
having a state law that prohibits copying facts would be
in conflict except where the facts
constitute “hot news. ” The second involves sports
scores . So, you’re right. In the absence of legislation,
there’s very little that courts are likely to do to expand the
hot news doctrine. And again, given that we’re really talking about the advertising
market, it strikes me that even a more robust hot news doctrine
is unlikely to change the imbalance in power in the
advertising market that we’ve heard about more. So, I know — I worry about the
idea that more exclusive rights is going get the news gathering
organizations out of the financial squeeze that they’re
in, because advertising was always such an important part of
the business model. And it’s really the tectonic
shifts in the way that people’s attention are directed and news
gatherers used to be the central point of attention at
everybody’s morning breakfast table, and that’s just changed.
Until some new relationship between the platforms and the
content providers can be developed, I don’t think little
tweaks like a hot news doctrine is likely to save anybody’s
business model. » I agree with what Mike said. I
would just add that I think different organizations have
been able to find sort of their niche and have
been able to find a way to survive. It’s a
challenge. You know, the technology, it’s a
very disruptive time. And my business has been
disrupted by technology . A lot of my work and revenue
was based on reporting on developments,
copyright related developments and reporting on it to clients in Japan . They could rely on patent
trademark and copyright journal. But that was a hard copy and
would come out once a week or whatever. And I was able to fill
that space in. I would write a report and fax it, right? That’s
how. And I would be able to beat
them, beat the other reporters. Now you can’t do that. There’s
these online services, and they’re able to — I have had to
do other things . It’s disrupt SKPIFive and
challenging . My parents moved from Los
Angeles to here, they still have their FUNL FUNL funeral plots in Los
Angeles. They want to sell them . If you want to buy a funeral
plot, the place you advertise is the Jewish journal. So, they
make — and they charge a lot, by the way. But everyone knows
if you — and you think that there would be some online way.
Isn’t there some online market for funeral plots? No. At least for Jewish — if you
want to be buried in a Jewish cemetery,
the secondary market for funeral
plots in LA, the LA Jewish journal. They have it on lock
down. » That’s the other disruption
that we didn’t talk about. Everybody points as Google and
Facebook but not KRAS Craigs list. They essentially destroyed the
classifyieds revenue stream. There’s a bunch of examples like
that. I was talking about a job years
ago. I didn’t think it was a
publication that ran a lot of city and state legal notices . Off the top of my head, I
started to get the sense that this was about a fifth to a quarter of their
business . The music industry was
decimated by piracy. The proximate cause was, if you
wanted to buy a CD, there was nowhere
to buy it. Right now, the book business is doing pretty well. But, its fortunes are tied up in
the fortunes of Barnes and noble. God willing they stay in
business forever. But you have these things . A lot of advertising
businesses are vulnerable . People say it’s not reliable,
but I don’t think advertising is reliable either . » At the consumer level, as one
who consumes news and sifts through search results, some
people are asking how do you get people to pay ? So as a consumer of news, how do
you at the consumer level support a
paper you like if they’re still deciding what to do with changing technology or
pay walls? How do you as a consumer show
specific support? » My favorite question ever .
» Do you have an answer? » No. It’s great that someone’s
asking it. Signing up for a pay wall. And there’s a lot of
discussion about how do we get people to pay for
news . If you charge, I don’t know
that people will pay, but if you don’t charge, people absolutely
won’t pay. If you like a publication that is not
charging, tell them to start. They will be very surprised to
get that e-mail. These days you’re
surprised that you get any e-mail without profanity
in it. I think that’s the future. I’m not bullish on pay walls in
the sense that I think they will work for everyone. But as the advertising market
continues to get concentrated in Google and Facebook, a lot of
more publications are going to have to look into that. Some of
them are going call it memberships. Some are going to
call it donations. But what you’re basically looking at is a
pay wall. » What we have, we buy two print
subscriptions to the Washington post a year, because I take my copy to
the office, and my wife likes one
and we don’t like to share. So, we pay for two. » I get 11 magazines, and I read
none of them, basically. But I like all of them, and I want to
make sure they stay around. There’s a stack on my bookcase
in the family room that’s four feet
tall of magazines. It’s starting to look like I have a problem. LA Times and about a year ago,
they asked if I wanted to subscribe to the digital edition . But for 99 cents a year, I
signed up. Just to add one more number of support. Sometimes it
is about solidarity — well, that’s the wrong word, but
showing that you believe it’s a good product and you want to support it however
you can. » If we don’t support the press,
if we don’t read, you’re looking at a terrible dumbing down of all of
us . I pay for the Washington post
and “New York Times”, because both of them are in such
competition with each other, that they steal each other’s
journalists. I like that. Plus the more you read, the more you
get the nuances of what’s going on. I just read the story about Philadelphia with the drug
epidemic. The pictures are fierce to scare everybody that
drugs have gotten this far in our country. And a pay wall is
making me look at it. I’m telling my friends, you need
to get — it’s got a pay wall. Pay for it anyway! That’s what
I’m telling everybody. You must read. Everybody who doesn’t you
want to read, they’re not good people.
[ Laughter ]>>I think we have time for one
more question?
» Hi. I work at the parent company of LEXUS nexus, so we use news, we create
news. We love news. I wanted to thank the copyright office for
putting together this terrific panel. I wanted to shout out to
folks in the room who are perhaps on the up curve of
learning about copyright. I’m — we’re a member of the
copyright alliance, and they also have, in addition to the
copyright office, tremendous information, very user-friendly
information. You can go to copyright alliance.org. They
have revamped their website and even gotten an award. I want to
do a shout-out and thank the copyright office for for doing
this today. » We have time for one more
question, if there is one. » I’ll end on a constructive
note. So, many of the disruptive technologies that we’ve seen have been
premised on illegal basis. You started with Napster in the
music field. We have the music monetization
act because spotify and Pandora were
acting illegally without the proper licenses. The news aggregators have been
sued, because they are not fair uses, and they’re using all of, you know,
the other technology. And I guess it’s more of a comment.
You can license these things. There’s no reason that you can’t
have a proper license from the creative folks, the musicians are getting —
it’s 320,000 streams on spotify to
pay for what a band would make on one
album. How many professionalal
photographers who are still in business? You have musicians, film makers,
prints, all the publishers are out of business because people
have the mentality that it’s online and it should be free.
It’s all fair use. The whole copy left, which I
would call copy theft concept is so destructive to the people in
our country, and there is a simple solution. The users
should license it. Negotiate licenses. There’s no reason that the
creative parties can’t have proper licensing by the users.
And everybody wins. They have their content: It’s made
available throughout. And the creative sit
ZEMPBcitizens of the world get paid.
» If we could get people out to meetings after 7:00 or after
work to talk about being a journalist, to talk about being a photo journalist,
we could ban together and start to talk about the things that
are good for all of us. The most difficult thing now is, at least for my friends is, they
don’t want to come out after dark. And oh by the way, this
program is running on Netflix. They’re going to sit at the
computer and watch this stuff. It’s not helping the progress of
how we are as a community, and
especially if you’re doing intellectual stuff. You got hang
out with intellectual people so you can guard each other, teach
eeach other, embrace kids to come into what you’re doing
because you know what you’re doing is so cool. If you don’t
bring kids in, if you don’t meet as a group. If you think
television comes in to do decent human stuff, then we’re
all going to lose. If I don’t want that, I go out every night,
and I’m there. Television is not the answer. But what is the
answer is reading! If you read online, you could
read 24 hours a day. Those prime hours between 6:00 and 11 KBLG:00, go out and talk to your
friends about what’s going on with copyright and your businesses as a writer, a
producer of intellectual content. Otherwise, yeah. It’s
going to get swiped. That’s how it works.
» I think in the case of music, I generally agree with
it. I think there are cases when
it’s not that easy. There are cases when it’s not that easy to
get the licenses. It should be easier, and it will be easier, but I generally take a
point. » My overall high-level
rebuttal, and there’s many things I agree with
what you’re saying, but we have to step back and look at the
bigger picture. And I know Robert and others on this panel
might disagree with me. But if you look at the big
picture, you know, there is more music being
created now than ever before. There are more movies being
created than ever before, more books than ever before. And I
suspect that there’s actually more news organizations than
ever before. And a lot of that is because the costs of production and distribution
have dropped so dramatically because of the
internet. It does create disruptions for
existing businesses, but there are a lot of new businesses and
creators and voices. So, eventually, and the
equilibrium will be established. Sharon and I were talking before
about how it used to be so hard to be
— a photographer needed to know how to develop, you know, his or
her own film, right? You don’t have to do that anymore. The
barriers to entry into the photography profession are
incredibly low. And that’s harder for the more
established photographers. But this is, you know, it was a
progress. But it is — we do need to
recognize that is a trade off, and some
people are hurt, and other people are benefitted and — but
the bottom line is there is more creativity, more
creative activity now than ever before, and all of us really believe that we are creators, right ? We are all participating in a
way we have never been able to before.
» I agree with what you said. But I think there’s a lot more
photography being created because it’s easier to take
pictures. There’s a lot more music being
created, because it’s a lot cheaper to
make an album. You can make an album on pro
tools. You can shoot a film on an
iPhone. How good it looks is another story. I want to think
that we can appreciate that and honor that, because it does make
the world better when we’re all creators. But we can take
what’s good about that technology and also say, hey,
just because it’s easy to make an album, doesn’t mean you
shouldn’t pay for someone else’s. Just because it’s easy to take
your own photos doesn’t mean you
shouldn’t properly license someone else’s when you have to
and it’s not fair use. That’s not very catchy. But you get the
idea. [ Laughter ]
One of the things that happens is people do this, and it’s so
easy, and it seems easy, but you know, I’ve taken thousands of
pictures on my iPhone. They don’t look like her photos. It’s not because I wasn’t in the
same rooms, it’s because I’m not a photographer. I’m a guy
pointing my phone at something. I want to think we can have it
both ways, if that makes sense » No one is saying that
copyright should be abolishes or disrespected. My point is to the extent that
we’re making changes to the law, we
have to say what is the purpose of the law? Right? To promote
the progress of science and useful art. And at some point we
say, well, is there a shortage of art being
created? And even very good art being
created ? There are probably far more
bad photographs being taken now than at any point in human
history. No doubt. I took a lot of bad photographs
over my week of vacation. But I looked at my photographs
— I was in Portugal and I was there ten
years ago, and my last ones were better. And the I iPhone does take
better photographs than whatever I was useing ten years ago. There’s a lot more bad music
being produced, but a lot more good music being produced. It’s
a very complicated story. But what you were talking about
before about, you know, the enemy of the freelancer is not the end user
who may be copying — the enemy of the
freelancer is the publisher that you’re dealing with . So, the technology is allow ing.
» Enemy is a strong word. They’re paying me, but not as
much as I would like, so I guess that makes them a frrenemy. They need to have
enough money, that I want to — I want a bigger slice
of the pie. Enemy is a strong word. But there’s a sense that
there’s not as much pie to fight over. Is anyone else hungry?
[ Laughter ]>>I can’t — it’s hard to differentiate between the two . It’s harder to negotiate with
them because of that . It’s hard to separate all of
that out. » Thank you guys. I wanted to
thank all of our panelists. Weave had aWe’ve had a great
panel discussion. If you have anymore questions, feel free to
reach out to anyone after this. Our next event will be about the
public domain in January. Please keep tuned for that. Please join me in thanking all
of our panelists for the great discussion today. Thank you. [ Applause ]

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