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“Hot News” Doctrine Revived?

July 18, 2009 by · Comments Off
Filed under: Copyright Articles 

Author: Ed Nunes, Summer Associate & 3rd year student at William & Mary Law

One of the fundamentals of copyright law is that it doesn’t protect facts.  For something to be copyright protected there must be a modicum of creativity in producing the work, and what creativity could there possibly be in reporting the facts?   Yet, the “Hot News” doctrine stands as an exception to this rule that the Associated Press (AP) has been asserting in recent courts filings.

The Revival of a Doctrine

In 2007 the AP sued, and eventually reached a settlement with, Moreover Technologies Incorporated a web news aggregator for copying AP stories.  In 2008 they struck again, this time at the aggregator All Headline News.  This newest case settled on Monday, July 13th, 2009, depriving the courts the opportunity to look at an antique legal doctrine that was central to their claims.  A legal doctrine that was originally created in response to breaking news stories during World War I.

It all Began with the AP and a War

During World War I there were two competing major news services: The International News Service and the Associated Press.  At the time the only way to get current news of the war in Europe was through the government owned telegraph lines.  After INS’s unfavorable reporting on British troops, the British government barred them from using the telegraph lines, ending their ability to cover the war.  INS, however, created a new business model taking advantage of the US time zones.  When the AP released their morning news on the East coast describing the war in Europe, the INS would simply read the stories, rewrite them, and print the information in their morning edition in the later time zones.  Note: INS was also rumored to be stealing the news stories before publication through bribes and other nefarious means.

The AP sued the INS, won their claim, and in 1918 the “Hot News” doctrine was born, giving news reporters a quasi-property right in the information they report.

What’s the Deal?

The idea behind the “Hot News” doctrine is this — the US government wants to encourage the collection of news, as this is a valuable service.  When third parties can effectively report the news without expending any effort gathering the news they undercut the profits of those who do engage in news gathering (a “free-rider “problem).  The courts gave news agencies a short-lived property right in their news so that they can recoup the costs of collecting the news before the information is free to use by all.  This idea is very similar to reasoning behind copyright law (to incentivize “artistic” expression instead of news gathering/reporting).

Sounds Great, What’s the Problem?

Copyright law is a balancing act, with the desire to incentivize authors to create works on one side, and the value of the general public to freely use those works on the other.  Even with works that everyone agrees should have copyright protection it is difficult to determine how to weigh the competing interests (one only has to look at the controversies regarding music/file sharing to see the struggle between copyright holders and the public’s right to use and enjoy copyrighted work).  News agencies, however, have a property interest in facts, which stands against the general copyright law, makes the issue even more entangled.

While the “Hot News” doctrine has not been tested in courts in recent years, the repercussions of such a doctrine could stretch far.  It becomes a question of how strong is this property right in the news and to whom does it apply.  The 1918 decision seems just, or at least had good public policy in mind, but what about in today’s environment of blogging, twittering, online news papers, and the lightning speed of the web.

Some Things to Think About.

Suppose you are sitting in the park and randomly you see a famous celebrity walk by and say into his phone that he is divorcing his wife.  Three seconds later you are on your phone twittering the latest celebrity gossip.  A news site sees your post, and immediately runs a headline on their web page.  Did they just violate your ownership right in that piece of news?  What if it’s a not-for-profit blogger who copied the news from your post?  What if instead of twittering, you posted it on your blog that you use as your primary source of income?  The variations on this hypothetical are numerous, but they all come to the same questions: Should a person have a property right in a fact?  And if so, when?

I think we can all agree that news gathering is an important activity, but maybe it doesn’t need to be incentivized in the same way it did 91 years ago.  As the world becomes more connected news reporting becomes decentralized.  Major events are twittered and live blogged and dispersed throughout the web with pictures and movies by anyone with a cell phone well before they are printed in the morning addition.  In 1918 INS v. AP helped hold the news agencies together.  And while investigative journalism can’t be replaced by average Joe with a cell phone, maybe it’s time the courts took a better look at how the law is subsidizing large centralized news agencies, possibly to the detriment of the public at large.