Academic

Faculty Blogs: I.P., AP & the Fourth Estate

In consideration of the upcoming Conference on Innovation and Communication Law, today's post focuses on intellectual property, the Associated Press' new plan for "reclaiming news content online" and the dissemination of news information.

Last week, an AP memo leaked to the public. (The memo is attached below.)  In short, the AP's plan is to make broad assertions of intellectual property rights and aggressive monitoring of online content.  The memo discusses the aim of supporting journalism, but the AP's goal is to "ultimately unlock enormous revenue potential."  Hence, the title of the memo: Protect, Point, Pay - An Associate Press Plan for Reclaiming News Content Online.

To be sure, there must be copyright protection for content creators.  The reach of copyright protection, however, must be balanced against the need for a robust Fourth Estate protected by the First Amendment.  As the AP knows: "That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society."

The AP memo discusses "unauthorized" and "unlicensed" use of content, but that does not mean the use is illegal.  Facts are not copyrightable.  Fair use is a defense to alleged claims of copyright infringement.  Thus, there are legal obstacles to the AP's Protect, Point, Pay plan. 

Beyond the legal issues, there is a presumption in the memo that lacks foundation.  The AP memo states that one aim of the plan is to promote "authoritative journalism."  Without doubt, the AP has played a significant role as part of our nation's Fourth Estate.  But, large media conglomerates cannot claim onto themselves the label of "authoritative journalism." Sometimes traditional media drops the ball and new media outlets sometimes pick it up.

For example, in 2008, Talking Points Memo received the George Polk Award for breaking the U.S. Attorney firings scandal. Also, the traditional media's coverage leading up to the invasion of Iraq was so lacking in investigative depth and accuracy that companies like the New York Times published a mea culpa editorial. In short, neither traditional media nor new media can exclude the other from being considered "authoritative journalism."  They are two parts of a whole and the Fourth Estate needs them both . . . and more.

In any case, as the media industry, citizens, courts and legislatures work to balance competing interests of intellectual property rights and the need for a robust Fourth Estate necessary to ensure an informed citizenry, "the last thing we should do is erect electronic walls that block the openness and democratic genius of the Internet."  Indeed, as John Nichols and Robert W. McChesney note: "The place to begin crafting solutions is with the understanding that the economic downturn did not cause the crisis in journalism; nor did the Internet."

Full post as published by University of Louisville Law Faculty on August 18, 2009 (boomark / email).