Can newspapers continue to cut it? The story continues

In UK and European media the hot topic right now continues to be the future of newspapers, discussion around how news is being repurposed  and heavy focus on the impact of content licensing on business models. In the US, the focus is the protection, and one might call it survival, of the American press. In a story “Laws That Could Save Journalism”, by Bruce W. Sanford and Bruce D. Brown in the Washington Post the writers believe that the answer is for Congress to act. Here are their thoughts:

·                Bring copyright laws into the age of the search engine. Taking a portion of a copyrighted work can be protected under the "fair use" doctrine. But the kind of fair use in news reports, academics and the arts -- republishing a quote to comment on it, for example -- is not what search engines practice when they crawl the Web and ingest everything in their path.

·                Publishers should not have to choose between protecting their copyrights and shunning the search-engine databases that map the Internet. Journalism therefore needs a bright line imposed by statute: that the taking of entire Web pages by search engines, which is what powers their search functions, is not fair use but infringement.

·                Such a rule would be no more bold a step than the one Congress took in 1996 rewriting centuries of traditional libel law for the benefit of tech start-ups. It would take away from search engines the "just opt out" mantra -- repeated by Google's witness during the Kerry hearings -- and force them to negotiate with copyright holders over the value of their content.

·                Federalize the "hot news" doctrine. This doctrine protects against types of poaching that copyright might not cover -- the stealing of information not by direct copying but simply by taking the guts of the content. While the Internet has made news vulnerable to pilfering because of the ease of linking from one site to the next, the hot-news doctrine has limited use because it is only recognized in a few states

They argue: “The law of the Internet was written for the technology companies seeking to protect their growth in a once-fledgling medium, not for the journalism outlets that are now handicapped trying to survive there. Regulatory reform is needed because the playing field has become so uneven.”

Bruce W. Sanford and Bruce D. Brown are partners in the Washington office of Baker Hostetler. They specialize in media and First Amendment law.