Letter from AmeriKat: Part II (copyright and trade marks)

Can copyright save the newspaper industry?

Ever since reading Landes and Posner’s 2002 article “Indefinitely Renewable Copyright”, the AmeriKat has been sympathetic to Posner’s rationale that the strength and duration of copyright protection should be viewed in accordance with its effect on economic/market theory (generally speaking, of course).

Thus, when Posner wrote about using copyright as a mechanism for aiding the declining newspaper industry, her ears perked up. This June -- Posner, who is also a judge on the United States Court of Appeals for the Seventh Circuit in Chicago -- wrote about an idea to expand copyright to protect newspaper’s online content that is currently freely available. Posner argues that the economic downturn has irreversibly affected consumer behaviour by resulting in “online viewing rising as print circulation is falling” which indicates “a shift of consumers from the paid to the free medium.” The AmeriKat does not believe it is accurate to cite just the economic downturn, without citing the technology (speed, ease of access, etc.) of the internet as also contributing to this shift.

Posner stated that online news is free because “the marginal cost of providing content online is virtually zero, since it is the same content in a different medium” and because “online providers of news who are not affiliated with the newspaper can provide links to newspaper websites and paraphrase articles in newspapers” which does not require compensation to the newspaper. Posner argues that if newspaper revenues continue to decline, their physical and digital content will in turn become smaller which will also result in reduced content for non-affiliate websites that link to that newspaper’s content. Posner suggests that

“Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.”

The AmeriKat duly declares her interest in this debate and is therefore conflicted with Posner’s approach. On on hand she would like the newspaper industry to be protected from blatant “free-riding” by online websites. Newspapers are, as the Press Clause and ECHR jurisprudence state, a pillar of a democratic society and although there is an availability of respected online sources, she personally does not believe that an anonymous blog posting or website can ever really replace the authenticity and legitimacy of information published under a known and respected newspaper title. Is it perhaps plausible, that in the same way that the press has specific protection and responsibilities in reporting in terms of defamation/privacy law, the law should also afford the printed press specific protection in terms of copyright law? If so, lobbying, such as in the case for the expansion of duration of sound recordings, may be a tactic the newspaper industry should attempt.

But on the other hand, the AmeriKat is unsure whether copyright law is the appropriate vehicle for this protection. Following Posner’s suggestion into practice, any time she or one of her fellow IPKats posted a hyperlink, permission from the copyright proprietor would have to be obtained. However, copyright law has fair-use defences (or in the UK fair-dealing exceptions/limitations) which would be successfully invoked in these scenarios of hyper-linking and paraphrasing news reports. The AmeriKat does not believe, that under the fourth factor of the fair-use test, a newspaper could actually prove that hyper-linking to their content affects the potential market value of the work. Surely Posner’s suggestion in protecting the print media by copyright would in fact have the effect as acting as an improper prior restraint in chilling freedom of expression and would therefore violate the Copyright Clause in ‘promot[ing] the Progress of Science and useful Arts.” In any event, the AmeriKat argues that the current application of section 230 CDA in the U.S. would most likely bar any effective remedy that the newspapers could achieve for such a so-called “copyright infringement” (see AmeriKat’s post here).

The AmeriKat is conflicted regarding copyright’s role in protecting the newspaper industry, but is interested to hear any views regarding this debate.

Trade mark for ‘Twitter’ but not for ‘Tweet’

As of the beginning of August, the USTPO preliminarily rejected Twitter Inc.’s application to register as a trade mark the name “Tweet” in connection with their online services, citing the existence of earlier trade mark applications for TweetMarks, Cotweet and Tweetphoto. Prior to the USTPO’s decision, Twitter’s official blog stated that “in fact, we encourage the use of the word Tweet. However, if we come across a confusing or damaging project, the recourse to act responsibly to protect both users and our brand is important.” The USTPO has now to consider the earlier registrations before a final decision can be made regarding Twitter’s application. For more on this story, please see CNET’s article here.