Richard Posner is catching flak for his suggestion that copyright law be expanded to cover paraphrase in order to save journalism from fierce digital competition. Thing is, that’s arguably the current state of the law. There’s a little known “hot news” doctrine that dates from the early 20th century and gives news agencies a very brief quasi-property right in their original reporting. The idea was to deter free riding on the significant investment wire services made in news gathering—free riding that didn’t require literal copying. Follow the link above and you’ll see that the Associated Press has been expressing interest in reviving this idea and pursuing “hot news” actions more aggressively. I don’t think this is a good or workable idea, but technically that’s where we already are. The odd thing is that Posner, who surely knows this, didn’t make any mention of the hot news doctrine.
Hot News and the War on Paraphrase
July 1st, 2009 · 2 Comments
Tags: Economics · Journalism & the Media
2 responses so far ↓
1 southpaw // Jul 1, 2009 at 11:23 pm
I believe one of the elements of a “hot news” infringement claim, as it survives today, is the plaintiff’s showing that the defendant’s use of the “misappropriated” information is in direct competition with a product or service offered by the plaintiff (i.e. a rival news wire can’t leach off the substance of the AP’s hot news stories, but a stock broker is free to profit from them). I imagine it would be a stretch to say that most online outlets are in direct competition with newsgathers (though some certainly are).
2 Julian Sanchez // Jul 2, 2009 at 3:15 am
Eh. Blogger sells ads, revenue is based on traffic, traffic is based on having breaking news quickly, blogger with lots of breaking news acts as a substitute for the local paper (or its website)… not that I want to see this doctrine expanded, but it doesn’t seem like a huge stretch.