Can you post others’ work? It depends

Wednesday, May 4, 2011

A free press has to make a buck.

Reporters, editors and photographers who produce content have to be paid. Some of that pay has come from single-copy sales and subscriptions of newspapers, but even news organizations that post material on the Web for free count on revenue from adjoining ads to help offset the cost of the journalism.

But what happens when others appropriate photos or articles, often in their entirety, for their own websites? These sites and blogs sometimes credit the originating publications, but they don’t pay for what they post.

What can news organizations do about that? Increasingly, they’re considering litigation.

The New York Times reported this week about Righthaven, a company that secures copyrights on materials produced by news media and then sues alleged violators. Righthaven has been criticized as being predatory for filing more than 200 federal lawsuits over material from newspapers in Las Vegas and Denver, allegedly posted without permission.

But Righthaven’s tactics and sometimes unsuspecting targets obscure the bigger issue. How will courts reconcile copyright law and the First Amendment right to disseminate news and information freely?

Copyright law and the guarantee of a free press have been core components of our democracy for more than two centuries. In fact, copyright even precedes the Bill of Rights.

The Constitution of the United States ratified in 1789 guaranteed copyright protection for creative work in America. The Founding Fathers recognized that if a young and vibrant nation wanted to encourage literature and creative thought, it would need to protect the creative process. Who would write a book if others could steal it?

Yet from the very beginning, there was also recognition that no guarantee to authors or creators could be allowed to short-circuit the marketplace of ideas. That’s why the concept of “fair use” is so critical. It’s a legal principle that permits the use of copyrighted materials in limited ways to advance the public good.

So the key questions in any litigation over the unauthorized use of news articles will come down to this: Does the lifting of a news story or photograph violate the copyright guarantee that creators of content will be compensated, or is the use protected as an exercise of freedom of the press, sharing important news with a wider audience?

If some of those targeted by Righthaven refuse to settle and make their case in court, the concept of fair use will loom large.

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