Appraising Potential Legal Responses to Threats to the Production of News in the Digital Environment

Lead Research Organisation: University of Cambridge
Department Name: Law

Abstract

Like music and other branches of publishing, news journalism has faced radical challenges over the last two decades. There is talk of the "death of the newspaper" and questions raised about the very future of journalism ('Who Killed the Newspaper?', The Economist, 24 August 2006) ; and countervailing recipes for revival, Rebuilding the News, Metropolitian Journalism in the Digital Age, Anderson, 2013). While with music, books and films, the greatest threat to existing business models have been seen as the unauthorised and unremunerated home copying and peer to peer distribution, with news journalism the challenge derives from the fact that advertising has not followed the shift of print-newspapers to the Internet. Given that more than half of newspaper revenue traditionally comes from advertising, newspaper profit margins have suffered badly, many jobs have been lost and titles closed. The situation has been particularly difficult for local and regional newspapers in the advanced economies of North America and Europe. Consequently, news journalists, including photographers and associated freelance creators, have expressed dismay at their increasingly fragile economic and unsatisfactory legal position.
But, if the central problem has not been copyright piracy, the big question is whether copyright-related business models are part of the solution. Certainly, some newspapers are starting to deploy copyright and para-copyright as part of their business strategies: using firewall systems, bringing actions against news aggregation sites (such as Google News), which are seen as "siphoning off" advertising revenue; and, most radically, calling for addition legal rights, including rights in news per se. At the same time, aggregators and others are pursuing new business models arising from the use of news archives and other news text and image assets. This has given rise to a number of business model fusions, such as the emergence of a UK start-up, Summly, which offers a news aggregation service via mobile phones, and its acquisition in March 2013 by Yahoo!. Because on-line news organisations increasingly use multi-media techniques, there is growing overlap with copyright concerns in television and film.
Our research into news would have three dimensions. First, we would explore and map the range of business models being utilised (advertising, subscription, firewall, freemium, public funding, citizen journalism, charitable purposes) in order to appraise how the sector is adapting, and by producing an account of the experiences of various sub-sectors offer practical guidance to participants in the industry.
Second, we would consider the methods of assessing these changes not just on the economy but on society. What is the impact of these shifts on the "quality" of journalism and the level of access enjoyed by different sections of the public to news, analysis and debate? This analysis goes to the very heart of the core research question with which CREATe is engaging: how can we judge whether levels of production of cultural and informational goods are optimal in terms of both the quantity of production and also its diversity and quality?
Third, we will consider what useful role policy-makers play in this field. If concerns over the quality of journalism are real, they go to the heart of a well-functioning democratic system. Diverse answers may be given to this question, from the case for stronger restrictions on concentration of media ownership to the use of public subsidy. Some commercial players wish to explore the value of "ancillary copyright" (currently before the German Parliament) and copyright protection for "hot news," which in turn raises particular issues with regard to freedom of expression. Historical experience of such regimes can provide some guidance, both as to the issues at stake and the likely effects of such laws.

Planned Impact

Beneficiaries
The research will assess and likely have implications for (i) private sector media organisations, in particular newspapers; (ii) private sector news intermediaries, such as aggregation services; (iii) courts, when appraising the impact of their decisions; (iv) policy-makers, considering proposed reforms.

Explanation
The research is intended to generate new information on types of business models being deployed to ensure returns to news organisations, Describing these business models will likely provide useful information for those in the sector, others thinking of entering the sector, third parties assessing the viability of various businesses. The research on the history of news production highlights that historically copyright has not been the only way to appropriate returns from investment in the production of information products. The information can, with CREATe's other research streams, help businesses in general understand the huge variety of models by which to reap returns from information production, and choose the model that most suits the particular information product. It will also have implications for policy-makers in so far as they are considering reform of the detail of legislative rules relating to technological protection measures.

The research raises a vital question for policy-makers interested in evidence-based policy-making: is it possible to identify optimal levels of production and set the parameters of incentive-mechanisms accordingly. The research raises the problem of quality of production, not mere quantity, offering an extra dimension to current copyright policy-making.

The research on litigation and legislative proposals is intended to be of use primarily to policy-makers. Monitoring what is happening elsewhere, critiquing the arguments, analysing existing studies on the effects eg of news agggregation services, will assist courts and legislators when considering particular responses or action.

The various beneficiaries will be engaged, in part by constituting an advisory board to refine the precise projects in the three streams, but also by seeking their assistance as sources of information.

Publications

10 25 50
 
Description These were reported and have not changed. We found that while there *is* evidence that the economic environment for press publishers is challenging, there is little evidence that either the German or Spanish experiments in improving the position of press publishers by creating a new "ancillary" right, have had any significant positive effect in improving the economic position of such publishers. In so far as these are targeted at aggregators of links to publicly accessible news sites, this is not surprising, and there is increased evidence from Spain that these rights damage the interests of small publishers. There is no reason to think that an EU version, or EU required harmonization of such a right through art 15 of the Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market will work better for press publishers.
Exploitation Route The UK Government has stated that it will not implement the Directive. Nevertheless, lobbying may occur in the UK in favour of some sort of press publishers' right. The findings of this project ought usefully to inform any such debates.
Sectors Creative Economy,Digital/Communication/Information Technologies (including Software),Culture, Heritage, Museums and Collections

 
Description Danbury has engaged in dialogue with various news industry participants, raising awareness of issues associated with proposals for "ancillary copyright", that special laws protecting news organisations against online aggregators. The November 2015 workshop in London highlighted problems with creating such rules in current EU and international copyright, as well as raising awareness of the potential impact on human rights. The workshop included a number of newspaper publishers. Danbury has also been discussing the issues with participants in the EU political process, including Julia Reda MEP, Marietje Schaake MEP, and Maria Martin-Pratt at the European Commission. He has also submitted a response to the European Commission's consultation on the notion of an EU neighbouring right for publishers, both by completing the online questionnaire and submitting a report. This was acknowledged by the office of Maria Martin Pratt in July, and they commented: "We have read the documents with great interest and they provide us with valuable input for the ongoing work." Moreover, Bertin Martens, an economist at the Commission, also read the report, and said it was: "a very good summary of all the legal, moral and societal arguments for and against a neighbouring right for news publishers". He asked permission to quote from it in a paper he is writing for the Commission evaluating an EU publishers right from an economic perspective. Bently has carried forward the work after the grant ceased. In September 2016, the European Commission published its Proposal for a Directive on Copyright in the Digital Single Market. This included a proposal for a Press publishers' right. Bently organised a seminar, through BLACA, at Emmanuel College, Cambridge in November 2016 to discuss the proposal. Danbury spoke, along with Laurence Kaye (who represented the European Publishers Council, supporting the idea). In December 2016, Bently organised a letter to the UK Government, signed by 37 professors or senior academics, including Hargreaves, calling on the UK to oppose the proposal in Council. In February 2017, Bently, along with academics from other research centres in the EU, wrote an open letter to MEPs urging them to reject the proposal. In the summer of 2017, Bently was engaged as consultant by an Austrian policy research unit to contribute to a Study for the JURI Committee of the European Parliament and, having done so, in December 2017 Bently (and co-consultant Martin Kretschmer) gave evidence to the JURI Committee. In April 2018, with the proposal still before the Council and Parliament, Bently organised an open letter - "Academics Against the Press Publishers' Right" (https://www.ivir.nl/academics-against-press-publishers-right/) - which was published with 169 signatories on April 24 2018, 60 signatories adding their names thereafter. Bently drafted a further blog on 22 May (http://ipkitten.blogspot.com/2018/05/sleepwalking-towards-perpetual-news.html), making detailed criticisms of the evolving text. A number of these specific criticisms led to changes in the text (eg limiting the availability of the right to only EU publishers). On 28 June, Bently participated (with three other academics) on a REDDIT AMA (https://www.reddit.com/r/ireland/comments/8uhp7g/x_post_from_reuropeeu_copyright_ama_we_are/). In early July, the European Parliament declined to allow the JURI Committee to proceed to trialogue negotiations without first holding a plenary meeting. However, in September 2018, approval was given. Since that time, the Directive has been considered in the secret trialogue process, and a text has emerged that will be considered by the European Parliament in March 2019. The right will be approved by the EU legislature and adopted as Article 15 of the Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market.
First Year Of Impact 2016
Sector Creative Economy,Digital/Communication/Information Technologies (including Software)
Impact Types Policy & public services

 
Description Contribution to European Parliament Consultation
Geographic Reach Europe 
Policy Influence Type Gave evidence to a government review
URL http://www.europarl.europa.eu/thinktank/en/document.html?reference=IPOL_STU%282017%29596810
 
Description European Parliament Workshop 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach Regional
Primary Audience Policymakers/politicians
Results and Impact There were three 20 minute presentations to the European Parliament, the first by Martin Kretschmer and myself. The two others were "responses" and highly critical of our position. we were given 5 minutes to reply.
Year(s) Of Engagement Activity 2017
URL http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2F%2FEP%2F%2FTEXT%2BCOMPARL%2BJURI-OJ-2017120...
 
Description Presentation to Italian Copyright Society in Rome 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach Regional
Primary Audience Professional Practitioners
Results and Impact I was invited to present on the proposed Directive on Copyright in the Digital Single Market to the Rome Copyright society on 21 September 2017. There was a response from an Italian MEP and three Italian law professors.
Year(s) Of Engagement Activity 2017
URL http://ipkitten.blogspot.co.uk/2017/09/waiting-for-approval-of-eu-directive-on.html