Associated Press Seeks Command & Control Internet
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Related subjects: In the Loop, J.E. Robertson, Media, Net Neutrality, Press Freedom, Rights & Freedoms, Transparency Yield, U.S. Law Comments Off
The Associated Press perceives the routine standard for online journalism, blogging and social networking, which involves quoting, citing and linking to sources, as injurious to its revenue stream. It is now seeking to institute a blanket global policy, whereby quoting even 5 words by the AP would cost the quoting publication $12.50. Quoting 251 words or more would cost $100. Critics say the AP, like other online news producers, benefits immensely from the incoming links posted across the web by readers and journalists referring back to its news material.
Fair use doctrine is a fuzzy area of copyright law. Competing interests often seek to define fair use more liberally or more conservatively, depending on their particular interest in any given piece of content. The AP has aggressively defended its right to control all media produced through or in relation to the agency, but even some of its members say the AP has gone too far afield in claiming copyright control authority. One famous case involves a photo of Barack Obama which was used as a template for the now globally famous artistic rendering, produced by artist Shepard Fairey.
The AP considers the image to be part of its library of copyrighted materials, due to a similarity between the Obama portrait and a photographic image produced by an AP-employed photographer. The photographer says the particular image is not part of the AP’s catalogue and he has not requested its action on his behalf. He even said that as a journalist, there is a multiple interest in producing work for professional compensation, producing information for news consumption, and producing an iconic image that is, by the nature of its effect, part of the commons.
The AP’s new licensing policy means that publications across the web will have to abandon the AP altogether. It is, whether intended to be or not, a death blow to potentially millions of small publishers (individuals, in many cases) whose work could serve as a viral distribution platform for the news agency. Critics hope an online backlash could elevate other news agencies with more liberal quoting policies, to rival the AP and serve as opposition to this licensing policy, which threatens to undermine the free flow of information around the globe.
The AP’s aim is to profit from a 100% command and control licensing strategy, requiring registered use rights for all publications everywhere that seek to quote the AP or refer to their reporting. That command and control strategy will have an immediate chilling effect on the flow of information around the world. It will assist authoritarian regimes in controlling the information available to the public, both within and beyond their borders, as web reporters see themselves shackled and unable to relay AP content virally.
The AP has no plans to compensate online publishers to provide free links to their content and has announced no plans to provide royalty compensation to Twitter posters who direct web traffic to AP content. It is possible, even, to see the AP’s new licensing strategy to be an attempt to “double-dip”, charging multiple times for the same content. Publishers already pay the AP to republish their stories in full, meaning that anyone linking back to those stories may also find themselves charged for re-use or for announcing the content put out by those paying AP partners.
The principle of net neutrality is also under threat from policies like what the AP is now proposing. While fair compensation for work produced is a laudable goal in content creation, the AP seeks to guarantee that no mention of its work be made without some compensation being provided. This is a radical expansion of copyright with extraordinarily high proposed fees ($2.50 per word) that would serve to impede global information flows and reduce the informational value of an open internet.
In fact, the AP appears to be establishing an effective end to the doctrine of fair use, even charging $7.50 to educational institutions that want to use 5 words of AP content for any reason. The policy page falsely claims that this fee is necessary to obtain “permission to legally post”, when in fact, educational use is considered to be the most expansive area where fair use applies.
If the legal viability of such a policy is upheld, the AP would have undue control of global information flows. Giving one institution such veto power over the creation of new content (barring even uses which are designed to be contextual, informational, and which cite the AP as source and link back to the full content, thus adding to the commercial value of the material produced) would amount to an internet culture effectively censored by one commercially-interested institution.
Incredibly, the AP provides RSS feeds that can be used to embed AP content on websites, including not only headlines, but excerpts from articles that range in length from 10 words to 50 words. Not only is this a direct subscription to the standard of viral posting across the internet, where third parties publish or quote excerpts and link back to the original content, it is an attempt to piggyback on the uncompensated work of other publishers.
The use of RSS essentially belies the very idea that the AP has an implicit need or right to control, license and gain from every parcel of 5 words its writers produce. The AP is a cooperative designed to guarantee the free flow of reliable information from around the world and to ensure that journalists are compensated for their work. Its best interests would be served by barring the full republication of its articles, or the unauthorized use of its images, while allowing for clearly innocuous or even beneficial postings of citations with links and other short mentions of its content.
In fact, the US Copyright Office specifically states that “summary of an address or article, with brief quotations, in a news report” is considered standard fair use by the 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law. News organizations have to grapple with a very special sort of copyright problem: their work is intended to expand the depth and range of the commons of information and ideas: information and ideas cannot be patented or copyrighted, and so while they produce copyrighted materials, they are not necessarily entitled to 100% total control of that material, where the public interest might be served by reference to or quoting of that content.
The proposed system of licensing fees by the word, or by the 5 word set, poses a very dangerous, very extreme threat to the foundations of a free press and the functioning of an open internet. Aggressive legal action by the AP, as seen elsewhere, could hamper innovation and slow people’s access to needed information, while reducing the AP’s own reach and undermining the total value of its products.
This publication will no longer quote the AP and will make a consistent effort to use other sources wherever possible, to avoid linking to AP-produced content or risk in any way (from the news of this policy arriving on 3 August 2009 onward) falling prey to the totalizing license structure proposed by the AP for its content’s spread across the web.
It is our contention that the AP (RSS is evidence) has knowingly sought to benefit from a symbiotic relationship with small publishers and that its change of position, to now seek to extract prohibitive rates of payment for the continuation of that practice, is unethical and highly irresponsible in light of its likely adverse impact on press freedom and the free flow of information. It is furthermore our contention that enforcing this policy will have the effect of enhancing authoritarian rulers’ grip on power and their ability to manipulate information and control what information reaches the public within their borders.
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