What the growing debate over “hot news doctrine” means for PR and marketing pros

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Word cloud created from CisionPoint Archive Search content using Wordle.net

In the weeks since the Federal Trade Commission released a draft of policy proposals supporting the “reinvention of journalism” [PDF], the commission seems to have succeeded at what it does best: stoking debate on a sensitive issue, even if that means bringing the ire of bloggers on itself as its proposals (don’t make the mistake of calling them “recommendations”) come under fire.

Plenty of media pundits and bloggers feel that it isn’t journalism itself that needs to be reinvented (least of all by the federal government) but the methods for delivery and distribution of news content online. Joining that chorus last week, Google submitted 20 pages of public comment on the proposals [PDF], suggesting that the media industry can work out its problems without government intervention, especially if that intervention means changes to intellectual property law that could affect Google’s business model. Enter an expanding frontier in media companies’ exploration of new potential revenue models: “hot news doctrine”.

Simply put, with respect to news articles, federal copyright law protects written words, not the facts or ideas behind them. But what if the news itself, reported by a particular Web site or news service, were to enjoy some level of protection from being repurposed by news aggregators and search engines for a short period of time after publication? In a 1918 ruling, Associated Press vs. International News Service (the AP was fighting services it saw as freeloaders long before the Internet age), the U.S. Supreme Court recognized the idea that information itself, collected through expensive manual effort, deserves some short-term protections. The Court was interpreting federal common law that is no longer binding, though the protection is still upheld by some state laws, most importantly New York’s.

A federal court ruled last month that an online news aggregator whose free-riding behavior renders a news organization’s offering “profitless” (or near profitless) violates New York’s “hot news misappropriation” common law tort (an appeal is pending). Last year the Associated Press settled out of court with an online aggregator, All Headline News, claiming it had violated the same New York law in repurposing AP stories minutes after they hit the newswires.

You may ask, doesn’t hot news doctrine run counter to the idea of “fair use doctrine”, the legal principle that in the interest of encouraging public discourse and debate, a written work can be repurposed and excerpted to some extent? It’s not clear, and that’s why the FTC has suggested that new federal hot news legislation may be needed.

All of this could turn out to be very important not just to news organizations, but to PR professionals and marketers who have taken to “curating” online content in a wide variety of ways to promote their brands. While it’s a rule of PR 101 that reprinting a product review or article verbatim should always be done with the publisher’s permission, the right to quote, excerpt and repurpose that content on corporate sites and in online communities could be restricted in some way (particularly when the article in question is newly published) if federal hot news legislation becomes a reality.

I used CisionPoint Archive Search to analyze 140 blog posts which discussed the FTC’s proposals since they were released in early June (the word cloud accompanying this post represents the terms most commonly found in those posts). By and large, the blogosphere has focused on the hot news concept and Google’s reaction to the proposals laid out in the FTC’s report.

There was very little discussion in the posts I read of the other 30-odd suggestions for changes to federal law involving copyright, anti-trust, corporate taxation and funding for public media, all designed to help news organizations survive amid declining advertising revenues. If pursued, any of these could result in a very different media landscape:

  • changes to anti-trust regulations to allow groups of news organizations to band together behind common pay walls online
  • increased funding for PBS and NPR (Canada spends 18 times as much per capita as the U.S. on public media; Finland and Denmark, 75 times as much)
  • Tax breaks for news organizations that serve the public good
  • A journalism division of AmeriCorps to give budding journalism school graduates new opportunities
  • Taxes on consumer electronics, Internet service providers, broadcast bandwidth auctions and/or mobile phone use to increase public funding for journalism

The FTC report says its main aim is to encourage “additional analyses and brainstorming”. It will be interesting to see which of these ideas take root.

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