National Post Wants $150 To Quote Articles (Even The Parts It Quoted From Other Articles)
from the double-standard dept
Update: Since this morning, National Post seems to have disabled this feature. Whether the change is permanent or not I can't say.Despite three years of journalism school and several more working at newspapers, I'll never understand the double standard that journalists and publishers have when it comes to copyright and fair use/fair dealing. The act of reporting relies heavily on the latter, and the news business would be a very different place if newspapers were expected to pay licensing fees on the quotes they gather from experts, reports and other sources. Thus, newspapers have traditionally been staunch defenders of fair use—that is, until they find themselves on the other side of the equation.
Through Michael Geist we learn that Canada's National Post (disclosure: I used to work for the paper as a freelancer) is trying out a highly disruptive new "feature" that attempts to scare people out of quoting the articles without paying up:
If you try to highlight the text to cut and paste it, you are presented with a pop-up request to purchase a licence if you plan to post the article to a website, intranet or a blog. The fee would be $150. ... If you click no to the pop-up, you cannot copy the text. If you click "quit asking me", the request stops.
I've seen newspapers with "license calculators" for quotes before, and of course we've all seen websites that frustratingly interfere with your copy-and-pase or right-click abilities—but this is the first time I've seen the two combined. The system is driven by iCopyright, a plugin that promises to make it "super easy" for people to license your content, but I guess not so easy that people won't hopefully feel compelled to pay.
This isn't just a dumb idea—it's a really hypocritical game for a newspaper to be playing. Geist underlined the irony by pointing to the regular Post feature Full Pundit, in which writer Chris Selley does a roundup of editorial and opinion columns from the week in Canadian media. Naturally, this involves lots of quotes and snippets from these other media sources, which Selley then expands on or disagrees with or otherwise comments upon—all unlicensed quotes, the use of which is clearly protected under Canada's fair dealing laws for commentary and criticism (and would be equally protected in the US under fair use laws). But if you try grabbing a snippet from Full Pundit, you'll be asked to pay a license. Worse still, if you try to grab one of the quotes from another newspaper on the National Post site, you'll still get the same popup telling you to look into licensing options... for a quote they don't own and are themselves using for free on the basis of fair dealing.
The popup does not mention fair dealing or fair use. It takes some digging to find iCopyright's fair use statement, which is a masterpiece of menacing disingenuousness. As we've noted in the past, the fact that the boundaries of fair use and fair dealing are often unclear creates a massive chilling effect, since people are unsure about their rights and not always willing or able to fight for them, and iCopyright relies on that very effect to scare people into paying up:
The use of excerpts from others' works without a license is permitted in certain limited circumstances under the "fair use" doctrine of U.S. Copyright Law and the "fair dealing" doctrine in Commonwealth nations. However, republication on the internet, without a license, of even a small portion of a work can constitute copyright infringement.
The distinction between "fair use" or "fair dealing" and infringement is not easily defined because each re-use has unique characteristics that must be analyzed. For example, there is no specific number of words or lines that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. For additional information you may want to do an internet search of "fair use checklist" and "copyright myths."
Got that? "It's pretty hard to know if something's fair use, so you probably shouldn't bother." The page then offers a list of factors that often come up in fair use analyses, and suggests that if any of them apply to your use, it is "cause for serious reflection" on whether or not you are protected:
- Is the excerpt such that the reader may feel he/she already has the gist of the original work and no longer needs to read it?
- Is it your intent to earn money, whether through ads, subscription revenues, or otherwise?
- Is the work that was excerpted highly creative?
- Are you choosing not to exercise an affordable and accessible licensing mechanism?
- Are you publishing the excerpt widely, such as on the Web?
- Is the work of excerpted authors the main draw to your work as opposed to serving as a "footnote"?
Now, it's true that all of those are factors that can matter, but it's also true that you could answer 'yes' to virtually all of them and still be within the bounds of fair use/fair dealing. This is easily demonstrated by looking at the snippets within the National Post Full Pundit columns, which are a definitive "yes" on all but the first item. The issue of quote length is doubly amusing, since the Post recently lost a lawsuit it brought against an internet forum, because the Supreme Court declared that posting large snippets (multiple paragraphs) of articles can still be fair dealing, and that the established fair dealing exceptions for "news reporting" can include things like online forum discussions.
And that's where we see the double standard emerge. For a long time, newspapers really were the only source for news reporting, and thus over the years they got some special considerations in the laws and in the courts. Today everyone is a reporter, a photographer and a publisher, and these non-ink-stained wretches are quite rightly utilizing the same rights that "official" news sources have, for the same purposes. Newspapers like the National Post seem to have a hard time getting their head around that, so they launch lawsuits against forums and stick pointless bullying popups on their websites. It strikes me as a matter of arrogance more than anything else.
And, of course, it has to be asked: what is this going to accomplish? It's certainly not going to become a massive revenue stream for the paper, with bloggers (who are becoming well-versed in fair use and fair dealing themselves) forking over $150 every time they want to quote the National Post. There is another possibility, which is that it's a legal tactic: in future lawsuits, the Post could point to this popup tool as an "available and affordable license" that someone chose to forego, giving them a slight leg up in an anti-fair-dealing argument.
Either way, it's a hypocritical and even somewhat despicable move. The National Post is fighting against an important legal protection that is vital to newspapers themselves and to free speech as a whole. Here's hoping that the writers featured in Full Pundit columns, and anyone else quoted in the Post, calls up the newsroom and demands a $150 licensing fee.
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Filed Under: canada, copyright, fair dealing, fair use, journalism, quotes
Companies: national post
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That would solve the patent trolling and all this bogus pay us for first use BS that seems to be so rampent.
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Let the feeding frenzy begin...
If they pay, then there goes probably a couple thousand each article, which is hardly sustainable. On the other hand if they (rightly) try and claim fair use, their own defense would be able to be used by those that want to use quotes from them.
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It is the policy not the technology that is at issue.
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This Day and Age
It is almost as if they want to be driven out of business. This strikes me as a pretty big flag being waved around that says "read somewhere else if you want to share anything you read".
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Re: Let the feeding frenzy begin...
Why don't we all just cut the lawyers their 2013 paychecks and throw copyright out the window for a year. Problem solved.
/s
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I then went to a few articles and was able to successfully copy and paste text. I did not see a pop-up. Has the Post disabled this "feature"?
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Re: It is the policy not the technology that is at issue.
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Re: It is the policy not the technology that is at issue.
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'disables javascript'
'refreshes page'
'highlights and copies'
'SAVES $150' :3
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Actually, it's not true at all. In particular, the Supreme Court of Canada has explicitly stated that the availability of a licence is NOT a relevant consideration in a fair dealing analysis:
Law Society of Upper Canada v. CCH Canada Limited, 2004 SCC 13, paragraph 70
http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/2125/index.do
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Re:
I don't think that should be illegal. It's douchy, and no respectable person would do it, but it shouldn't be illegal as it's a clear violation of free speech.
I have every right to demand money from anybody I wish for any reason I wish, and they have every right to tell me to go to hell. That's as it should be.
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As for workarounds, C-u View Source much?
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But what if I had just taken a screen shot out of curiosity?
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Ive said this before but I see news-aggregation sites as no more than gossiping about current events. Since they link back to the original article I suggest they get paid for referrals just like ads do. Its only fair.
There are easier to access and better news sites that will pop up if present publishers cant provide what the public wants.
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Re: Let the feeding frenzy begin...
Who will be hurt if no one link to their precious page?
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