[This article is authored by Tanmay Malik, a 4th year student at NALSAR University, Hyderabad. It analyses if the restrictions on paid news over search engines is violative of the fair use doctrine under the copyright law.]
News is a free information of the events around us. With the rise in enmeshing and expanse of world wide web, the news has multiple pathways to reach an individual. A report by Pew Research Center clearly shows that there has been a rise of solely-online media outlets and the sector has also witnessed the legacy paper-based news outlets broadcasting their news via all modes of digital means including apps, websites, podcasts, etc. A corresponding rise has been seen in the usage of the Big Tech giants, be it Google or Facebook. The two rises intersect and make these outlets the most likely source of news.
This change has not gone down well with many groups across the world. There have been multiple nations that have tried to contain this rise of news-face of the tech giants. The claims of restricting the spread can broadly be classified as lying in two domains of law – competition law (as in Australia) and copyright law (as in Europe). The present post is concerned with the latter and evaluates if the restrictions imposed are violating the fair use or fair dealing doctrine by impinging on the right to knowledge of the public.
Tech Giants doing – A copyright violation?
There are two ways the Tech Giants reflect news to the users. Either they provide links along with the headline or they provide snippets of the news too. Irrespective of the demonstration technique used, the ultimate task is to redirect the user to the website and not show up the news article, podcast, or video as their own.
The news conundrum fell in the sphere of copyright law in the European Nations, especially in nations like France, Germany and Spain. In 2019, EU Parliament passed the Directive on Copyright in the Digital Single Market (hereinafter ‘the copyright reform’), to extend digital copyright to news stories that are used by aggregators such as Google News. The copyright reform compares the right to remuneration of publication houses with the one enjoyed by music or film producers when their content is used by others.
Upon such actions by the authorities and news publication houses, the tech giants adopted the former method of demonstration, that is supporting only a link and a minimalist expression of the headline.
Nearly in all jurisdictions, be it American (Fox News v. TVEYES, Inc.), English (BBC v. BSB,  Ch. 141), Indian (EBC v. D B Modak) or international law (Art 2(8) Berne Convention), it has been held that news facts would not be subject to copyright. The presentation of a news involves some level of originality as well as labour and hence it is only presentation that qualifies for a copyright under the creativity criterion (in Civil law nations) or sweat of the brow doctrine (in Common law) or skill and judgment (in India). Therefore, a minimalist heading along side the link to the website is no violation of copyright.
Against this workaround adopted by Google, the French Anti-Competition Watchdog (The French ‘Autorite de la Concurrence’ body) decided in favour of publishers and ordered google negotiate with the publishers to provide remuneration for their content. After some resistance, Google agreed and signed a deal with the French dailies association.
With such events, it is submitted that using snippets may capture substantial portion of the news along with the presentation style and hence would be a copyright infringement. However, headlines are distinct from snippets or extracts.
French body’s doing – A Fair Use Violation?
The French authorities decided that even posting headlines is violative of copyright and imposed fines. It is submitted that restricting the headline to reach the public is breach of the fair use doctrine as envisaged in various jurisdictions.
In Newspaper Licensing Agency Ltd v. Meltwater Holding, the UK Court of Appeal was deciding on, inter alia, if (i) headline and (ii) extract were copyrightable individually and cumulatively. The court held that the headline as well as extract were independent literary works that qualified the creativity and originality criteria as they required certain application of mind to attract the user. Hence, the headlines stood on a different footing besides the article they represented as well.
The Fair Use doctrine usually has definitive grounds across jurisdiction, however, the underlying principle in each is to promote access to knowledge. Before anything, a text must classify as a copyrightable piece of literary work (Art 9(2) Berne Convention). The author agrees with the UK CoA in Newspaper Licensing that headline can exist independently, provided some effort has been put in presenting that. In that case, the headline is a standalone literary work the copyright of which exists with the presenters that is the Tech Giants in the present case.
Even if the headline is same as the title of the article, the copyright of which rests with the editorial team of the newspaper agency, it merely conveys a fact that is not copyrightable. Knowledge cannot be restricted to limited people to the detriment of public. This characteristic would also apply when the creative headlines copyright rests with the Tech Giants.
This restriction of knowledge becomes a severe impediment considering how many people get their feed of news daily from the Tech Giants. It is submitted that many readers restrict themselves to the headlines and these being curtailed by the French authorities is violative of the fair use doctrine and right to access to knowledge of the public.
News is a combination of two ingredients – facts and their representation. The former is common knowledge and beyond the realm of copyright; to maintain balance between proprietor’s economic interest and public’s right to access to knowledge. The latter is subject to copyright as it involves both creativity and labour.
The news bans imposed on the social media and search engine tech giants were correct on a preliminary level till such Tech Giants were representing snippets or extracts alongside the headlines and website links. However, deciding the workaround strategy of google in France to also be violative of copyright is contrary to the fair use doctrine. The headlines, irrespective of them being distinct from the ones used in the article, that is irrespective of their copyright holders, are only facts and knowledge put bluntly. A restriction on daily dose of news of a huge population across the globe, especially in a digitally inclined flux during COVID crisis, is making them lose their right to knowledge. Protecting the right to knowledge is the underlying premise of fair use doctrine even though the definition of the doctrine may vary across jurisdictions.