Copyright to Effect Censorship?

IPKat recently carried a post reporting that Spain was contemplating introducing an amendment in their laws to allow for press publishers to monetize their content for a fixed period of time. This might seem like an alarming development (more on that later on in the blog post) but IPKat reports that this has been tried by a number of other countries as well. These are Germany, Italy, Belgium and even France. We have reported earlier on this blog about the various tussles in court about news content misappropriation. Observe in these posts how courts have uniformly held that in cases where news, facts or information of this sort are in issue, no rights akin to a copyright could be granted, unless expressly created by the legislature (pre-emption under S.16 of the Copyright Act) or if there was evidence demonstrated of direct competition or passing off. What this legislation now does is that it operates to create this right that was thus far absent, therefore effectively creating a right akin to copyright in news content (and avoiding a S.16 like challenge).

As a representative example, consider the German legislation. S.87f of the German Copyright Act (introduced by means of an amendment in March, 2013) that gives press publishers the “exclusive right to make the press publication or parts of it available to the public for commercial purposes”. In my opinion, if copyright protection already extends to the news report itself (not the news or fact itself) as it is a form of expression of the journalist himself, then the only aim that this legislation now achieves is that it accords protection to the information itself. If the amended provision were to merely cover publication as the plain reading of the section might suggest, then this provision would have no effect as such a right already existed under the pre-amended law. Simply put, this provision in its effect implies that if a press publisher had information regarding a particular event and this information was exclusive to him, he now has the exclusive right to make this information available to the public. As a necessary consequence he also has the right to exclude the publication of this information by anybody else.

This legislation can have some disastrous consequences. The post mentions one such consequence – news aggregators. News Aggregators are websites like Google News that collect and aggregate news content on to one platform so that it is easily accessible to people who don’t have to scan the web for all this content. Despite the fact that the Court of Justice of the European Union in the case of Svensson (read here and here as well) had held that it might not be illegal for websites to hyperlink to protected content (although look what Spain has done!), the exact nature of providing snippets of information (as these websites often do) is unclear. Therefore apart from the initial threat of violation of the author’s copyright in the article, aggregators now have S.87f-esque provisions to worry about as well. The chilling effect that this may have on speech is quite dangerous indeed.

Another inherent threat that legislation like this would pose is that it would encourage the monopolisation of information in a few hands. Large media corporations would now be able to exploit provisions like this to gather content and make it exclusive to themselves, precluding anybody else from publishing. The reason that this is so much of an issue is because gathering of information often requires the company or individual who is gathering this information to surmount large barriers of access or to have invested a large amount of money or time. These kind of resources are not available to smaller companies and individuals who then will be precluded from reporting on these things, drastically reducing the access to information as well as ensuring that Big Media has the right to spin the content any which way it may please. Consider for instance, the facts of the International News Service v. Associated Press case. AP was involved in the business of gathering this war time information at great personal cost. INS had obtained this information and was distributing it amongst its subscribers. If this legislation was enforced in the factual scenario, it would imply that AP now had the right to preclude INS from publishing on crucial information such as war time reporting. The public would merely hear AP’s perspective on the story. A more remote consequence of monopolisation of information is that smaller publishers will now have to shell out more royalty in order to publish stories that they receive from larger publishers. Companies like AP work on models that have them gathering the news and information while licensing out the actual writing to smaller companies who can then carry these pieces on their own newspapers or periodicals. These royalties would now be pushed up higher because AP like companies can now assert a monopoly over information.

A more dramatic consequence of this legislation if enacted in a country with a state owned press and broadcasting system would be that the state would now be able to censor information using provisions of copyright law arguing an exclusive right to monetize this information.

The thrust of this post is to point out that this legislation grants media companies the right to engage in a form of prior restraint in that they can now prevent smaller companies from publishing on the basis of information that they believe is exclusive to them. Generally, courts have frowned upon prior restraint, as they violate the freedom of speech and expression, both in India (Sahara India v. SEB) as well as in other jurisdictions (Bantam Books v. Sullivan and Observer and Guardian v. UK) unless compelling reasons which can withstand strict judicial scrutiny are made out. There clearly exists no such compelling reason for a prior restraint to be imposed. This legislation also does not allow for the determination of the existence of reasons during implementation (such as in the case of films, the Censor Board has to exercise its discretion on a case to case basis regarding each film, as opposed to a blanket censorship in this case) and merely advances profit as the determining factor for when information may be exclusive. Moreover, this discretion is also placed in the hands of private entities, which can prove to be difficult to challenge and remedy. The only hope that I see to remedy such a situation are general fair use exceptions, but I’m unsure as to how this will operate with provisions like S.87f because the purpose of journalistic articles itself is to report current events and therefore if exclusive rights are granted to them, it will clearly conflict with provisions like S.52(1)(a)(iii).

We’re better off without legislation like this. Here’s hoping this doesn’t spread to India!