Unfair Use

Last week’s On the Media hosts an interview of Siva Vaidhyanathan on fair use and the battle between blogs and the mainstream media. Vaidhyanathan is a professor of media studies and law at the University of Virginia.

The line that separates fair use and copyright infringement is fuzzy and open to interpretation and debate. While academics don’t tolerate uncredited sampling from another’s text, the news media works within different norms. Large sections of text are routinely lifted and republished in local newspapers. What the Associated Press wants to prevent is bloggers quoting from the headline and first lead paragraph. In other words, it’s not the number of words, but the importance of the text quoted. As Vaidhyanathan says:

AP seems to be saying that the basic facts of the story in its simplest possible language are what is valuable of the story. But, in fact, copyright doesn’t protect facts or ideas, ever, so you end up in this weird paradoxical situation where AP is trying to protect what is actually least protectable about what it does.

I’m not sure journalists would agree with the idea that a headline and first paragraph are just a list of facts. The journalist must engage the reader at this point and frame the story in terms that are understandable and meaningful to the reader. Writing a story is not the same as listing phone numbers in an address book.

It is well known that the lay press amplify the dissemination of scientific information. News coverage of new research have been reported to increase citations and article downloads to scientific articles. Similarly, blogging creates attention, signaling to the reader which articles one should attend to. Like the lay press, blogging can also engage readers outside the core reader community.

It appears that the Associated Press is not really fighting against fair use, but against alternative news channels. As Kent Anderson pointed out, the battle against bloggers may be quixotic.