A legal view on news aggregators
The action of adding news or, as it is said in English, of doing ‘press clipping’, consists of totally or partially reproducing journalistic articles (news, chronicles, interviews) that have been published in the written press, on radio or television, through summaries or techniques such as redirection, ‘links’ and ‘framing’.
The point is that in such clippings, newsletters and press summaries it is sometimes indicated who is the author of the original text, sometimes not, sometimes it is paid, but most of the time not. Consequently, what is in dispute is whether or not this activity is legal, if it violates the intellectual property rights of the owners of the original product or if it violates the rules that sanction unfair competition.
The specific question is the following: can third parties who do not participate either intellectually or financially in the process of creating and editing a news item reuse this work and profit from it?
To answer this question from the point of view of copyright, it would be necessary to review issues such as the originality of the journalistic work, the right to quote and derivative works. Press information that lacks individuality, a differentiating creative contribution, is not original and therefore is not covered by copyright.
In addition, bear in mind that the legislation allows the reproduction without authorization and without paying consideration of current affairs, articles of economic, political or religious discussion if the following requirements are met: the distribution or reproduction is made in the press, radio or public transmission by cable ; the article was originally published or made known through a periodical publication, be it a newspaper, periodical collection or broadcast work, and if its reproduction, broadcast or public transmission has not been prohibited.
There are compilers who justify the legality of their actions by claiming the right of appointment, which allows the reproduction of protected works without the prior and express authorization of the owner and without paying any consideration.
In this section, it would be worth remembering that, in Colombia, for the right of appointment to operate, several requirements are required to be met, namely: that the cited work has been published, that the source and the name of the author of the the cited work, that the citation does not interfere with the normal exploitation of the cited work and that unreasonable damage is not caused to the legitimate interests of the author of the creation.
Another issue that is discussed is whether the compilation resulting from the ‘press clipping’ is a derivative work, under the terms of copyright. After all, whoever compiles often not only mechanically copies the original text, but also does an additional work of contextualization, where the reproduced article is enriched with comments and links (‘links’) to other pages that do so. complement.
The problem consists in determining, first, how original this variation is and, second, whether or not the author of the compilation obtained authorization from the author of the original work to carry out the transformation, because if he did not do so, he is not the owner of the right. copyright on the transformed work.
What happens when the clipping is accompanied by a ‘link’ that directs the user to the website where the news was published for the first time? In principle, it seems that the directing from one web page to another does not violate the copyright of the person who prepared the content of the addressed page, since the only thing that is copied and made available to the public is their email address.
In fact, some maintain that whoever publishes a page on the web knows the technical possibilities of this medium and is interested in having traffic on his page, unless he expressly prohibits it.
The problem begins when deep links are made or so-called ‘deep linking’, which are those that redirect to the secondary pages of a target site without going through its welcome page, which can distort the content or image of the target site towards which drives the hypertext link and generate confusion.
In Colombia, the National Directorate of Copyright maintains that hyperlinks cannot be used as a mechanism that allows the transformation of the work without the prior and express authorization of its owner or facilitate the confusion of the content consumer.
The most discussed issue in this of the legality of compilations has to do with the violation or not of the rules that sanction unfair competition. These rules sanction unfair competitive practices and not competition per se.
In Colombia, acts or deeds aimed at maintaining or increasing market participation that are contrary to healthy commercial customs, the principle of good commercial faith, and honest practices in industrial or commercial matters are considered unfair.
Acts or facts aimed at affecting the free decision of the consumer and acts or facts that affect the concurrent operation of the market are also considered unfair.
If you look closely, the companies that make journalistic compilations are in strong competition to the classic media. So much so that a survey in Spain found that more than 80% of compilations subscribers declared that if they did not have them, they would have acquired the original medium.
Precisely for this reason, in Spain in 2014 they adopted a law according to which the making available to the public by electronic service providers of content aggregation of non-significant fragments of content, disclosed in periodical publications or on regularly updated websites and that have an informative purpose, the creation of public opinion or entertainment, does not require authorization, but does generate equitable compensation.
In the United States, in a recent case, a court reviewed the lawsuit filed by an association of newspaper editors against a company that did ‘press clipping’ and alleged that it simply used the right to quote because it made it easier for its subscribers to search for the original texts.
The Court ruled in favor of the journalists’ association as it estimated that the amount of text copied – between 4.5 and 60% – of the original document, including the ‘lead’ – which are the 2 or 3 lines that summarize the news -, exceeded the right of appointment.
In short, anyone who wants to legally engage in the content aggregation business must verify if what they compile is protected by copyright and if the requirements to claim the right of quotation are met.
It would also be essential to consider the reason why you add content, because if you do so with an economic interest, it is possible that the authorities find that you are engaging in unfair competition, under the understanding that your actions may be parasitic.
At the end of the day, the compiler is acquiring presence in the market at the cost of the investment of time, study, dedication, analysis, work and money that others make – just imagine all the physical and human equipment that is required to publish a newspaper – Therefore, by exploiting these contents without paying any consideration, it causes their owners an unjustified damage that is evidenced in the substantial reduction in the number of copies sold or subscriptions.
In the end, this issue is so important that the subsistence of many media depends on it and, consequently, the possibility of maintaining a market free of ideas where freedom of expression flourishes and democracy is guaranteed.
NATALIA TOBÓN FRANCO
Lawyer, Master in Intellectual Property, Commerce and Technology.