Neil Netanel, a highly regarded legal scholar, has an interesting post on Balkinization entitled “The Demise of Newspapers: Economics, Copyright, Free Speech.”
Netanel, who has written extensively on copyright issues, posits that
part of the reason for the decline in newspapers stems from Internet
competitors that build on the content and value that newspapers create.
He suggests that imposing a statutory license or levy on commercial
Internet service providers and news aggregators might be a workable
solution for ensuring that newspapers receive compensation for their
investment in quality reporting.
While I think he gives too little credit to citizen journalists/media,
equating them all with bloggers and asserting that they are largely
“parasitic,” his central points are mostly valid:
[N]ews and opinion blogs are largely (but
certainly not entirely) parasitic on the institutional press. They
copy, quote from, discuss, and criticize stories reported in the press
far more than engaging in original reporting or linking to other blogs.
And just like peer-to-peer traders of music and movie files, online
readers copy and distribute stories from newspaper Web sites to their
friends via email and social network sites. Especially for the young,
trading copies of newspaper stories often substitutes for visiting the
paper’s Web site.
As Netanel correctly notes, news organizations (be they old media or
new media) that do original reporting suffer from the classic public
good problem: while they invest in investigating, reporting, editing,
and fact checking their work, their competitors can simply use the
finished product without making a similar investment in original
reporting. One remedy to this problem proposed by the Pew Research Center’s Project for Excellence in Journalism involves having news providers create a consortia to “charge
Internet providers and aggregators licensing fees for content.”
But this raises a host of concerns, which Netanel points out at the end of his piece:
To my mind, giving news
providers a proprietary veto over online news aggregators’, Internet
providers’, and bloggers’ referencing of news stories would impose an
unacceptable burden on speech. I argue in Copyright’s Paradox that,
all in all, holding such referencing to be fair use or otherwise
noninfringing of copyright is the best solution. But I can see
advantages to imposing some sort of statutory license or levy on
commercial Internet service providers and news aggregators who profit
from news providers’ investment. Newspapers should not have a veto over
who references their stories or how. But ensuring that they receive
some compensation for their investment in quality reporting might be
our only hope for maintaining that investment and the vital fourth
estate benefits that flow from it.
You can read the entire post here. I also recommend reviewing the comments to his post, which has, as you would expect, elicited some good discussion.