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BPR Interviews: Jane Ginsburg on Technology and Copyright

As the Morton L. Janklow Professor of Literary and Artistic Property Law at Columbia Law School, Jane Ginsburg specializes in legal methods, trademark law, and copyright law, both domestic and international. Having written extensively about these matters through casebooks, articles, and book chapters, Professor Ginsburg most recently co-authored International Copyright: US and EU Perspectives in 2015. She graduated with a J.D. from Harvard Law School and a Diplôme d’études approfondies and  Doctorate of Law from the University of Paris II.

Rose Houglet: What are the implications of the fact that journalists do not own the information that they report on?

Jane Ginsburg: There are two different issues in that question. First of all, nobody owns information. Copyright protects the so-called expression or the way you tell the story, but not the facts of the story. Second, as to the way the story is told, who owns that, that depends on whether the journalist is an employee or is freelance.  Under U.S. copyright law works created by employees of any kind, not just journalists, that they create as part of their job description belongs automatically to the employer. So, the employee never has the copyright. In the case of employed journalists, that would mean the publisher has got the copyright from the outset. The publisher might grant rights back to the actual author, but the rights start with the employer. If the journalist is a freelance — whether they’re a journalist who works in words or a photojournalist — the work that they create if they’re commissioned by a newspaper does not automatically go to the publisher. But, if there is a contract that says that the work they create is a so-called “work made for hire” then the publisher owns all the rights.

Rose Houglet: Could you give me a real-world example of tensions that occur when it’s not clear who owns the rights?

Jane Ginsburg: There is a case that went all the way to the Supreme Court some years ago that involved freelance journalists who signed a contract that was not a so-called “work made for hire” contract, but it gave the publisher the right to publish the articles, op-ed pieces or feature articles in the newspaper. These contracts were entered into in the 1970s before digital media became pervasive. Then, The New York Times wanted to license Nexis to make the entire contents of all of The New York Times available in digital form. It was also many other publications as well, but the lead party was The New York Times. The freelancers said, “Wait a minute, our contract didn’t give you the right to digital. Our contract gave you the right to print. You can’t just give digital rights to Nexis when you didn’t get those rights in the first place.” So, that’s an example of tension that arises in what’s sometimes called the “old license new media” problem. It’s not limited to journalism by any means. It comes about any time a contract was entered into at a time when the technology was in a certain state and then the contract continues — because the contract might be for the life of the contract — but the technology evolves. Then, the question is whether or not the contract should be interpreted to cover the new technology or not.

Rose Houglet: Could you give me an example of how news aggregation might complicate this issue, for both publishers and journalists?

Jane Ginsburg: News aggregation is really more of a publisher issue. I should explain that what I mean by news aggregation is the practice by Google News and others of so-called scraping the websites of various publications and copying the headlines and maybe the first two sentences of the story and then publishing like a list that contains all those headlines and initial sentences, usually with a link back to the source newspaper. The position of the aggregators is “We’re not hurting you because people can always link back.” The position of news publishers is “People don’t link back. You get the benefit of our content, and you get the advertising, and we don’t get anything.”

Rose Houglet: How does this rise of news aggregators question the ability of copyright law to protect the news publishers?

Jane Ginsburg: This aggregation is not the only thing that is putting pressure on traditional publishing. The advertising model has substantially changed, and online platforms tend to get the benefit of that. The problem from the point of view of copyright law is that while one can understand as a matter of, say, unfair competition, that the platforms are getting a real benefit here and that you might call this so-called unjust enrichment, it’s not clear that it’s copyright infringement, at least not if the aggregators are only taking the headlines. If they’re taking sentences, that’s a little more problematic, but there’s a doctrine in copyright law, at least in the U.S. copyright law, called “Words and Short Phrases,” and if a headline is only a few words, that might not be enough. So, if the aggregators make sure that they take as little as possible — even though that very small amount may still be sufficient for their purposes of conveying the information and keeping people on the platform rather than going back to the newspaper — you might have an economic impact, but it’s not entirely clear whether you have copyright infringement.

Rose Houglet: Are there more copyright infringement concerns when news aggregators take photographs?

Jane Ginsburg: Sure because a photograph is a work of authorship. It’s not just a couple of words. If they take the photograph verbatim, at least at the first level of analysis, that would be infringement. Now, there are various exceptions in copyright law, including the Doctrine of Fair Use, which under certain circumstances might allow the taking of somebody else’s photograph. But, one of the biggest concerns for photographers is that often their photographs are taken without credit. Not just for photographers, but for authors in general, it’s hard to make money on the Internet, but even harder if nobody knows who you are.

Rose Houglet: Could you speak to another field in which the tension between new media or technology and old licenses is prevalent?

Jane Ginsburg: Ever since at least the advent of motion pictures at the end of the 19th century — because the way of exploiting dramatic works was on the stage and along come motion pictures and after motion pictures, you get television. Then you get cable, and then you get the videotape recorder from that and then you get streaming and on and on.

Rose Houglet: Have there been Supreme Court cases about that also that you could speak to?

Jane Ginsburg: There was an old case back around 1918 involving motion pictures. The playwright had granted rights of dramatic performance, I think, to a theater producer, and then along come motion pictures and the author grants rights to a movie producer to produce the play. The stage producer says, “Wait a minute, you don’t have those rights.” So there again, it was a question of how do you interpret the contract: does it reach the new technology or does it not reach the new technology? The Supreme Court split the difference and said that the author did have the new technology rights, but couldn’t license them to anybody else without the agreement of the theater producer, the person he previously entered into a contract with.

Rose Houglet: Have there been any measures on behalf of the producers or publishers to try to combat the fact that news aggregators or that new media are taking over their work?

Jane Ginsburg: In Europe just this year, the European Commission and Parliament produced a directive — a set of rules that every member state is supposed to enact into domestic law. It’s sort of a framing law, and then everybody’s domestic law is supposed to conform to the general outlines. This directive is called the “Digital Single Market Directive,” and it has a special provision on the rights of press publishers vis-a-vis news aggregators that would require that they get paid.

Rose Houglet: Are there reasons for which these measures are more easily conducted in Europe than in America?

Jane Ginsburg: If I were cynical, I would say that it’s because the platforms are American. So it’s maybe easier in Europe to pass legislation that might improve the content owners’ enforceable rights vis-a-vis the platforms. But in the United States, the big tech companies have a huge amount of lobbying power, and it’s very hard to get legislation passed if they don’t like it.