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To Revitalize Journalism, Expanding IP Rights is Not the Answer

June 18, 2010 , ,

On Tuesday, the Federal Trade Commission held the last of a yearlong series of workshops on the future of journalism.  The conversation centered on the staff discussion draft of potential policy recommendations, released late last month.  As I explained in my earlier post on the draft, it contains a few troubling suggestions regarding intellectual property law.  To warn the FTC of the consequences of these potential recommendations, PK’s own Sherwin Siy spoke at the workshop.  Additionally, we submitted written comments to the FTC, which you can read here.

Throughout the day, FTC Chairman Jon Leibowitz, Commissioner J. Thomas Rosch, and Director of Policy Planning Susan DeSanti repeatedly distanced the FTC from the policy recommendations laid out in the staff discussion draft.  They reiterated time and time again that the staff discussion draft was a compendium of other participants’ recommendations, not the proposals of the FTC.  These statements, and the Commission’s June 4 press release relaying the same message, follow the massive uproar that came from all sorts of journalists in response to the staff discussion draft (see articles in the NY PostNY Times, and on Ars Technica).  Despite this recognition of public concern with the potential proposals, we wanted to ensure that the FTC fully understood the harms that would be caused to both the journalism industry and society at large, if the IP proposals came to fruition. 

Sherwin explained the danger in too readily looking to copyright law as a tool to solve the problems faced by the journalism industry.  Furthermore, he discussed how the hot news doctrine is outdated and how its extension – which creates property rights in facts – runs opposed to the idea/expression dichotomy that is at the heart of copyright law.  This expansion of property rights would have harmful effects – including chilling public discourse – and implicate First Amendment rights.  Promisingly, many of the panelists agreed that changing intellectual property law is not an appropriate solution to the journalism industry’s woes.  In the minority was Barbara Wall, of newspaper giant Gannett, and John Sturm, of the Newspaper Association of America, suggested who seemed to believe that the extension of property rights in news is feasible remedy.  But, on the whole, there was little support for these proposals.   

Instead of looking to changes in IP law, panelists looked to other, more inspired means to revitalize journalism.  For example, as The Nation’s John Nichols explained, it is important to build out broadband access to all communities.  News used to be promoted by enhancing communications via the postal service, and newspapers received government postal subsidies in this effort.  Today, however, news travels over the Internet.  To promote journalism today, it is essential that all citizens have access to broadband so that they are empowered to produce and consume digital journalism.  Ensuring that all content is equally treated, by establishing net-neutrality principles, is a key facet of this effort.  Furthermore, as Sherwin explained, greater connectivity would expand journalism to new niche markets that are otherwise too distributed for it to thrive.  Other proposals discussed involved tax exemptions, utilizing bloggers, enabling newspapers to more easily obtain non-profit status, ensuring that newspapers can take donations, and increasing access to government files, to name a few. 

Ultimately, getting the government to consider the future of journalism is a noble goal.  However, the White House should undertake this endeavor, not administrative agencies like the FTC, where the risk of capture by big industry players is a reality.  This is evident in the unenlightened IP policy recommendations in the staff discussion draft. These recommendations would not help the journalism industry, but only harm it and all citizens.  In the wake of Tuesday’s workshop, this should now be clear to the FTC. 

You can read our entire comments here and watch the webcast of the workshop here.