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Content Aggregation: A Win-Win for Publishers?

May 2009 By James Sturdivant
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Fair Use: How Fair?
As the law currently stands, four factors are weighed by the courts in deciding if a reproduction of copyrighted material constitutes “fair use.”

1. The manner in which content is used. Commentary is more protected than straight reproduction. Generally speaking, the more original the use, the less likely there will be a finding of infringement. Also important is whether the use is of a commercial nature or for nonprofit, educational purposes.

2. Whether the work deals with simple fact. Pure news, as contrasted with columns, commentary or features, is more likely to fall under the provision of fair use. “[Generally], facts are not copyrightable,” notes David Hosp of law firm Goodwin Proctor LLP, “which makes it, to some degree, difficult to protect news content. Specific formulations of articles can be protected, but summarizations of facts contained in news articles are difficult to protect.” On the other hand, news content that is time-sensitive or collected at great expense has been given a higher degree of protection by the courts.

3. The “amount and sustainability” of the portion used as compared to the work as a whole. “The more you take, the likelier it is that there is a potential copyright issue,” Hosp explains. Use of titles are generally protected, as are summaries and ledes, but the line defining what is and is not acceptable remains fuzzy and is largely determined by context.

4. The effect of use on the market value of the copyrighted work. The impact a use is likely to have on the original content producer’s bottom line is at issue here. Problems are more likely if the material is seen as a substitute for the original work. For aggregators, the more you drive people to the original Web site, the more you are arguably helping them; however, defining this area of fair use is difficult in the Web context because of factors such as effects on search engine optimization and determining who benefits most from clickthroughs.

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Go to AccuWeather.com to find out if your town will see sun or clouds tomorrow, and below the local temperature, you’ll see local news. This is not a case of meteorologists breaking into the journalism business; content (in the form of linked headlines) is provided by aggregator Topix.com, which uses a sophisticated algorithm to troll the Web for relevant articles. The material enriches the Web sites of Topix’s distribution partners, while the primary news source sees additional site traffic—a win-win for everybody, right?

It depends. The New York Times Co. decided to do something similar with headlines and ledes from local newspapers published by GateHouse Media in the Boston suburbs. GateHouse sued for copyright and trademark infringement, and the matter was recently settled out of court, with The New York Times Co. agreeing to remove all GateHouse material captured by the company’s aggregation tool. “The legal disputes are emblematic of a larger question that has emerged from the Internet’s link economy,” noted a New York Times article.

Online content aggregation offers traditional publishers significant revenue potential, even a means to reinvent themselves as premium content providers to a vast pool of Web publishing ventures by licensing their content to others seeking to provide aggregated content online. How best to convert aggregation into a revenue strategy is still an open question, however, as are the more fundamental legal issues of what constitutes fair use.

The Aggregation Equation
Content aggregation exists in two forms: link-based, of which RSS feeds—essentially an automatic syndication tool that works with metadata tagging—are a well-known example; and those that aggregate full texts and live within secondary Web sites. The first includes those forms of aggregation featuring headlines and/or snippets of content, as with Topix. The second includes specialized information services such as Factiva, Bloomberg News and Nexis.

Content aggregation’s growth in popularity has followed the explosion of content delivery and sharing on the Internet. Increasingly, people expect Web sites of all sorts to have news components, notes Stewart Clark, vice president of publishing at Acquire Media, a news aggregation and syndication service provider.

“The people who are hosting these Web sites need to make the determination: Are we going to have those users link out to a third party … or license the full text of that content, and probably pay a little more, but keep the exact same user experience?” he says.

 

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