254. C Snow
Copyright and the Digital Agenda Inquiry
-	a freelance journalist’s submission

Chris Snow*
30 November 2012
Definitions
“Aggregators” means producers of email newsletters and websites who present a collection of headlines and first sentence/s from the newsletters and websites of the publishers of the original material.
“Publisher” means a media organisation which published news services of material produced using its own resources or for which it pays e.g. copy from news agencies such as Australian Associated Press.
“Story” is journalists’ and publishers’ terminology for a news or feature article.
Introduction and qualifications
This submission is presented in my capacity as a freelance journalist engaged in providing a regular news and feature service about a specific industry in Australia. 
Extent of research
The submission is not based on an exhaustive or even comprehensive review of online publications covering the industry to which it relates. 
The issues raised are global and therefore too extensive to be fully research by an individual.
Nor is the submission based on detailed examination of the Copyright Act or of legal cases relating to copyright and the Internet.
It is very much a submission from the head and heart of an aggrieved freelance journalist who also fears that profession journalistic and publishing standards are being lowered by the practice of aggregation.
Permission to publish
Consideration has been given to the possibility that the publications on which the submission is based may have result wholly or partly on permission being granted by the copyright owners to publish the material to which the submission refers.
However, that is considered to be unlikely given the extent of the lists of publications and websites involved.

Summary 
The Internet has increased massively the potential for plagiarism and in the industry on which this submission is based it is believed to be rife - except that, at least in Australia, courts have ruled that the method used makes it legal.
Using it, producers of email newsletters and websites publish the headline and first sentence/s of a story as a link to the original story in a newsletter or website of an original publisher (and, at times, another aggregator).
The current legal position, in Australia at least, appears to be that headlines are not protected by copyright law because
•	they are, with an occasional exception, not considered to be original enough, and
•	based on a long line of judicial decisions, short, one-line strings of text are not protected by copyright.
Aggregators capitalise on this legal positions to make and potentially make substantial financial profits, through advertising profits and cross-marketing/promotion profits, with very little capital or recurrent costs involved.
The copyright holders, who usually incur considerable capital and recurrent expenditure in producing stories receive nothing except exposure of their work, which some say they welcome but which nevertheless has major disadvantages.
There has probably been no request to publish and no royalty payment - and a probable loss of advertising revenue to the aggregator who captures business which might otherwise have gone to the original publisher.
As a freelance journalist, as with publishers and their staffs, I have spent many years developing an intimate knowledge of various political, business and social disciplines and in developing an extensive network of carefully cultivated and maintained sources of information. Considerable capital and recurrent expenditure has been incurred in office rent, equipment and “the usual” overheads plus travel and accommodation to a substantial number of events around Australia and, on two occasions, overseas. Stories aren’t obtained cheaply. 
I have written many exclusive stories - “scoops” as they are commonly known - have had them published and received a never-generous fee from publishers - only to have the story picked up by search engines and then by aggregators and broadcast around the globe to the extent that there is no point in trying to on-sell the story. On-selling is essential to many freelance journalists to ensure that a reasonable income is earned.
To know that these organisations and their staffs are sitting at their desks accessing my stories and profiting through plundering it without permission and without payment is nauseating. 
The practice is totally anti-competitive and should be outlawed. stories.
Despite the difficulty of regulating a massive global phenomenon often with no national boundaries, recommendations for consideration include:
•	conducting a detailed study into the nature and extent of aggregation and its impact on the economy, particularly on original creators and publishers of stories
•	outlawing this form of aggregation
•	requiring aggregators to obtain permission to publish information which appears first on other publishers’ sites
•	requiring search engines to provide options for original publishers to state conditions applying to their material in relation to aggregation
•	amending copyright law to protect headlines and first sentence/s of stories
•	requiring aggregators to check the provenance of all stories they publish
•	establishing a system of royalty payments, similar to system applying to hard copy monitoring services.
Contents
The email newsletter and websites which are the subject of this paper generally contain:
•	a collection of headlines of stories taken from the email newsletter or website of the (probable) original publisher
•	one or up to about three of the first sentences of each story, again taken from the email newsletter or website of the (probable) original publisher
•	in some cases, headlines and the first sentence or first few sentences of stories presumably written by the aggregator’s staff or the aggregator
•	in some cases, a collection of banner, box and classified advertisements placed around and between the headlines/sentences on the website
•	in some cases, advertisements on subsequent pages of the aggregator’s website.

Method of operation

The method or methods used is/are not known precisely but it seems almost certain that stories selected for the aggregated newsletters and websites are from search engines.
The headline of each story, usually presented in a standard form of one line, is posted in an aggregator’s newsletter as a link to the probable original story. (There may be occasions when the link is to a story which itself has been published in a third-party newsletter or website).
Software programs may be used by the publishers to target stories on the search engines about specific topics, although the creation of “alerts” on specific topics may be the most usual method.

Clicking on the headline/link either:
•	opens the story on the probable original publisher’s newsletter or website, or
•	opens a page on the aggregator’s website which also contains the headline and first sentence or few sentences of the story.
Source of news items
It appears that many of the headlines and first sentence/s published are direct copies of what has appeared on search engines.
Sources vary from the world’s best known news publications to obscure trade publications - except for those which have pay walls, although some of those publication’s headline/introduction pages are sometimes included.
In Australia, most of the metropolitan daily newspapers are sometimes targets as are the ABC and state-wide, regional and local publications.
Blogs are also targeted by some newsletters.
Number of news items
Most newsletters examined appear to publish about eight news items each day or whenever published, sometime a few more and sometimes one or two less.
One US trade publication, however, carries more - a recent edition having nine news items, four blogs and ten local news items.
One Chinese publication - which uses its site to promote a service for foreigners investigating the establishment of companies in China, has 20 stories on its home page, all sources from other publications and more than 30 on a separate “international news” page, although some appear to have been provided by freelance journalists. 
There are five other sections, most aggregated stories but quite a few apparently written by the publication’s own staff.
Numbers of advertisements
Up to 20 display advertisements - banner, “box” and classified - have been counted in an email newsletter.
The US publication mentioned above had 18 classified advertisements in one edition. The advertisements are usually a few works e.g. “General manager, operations” which link to a job description on another page.
The same publication also has links to “more job advertisements”.
Publisher’s costs - comparison with “original” publishers
The costs of operating such a newsletter are difficult to estimate but are almost certainly very low.
After establishment costs, recurrent costs are likely to be very low.
Locating stories is likely to be done by an automated key-word search. 
A staff member is probably engaged for a very short period of time each day to selecting and posting the stories to be published.
There may be more advanced methods of which I’m not aware.
Except in cases where a story is written by the publisher’s staff, there would be none of the costs connected with producing stories using professional journalistic and publishing practices e.g. for:
•	journalists’ establishing and maintaining sources of information
•	communication
•	travel and accommodation costs - local, interstate and international
•	journalists’ researching, interviewing, analysing, writing, sub-editing and editing 
•	journalists, publishers and lawyers checking, when necessary, the legal status of stories
Recurrent expenditure probably would be amortised with other publishing activities.
Benefits to producers
The publishers of these newsletters and websites benefit from:
•	advertising revenue - one newsletter, based on its published advertising rates, is estimated to have had a maximum potential income in one year of $178,000, although that figure is based on the standard rates and doesn’t account for any discounts applied because of long-term contracts or multiple contracts involving the publisher’s other publication
•	cross-marketing the publisher’s other products and services e.g. other email newsletters, online employment and sales services and hard copy publications
•	promotion of the publisher’s goods and services e.g. if the publisher’s primary business is not publishing it uses the newsletter and site to promote its primary goods and services
•	sales of subscriptions to the newsletters, although this practice appears to have largely died in the past few years, only one - a non-aggregator - being known (but, as said, the global extent of the matter means an exhaustive study has not been possible)
There are other email newsletters, usually derivatives of substantial trade hard copy publications, which use the publisher’s own resources to produce editorial material.
Benefits/disadvantages to original publishers
Benefit: original publishers benefit by having readers of the email newsletter directed to their sites, the increased readership probably boosting justification for the advertising rates they charge.
Disadvantages:
•	a loss of advertising sales and revenue - advertising sold by the email newsletter publisher might be advertising which otherwise could have been placed with the original publisher
•	no royalty payments from the aggeregator.
Benefits/disadvantages to journalists
Benefit: journalists employed by original publishers may benefit through the wider distribution of their stories and by-line, increasing their reputations and hence their salary and career advancement prospects (if their reporting is of sufficiently high professional standard)
Disadvantage: if they have agreements with the publisher which allows them to contribute to other media outlets e.g. a newspaper journalist may have an agreement to appear on radio or television - widespread publication in email newsletters and websites could pre-empt what the journalist is to relate to a wider audience, meaning a loss of audience appeal and hence a lesser ability to command reasonable fee.
Freelance journalists
Neutral. If a freelance journalist sells a story to a publisher and assigns copyright to the publisher, then any disadvantage is borne by the publisher.
Disadvantage. If the journalist assigns copyright only for publication in the publisher’s publications, then inclusion of the story in an aggregated newsletter/website can prevent further sales of the story, diminishing the journalists’ income - and with generally small fees able to be commanded by freelance journalists’, that can be financially debilitating.
On one Chinese site, a search of my name shows 13 stories from the past few years, all contributed to other publications, none of which are the subject of copyright assignment and none of which have been paid for.
Headlines - why aggregators can currently operate as they do
According to recent advice from the Australian Copyright Council, html links are not protected by copyright because they are considered not original enough for copyright protection in their own right.
Further, a headline was unlikely to be ruled to be protected by copyright because there was “a long line of Australian case law which indicates that short, one-line strings of text are not protected by copyright”
In Fairfax v Reed, FCA 984 (7 September 2010) “The judge held that the headlines were not original enough for copyright protection, although she did not rule out the possibility that a particularly original headline could be protected by copyright.”
A Council media release about the case said:
Federal Court decides against copyright in headlines
08/09/2010
The Federal Court’s Justice Bennett has ruled that no copyright exists in headlines, in a defining case brought by Fairfax Media Publications against Reed International Books Australia (trading as Lexis Nexis).
Justice Bennett found that Fairfax had failed to prove that any of the ten selected Australian Financial Review headlines it submitted was a discrete work of joint authorship in which copyright could subsist.
The judgment stated at [159-162]: “As to whether Reed, in reproducing and communicating headlines of the AFR as part of [its] Abstracts, takes a substantial part of any of the contended works:
- Even if the Story/Headline Combination constitutes a copyright work, Reed does not take a substantial part of such a work.
- Reed does not take a substantial part of either the Story Compilation or the Edition Work.”
“Reed’s conduct in reproducing and communicating the AFR headlines as part of the Abstracts is a fair dealing for the purpose of reporting news, such that Reed’s conduct would not constitute an infringement of copyright by reason of s 42(1)(b) of the Act.”
There is further information in the Council’s Information sheet. GO57v10. “Websites & Copyright”. August 2012.
Misleading advertisements and defamatory stories
There is currently a High Court decision pending on an appeal by Google against a Federal Court ruling, in a case brought by the Australian Competition and Consumer Commission, that Google is responsible for misleading advertisements it carries.
There have, according to various media reports, also been recent Victorian Supreme Court decisions that Google and Yahoo defamed a Melbourne man, Michael Trkulja, by providing links to material which wrongly associated him with underworld figures. Damages were awarded in each case.  (Source http://www.zdnet.com/au/aussie-awarded-au200k-in-google-defamation-case-7000007241/)
Justice Beach is quoted as saying that Google was “like the newsagency that sells a newspaper containing a defamatory story.
"While there might be no specific intention to publish defamatory material, there is a relevant intention by the newsagent to publish the newspaper for the purposes of the law of defamation."
Further discussion and recommendations
Overall 
The extent of aggregation and the extent to which it causes the problems raised in this submission is believed to be extensive but quantification isn’t possible by an individual person.
A reasonable assessment would seem to be an extremely  valuable exercise and could be achieved by a properly constructed survey of one or more industries.
Recommendation 1
That a survey be conducted to assess the extent of aggregation and its impact, the coverage of the survey to be determined.
Aggregation in online publications as it currently exists is condemned. It is leech-like. Assuming there are not agreements with original copyright holders it generally saps their occupational financial lifeblood.
Aggregators need make little effort to obtain the material they publish for profit.
They also have few costs yet potentially can earn substantial amounts from advertising sales and from the promotion of their other products and services.
These profits are reaped by largely or entirely using the original works of other parties.
It is anti-competitive.
Recommendation 2
That the inquiry should consider outlawing aggregation in its present form.
Primary cause
Search engines are the prime cause of the problem
Through their mega-aggregation to form mega-data bases and through the “alerts” they send - and maybe other functions of which I’m not aware - they make mega-profits.
The merits and demerits of their business models may have been debated and even been the subject of litigation - but it is strongly suggested that there would be great value in a detailed consideration the impact they have nationally and internationally.
If they did not publish headlines and initial sentences from original publisher’s web sites and provide “alert” services the aggregators would be highly unlikely to be able to operate.
Recommendation 3
That the Inquiry makes a detailed study of the business models used by search engines and their impact on the digital economy as primary aggregators and as the facilitators of secondary aggregation.
Secondary cause
Based on the earlier description of secondary forms of aggregation including the number of stories, the number of advertisements, costs and benefits - and the benefits and disadvantages to original publishers and journalists, especially freelance journalists ……
Recommendation 4
That the Inquiry make a detailed study of the business models used by secondary aggregators and their impact on the digital economy, particularly on the businesses of original publishers and journalists, particularly freelance journalists.
Headlines
The current legal position of headlines, based on the Copyright Council’s advice, is cut and dried - they are not protected by copyright.
The decisions are, as I believe most puyblishers and journalists would strongly argue, demonstrably wrong.
Originality
The decision/s that headlines are not original enough to be protected by copyright laws is challenged.
Any journalists who has worked as a reporter required to provide a headline as part of a story, and/or as a sub-editor or editor required to write headlines will be able to show the skill in:
•	instilling the essence of a story in the headline i.e. summarising the story
•	making it fit the prescribed space using the prescribed type face, width (single column or more) and number of lines.
•	making it accurate
•	making it enticing to readers.

Essence of story
“Essence” is a term which, it is submitted, is a fair description of the nature of a headline.  
It is also submitted that if the “essence” of a story is captured in the headline, that the headline is therefore a substantial part of the story in terms of copyright law and therefore is protected by the law.
Headlines and first sentence/s
If that’s not accepted then a headline and the first sentence of a story - the introduction - together are a substantial part.
Normal journalistic practice is to write a story from the “top down” i.e. the first sentence contains the most important point, the second the next most important point etc.
So a headline and first sentence are a double dose of essence or doubly substantial - and the headline and first two or three sentences -  triple or quadruple dose of essence.
Multi-line headings
Headlines published as multiple lines (“decks”), especially in hard copy publications.
Even if they are one line on the original publisher’s website they may have been taken from the hard copy where they were more than one line.
But they can - and often do - appear on the original publisher’s website as two-liners. 
For and aggregator - primary or secondary - to take a two-line heading and convert it to a single line, then claim it is not copyright protected because it is a short, single line of text, is a cheap, literally, trick to circumvent the law
Headline as hyperlink
Further, it is submitted that when a headline becomes a hyperlink it becomes more than a headline - it is a mechanism, a switch, to open a story.
It is not, therefore, only a single line of text.
Recommendation 5
That copyright law be amended to specifically protect headlines and headlines and the first sentence/s of stories.

Aggregation by summarising stories
Another form of aggregation has long been practiced and no doubt falls under the “fair reporting” provisions of copyright law.
It involves brief summaries of stories being written i.e. they are not simply the first paragraph or two but usually in the form of “The XYZ Gazette has reported that a man who bit a dog had been reported to the RSPA”.
Segments on television and radio such as “What the papers say” are examples. In Fairfax v Reed, the Reed work referred to appears to fall into this category.
The practice at least usually involves journalistic expertise in assessing and distilling the targeted stories and writing the summaries.
Aggregation in email newsletter and on websites, however, almost certainly involves no journalistic expertise apart from perhaps minimal effort in selecting headlines and the first sentence/stories available on search engines. 
That cannot, it is submitted, be considered as journalism.
Provenance of aggregated stories
 It is suggested that aggregators make little or no attempt to check the provenance of the stories they publish.
The Trkulja v Google cases point to the problems this can cause with defamatory stories being re-published in multiple publications because the original story was defamatory.
Proper journalistic practice is to check all aspects, including legal, of a story.
Aggregators do not appear to do this.
Some years ago, an Australian industry was accused by a foreign producer (from the same industry) of product dumping and operating a cartel. The story was published in a foreign industry news magazine accompanied by a ‘break out’ containing a rebuttal by the head of an Australian Government authority. A now-defunct Australian industry aggregated email newsletter, produced by a marketing company, published a headline/first sentence link the news magazine’s story on its web site, but only to the allegation and not to the rebuttal. 
Recommendation 6
That copyright law be amended to require aggregators be required to check the provenance of stories and provide assurances that the checks have been made.
Solutions
The problem of aggregation is global and therefore extremely difficult to regulate.
But if the creators of information material are suffering because of it, efforts should be made to protect them.
Several possible solutions are proposed for investigation.
1.	The first would to ban aggregation and aggregators. 
Given the examples outlined earlier, aggregators clearly are living off other people’s work - unless original authors and publishers assign copyright but, as said, that seems unlikely.
This would mean a considerable reduction in the amount of information available - but it would be a reversion to a pre-Internet state which, while no-where as powerful in the advancement of knowledge, was not restrictive.
2.	Making aggregation as in “What the papers say” permissible but proscribing the non-journalistic form.  
3.	Search engines - at least Google - apparently have mechanisms for allowing publishers to prevent their stories being aggregated.
They could also be required to provide options on each link - maybe by codes - to indicate e.g:
•	permission to aggregate
•	permission to aggregate subject to royalty payments
•	aggregation banned
•	aggregation for commercial purposes banned.
4. Royalty payments, if permission to aggregate is given, could be introduced.
These could applied in a similar way to the royalty system apply to hard copy clipping services e.g. Media Monitors.
*Chris Snow is a journalist, communication consultant and research consultant who has worked on major state industry publications, British provincial newspapers, and metropolitan daily newspapers. He also worked in public relations in the Australian public service and in private practice, and also as a private research consultant specialising in health and communication research.