Copyright, Excerpting and Fair Use
Today’s New York Times has an article on copyright that explores how publishers are struggling with the blogging practice of re-posting excerpts even if the repost includes links back to the original content.
At issue is who’s benefiting from the practice. Is it secondary sources that publish the excerpts and perhaps have advertising surrounding it, or is it the primary source that might get extra readers from links back to the original article?
Generally, the excerpts have been considered legal, and for years they have been welcomed by major media companies, which were happy to receive links and pass-along traffic from the swarm of Web sites that regurgitate their news and information.
But some media executives are growing concerned that the increasingly popular curators of the Web that are taking large pieces of the original work — a practice sometimes called scraping — are shaving away potential readers and profiting from the content.
With the Web’s advertising engine stalling just as newspapers are under pressure, some publishers are second-guessing their liberal attitude toward free content.
While fair use hasn’t been settled in our age of digital reproduction, the article misses a significant factor in the entire debate: this is not a zero sum game. Both primary and secondary sources can benefit.
I’ll say at the outset that the practice of reposting articles in their entirety is negligent, wrong and any other negative you might want to apply. Whether it’s illegal is another question, or, put another way, do we want to waste our time and resources making it so? I’ll leave it to those with deeper pockets and legal departments to decide.
But the practice of fair use excerpting, of choosing that which you need to make a point by providing commentary around it and clearly linking back to the source material should not be threatening. It’s a social good that improves our understanding of the issues and ideas that affect our everyday lives.
As I wrote yesterday in a different context, the Dutch government commissioned a report that explores the costs and benefits of file sharing on the music, film and gaming industries. In that context, the report’s authors write, “In the music industry, one track downloaded does not imply one less track sold.”
In the same vein, excerpting is file sharing of a type. Instead of using P2P technologies, we use cut and paste. The practical result is sharing, remixing, mashing and providing new and different context to an original.
What the Times misses though is the very simple idea that my reading a paragraph or two of one of its stories on another site does not equal one less reader sold. There are a few possibilities here:
- I read the the original story and I’m now looking for more context elsewhere;
- I never read the story but now that I’m hearing about it elsewhere I’ll go check the original out;
- I never read the original story but am now being exposed to the idea even though I’m not going to read the original;
It’s this third point that gets to the crux of the matter. The publishing industry is obviously in a bind with bankruptcies, layoffs and chaos hitting it on a daily basis. If it’s losing advertising dollars both in print and online, it’s an apparent concern if readers are not actually reading their original content. Or is it?
When I wrote the other day that publishers need new models, I touched on the fact that the central and primary asset they have is not the individual piece of content but the overall intellectual capital the content contributes to. Excerpting promotes that.
The more the blogosphere quotes, links, highlights and otherwise promotes the ideas generated by a primary source, the more valuable that primary source becomes.
It’s now up to the primary source to monetize that resource. Right now, they’re not and to strictly think in advertising terms around a discrete piece of content displays a fundamental lack of imagination in how that monetization can take place.
Instead, publishers as primary sources need to think of complementary and supplementary content and services that they can leverage. This can range from live Webcasts to in person events on the subject. In between are a host of other possibilities.
Important though is losing the fixation on a particular article here an there and instead understanding the forest for the trees.
Again though, it’s not selling the particular content but instead the organization that produces it. Solve that nut and I think we move our publishers back on stable ground.
Michael Cervieri is a ScribeLabs co-founder and an Adjunct Professor at Columbia University's School of International and Public Affairs where he teaches a course called Tubes, Code and Content. On Twitter, he's @bmunch.
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