Document Type

Article

Publication Date

2004

Abstract

This article asserts that newspapers' quest for copyright protection was an early step onto a slippery slope toward a property-based, rather than service-based, ethos, and that removing that protection may at the least mark a first, symbolic step back from the abyss. Part I examines the state of contemporary journalism, particularly with respect to the propertization of news. Part II traces the history of copyright protection for news from its origins in censorship to the American copyright regime today, with emphasis on the run up to the 1909 amendments that first codified protection for newspapers. Part III advocates the moral rights of attribution and integrity and the removal of copyright protection for all printed and broadcast news, imposing only a twenty-four hour embargo on republication or rebroadcasting. It also deals with real or imagined problems with this approach and suggests ways of dealing with them, including defining news, curtailing free riders, and preserving quality journalism.

The copyright system, though constitutional, is broken. It effectively and perpetually protects nearly all material that anyone would want to cite or use. That is not what the framers envisioned, and it's not in the public interest. Copyright protection for journalism should be replaced by a highly circumscribed variant of the much-criticized misappropriation tort, coupled with authorial rights of attribution and integrity that supersede the American work-made-for-hire doctrine. Transformative uses of the journalism work product, i.e., new products in the same market, or the same product in different markets, should be encouraged - the better to serve the Framers' objective of promoting knowledge - and the duration of any protection available should be severely limited.

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