National Post Wants $150 To Quote Articles (Even The Parts It Quoted From Other Articles)

from the double-standard dept

Update: Since this morning, National Post seems to have disabled this feature. Whether the change is permanent or not I can’t say.

Despite three years of journalism school and several more working at newspapers, I’ll never understand the double standard that journalists and publishers have when it comes to copyright and fair use/fair dealing. The act of reporting relies heavily on the latter, and the news business would be a very different place if newspapers were expected to pay licensing fees on the quotes they gather from experts, reports and other sources. Thus, newspapers have traditionally been staunch defenders of fair use—that is, until they find themselves on the other side of the equation.

Through Michael Geist we learn that Canada’s National Post (disclosure: I used to work for the paper as a freelancer) is trying out a highly disruptive new “feature” that attempts to scare people out of quoting the articles without paying up:

If you try to highlight the text to cut and paste it, you are presented with a pop-up request to purchase a licence if you plan to post the article to a website, intranet or a blog. The fee would be $150. … If you click no to the pop-up, you cannot copy the text. If you click “quit asking me”, the request stops.

I’ve seen newspapers with “license calculators” for quotes before, and of course we’ve all seen websites that frustratingly interfere with your copy-and-pase or right-click abilities—but this is the first time I’ve seen the two combined. The system is driven by iCopyright, a plugin that promises to make it “super easy” for people to license your content, but I guess not so easy that people won’t hopefully feel compelled to pay.

This isn’t just a dumb idea—it’s a really hypocritical game for a newspaper to be playing. Geist underlined the irony by pointing to the regular Post feature Full Pundit, in which writer Chris Selley does a roundup of editorial and opinion columns from the week in Canadian media. Naturally, this involves lots of quotes and snippets from these other media sources, which Selley then expands on or disagrees with or otherwise comments upon—all unlicensed quotes, the use of which is clearly protected under Canada’s fair dealing laws for commentary and criticism (and would be equally protected in the US under fair use laws). But if you try grabbing a snippet from Full Pundit, you’ll be asked to pay a license. Worse still, if you try to grab one of the quotes from another newspaper on the National Post site, you’ll still get the same popup telling you to look into licensing options… for a quote they don’t own and are themselves using for free on the basis of fair dealing.

The popup does not mention fair dealing or fair use. It takes some digging to find iCopyright’s fair use statement, which is a masterpiece of menacing disingenuousness. As we’ve noted in the past, the fact that the boundaries of fair use and fair dealing are often unclear creates a massive chilling effect, since people are unsure about their rights and not always willing or able to fight for them, and iCopyright relies on that very effect to scare people into paying up:

The use of excerpts from others’ works without a license is permitted in certain limited circumstances under the “fair use” doctrine of U.S. Copyright Law and the “fair dealing” doctrine in Commonwealth nations. However, republication on the internet, without a license, of even a small portion of a work can constitute copyright infringement.

The distinction between “fair use” or “fair dealing” and infringement is not easily defined because each re-use has unique characteristics that must be analyzed. For example, there is no specific number of words or lines that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. For additional information you may want to do an internet search of “fair use checklist” and “copyright myths.”

Got that? “It’s pretty hard to know if something’s fair use, so you probably shouldn’t bother.” The page then offers a list of factors that often come up in fair use analyses, and suggests that if any of them apply to your use, it is “cause for serious reflection” on whether or not you are protected:

  • Is the excerpt such that the reader may feel he/she already has the gist of the original work and no longer needs to read it?
  • Is it your intent to earn money, whether through ads, subscription revenues, or otherwise?
  • Is the work that was excerpted highly creative?
  • Are you choosing not to exercise an affordable and accessible licensing mechanism?
  • Are you publishing the excerpt widely, such as on the Web?
  • Is the work of excerpted authors the main draw to your work as opposed to serving as a “footnote”?

Now, it’s true that all of those are factors that can matter, but it’s also true that you could answer ‘yes’ to virtually all of them and still be within the bounds of fair use/fair dealing. This is easily demonstrated by looking at the snippets within the National Post Full Pundit columns, which are a definitive “yes” on all but the first item. The issue of quote length is doubly amusing, since the Post recently lost a lawsuit it brought against an internet forum, because the Supreme Court declared that posting large snippets (multiple paragraphs) of articles can still be fair dealing, and that the established fair dealing exceptions for “news reporting” can include things like online forum discussions.

And that’s where we see the double standard emerge. For a long time, newspapers really were the only source for news reporting, and thus over the years they got some special considerations in the laws and in the courts. Today everyone is a reporter, a photographer and a publisher, and these non-ink-stained wretches are quite rightly utilizing the same rights that “official” news sources have, for the same purposes. Newspapers like the National Post seem to have a hard time getting their head around that, so they launch lawsuits against forums and stick pointless bullying popups on their websites. It strikes me as a matter of arrogance more than anything else.

And, of course, it has to be asked: what is this going to accomplish? It’s certainly not going to become a massive revenue stream for the paper, with bloggers (who are becoming well-versed in fair use and fair dealing themselves) forking over $150 every time they want to quote the National Post. There is another possibility, which is that it’s a legal tactic: in future lawsuits, the Post could point to this popup tool as an “available and affordable license” that someone chose to forego, giving them a slight leg up in an anti-fair-dealing argument.

Either way, it’s a hypocritical and even somewhat despicable move. The National Post is fighting against an important legal protection that is vital to newspapers themselves and to free speech as a whole. Here’s hoping that the writers featured in Full Pundit columns, and anyone else quoted in the Post, calls up the newsroom and demands a $150 licensing fee.

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Comments on “National Post Wants $150 To Quote Articles (Even The Parts It Quoted From Other Articles)”

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Scote (profile) says:

Re: It is the policy not the technology that is at issue.

The licensing box can be dismissed, so work arounds aren’t the issue. The issue is the hypocritical, overbroad copyright claims. And the outrageous pricing. They want $150 from me so I can post 100 words of fair dealing/fair use text on my blog, which though not for profit I’m sure they could try to make some sort of Righthaven claim that a link to amazon or some such makes it for profit.

Rikuo (profile) says:

Re: Re: It is the policy not the technology that is at issue.

I know, I was just thinking of a way of saying how you could use the text without even having to invoke fair use/fair dealing. I myself would be outraged if someone told me to do the very method I described, because its an artificial and inefficient way of doing something, simply to stay within the law (such as movie studios saying years ago, no you can’t record the TV program with a VCR, but you can point a camera at the screen and record that way).

John Fenderson (profile) says:

Re: Re:

Why isn’t it illegal to demand money from people for something that is legal

I don’t think that should be illegal. It’s douchy, and no respectable person would do it, but it shouldn’t be illegal as it’s a clear violation of free speech.

I have every right to demand money from anybody I wish for any reason I wish, and they have every right to tell me to go to hell. That’s as it should be.

That One Guy (profile) says:

Let the feeding frenzy begin...

I think the best way to deal with this would be for every person, group or company they quoted to send them a bill demanding $150 per quote, with a threat of a lawsuit if they refuse to pay.

If they pay, then there goes probably a couple thousand each article, which is hardly sustainable. On the other hand if they (rightly) try and claim fair use, their own defense would be able to be used by those that want to use quotes from them.

Killer_Tofu (profile) says:

This Day and Age

These days on the internet there are a plethora of sources for information and news. Having a policy saying that you do not want traffic and don’t want people talking about your articles seems incredibly short sighted.

It is almost as if they want to be driven out of business. This strikes me as a pretty big flag being waved around that says “read somewhere else if you want to share anything you read”.

Rikuo (profile) says:

Uhh…Leigh, I just opened the Post in both completely unmodified Internet Explorer and Chrome (didn’t bother doing it with Firefox, since as my main browser, I have Noscript and Adblock+ installed).

I then went to a few articles and was able to successfully copy and paste text. I did not see a pop-up. Has the Post disabled this “feature”?

mattshow (profile) says:

Now, it’s true that all of those are factors that can matter, but it’s also true that you could answer ‘yes’ to virtually all of them and still be within the bounds of fair use/fair dealing.

Actually, it’s not true at all. In particular, the Supreme Court of Canada has explicitly stated that the availability of a licence is NOT a relevant consideration in a fair dealing analysis:

The availability of a licence is not relevant to deciding whether a dealing has been fair. As discussed, fair dealing is an integral part of the scheme of copyright law in Canada. Any act falling within the fair dealing exception will not infringe copyright. If a copyright owner were allowed to license people to use its work and then point to a person?s decision not to obtain a licence as proof that his or her dealings were not fair, this would extend the scope of the owner?s monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Act?s balance between owner?s rights and user?s interests.

Law Society of Upper Canada v. CCH Canada Limited, 2004 SCC 13, paragraph 70

Anonymous Coward says:

Went to the place in question. Guess what? That little item about licensing never pops up for me. Of course I run a little add on called ‘Disable Clipboard Manipulations’ for Firefox and it never sees this popup. I chose an article at random, having no need to use such text, just to see.

But what if I had just taken a screen shot out of curiosity?

special-interesting says:

Thats right. Now your wife gossiping over the backyard fence will be running up the ‘quote-o-meter’ from each newspaper headline she mentions. The bill will be in the mail or automatically added to your phone/internet bill. (and will be 3 times as much if you chat at the fence corner with 3 of your neighbors)

Ive said this before but I see news-aggregation sites as no more than gossiping about current events. Since they link back to the original article I suggest they get paid for referrals just like ads do. Its only fair.

There are easier to access and better news sites that will pop up if present publishers cant provide what the public wants.

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