In newsrooms’ fair-use fight, everything else is fair play
ORGANISING journalists might be harder than herding cats, but newsrooms are learning that there are many ways to skin other kinds of cats – namely, how to get Big Tech to cough up for news content.
Publishers have spent recent months going to the negotiating table, to court, and to the United States Congress for new rules to protect the sector. When The New York Times sued OpenAI and Microsoft over copyright infringement last month, even parties sympathetic to publishers were critical of the move, reckoning that this might not be the best way to reach a resolution.
Such criticisms miss the point. The news-tech tussle isn’t truly about the finer points of “fair use” or the definition of “transformative” work. It is a more practical matter: How big of a nuisance must publishers be to make tech firms share their bounty? Tech firms, like any other firm, assess risks in aggregate. If enough disparate pressures – legal, social and commercial – amass at their doorstep, they will pay to mitigate them the way whole industries have done with environmental, social and governance requirements.
Take Australia’s News Media Bargaining Code, which prodded Google and Meta into doing commercial deals with news organisations before an arbitrator could foist one on them. A rare triumph in which Big Tech blinked first, these deals have brought Australian newsrooms more than A$200 million (S$177 million) a year. The threat to the cat might have been a legal one, but the eventual skinning was a commercial one.
Even so, not all cats are the same, and so publishers need to sharpen an assortment of knives. A code such as Australia’s will have little traction in autocratic and corrupt regimes that have a vested interest in weakening the fourth estate. Even in countries where democracy is robust, relying on the courts to enforce copyright law is a long and onerous process.
Where principles falter, there is the profit incentive. Last week, OpenAI was reported to be in licensing talks with CNN, Fox Corp and Time. The tangible product might be news content, but artificial intelligence (AI) firms are also buying credibility and quality control – elements that have increasing value in an Internet filled with dreck.
Enterprise customers will pay a premium for an AI product that meets information hygiene standards – both to improve the quality of their own work and to reduce legal liability. Individual users will tolerate ads for this offering too. As it is, they already put up with advertising when viewing content of far more dubious origin.
Of course, not all publishers will successfully negotiate deals, but at least the presumed value of the content will move away from “zero” – the price that Big Tech has long attempted to assign to news. For now, licensing prospects look promising, with Axel Springer and The Associated Press having done deals with OpenAI.
Even so, publishers must not snatch defeat from the jaws of victory. They must resist the temptation to cede control the way they did with search engines decades ago. Everything should be fair game, from negotiating collectively through trade groups, to hiring hard-nosed copyright lawyers and lobbying noisily for protection – preferably all at once. Journalism has traditionally been valued for its dedication to what is right. But if it wants to stay valuable, what it needs now is might.
