PDLN June Newsletter Article on US Licensing

The US is a big and confusing market for press licensing. There are over 3,000 newspapers of which over 1,000 are daily. In addition, there are more than 7,000 consumer magazines. The number of U.S. business magazines is also in the thousands. Supporting these publishers there are four major trade associations for the news media industry, two trade associations in the U.S. for the magazine media industry, a trade association for B2B publishers and another one for specialty information publishers. Every one of the eight publishing trade associations has an ongoing initiative to deal with government policy ranging from postal rates to copyright regulation. But only one of the eight publisher trade associations in the U.S. has any initiative focused on the actual copyright compliant use of members content in the marketplace. That initiative, on the part of the News Media Alliance, is only 8 months old.
Except for very few publishers, the focus of copyright activity is on the creation of policy and regulation – not the actual application or enforcement. Given the significant revenue achieved by those publishers that have pursued copyright infringement, the lack of sustained interest suggests an over sensitivity to legal risk.
Copyright regulation in the U.S. (as in other countries) is about preserving the right of ownership to intellectual property for a period of time. The purpose of which, as stated in the U.S. constitution is “to promote the Progress of Science and useful Arts”. Section 106 of title 17 of the U.S. code is where the rights are laid out which guarantee a rights holder the right to monetize their property. But section 107 counters that with the exceptions, notably ‘Fair Use’.
U.S. Fair Use has gotten a lot of bad press and a few bad judgements. I am biased in favour of supporting journalism, which as Craig Newmark stated, is the immune system of democracy. Fair Use is an outgrowth of the international concept of fair dealing. Its purpose is not to provide a way to take commercial advantage of intellectual property without paying royalty but to provide legitimate exceptions for scholarly and creative uses of intellectual property. As such, it is applicable only as a defence after an infringement challenge has been presented. So the use of content by any commercial enterprise without a licence is a risk.
Until recently the risk of being sued for infringement by a U.S. publisher was extremely low, but that is changing. The efforts of the NMA show the potential for collective publisher action to enforce intellectual property rights. So it is a good time for media evaluation/measurement (MME) companies and clients to put to mitigate this. Infringement can carry fines in the neighbourhood of $100k per article.
There are currently about 100 MMEs operating in the United States. They all access news and consumer information content through feeds of web content supplied by one of five aggregators. Some MMEs supplement the feeds with content from publishers and/or the scraping they are doing themselves. Cision, BurrellesLuce, Glean.info, LexisNexis(Moreover), and Meltwater are a few MMEs that are known to fall into the latter category. The five aggregators supplying the MME market in the U.S. are LexisNexis (including Moreover), PressDisplay (also known as Newspaper Direct), Factiva, Glean.info (formerly CyberAlert), and Mbrain (formerly Opoint). LexisNexis and Glean.info and Factiva offer their own MME operation as well as supplying other MMEs.
Describing the copyright licensing status of each of the MMEs and aggregators is challenging. The market complexity obstructs any need to pay royalty, and dilutes what is paid to publishers.
The MME workflow requires a redistribution license allowing the supply of content to a 3rd party. Hardly any of the 100+ players in the MME market have redistribution licensing for more than half a dozen of the 10 to 15 thousand titles they use. Some of the large MMEs are indemnified by their aggregators; – for example Cision has license for most all of the content they use through LexisNexis ‘Alliance Partner’ program, some internal copying rights from the US licensing organisation CCC, and some direct publisher deals.
Some aggregators have partial licensing agreements with publishers but these often don’t fully cover the use case which the MME activity represents. Some MMEs have licensing for uses such as research but have stretched the interpretation to increase revenue. Other MMEs sell the content feeds they have acquired at lower than market price in markets they do not have rights to operate in. An example of this is a service that works with publishers to sell single copy subscriptions to vacationers as well as online eEdition subscriptions. They then package the content into XML feeds which they sell into the MME market.
The only licensing entity with rights to sell redistribution licensing in the US MME space is License League which does so for 103 publishers comprising 2400+ titles. The purpose of License League is to offer a solution to mitigate the high cost of an infringement action. License League is the only content licensing entity on the U.S. to have available the requisite redistribution licensing required for the compliant use of content by the MME community. 94 publishers with over 2400 titles currently participate in the License League MME program.
Dan Schaible License League dschaible@licenseleague.com www.licenseleague.com