Another Copyright Question

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  • I have a gift at being able to take current news and put interesting commentaries to what's been reported.

    In the past I've had a newsletter wherein I would copy/paste news articles from the Internet and would comment on what's going on in the world. I understand that this is fine as long as it was free. However, the workload has gotten a bit much and I want to start charging a subscription fee for this.

    Can I do this w/o gaining permission from the news agencies that are posting their reports on the Internet? Or, since I want to charge a subscription, must I first get written permission from them or face retribution for violation of copyright law?

  • Hi, Andy.

    I would proceed with great care in your situation. Copying and distributing material are the rights of a copyright owner. You do not own the copyright to news articles you glean from the Internet. Just because you had been providing these articles without charge does not mean you weren’t infringing the copyright-holders’ rights.

    You are the copyright owner of your own comments. If you include excerpts of news reports in your newsletter, that is covered under fair use. For a comprehensive discussion of fair use, please see the website of the Copyright Management Center at Indiana University-Purdue University Indianapolis Here is a summary of my thoughts about fair use in your situation. (Note that I am not an attorney.):

    1. Purpose of the use – Reproducing segments of copyright-protected work for commentary is usually fine. Your situation is grey because you are now charging for your commentary. One could argue that you are reproducing and distributing copyright-protected work for your own financial gain. If so, this factor counts against you.

    2. Nature of the work – Presumably, the news articles you reproduce are nonfiction, factual work. This counts in your favor.

    3. Amount of work used – It sounds as if you are reproducing entire articles. If so, this factor counts against you. The smaller the amount used, the greater your chances for fair use.

    4. Effect on market of original work – This factor is often given more weight than the others. In my view, you may be affecting the market for the original work. But to be fair I don’t know where you are finding the articles you use and/or whether they are subscription-based news sites.

    All of this is not to say you should stop exercising your gift of commentary. Here are some options of how to proceed.

    1. You mention the possibility of seeking permission to use the articles that interest you. This is certainly a safe route.

    2. Another possibility is to limit the length(s) of your excerpts. Remember, the smaller the amount copied, the safer you are. (Exceptions arise if you reproduce the “heart” or pivotal section of a work.)

    3. Finally, you could link to rather than reproduce the articles you wish to discuss. By linking, you are neither reproducing nor distributing material that is not yours. You are telling others that it exists and letting them know how to reach it.

    Other thoughts out there?

  • I only wanted to add to MFakouri's last point about linking to the content rather than reproducing.

    It sounds as though your newsletter has been a print publication. Have you considered creating a blog? You could provide links to the articles you've found on the Web and provide your commentary along with the link. The costs of such an enterprise would be minimal, beyond whatever you would pay an Internet Service Provider for hosting your blog.

    Here's a link to the Wikipedia entry on blogs for some basic info:
  • Thank you for the suggestions and feedback. The newsletter would actually be on a discussion website that I co-own. It would be a sub-forum of the main one. Some subscribers may wish to receive the newsletter via email.

    I know you're not attorneys but - from what you know, could I link to the article, give a quick summary of what the article says THEN put my commentary on it? Not quote the article directly?
  • Hello again, Andy.

    From what I understand, linking to an article is fine. So is summarizing an article in your own words. Whatever commentary you add beyond that is your own intellectual property.

    In other words, these actions should be fine.

  • If I'm understanding you correctly, you would have an entry that says something to the effect of: "John Smith has posted an article on his web site about topic X. You can read it here: http://www.(fillintheblank).com. His main points in this article are ... (your summary). I agree with him, however in my opinion ... (your commentary)."

    This is what is typically done with blogs, in my experience, and I don't see where there is any copyright problem when there is no subscription fee to access the blog. Given that you want to charge a subscription fee, however, I don't think the question is that simple. While you would only be linking to the posted articles and not reproducing them, you might be reproducing the crucial facts and ideas (the "heart" of the work) contained in the article when you summarize it--and I don't think it would matter much whether your reproduction of those facts and ideas was verbatim or not.

    The IUPUI Copyright Management Center site that MFakouri mentioned above has a very useful page summarizing key court cases on fair use at:
    See especially those under "Copying for Website & Public Dissemination."

    The Nihon Keizai Shimbun v. Comline Business Data case summarized there seems similar to me to your proposed use. I suppose your use might be considered to be more transformative than Comline's, since you'll be adding your commentary, but I think copyright owners could still argue an adverse market effect caused by your use. Even though the articles you summarize might be on a free and public web site, the copyright owners might depend on advertising revenue generated by their site; if your subscribers gleaned the key ideas from your discussion board or e-mail newsletter rather than visiting the original site, your summaries could be seen as a substitute for the original articles.

    Maybe I'm being too conservative here, but I continue to agree with MFakouri's original position that you should proceed with great care if you plan to charge a subscription fee for your service and your use is therefore commercial, unlike the typical non-subscription, advertising-free blog site.
  • I have a bit of a different take about the copyright issues here. I do agree with the initial fair use analyses. For your possible revised plan, my first question is, is what you are doing infringing on copyright? If not, we do not need to rely on fair use, because you wouldn't be infringing. The next question is, if it is potentially infringing on copyright, is it a fair use?

    RDavis gave us a good case example.

    Copyright does not protect facts or ideas. The "heart of the work" is not the facts or ideas. The court noted in Nihon Keizai Shimbun, Inc. v. Comline Business Data, Inc. that "any focus on which particular facts were copied is improper" because of that notion, and echoed the Feist case that noted that "that copyright does not extend to facts is a 'most fundamental axiom of copyright law.'"

    Copyright protects the expression of those facts or ideas, which can include selection, arrangement, and so on, but never the facts or ideas themselves.

    That case revolved around direct translations of the work and abstracts that were near-identical to the original work, in which "Comline abstracts appear[ed] to be direct, if not word-for-word, translations of the Nikkei articles, edited only for clarity" with two exceptions which the court found did not infringe.

    In one of those exceptions, "Comline reports those facts in a different arrangement, with a different sentence structure and different phrasing. Because this abstract only repeats facts, which by their nature cannot receive legal protection from subsequent use, it does not infringe Nikkei's copyright. The abstract is not substantially similar to the article in the qualitative sense; it does not purloin protected expression."

    The other exception dealt with the amount copied, which was less than the total work.

    If you create your work in such a way that does not infringe, by only copying facts and not expression, then there probably isn't a copyright case- unless you also copy the selection and arrangement of stories. You should be careful that you don't do that. If you copy direct expression, or if you serve as a substitute for the original work, you get into more dicey territory. Then beyond potential copyright infringement, you can get into unfair competition and some other legal troubles.
  • COvalle is exactly right about copyright protecting expression and not ideas. My remark about the essential facts or ideas constituting the "heart" of the work was poorly expressed--or, more to the point, outright wrong.

    It would have been better if I'd said that your summary could constitute infringement if it reproduced the selection and arrangement of facts from the original article substantially enough to qualify as a derivative work.

    In any case (before I muddy the waters further!), thanks to COvalle for catching my error, as well as for the further info about the Comline Business Data case.
  • Don't be too hard there- I saw your point, just wanted to attempt clarify it a bit. ^_^ The selection and arrangement is an important part of potential infringement that needs to be considered in this case. Plus, that's a very interesting case to look at.
  • If you create your work in such a way that does not infringe, by only copying facts and not expression, then there probably isn't a copyright case- unless you also copy the selection and arrangement of stories. You should be careful that you don't do that. If you copy direct expression, or if you serve as a substitute for the original work, you get into more dicey territory. Then beyond potential copyright infringement, you can get into unfair competition and some other legal troubles.
    So it really sounds like (as I read and re-read and digest all you both have been saying here) that if indeed I just say, "This and thus are the facts as reported by John Smith of The New York Times" but leave anything out that would be considered John Smith's personal input on the facts - then I'd be safe in my scenario. I'm taking the facts, reported by John Smith, then adding my own comments to the facts as I believe they apply to my perticular audiences area of interest. There is no competition on that because my comments are in no way related to Mr. Smith's comments (if there are any). My audience is completely different - my comments are strictly my take on the facts. How am I doing, here? :P

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