In the US, something called the “hot news doctrine” originated within a 1918 Supreme Court case in which the Associated Press tried to use copyright law to protect its scoops from being themselves scooped by other (competing and would-be) news agencies.
Normally, copyright law only protects the expression of ideas (or facts) — not the actual ideas (or facts). However, in applying copyright law to “hot news,” the Supreme Court found reason to protect the ideas (or facts) themselves in circumstances where those ideas (or facts) had commercial and short-term value.
But that was then and this is now.
More recent cases have specified and limited the application of this hot news doctrine to direct competitors. Yet the argument has been revived by those news organizations that would attempt (or wish) to prevent Google-like aggregators from appropriating their scoops (mostly their headlines) without their explicit permission.
This is all a bit ironic, however, in that news content is rapidly being gathered more easily, cheaply, and consistently by something other than news agencies. For instance, no matter how many foreign correspondents the NYT or the BBC can put in, say, Iran, those correspondents are never going to be able to see and hear all the things that any one of millions of Iranians can see and hear with a cell phone. Voila: Neda. Or, voila again (and more recently): meteor flyby.
Therefore, if there is any value to be derived from the scoop, then that value should eventually and rightfully accrue more often to the public than to the middle-man news agencies that thereafter appropriate it. For this reason alone, news agencies that continue to chase the scoop, whether through the hot news doctrine or some other, are unlikely to be successful.
In that same 1918 opinion, however, the Supreme Court also did a cute little formal analysis of the news that divided it into two parts: the factual content part (i.e., the “hot news” part) and the “literary” form part (already protected by copyright law).
Unlike news content, the “literary” form of the news cannot be so easily or cheaply crowd-sourced. Insofar as we still assign status and believability to traditional news sources, contextualizing the news remains an important and exclusive product provided by a relatively small group of media experts and pundits. And this important value is something news organizations certainly wish to preserve: the contextualization or form of their news.
But there are problems here as well.
Traditional “literary” news forms — news producers might call these “stories” or “packages” — are more suited to please audiences than to distinguish between what is true and what is false. Do we, for instance, really need more characters, stories, drama, and media “personalities” (à la Fox News)? Or do we need, basically, data filtering and database management tools (à la Google maps — and the like)?
Tim-Berners Lee – who first developed the world wide web — is currently spearheading, in association with the U.K. government, a new sort of news contextualization and form built around and more dependent on news content than either audience preferences for folktales or the news industry’s preference for easily reproduced and commodified templates.
It’s really very easy to tell the difference between these two forms.
If the form of the news depends on the news content that it explicates, then that form will be, without that content, hollow and unappealing. On the other hand, if the form of the news depends on something other than news content, then that form will, golem-like, walk and talk and draw our attention despite its emptiness.
Sort of, for instance, like this…