By Dan Schaible, Schaibleintell Consulting

1 – The intersection of Copyright and Risk management

Service providers, whether providing measurement or traditional monitoring, need reliable access to a broad catalog of content to insure valid results. They do not really need licensing. So from a strictly pragmatic business view void of corporate responsibility, licensing becomes a function of risk management, I will speak to that corporate responsibility topic in an ensuing intersect. This then leaves only two overarching considerations in assessing risk; who will sue for infringing use and what content do I need that I can only get directly from the publisher. Let’s review a few of the points underlying this assessment.

It is important to be aware that there is no haven to be had by asserting any content as “freely available’. This is a popular notion that has not held up in the face of litigation. Digitally presented content not behind a paywall is paid for by the incorporated advertising. Any or profit secondary use of the content, that is outside of the product originally presented by the content owner, is an infringement of copyright. A risk assessment done believing the use of “feely available” content is not an infringement is built on a faulty premise.

The next area of controversy is whether the end customer views any of the copyrighted content. A common misunderstanding is that if the customer does not see the content and only sees a report or a link to the publisher’s product, there is no infringement. This is incorrect If a copy of the content is made into a database. That copy is an infringement on the copyrights of the owner. In the U.S, each copy is subject to a significant potential fine. To be clear, that is each copy of each piece of content. If a copy of the content is retained in a database to search across it is nonetheless a copy and is subject to copyright.

The distinction between crawling a website and scraping a website can be very important in understanding infringement. Crawling is just that, a technology is employed to “crawl” through all the contents of a site to identify aspects of the content. Scraping is the copying of all the content on a site into a database. In either case a set of pointers are created to the pieces of information contained in the content. This is the indexing of the content which enables searching. This index is required for the content to be included in a given search. It tells the search engine where to look. This index can be thought of as a set of directional pointers. If the index is created directly for the content located on the owner’s site and the customer is not presented with a full copy of the content then there is no infringement. This is typically NOT the most efficient manner of capturing the information needed for monitoring or measurement. If the index is created for the content contained in a separate database of scraped copies of the content than that IS an infringement.

The final point is the perceived value of the content relative to the use case of the service provided the end customer. Simply put, content used for current awareness use is of higher value than content used for research. The awareness of what is currently being said about a brand is more valuable than researching the history of a brand. This perception is held by the content owners and must be considered in assessing exposure.

Customer requirements

In looking at motivations for being compliant beyond risk management, the customer facing perceptions must be weighed. The first point would be the need to be the consideration of corporate end users for their copyright liability. The growing interest on the part of publishers to capture licensing revenue from corporate end users has made the people responsible for the legal well being of businesses insure they are protected from infringement liability. This yet another form of risk management driven compliance but stemming from the requirements of the end customer. This then becomes a need for the service providers of monitoring and measurement services to indemnify their customers regarding copyright infringement. This actually becomes an opportunity for promoting a position of copyright compliance in the marketplace as a means of capturing customers. The larger the prospect the larger the value of compliance as a sales benefit.

By being proactive in licensing compliance within the market, there is the added reputational value in the content owner community as being committed to compliance. This perception on the part of the general publishing community provides a narrative defense in those circumstances where the use of unlicensed content is discovered in use by a service provider. This has proven to be a mitigating factor in working through unforeseen engagements. The very nature of the monitoring and measurement business in the face of the ever-increasing number of content producers makes it impossible to be fully compliant with the entire corpus of content being accessed. To that end, having an established track record of willingness to comply goes a long way.

In terms of providing a complete content base for providing services particularly to specialized markets, it becomes extremely important to have a positive perception in the market regarding a providers stance on compliance when it becomes necessary to approach niche content publishers for licensing to access their content.

One of the most difficult issues in dealing with customers regarding the content catalog underlying a service is the perception customers have of the value of a given publication. In many cases this is founded in a legacy perception of the value of the content from a given publisher. The problem arises when the publisher also has a misguided value of their content’s value in a given market. This then becomes a case of managing egos. An intense review of market value is required to convince convince the customer as the overstated need for that particular content while at the same time making the case to the publisher that the customer does not perceive the same level of value as they, the publisher does, for their content. In the end, the publisher needs to be plugged into what the customer is willing to accept and convinced of the fairness of the providers business use.

Corporate responsibility

Craig Newmark was asked by the Columbia Journalism Review what journalism is. His response was that journalism is the penicillin of democracy. We have a situation where the penicillin is in such short supply that the patient is failing. In the U.S., The number of local reporters keeping tabs on things has dwindled so dramatically in the last decade that there is grave concern over who is watching out for the public trust at the local and even the state government levels. Newsrooms have shrunk 43% since 1990 according to ASNE. This has also been happening throughout the world. This is the result of the changing landscape in the revenue models that had supported those reporters. The whole notion that the cost of creating content can be ignored by service providers profiting from the use of that content recalls the story of the old merchant and his donkey. The merchant complaining bitterly about the death of his prize beast of burden …..just when he had gotten it trained to not eat. The point being that it is not just about understanding our moral obligations to support the manufacture of democracy’s penicillin. Licensing royalties contribute to the future of our business as well. Royalties support the future existence of a basic commodity necessary for content dependent service providers to create revenue. It is certainly no secret that content providers are scrambling for their very existence in the face of declining revenues. It becomes a matter of truly understanding the ethics of short-term gain against unsustainable long-term pain.

Understand that this is not to say that the engagement with publishers and all content providers should be without a fair and mutually beneficial understanding. There needs to be an understanding particularly on the part of the content providers as to how their content is actually used. They do not understand this now. The biggest reason for that lay at the feet of the service providers who have spent an inordinate amount of energy in obfuscation and avoidance of the providers instead of engaging and educating them. The result is that the content providers continue in the belief that there is much more revenue being made through the use of their content then there actually is. This drives unreasonalble royalties and a playing field that is many things but not level.

Redux

The need for access to content is a given in the media monitoring and media evaluation and monitoring businesses. It is also understood all too clearly that the landscape surrounding the licensing of content is to say the least a splintered one. It requires far too many disparate relationships which only increase in number as these content dependent businesses become more global in nature. There is an absolute need for a common body to deal with licensing on a global level to enable service businesses that depend on access to content to focus on providing their products and not have to spend more and more cycles dealing with access and licensing issues.

Accepting that the real issue is not the actual access to content but the licensing to allow access, the solution becomes less insurmountable. As far as the access, we have a healthy number of very effective organizations focused on creating that access. These organization invest significantly in evolving their catalogs and, most importantly, evolving the technology to enhance the delivery and the data surrounding the content that make up those catalogs. It the licensing process itself that needs to be simplified.

It would seem that with so many service providers in need of licensing that a central organization would be the solution. An organization collectively owned by the monitoring and measurement community to deal with the existing plethora of licensing bodies owned by the content owners as well as the content providers not participating in a regional group. The publishing community has shown that they are constrained by legacy methodologies from coming together to solve this issue. An issue that they have tried to address without success.

The underpinnings for a collective monitoring and measurement industry entity to represent the member owners already exists under the AMEC umbrella as does the expertise. The potential result here would be a “one bill” approach with the entity managing the relationships with all the content owners and their organizations and providing reporting and fulfillment services for the member owners to the content owners. Needless to say all the preceding copyright intersections would be the foundation along with promoting a new model that supported the access providers also as channel members.

Dan Schaible, Schaibleintell Consulting