Morning read: ASCAP for newspapers?

The Wall Street Journal has the scoop today on the big idea to come out of last week’s huddle of top newspaper execs in Chicago: a royalty collection society modelled on the music industry.

newspapersThe idea would be for a new newspaper collective to offer Web sites a blanket license to republish news stories, just as ASCAP and BMI do on behalf of songwriters and publishers for bars, restaurants, broadcasters and other outlets that want to perform music for the public, whether live or recorded.

The beauty part for publishers, according to some experts cited by the Journal, is that the ASCAP model would likely allow newspaper publishers to act together to monetize their content online without running afoul of anti-trust laws. Courts have historically upheld the music industry’s reliance on collection societies on grounds that individual songwriters or publishers cannot possibly monitor and license every bar and restaurant with a PA system. The same could arguably be true of publishers seeking to monitor millions of individual Web sites.

While not an inherently terrible idea–blanket licenses are likely to be part of any future peace agreement between copyright owners and the Internet–some large questions loom.

One is strategic. While a blanket license can be a useful mechanism for capturing value created by users of intellectual property, it would be a shame if that were as far as it went in terms of newspapers’ digital strategy. To me, it still smacks of an essentially punitive strategy toward the Web–basically a toll on those who “misappropriate newspaper content,” rather than a platform for building new, monetizable ways of letting people access and use newspaper content online.

It’s half of a good idea, but it’s also the easy half.

Other potential problems involve legal questions (and here, as a non-lawyer, I’m on far shakier ground). Correct me if I’m wrong, but it seems to me newspapers will need to clarify exactly what right they’d be licensing through their new collection society.

In the case of  the music industry, ASCAP and BMI are clearly licensing the performance right. In the case of Web sites that republish all or parts of newspaper stories, there would seem to be two rights at issue: the reproduction right and the display right.

If the license pertains to the reproduction right, we’d likely be headed into a dense and contentious debate over fair use. There will inevitably be Web sites that publishers would seek to bring under the license that will argue they do not need a license for the use they’re making of the content. Where will the line be drawn?

As for the display right, I’m not expert enough to say whether it would be enough in this context to hang a blanket license on, but I’m willing to bet you could get different lawyers to give you different answers (that is, after all, what you pay lawyers for).

If publishers take the position that both rights are implicated, then the music industry provides a baleful model indeed. As anyone who has attempted to license the use of music online can tell you, the overlapping claims of the performance, distribution and mechanical rights has made the process absurdly complex, expensive and contentious.

Any thoughts on this from actual experts would be most welcome.