Book review: Who Owns the News? A History of Copyright

Who Owns the News? A History of Copyright” is the work of a historian, lawyer and novelist combined. With this book, Will Slauter takes us back to eighteenth-century Britain and America to retrace the development of censorship, regulation and copyright in news publishing. Whether you are a keen copyright historian or merely interested in contemporary debates about journalism, this book is for you. Never has the legal history of copyright felt as contemporary and relevant, if we think about the current (and ongoing) debates about journalism, social media and [dare I say it...] ‘fake news’. Read on for more detail about this book.

“Who Owns the News ?” delivers an account of the complex ways in which copyright emerged as a tool to control and claim agency over the news by authors, publishers and politicians. In doing so, the author stresses that copyright has only been one of many influences over the way by which ‘ownership’ has been claimed in news publishing.

Slauter describes how copyright was preceded and often superseded by a myriad of other regulations, conventions and practices specific to the trade of printing the news. The book also stresses that the relationship between the press and early copyright regulations was deeply context-sensitive. Consequently, the impact of copyright on the news industry played out very differently in Britain and the United States. 

The book shows how the notion of owning exclusive property rights in the news was not at all evident at first. This is in large part because the concepts of “copying”, “exclusivity” and “property”, as we know them today, did not resonate with the way that “news” was fined then, nor did they fit the aim of news publishing industry during the 18^th and 19^th century. As a result, even when copyright protection became available with the enactment of the Statute of Anne in Britain in 1709, the take-up by news publishers was fairly low. Slauter writes:

the statute was ambiguous, and this ambiguity created a space for writers, printers, booksellers to work out shared norms and practices. […] Most proprietors of newspapers did not enter their works under the Statute of Ann or otherwise claim exclusive rights in the news. […] The lack of copyright for newspaper writings should not be seen as a failure of eighteenth-century publishers to “catch up” by acquiring the kind of protection already available for books. Rather, the underlying economic and dominant cultural practices of 18^th-century journalism works against the very idea of treating news as property. (p 85)

This quote highlights a key theme of the book: the ambiguity of the law allowing publishers to establish their own codes of practice and conventions regarding the republications of copies and the attribution of credits in news writing. Slauter demonstrates that such conventions were much more effective in regulating the industry than any form of copyright protection available at the time. This proved to be true of Britain as well as the United States. 

Another central theme of the book is the changing attitudes within the news British and American news industries regarding “copying” content and protecting “exclusivity”. Speaking of news publication in Britain, Slauter describes how reprinting was, at first, a means to maintain anonymity and disguise authorship. The author writes

some planted stories or mislabelled sources in an attempt to advance political financial goals, while others cherish the ability to assume a depersonalised voice in debates about culture, society, and government (p. 86)

In short, “copying not only enabled the news to spread – it also facilitated commentary and analysis” (p. 86).

Moving to late eighteenth century America, Slauter depicts how the social and professional status of news editors evolved, and the extent to which their status reflected the fact that copying was an integral part of news publishing. As the printed press developed, news editors began to be seen and known as “scissors Editors”, as they would recycle publications by cutting, re-arranging and pasting content for republication by literally using scissors, hence the nickname. Slauter notes that “[t]he practice of using scissors and paste to help prepare work for press is almost as old as printing itself” (p. 89).

In early America, the practice of copy/paste in news publishing went hand in hand with the exchange of copies between newspapers, whereby newspapers would share and exchange copies with each other to enable their republication in other journals. This practice saved newspapers the time and costs of re-typing and re-editing content (p. 89-91), enabling the news to be spread across the country more easily. A downside of these practices of “scissor editing” and copy exchange is that it sometimes muddled the source of the information.

It is only towards the very end of the 18^th century and the beginning of the 19^th century that attitudes towards copying changed in American writers began to praise originality and express a disdain towards imitation (p. 97). This debate found an echo in the American news publishing to the extent that scissors editors came to be mocked and the need to attribute credits in news published started to be debated. It only much later that question of “news exclusivity” (as we know it today) came to the forefront of the debate in the industry, and that publishers began to press Congress and courts for protection in this regard.

Chapter by Chapter

This book counts eight chapters including the epilogue. Chapter 1 sets the scene of the ownership in the news with a description of the news publishing industry in seventeenth-century Britain, which at the time was caught between state censorship and publishers’ monopolies. This chapter reminds readers that the “news” as we know them today used to take many other forms, including pamphlets and ballads.

Chapter 2 depicts the practice of copying adopted by news publishers in Britain in the eighteenth century, and the tepid impact of early copyright on the British press. Chapter 3, explores the same theme in the context of the United States, which saw the professional rise and fall of “scissors editors”. Chapter 4 keeps with the United States and introduce the topic of copyright for news publications under American law.

Chapter 5 covers the renewed interest for copyright protection entertained by news publishers and journalists in nineteenth-century Britain. This chapter retraces the publishers’ victory in abolishing stamp duty taxes which used to apply to newspapers. Alongside duty abolition campaigns, publishers took their dispute over copyright in news copies to court, which produced two landmark decisions in copyright jurisprudence: Walter v Steinkopff (1862) and Walter v Lane (1900).

Chapter 6 and Chapter 7 cover the role and successes of American press associations in securing protection, both on the front of copyright (over the “form” of published copies but not the “substance” of the news) and unfair competition (to safeguard “news exclusivity”). In the epilogue, Slauter summarizes the key themes of the book linking them to contemporary debates on news publishing in the digital age.

As mentioned above, this book will be useful to anyone interested in the history of news publishing or early copyright law as it relates to literally works, or the news. There is no need to have prior knowledge of the law to follow the argument developed by Slauter. For this reason, this book is accessible to students and scholars alike. The book does not propose new ways in which legislators and judges may go about regulating news publishing. Rather, its aim is to bring context and nuance to well-known precedents on these topics. As such, the book is not directed at practicing lawyers or policy-makers working on these issues.

Book reviewed: Who Owns the News? A History of Copyright, by Will Slauter, Stanford University Press (January 2019) 368 pages. Cloth ISBN: 9781503604889. Paper ISBN: 9781503607712. Digital ISBN: 9781503607729. Retail price starting at $30.00 (here).