Who Owns the 'First Rough Draft of History'? Reconsidering Copyright in News


Who Owns the ‘First Rough Draft of History’? suggests the withdrawal of copyright protection from hard-news journalism as a mechanism for “rescuing” the news from the inexorable downward spiral in quality and diversity caused by excessive media concentration. Although copyright represents just one of the factors contributing to the “commodification” of news today, it is a significant factor, and one with a long, unsavory relationship with censorship and monopoly.

The article asserts that newspapers’ quest for copyright protection was an early step onto a slippery slope toward a property-based, rather than service-based ethos, and that removing protection may mark a first and at least symbolic step back from the abyss. It argues that copyright protection should be replaced by a highly circumscribed variant of the misappropriation tort, coupled with authorial rights of attribution and integrity.

It is doubtful that any of these proposed changes would prompt the media conglomerates to jettison otherwise profitable news operations, but, where they do, the resultant spin-offs may be more strongly committed to quality journalism. Fine-tuning the copyright law with respect to news might also restore among executives and working journalists alike some sense of public service obligation. And diluting the industry’s news-as-property attitude might even make a favorable impression on the increasingly disillusioned audience.

Perhaps, someday, the public will come to own what former Washington Post publisher Philip Graham called the “first rough draft of history.”


Communications Law | Intellectual Property Law

Date of this Version

February 2004