I am trying to make the news. As a ’struggling artist’, the potential national audience of millions should be able to boost my exhibition sales. The concept is not new. I am no avant-garde. Damien Hirst has featured prominently in the British press with his sliced up cows, shark tanks and diamond skull. Hirst has mastered his media.

The diamond skull made the front page of every London newspaper after it sold for £50 million to a mysterious consortium. It was the highest price ever paid for an artwork by a living artist. Hirst himself was rumoured to be member of the mysterious consortium. He bought his own artwork. I don’t have the cash to take on his record, but I do have the time to spend a week watching television news to see what sort of stories make the cut.

The easiest route to make the ABC news at seven o’clock is to be elected to Federal Parliament.  Three out of the five lead stories that ran during the work week starting September 7 were focused on the Government. McGurk and a school bus crash were the other two.  I suspect getting into politics could take some work, although this hasn’t stopped Berlin artist Philipp Ruch from moving in on the scene, he established the Centre for Political Beauty and staged some press conferences outside the Reichstag that made headlines. That is another key to making the ABC news. Press conferences. A podium is essential. Press conferences also need showbags. There is not much zing in a lonely little press conference that doesn’t come with some sort of report.At the ABC you would be hard stuck to find a news bulletin that didn’t feature the phrase ‘a new report’.

The ABC featured a story on ‘a new report’ released by the oft-quoted KPMG Partner, columnist for the Australian and best selling author Bernard Salt. Although for news brevity he is a demographer. The ‘new report’ that the ABC featured from Mr Salt revealed that new technologies allow people to work from home. The research by Mr Salt was reduced to a couple of vox pops that included ‘you can check your Blackberry after dinner’, although the ABC has made it clear that Mr Salt did undertake research. He was shown near a podium and in front of a screen that had graphs on it. Mr Salt is available for further speaking engagements and booking enquiries can made on his website which  describes him as ‘one of Australia’s best communicators’.

It was wise that the ABC featured ‘one of Australia’s best communicators’ to translate these difficult concepts. It is no easy feat to distill new research from a new report into a sixty second news story. A new report is usually more than a couple of pages. Otherwise it is a press release. The ABC perseveres though, using microscopes and lab rats to illustrate the new research being undertaken by Australian scientists.

The commercial networks also use animals to illustrate and report breakthroughs. Channel Nine revealed that a Cheetah named Sarah from Cincinnati zoo is faster than Usain Bolt. The groundbreaking story was sparked by a press release from the zoo, and thanks to the vision the zoo supplied, the story made the news. Channel Ten stepped it up with the big cats and included a lion attack. A British reporter said ‘it was worth it’ after being mauled by a lion in its cage. Channel Seven kept it cute, but a little creepy, with a Melbourne dog breeder who sleeps with the ashes of a past show dog winner. SBS was fur-free and instead featured a ‘new report’ released from the public relations department of Turin University that revealed that ants may be able to talk to each other with their own ant language.

The stations don’t limit their interest stories to the animal kingdom, they do try to broadcast stories with a distinctively human interest. Love and lust being the most covered. The ABC revealed that a record number of Australians tied the knot on the lucky day 09/09/09, while Nine featured George Clooney rejecting the passionate proposal of a kiss from a man in his boxer shorts. Machines that go boom, or crash, are also a favourite. SBS did a story on the world’s biggest weapons fair that showed a  ‘James Bond style’ speed boat. The SBS report used the same words to describe the boat that were originally published in the press release by the manufacturer XSMG World. Channel Nine also showed some magnificent slow motion crash test footage provided by  the Insurance Institute for Highway Safety, an ‘independent, nonprofit, scientific, and educational organization’ funded by US car insurers. The footage showed a 1959 Chevrolet Bel Air smashing into a 2009 Chevrolet Malibu. The footage came with a ‘new report’ from the Insurance Institute for Highway Safety which revealed that modern cars are safer than vintage cars.

If I am to make the evening news, I need to put together an art show that features a variety of news worthy elements, the most important being a new report. The new report will need to be accompanied by colourful vision which should include zoo animals. These zoo animals need to be fast, faster than a Chevrolet, and they need to be monitored by people in lab coats. The people in lab coats should stand near a power point presentation with a graph on it. It would be beneficial if the people in lab coats were introduced by a celebrity, but if that is difficult to find, a politician will do. The politician should then be kissed by a fan. The fan could be a robot, or at least be using some sort of advanced technology such as a Blackberry. The new report should reveal something that everyone expected was true, is in fact, true. If I can’t convince the television networks to attend the show’s opening and press conference, I should video it myself, on a mobile phone, and then supply the shaky footage directly to the networks accompanied by the report, and a press release, but the press release should actually be called a ‘research snapshot’ because I am sure journalists don’t just pump out press release for news. They pump out ‘new research.’

*The week of evening news started on the 7th September, 2009

But we don’t disappear into thin air. There is something left behind. There is our shit that disappears down the drain. There is our piss soaking into the earth. There are our toenails, fingernails, our pubic hair, our facial hair, our snot, our cum, our smegma, our earwax. There is the sleep that sticks to our eyes, there is our dandruff and all those flakes of skin that dance in the sunlight. Daily our bodies fall apart and touch the earth. Our bodies end in the earth. Discarded. Excreted. Grounded.

I might be standing alone with my bare arse hanging out in the open, when I say that the novel Wetlands by Charlotte Roche has all the markings of a 21st century classic. A novel Sallie Tisdale of the New York Times described as “banal and repetitive” with “all the nuance of Mad Magazine and less wit.” A novel that opens with instructions on treating hemorrhoids:

For exterior itching, you squeeze a hazelnut-sized dollop from the tube onto your finger with the shortest nail and rub it onto your rosette. The tube’s also got a pointed attachment with lots of holes in it that allows you to shove it up your ass and squeeze salve out to quell the itchiness inside.

Wetlands has been described as “shocking”, “explicit” and every publishers dream sales pitch, “controversial,” but this has no bearing on why I consider the book significant. The graphic descriptions are hardly groundbreaking. Bataille’s ‘Story of the Eye” broke that ground eighty years ago. Wetlands is significant because it captures a burgeoning 21st Century world view. World view is perhaps the wrong phrase here. Let’s call it a bare body view.

Wetlands is the story of 18-year-old Helen Memel who lies bare bottomed on a hospital bed in the Department of Internal Medicine at Maria Hilf Hospital after an accident involving shaving her anus. Helen revels in the various discharges of her body. She uses her smegma he way others use perfume:

I dip my finger into my pussy and dab a little slime behind my earlobes. It works wonders from the moment you greet someone with a kiss on each cheek.

Wetlands celebrates all the bits and pieces that are generated from the body. The piss. The puke. The menstrual blood. The anal discharges. Wetlands celebrates the abject.

Paul McCarthy, ‘Santa’s Chocolate Shop’ 1997

I never really understood the abject until I read Wetlands. I remember a couple of years ago standing in a Berlin gallery staring mouth agape at Paul McCarthy’s video installation, Santa’s Chocolate Shop, blankly watching as Santa’s pantless elves were covered in Santa’s chocolate sauce – a substitute for a certain bodily fluid. ‘Oh, so this must have something to do with Kristeva and the abject,’ I thought to myself and quickly followed the thought bubble with a more audible ‘hmmmmmm.’ I decided that the abject didn’t really matter too much to me. I might piss and shit, and I might be disgusted by own my piss and shit, but honestly, that crap stinks. However, while reading Wetlands, and I was often gagging and gulping while reading some scenes, I came to the conclusion that there is a kind of tragic beauty in all of these bodily discharges. It is the beauty of the break-down of the body, a body that lives, even though it is already dead. As Jean-Luc Nancy wrote in Corpus:

All of its life, the body is also a dead body, the body of a dead person, of this death that I am living.

I remember accompanying a friend to Emergency after he broke his finger and watching all these bodies that were breaking down. The body of a woman sitting next to me who was gasping and gulping, trying to suppress the sickness that was fighting its way up her throat. The body of a child who was vomiting into a small waste basket. The body of a junkie who was raving obscenities and pacing across the room. The body of a man who was hunched over clutching his stomach, muted screams as tears ran down his face. And the bodies of a solemn elderly couple who were sitting still and holding hands stared vacantly ahead. I saw these bodies and I saw bodies that were living but at the same time dying and I thought that it is often only when the body breaks down that we become aware of it.

I remember moments when my body has broken down with another. Our sicknesses mix. Our fevers lead us to holiday together in hallucinations. Our bodies broken. We leave them on the bed together. We know they are there. We feel their physical presence. We know them more than ever. But we leave them behind. They don’t work anymore. Maybe it is here, in sickness, that we can transcend the barriers of skin and share this mutual imagining of meaning. Maybe, while living, we can only moan and let our vile fluids stew together.

After Helen has her arse operated on and stitched up, she decides to tear it open again on the wheels of the hospital bed. She does this in the hope that her separated parents will reunite while visiting her at her bedside. As long as she keeps stewing in her blood and pus, there is a chance that their love can be rekindled. It is a naive yearning for love and meaning in her life. Helen’s mother is the antithesis of the anti-hygeine Helen, her mother was the kind of woman who’s dying thought at the scene of an accident would be: “How long have I been wearing these panties? Are there any wetspots on them?” The mother represents the unliving, those who adverse to the abject, the kempt:

Everything is clean and carefully styled. Every little body part has been treated with some beauty product. What these women don’t know: the more effort they put into these little details, the more uptight they seem.

When Helen was younger she caught her mother lying on the kitchen with her younger brother passed out. The oven door was open. It is a clean kind of death. The death that a clean woman would hope for. Helen rescued her mother and never spoke of it again.
The clean death, the death where we wait for it all to disappear is the death of the classics of twentieth century. The death of Wetlands, is the death we die each day, our body breaks down. As Heidegger writes that being “is always already dying: in its “being-towards-its-end.”

It is a strange state of affairs when we have a journalist, such as Leigh Sales, telling us all about doubt. Journalists might practice doubt, but they certainly don’t produce it, package it, and push it to the public. Journalists peddle certainty, not doubt. This happened. That happened. This person’s an expert. That person’s a victim. Never does a ‘maybe’ or a ‘might’ make the front page headlines. But maybe that’s just a matter of news style and form. Maybe that’s why Leigh Sales wrote an essay on the subject rather than put together a Lateline news bulletin. A news report that could have been followed by an interview with an expert on doubt. An expert that would probably be Leigh Sales now, she has, after-all, produced a book on the subject, albeit a very little book.

For Leigh Sales, doubt is instinctive, a natural state of being. She is uneasy about those who don’t doubt. According to her, people like Sarah Palin, with their “unwavering certainty in themselves and their beliefs and opinions,” suffer from a form of “moral vanity.” But Sales isn’t certain about this. If Sales was certain, she would fall into league with the rest of Australia’s high-profile commentators. That obnoxious bunch of people “who act – in public at least – as if they have never experienced a second of self-doubt or entertained the thought that they might be wrong.” So Sales might be wrong about doubt, but that doesn’t mean we should disregard her 10,000 word essay. It is after-all an essay. On doubt. Which is what the essay form is all about. Doubt.

According to Sales, most contemporary commentary stinks of certainty. Yet she has a nostalgia for journalists such as Walter Cronkite, Edward R Murrow and Walter Lippman who “were the voices of reason and cool authority”. Surely a writer with a voice of authority would also stink of certainty. But possibly the difference here is a matter of hot authority versus cool authority. Sales infers that the hot authority of the contemporary commentator is achieved by shouting “more inflammatory invective louder than anybody else”.

Cool authority is probably accomplished by following the sage advice of 12th century French philosopher Pierre Abelard, a man that would be the doubt expert sitting opposite Sales in a Lateline interview, that is of course if he wasn’t long dead. The philosophy of Abelard informs much of Sales’ ideas ‘on doubt,’ she even chooses to open the book with a quote from him:

The beginning of wisdom is found in doubting; by doubting we come to the question, and by seeking we may come upon the truth.

Sales shares the view of the former face of Meet the Press, Tim Russert, who says that he tries “very, very hard not to tell people, ‘This is what I believe’, or ‘This is good’, or ‘This is bad’. But rather, ‘This is what I’m learning in my reporting’.” So cool authority comes from learning, not necessarily from what you have learnt, but rather from acknowledging that you are still learning. Sales writes that the “application of a doubtful mind is the best way to wisdom and insight” and that doubt is “is enshrined in journalism‘s foundations – objectivity and balance”.

But objectivity is a tricky concept, especially for the doubtful mind, and Sales acknowledges this. Sales writes that “no reporter can be perfectly objective – every day every story involves subjective judgments – but if we give up striving for objectivity, if we stop examining ourselves for closed mindedness, then all is lost”. Striving, learning, seeking, and most significantly trying or trialling, these are the tenets of a doubtful mind, but these are also the functions of the essay form.

The word essay was born from the French essayer, to try or to attempt. Sales is in a sense arguing for the essay form. The doubtful mind attempts to understand, or to know. But the doubtful mind never knows, the doubtful mind always has another question to ask, and the doubtful mind is always ready and willing to hear another’s answer.

Sales mentions the recent dispute between Robert Manne and Gerard Henderson. Manne had written an article for the Monthly about radical journalist Wilfred Burchett and Gerard Henderson disagreed with some of what was written. Henderson and Manne debated the topic via email, and then decided to publish all of their email correspondence through their respective journals, the Sydney Institute Quarterly and the Monthly. Sales couldn’t comprehend how each could have such an immovable sense of rightness:

I can’t understand how each could have felt so certain of his own rightness and of the value of his own opinion that he was prepared to move so many pages of an argument from the private inbox to the public domain.

A true essay expresses no illusion of rightness. An essay is an exploration, an attempt. An essay doubts. An essay writer doubts themselves. Sales writes that this is the problem of contemporary commentary. Not enough doubters. I would argue that the problem is that there are not enough essayists. Essayists who write that they lived, they experienced this and they think that. They think. They consider. But most of all: they try. This is the beauty of Melbourne University Press’ Little Books on Big Themes, of which ‘On doubt’ is a part of. Writers are invited to choose a topic, and write a 10,000 word essay on it. They try the topic out. Sales chose doubt. Her second choice was embarrassment. The Little Books bring essays onto the bookshelves and out of the journals. The independent publication of each essay, in its own little book, also seems to withdraw the writer from any particular scene or sphere of influence. There are no battle lines drawn, no binaries, and the culture wars seem to be far off in some distant land.

The Monthly, under Sally Warhaft, was one of the few regular publications that was beginning to foster an essay culture in Australia, but that too, under the influence of Robert Manne, began to regress into the kind of commentary that Sales describes as “more concerned with point-scoring than with educating audiences,” a commentary that plays to its ‘own cliques, neglecting the wider public’. The Monthly’s downfall commenced when Manne stonewalled a decision by Warhaft to publish an article by Peter Costello.

According to Gideon Haigh, “Manne stated weightily that The Monthly was a ‘social democrat’ magazine,” and that Warhaft was wrong in believing The Monthly to be independent of any cultural or political bias. It is probably naive to expect any publication to be completely independent in the same way it is naive to expect any journalist to be completely objective, but the Monthly under Warhaft strived to be such a publication.

The Monthly doubted itself, it never seemed to be sure of what it was; was it a political journal, was it a cultural magazine, was it a literary review? The Monthly experimented and meandered. It was a publication that always seemed to be attempting to be something, and because of this, it was a publication of doubt. It could have been the journal of essays this country needs, a journal that documents people trying to work things out, a journal where we could read about what people are learning, not what people know. Instead it’s a social democrat magazine.

After reading ‘On doubt,’ I have become a certainty sceptic and a doubt seeker. Sales writes of the culture of certainty in the Bush administration, where Bush told his advisors ‘I don’t need people around me who are not steady… And if there’s a kind of hand-wringing attitude going on when time’s are tough, I don’t like it’. People want certainty in their leaders. We never hear the Prime Minister say “It might work, it might not work, but goddamn-it, we’re going to bloody try”. Rudd can’t even admit that the treasury projections are only a possibility, and he doesn’t want to doubt his treasury, they’re experts, and he is a man of faith. In a culture of getting-things-done, doubters aren’t doers, but as Sales writes doubts “prevent us from acting recklessly without regards for consequences.” The world would probably be in a little less trouble if we had a few more doubters, but what do I know, I’m just trying things out.

Kevin Platt 'Nostalgia for the never known' 2008

The first object Kevin Platt built was a boat. In Nostalgia for the never known (2008), Platt builds a boat, ties himself to it, and swims out to sea, towing the boat behind him. Platt created a vessel but did not enter it. He was building an object that could take him places. Instead he took the object places.

In the exhibition Invested Objects currently at Firstdraft Gallery, Platt creates more vessels, but unlike the boat in Nostalgia for the never known, these objects suffer no illusion of functionality. They are only ideas of objects. Sketches of objects. Skeletons of objects.

Kevin Platt 'Invested Object' 2009 (Photograph by Alex Reznick)

The skeleton of a structure is something we build upon. But the skeleton of a body is what is left when the carcass rots away. Something we can remember the body by. The Invested Objects are both kinds of skeletons. They are structures we can stand outside of and build upon. Fulfilling sculptural blueprints, we can create our own vessels. Take them on our own voyages. Yet soon the imaginary disconnects from the object. We are left drifting in the bay. We climb out of the vessel. Stamp feet flat on ground and watch the imaginary vessel deteriorate before our eyes. We see only its skeleton. Then we remember the vessel. Remember when we were in it.

When we fill the jug, the pouring that fills it flows into the empty jug. The emptiness, the void, is what does the vessel’s holding. The empty space, this nothing of the jug, is what the jug is as the holding vessel. … But if the holding is done by the jug’s void, then the potter who forms sides and bottom on his wheel does not, strictly speaking, make the jug. He only shapes the clay. No — he shapes the void. … The vessel’s thingness does not lie at all in the material of which it consists, but in the void that it holds.

Heidegger’s vessels come into being not by their frames, not by their sides and bottoms, but by their void. Their emptiness. Platt did not enter the boat because he did not want to fill the vessel. He desired the void to persist. In Invested Objects, Platt creates skeletal objects so that the vessel cannot be filled. Everything slips through. The void cannot be entered. Platt does this because he does not want to defile the vessel. Once Platt enters the boat and it takes him some place, the potential of the void, the vast emptiness it consists of, dissipates. To paraphrase Fitzgerald, by entering the boat, Platt’s count of enchanted objects would diminish by one.

The Invested Objects are in essence constructions of Pothos. The desire for the absent being. A longing for something out of reach. Disconnected. Platt manifests this longing in his objects because he wants a permanent Pothos. He wants Pothos, which by its very nature is a transitory state, stuck in time. He wants to stall Pothos. So he creates objects that will always be unfulfilled. Objects that long to be something. Always wavering before the embrace. As Nicolas Rothwell writes:

For if art is just its own pleasing, weightless thing; if it comes into being by our will and vanishes, like some particle in the cold depths of an experimental chamber, if it is doomed and transient, then nostalgia is all it is – the imprint of its own mortality, the catch in its breath, the false promises that lure us with their siren grace.

Platt wavers in such anguish because of these siren songs. He knows that to follow those songs, to enter his vessels and fulfill their desires, will surely lead to a sort of death. So Platt creates only glimpses of objects, objects that are both doomed and transient, but objects that are also tangible enough that he can share whispers of that haunting song.

Ask any journalist what the most important section of text in a news story is and they will tell you it is ‘the lead’. Following the inverted pyramid style of news writing, the lead signposts almost all the information that will follow and allows the old-school reader to quickly scan the newspaper and decide whether to continue reading any particular article. As the old-school reader scans the newspaper, jumping between various headlines and leads, his eyes hover past advertisements, and the advertised products can successfully catch the attention of this old-school reader and consumer. The consumer then pays for a product, the product pays the newspaper and the newspaper pays the journalist.This is why news has financial value.

As the new-school reader scans Google News, jumping between various headlines and leads, his eyes could also hover past advertisements and these products can successfully attract the attention of the new-school consumer. The consumer then pays for a product, the product pays Google and somebody else can somehow pay the journalist. This is in a nutshell why newspapers are going broke despite more people reading the news than ever before. Newspapers no longer control the distribution of news content, Google does. Google might not advertise on Google News yet, and Google insists it isn’t violating any copyright, but the company seems to overlook the innate purpose of copyright. Copyright exists to provide a financial incentive for the creation of original content. Google News uses original news content created by journalists but does not provide any financial incentive for its creation. Google News generates an incredible income from that all-important lead the journalist composed, just as the newspapers of yesteryear did, but Google doesn’t pay anyone for it.

Marissa Mayer, Google’s vice president of search products and user experience, recently spoke to a United States Senate hearing that was investigating ways the government could aid the failing newspaper industry. Mayer explained how Google News acted as a sort of conduit that channeled web traffic to the newspaper sites:

Google News and Google search provide a valuable free service to online newspapers specifically by sending interested readers to their sites at a rate of more than 1 billion clicks per month. Newspapers use that web traffic to increase their traffic and generate additional revenue.

Google functions similarly to newspapers in that it channels information to end-users. The information that Google channels are the links or ‘directions’ to the entire content.  Mayer describes how Google News uses the headline and lead to direct the reader to the newspaper’s website:

We show people just enough information to invite them to read more – the headline, a line or two of text, and a link to the news publisher’s website.

Bill Grueskin, academic dean of the School of Journalism at Columbia University, says that may be true, “but many web readers are entirely satisfied with just a headline and summary.”  It is the very nature of news. Report the basic facts. That is all most readers want from the news. The problem is, who is going to pay the journalists to go out and report and record these headlines if Google doesn’t?

Google claims that the content they use, the leads copied verbatim from the original content creators, are fair use under the Digital Millennium Copyright Act . The Copyright Act sets out four factors for courts to consider whether something is covered under fair use, these include whether the copyrighted work is factual in nature or fiction, whether the purpose of the copied work is transformative rather than merely copying, the amount and substantiality of the work that is copied and the effect the copying will have on the market or potential market. All of these factors are relatively difficult to judge in regards to the copying of news story leads for the purpose of aggregation, but news publishers are beginning to believe a judgment must be made soon in order for the industry to move forward.

With recent slides in profit for most news publishers, and in particular News Corp, who posted a 47 percent drop in operating profit on May 6, publishers are beginning to decry that online aggregation is having a dangerously adverse effect on the market. In April, Rupert Murdoch said that Google was stealing the news:

The question is, should we be allowing Google to steal all our copyright… People reading the news for free on the web, that’s got to change.

The Associate Press, who currently has a licensing agreement with Google that is due to expire this year, has also lashed out at online aggregation, with AP chairman, Dean Singleton, saying:

We can no longer stand by and watch others walk off with our work under misguided legal theories. We are as mad as hell, and we are not going to take it anymore.

The primary issue is what constitutes fair use. Does the use of the headline and lead of news story, what most journalists would consider the heart of the story, amount to an insubstantial part?

In Australia, the recent ruling of the IceTV v Nine Network case provides guidelines of how copyright law might apply to the aggregation and linking of news stories.

IceTV produces electronic television program guides that paying users subscribe to.  The Nine Network produces a Weekly Schedule of programs to be broadcast on their free-to-air television stations and supplies the schedules to various third parties known as “Aggregators” who in turn collate this information with schedules provided by other networks to produce the “Aggregated Guides” which form the basis of most TV guides published across different media. IceTV was not one of these third parties.

The Nine Network accused IceTV of stealing their original “literary work” by taking part of the time and title from the Aggregated Guides. According to the Nine Network, the Ice Guide published by IceTV infringed copyright by reproducing a “substantial part” of the Weekly Schedule produced by the Nine Network. IceTV accepted that the Weekly Schedule produced by the Nine Network was an original literary work and that copyright subsisted in it but they denied that they reproduced a substantial part.

It is interesting to note that the only thing IceTV was reproducing were facts. IceTV were copying the name of a program, such as A Current Affair, and the time it was scheduled to appear.   Facts are generally considered to be outside of copyright but Sect 42 of the Copyright Act regards only the fair use of copyrighted works if it is for the purpose of reporting the news. If the Sydney Morning Herald were to publish an article about a controversial program that was scheduled to air, and detailed the time it was to air, it would be covered under “fair dealing for the purpose of the news.”  But IceTV isn’t a news publisher and this consideration of fair dealing is murky for the production of guides and aggregators.

These facts weren’t necessarily facts, as the TV programs hadn’t been broadcast yet. It could be the equivalent of reproducing some modern day Nostradamus’ predictions that in 2011 Eddie McGuire will grow a beard and the world will end. It might actually happen, it could be a potential fact, but reproducing the original literary work would be an infringement of copyright. That modern Nostradamus put a lot of time and effort into producing that literary work, just as the Nine Network put a lot of time and money into producing their Weekly Schedule. The Nine Network’s argument, however, was an extraordinarily dangerous argument and could have lead to all sorts of seemingly innocent information being considered off-limits due to copyright infringement. Sporting schedules, flight schedules, train timetables and university semester dates would all be protected under copyright if the Nine Network’s case had been successful. But IceTV didn’t argue that they were reporting facts, they argued that what they reproduced was an insubstantial amount of Nine’s literary work.

IceTV reproduced only the title and the time of the program. IceTV did not reproduce the synopses of the television programs but wrote their own. The information they did reproduce were in essence links. The title of the program indicated what the program was and the time indicated when it could be seen. These would function the same way in Google News as the headline of a news story and the accompanying URL that directs the reader to the original content. The lead that is reproduced however summarises the news story and could infringe copyright, it would be the equivalent of IceTV reproducing the synopses from the Aggregated Guides.

In the primary judgment of the IceTV case the judge ruled that that the “lengthy preparatory work involved [in the Weekly Schedule] was directed to the conduct of the business of Nine in broadcasting programmes that would attract viewers” . The judgment emphasized that the appropriation of skill and labour does not necessarily constitute infringement. In the final judgment the judge stated it was not helpful to refer to the University of London Press Ltd v University Tutorial Press Ltd case and “the rough practical test that what is worth copying is prima facie worth protecting.” Similarly the judgment stated that it was unhelpful to refer to “commercial value of the information because that directs attention to the information itself rather than to the particular form of expression”  and it is the particular form of expression that is significant.

The judgment ruled against the Nine Network stating that the information reproduced by IceTV was insubstantial because the “slivers of information” and their particular form of expression were not particularly original. The judgment referenced the Ladbroke case that showed that the reproduction of an unoriginal part of an original whole would not be an infringement:

The reproduction of a part, which by itself has no originality, will not normally be a substantial part of the copyright and will therefore not be protected.

The headlines and leads that are produced in the news however are original parts of an original whole despite the fact that they are through the reporting of the news hopefully relaying plain facts. In essence if news publishers were to pursue Google for copyright infringement regarding the republishing of their headlines and leads they would have a case. This was demonstrated in 2006 when it was ruled by a Belgian court that Google violated the law by publishing copyrighted content on Google News from Copiepresse, a group of 18 French and German language publications. Google argued that the reproduction of original content was to the benefit of the news publishers:

We believe that Google News is entirely legal. We only ever show the headlines and a few snippets of text and small thumbnail images. If people want to read the entire story they have to click through to the newspaper’s website. Search tools such as Google Web Search and Google News are of real benefit to publishers because they drive valuable traffic to their websites and connect them to a wider global audience.

Google was initially threatened with a €1 million fine per day of infringement but the fine was dropped to €25,000 a day. Google stated that any news publisher can request Google to remove its content whenever they like or could through the design of their news website prevent Google from having access to it. Copiepresse argued that it was not their responsibility to prevent Google from infringing on their copyright and that Google should request to use their content rather than the onus being on the publisher to request Google not to use their content. Subsequently after the judgment in the Belgian court Google removed the Copiepresse content from both Google News and Google search. Copiepresse felt that the removal of their content from Google search was quite extreme. Margaret Boribon, Secretary General of Copiepresse, said:

They have done it to punish us. They have a bad attitude.

This is probably what prevents most news publishers from pursuing Google for copyright infringement; they do not to be removed from Google Search because disappearing from Google means disappearing from the web. Google has over a 75 percent share of the search engine market. It monopolises the internet. News publishers still want to be a part of Google, they just want Google to pay licensing fees for using their material As Boribon said:

Yes we have a problem with Google, but we don’t want to want to be out of Google. We want Google to respect the rules. If Google wanted to index us they need to ask.

Google refuses to pay licensing fees to most publishers. In reverse the Nine Network refused to license their material to IceTV preventing IceTV from having any access to their material. It is an interesting contrast of the power of monopolies with one of the few encourage forms of monopoly, that of copyright. Boribon hoped that the success of the Copiepresse case would encourage other news publishers to follow suit.

What I’m achieving now is getting information to my European colleagues so we will have other publishers taking part in the court case. Then maybe Google will change its mind. If they see this is not a Belgian case but a concern for all publishers all over the world, they will have to review their business model.

Boribon is hoping that if enough news publishers withdraw their content Google will be forced to negotiate. Yet if all the publishers were to form some sort of cartel and remove their content from Google they would be breaking most countries anti-competition laws. A few major publishers need to lead the way and from the murmurs currently coming from News Corp and Associated Press this could be happening in the near future.

But it isn’t simply a case of new media versus old media. There was a recent uproar among independent bloggers about the aggregation of their material. The bloggers were concerned not only with the copyright infringement but the infringement of their moral rights. It occurred when bloggers Matt Haughty and Joshua Schachter complained about the reproduction of their content on the Wall Street Journal’s subsidiary site All Things Digital. Matt Haughey wrote on his blog:

This is weird, apparently the Wall Street Journal’s All Things D does a reblogging thing. I sure wish they asked me first though. That’s a hell of a lot of ads on my ‘excerpt’. If they’re just trying to drive traffic to articles, why have comments on excerpts? That makes no sense to me.

Blogger Danny Sullivan, from SearchEngineLand.com, justified the aggregation saying “that is a compliment, allthingsd liked your article enough to feature you on their homepage.”  This is similar to Google’s argument that the aggregation of their material is a benefit to the news publishers because it directs traffic to the publisher’s site. Web veteran and independent blogger Merlin Mann disagreed that this was fair compensation:

In the case here, for Matt and Josh, that compensation was “a link” and — what? — I guess the opportunity to pretend that you write for a giant-for-profit corporation. And because, as the story goes, every blogger writes primarily (or even exclusively) in order to generate page views that bolster his site’s advertising revenue, they/we/I should all be grateful for the largesse of our True Fourth Estate. Even if a giant for-profit corporation’s re-use of that work actually undermines the real motivations, it would be uncivil, ungrateful, and untoward for us to not thank them for helping us out with our little projects. Right?

All Things Digital published a substantial excerpt of the original blog post in a format indistinguishable from their own original content, including bylines and author photos, making it appear that the content was written for All Things Digital. Bloggers felt this compromised their independence by implying they are associated with All Things Digital. Daring Fireball blogger, John Gruber, who is often featured on All Things Digital was uneasy about the association:

I don’t like it. The look and feel of the Voices pages suggests that I’m somehow affiliated with AllThingsD, but I am not. I obviously don’t have any problem with AllThingsD, or anyone else, linking to and quoting portions from my articles at Daring Fireball, but the presentation on their Voices pages seems to imply something else.

These are bloggers that are no strangers to aggregation, and most reached success through aggregators such as Digg or Reddit, but these sites are purely aggregators, like Google News, and not publishers. All Things Digital’s aggregation of their material blurred the distinction between publishing their material and simply linking to their material. As Merlin Mann noted:

Republishing online work without consent and wrapping it in ads is often called ‘feed scraping.’ At AllThingsD, it’s called ‘a compliment.

Most independent bloggers license their material under the Creative Commons, generally with the permission to share and remix the content under the conditions that the work is attributed fairly and used for non-commercial purposes. The primary problems that the bloggers had with All Things Digital’s aggregation of their content was that it didn’t comply with those two conditions. Under the Attribution condition the republisher must “attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).”  As demonstrated, the style of the All Things Digital’s attribution gave the impression that the blogger endorsed the website so it did not comply with this condition. The Noncommercial condition stated that the republisher “may not use this work for commercial purposes.”  All Things Digital also failed to comply with this condition by wrapping each post in ads.

The primary concern for the bloggers, however, was that it violated their moral rights and compromised their independence. As Merlin Mann succinctly put it:

Nobody but me is allowed to decide why I make things. And — if and when I choose to give away the things that I make — nobody but me is allowed to define how or where I’ll do it. I am independent.

The independence of these blogs is vital to their success, the bloggers are respected for their individual opinions and analysis and they make their living generally through speaking engagements and. If their independence is threatened, their income is threatened. These blogs may be thriving on the web and the bloggers may be critical of the “giant-for-profit corporations” and “the True Fourth Estate.” They may believe that the failure of newspapers to survive the Internet is simply due to old media “not getting it” but blogging is not reporting the news.

Bloggers may provide opinions and analysis but most bloggers don’t have the resources to investigate and break stories on an hourly basis. Bloggers and Google who have the web at their fingertips might believe that the news is simply out there, only one click away. Bloggers might believe that the headlines that keep filling up Google News and are the source for most of their stories are like a never ending well. But the well might dry up. Sometimes all we need is a headline and a lead, and if Google News doesn’t value this original content, doesn’t pay for it, then the news will stop coming. This is why we have copyright. It isn’t to hinder the dissemination of knowledge, as the open source community might have you believe, it is to ensure that people are encouraged to continue to create. Google has no right to read the news and not pay for it.