Exclusives, scoops, breaking news… Being the first to inform is undoubtedly important for the media. However, once a news item has been disclosed it can lose all its value: is it possible to prevent a third party from reporting on those same events?

Observations on the value of information abound. The most popular is that “knowledge is power”. For the constitutional system, the dissemination of information is the bedrock of free public opinion in a democracy. However, from an economic standpoint, information could be considered a “non-rival” or “non-excludable” consumer good. This implies that once an exclusive has been revealed, it is accessible to an unlimited number of people and its dissemination cannot be controlled, nor a price established for accessing it.

Can intellectual property provide a mechanism through which that dissemination can be controlled, the same way as, for example, print runs of a book can controlled?

This issue is not new, it dates back many years, coinciding with the appearance of technology such as the telegraph, radio or telephone, which enabled the instant dissemination of information – think that before, news traveled at the same speed as the means of transport that existed at the time (horse, boat or train).

In 1918, the US Supreme Court ruled on the protection of “news information” in its judgment of December 23, 1918, International News Service c. Associated Press (here). The case pitted Associated Press, an association of newspaper publishers that obtained information on the progress of the First World War in Europe and reported the news through its newspapers against International News Service, an equivalent company that rewrote the news published by Associated Press, since it did not have links to Europe and published the stories successfully in the West Coast of the United States without mentioning the source.

In relation to intellectual property rights, the judgment concluded that a press article could undoubtedly be protected by copyright. Regarding the news, the American high court indicated that “the information respecting current events contained in the literary production – is not the creation of the writer, but is a report of matters that ordinarily are publici juris; it is the history of the day” confirming that the US Constitution did not intend to intended to confer on the first person to report an event, the exclusive right to spread the knowledge of that event.

However, the judgment concluded that the media that used human and material resources to compile news could aspire to protection through unfair competition, vis-à-vis third parties who misappropriated their corporate effort.

We do not have an equivalent decision in Spain. Article 7 of the Berne Convention – the cornerstone of international legal principles for the protection of copyright – in its original version of 1886, allowed the free reproduction of press articles except in the event of an express reservation by the author or editor. This was also held in article 31 of the Spanish Intellectual Property Statute of 1879, which permitted the free reproduction of press articles in other media that indicated the source, provided that the original source did not expressly object.

Article 2.8 of the following version of the Bern Convention currently excludes “news of the day” or “miscellaneous facts having the character of mere items of press information” from such protection. Likewise, the recently approved article 15 of the Digital Single Market Directive (Directive 2019/790), which establishes a similar right for publishers of press publications, must be interpreted as meaning that it does not include “mere facts reported in press publications”. In the State of the Union Address by Ursula von der Leyen on September 15, 2021, the President of the Commission, highlighted that “information is a public good” that must be protected. That protection will soon be materialized in a new regulation on freedom of the press, but does not extend to the actual events reported by the media, which may not be protected by copyright. As far as intellectual property is concerned, this is simply a reflection of the well-known aphorism according to which “ideas cannot be protected”.

Consequently, the value of an exclusive news article undoubtedly lies in the talent of its author when expressing it in an original manner, and on his skill in keeping it secret until it is published.

Ricardo López Alzaga

Garrigues Intellectual Property Department