Court Allows AP To Assert Intellectual Property Right Over Facts

News agency The Associated Press (AP) has won the right to fight a court battle to defend a property right over facts. Copyright law does not protect facts, but AP has been permitted to make its defence based on a 1918 case on 'hot news'.

In that case, also involving AP, a judge ruled that a news organisation's product – timely information – was the subject of such investment that it attracted a 'quasi-property' right, even though normal copyright law did not apply.

A rival news agency was copying and distributing AP's World War I coverage, and the company won a case against it. A court ruled that AP had a property right in its information because of the cost of gathering the information. The right only lasted as long as the information had commercial value, and was called the 'hot news' right.

Though a subsequent case resulted in the removal of that as a federal courts precedent, it is still a part of some US states' laws, including the law of New York, where AP is fighting its current case.

According to the US District Court for the Southern District of New York, hot news rights exist when: "(i) a plaintiff generates or gathers information at a cost; (ii) the information is time-sensitive; (iii) a defendant's use of the information constitutes free riding on the plaintiff's efforts; (iv) the defendant is in direct competition with a product or service offered by the plaintiffs; and (v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened".

News agency All Headline News (AHN) asked the Court to prevent the case going any further, but AP has won the right to a full trial in New York. AHN said that the hot news doctrine should not apply any more.

"A cause of action for misappropriation of hot news remains viable under New York law, and the Second Circuit has unambiguously held that it is not preempted by federal law," the Court's judgment said.

The right is unusual in that it grants protection to information itself. Copyright law protects the expression of information, and AP has been given permission to pursue AHN over copyright infringements as well. It has claimed that actual copying of text happened in some cases.

AP was denied the right to pursue cases based on trade mark infringement and unfair competition.

Intellectual property law expert Kim Walker of Pinsent Masons, the law firm behind OUT-LAW.COM, said that the case would not succeed here, since UK law has no equivalent to the hot news doctrine.

"Assuming that they are not actually copying text, there would be nothing to protect AP here," he said. "The law of confidence would protect them while information remained confidential, as long as the people revealing the information could be reasonably expected to know it was confidential and that its release would be likely to cause damage."

"But that only applies while the information is confidential. Once it is published and out there, there is no buffer period during which the law of confidentiality would protect the owner of information," he said.

The Court also dealt with the issue of jurisdiction. AHN is based in Florida, AP in New York, and each argued that their own state law applied to the case. The Court said that previous cases of misappropriation had established that the law to be applied was the law of the place “where the plaintiff suffered the injury sued upon". It said that New York law applied to the case.