During the last few years, many have analyzed the online press, speculating about why its transition from print has been fraught with difficulty, and proposing ways to save journalism from its precarious financial predicament. Much of the debate has focused on developing new journalism business models. For us, the more important question is what type of press and public sphere does democracy require? That is, scholars and practitioners should first analyze what a robust democratic speech environment could and should look like before considering the institutional designs and economic models necessary to ensure it.
We suggest two novel proposals to support robust journalism and democratic debate. The first is what we call ‘public domain journalism.’ This entails subsidizing journalistic content that is produced for anyone to use, remix, and republish as they see fit. Public domain journalism is a product-oriented subsidy grounded in idea that over-extension of copyright often serves as a barrier to free expression. Second, we argue that the public should subsidize producers engaging in practices that can increase the quality of content in the public sphere: transparency, accountability, dialogue, reliability, and collaboration. In other words, we believe that information producers should open their work and practices to public scrutiny, take responsibility for and strive to be accurate in their work, collaborate with citizens in the news process, and encourage dialogue among citizens and policymakers. We hope that this subsidy will correct for features of information markets that erode the press’s role in democracy.
While copyright is much maligned for its overextension and overuse, it is also a potential tool to legally and financially support the press. The original motivation behind copyright was to promote the production and sharing of social knowledge. Copyright does so by providing a financial incentive to creators, securing their exclusive right over the products of their imagination for a limited time.
If we truly embrace this powerful idea, the natural next step is to offer the same financial subsidies to those who forgo copyrights and add their expressions to the public domain, where everyone is free to use them. To this end, we propose an opt-in, content-neutral subsidy for public domain journalism. This means that we would provide financial support to content creators who relinquish their exclusive rights to publish and disseminate their works. The subsidy would be granted automatically to works released to the public domain. In other words, funds would be allocated to compensate for the loss of exclusive control over a work.
And yet, public domain journalism only partially solves the problem of declining resources for quality, public interest journalism. A further level of fiscal support for journalism institutions is needed to ensure its vital democratic role. We propose offering a financial incentive to information producers who both contribute their work to the public domain and embrace transparency, accountability, dialogue, reliability, and collaboration in their informational practices. These are key markers of the quality of expression that has broad democratic value. Given that digital technologies make it possible for far more people to produce and broadly disseminate a variety of expressive works, any producer (not just traditional news organizations) that meets these ideal criteria could earn this second, higher tier of subsidy.
Admittedly, these criteria are debatable. This is why we propose a self-regulating institutional model similar to those found in other democracies that insulate public media from state censorship and interference (e.g., the BBC in the UK, the CBC in Canada). Building off the work of media scholar James Curran, we outline five media sectors that would be responsible for interpreting these criteria and administering this subsidy. These sectors include nongovernmental and nonprofit organizations, professional journalism organizations, commercial media producers, partisan information producers such as political parties, and citizen media, such as many bloggers. Funding to support both the product- and process-oriented forms of subsidy could come from a number of sources, including broadcast system auctions, taxes on digital hardware and software, or levies on online media sales.
Even though journalism is facing a new economic environment that challenges its fundamental features, the public domain journalism we propose here is grounded in long-standing precedents in American legal history. Our model essentially carries the spirit of American copyright law into the digital age, promoting the progress of science and useful arts in an era of easily remixed culture.
Our expanded subsidy model relies on an intriguing, but recently dormant, “affirmative” theory of the First Amendment. Affirmative theories argue that free speech depends upon both setting limits on the state’s right to curtail speech and ensuring that the public has access to robust democratic debate. On one level, for the public sphere to serve as the locus of debate, individuals need to be able to speak without undue interference from the state. On another, publics need to hear all perspectives and ideas, even if they cannot survive in competitive speech marketplaces. Affirmative theory stresses that journalism and expression need to be autonomous from both the state and the market. In practice, affirmative theorists emphasize the civic need for social and economic structures that support robust democratic practices in lieu of market failure.
While we acknowledge that aspects of this proposal will certainly beg questions and invite controversy, our goal is to start a conversation. We are at a moment of incredible promise and potential – we still have a chance to fund a media system that is both constitutionally consistent and civically robust. To help in this effort, citizens can advocate for public domain journalism and subsidies for quality news with the Federal Trade Commission and the congressional subcommittee on Communications, Technology, and the Internet, which have hosted a series of workshops and public hearings over the last few years on the future of journalism. Citizens can also support nonprofit organizations such as Creative Commons that are working to increase the amount of work in the public domain and protect the ‘fair use’ of copyrighted works.