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Colonial CopyrightIntellectual Property in Mandate Palestine$

Michael D. Birnhack

Print publication date: 2012

Print ISBN-13: 9780199661138

Published to Oxford Scholarship Online: January 2013

DOI: 10.1093/acprof:oso/9780199661138.001.0001

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Telegraphic News

Telegraphic News

Chapter:
(p.212) 9 Telegraphic News
Source:
Colonial Copyright
Author(s):

Michael D Birnhack

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199661138.003.0010

Abstract and Keywords

This chapter examines the first major copyright case: Palestine Telegraphic Agency (PTA) v Adel Jaber. The PTA was a Jewish-owned news agency, a subsidiary of the Jewish Telegraphic Agency (JTA), and later representing Reuters in Palestine. Jaber was the owner of a new (and short lived) Arab newspaper, affiliated with the Arab national movement. The PTA claimed that the newspaper copied its telegraphic news. The question of ownership of news was a global issue at the time. This case is contextualized within two broader frameworks. One is that of technological developments, which resulted in competition between old (print) and new (telegraph) means of communication, that are explained, in turn, on the background of the global attempt to protect news. The copyright lawsuit was a means to convince newspapers to subscribe to the PTA’s telegraphic news services. A second broader story is the Palestinian identity puzzle, given the identity of the parties.

Keywords:   news, news agency, Telegraph, Reuters, technology, litigation, Palestine Telegraphic Agency, Adel Jaber, nationalism

The notorious fact that Mr Brown has a pink nose or that the Zionist Congress met in Basle for the 1931 session may not be subject to copyright, but the particular form of literary style in which this information is conveyed to a newspaper public is undoubtedly subject to copyright and entitled to protection.

Judge Cressall, 1931.1

A. Introduction

In the never-a-dull-moment-Mandate-Palestine, newspapers provided a vibrant public sphere: they reported the events of the day, and played a crucial role in local politics. News was also a business. The late 1920s and early 1930s were a time of technological and commercial changes in the local news market. Telegraph (first landlines and then wireless) became the backbone of the business, carrying messages from news agencies to the newspapers. Readers could notice the bylines in the newspaper, attributing the source of the reports to the agencies, but much more was going on behind the scenes.

The developments culminated in a copyright case that brought everything together: a dispute about ownership of news. The suit was initiated by the Palestine Telegraphic Agency (PTA) joined by the Palestine Bulletin, both owned by a Jewish American entrepreneur, Jacob Landau. The defendant was a short-lived, Arab newspaper, Al Hayat (Arabic: Life), and its publisher, Adel Jaber. The plaintiffs argued that the newspaper copied telegraphic news which it claimed to own. The suit was brought to court in late 1931, and reached the Supreme Court in early 1933. By the time it ended, both the Bulletin and Al Hayat were no longer published; with the growing use of the telephone and the spread of radio, the telegraph was soon to become an obsolete means of transmitting news. Nevertheless, the case set some long lasting copyright principles. Its result was also a new sui generis legislation, protecting telegraphic news.

The question of ownership of news was not unique to Palestine. In fact, Palestine was one of the last to address the topic. The most famous case was International News Service (INS) v Associated Press (AP), decided by the American Supreme Court (p.213) in 1918.2 The court ruled that news was not protected by copyright law, but it articulated a new doctrine of misappropriation of hot news. In the meantime, other places, many British colonies included, addressed the matter by enacting sui generis laws, of the kind enacted in Palestine in 1932, protecting telegraphic news. Importantly, no such law was enacted in the United Kingdom.

The story of telegraphic news, told through the copyright litigation in PTA v Jaber, provides another example of the patterns of colonial copyright: this time it was not a top-down imposition of the law, but rather a local interpretation of a law (though turning to the imperial law for guidance) and local legislation. Contextualizing the case on the background of the local business, technological, and national interests crystallizes the colonial situation: the regulation of the technology and its related market were subject to the direct interests of the colonial government, in this case, the interest in controlling the flow of information.

We begin with the field of news in Palestine in the early 1930s: the players, their interactions, and the technologies they used. We next encounter the problem of news ownership and the responses elsewhere. This background will enable us to closely examine the PTA v Jaber case and its impact.

B. News in Palestine

Like many other aspects of life during the Mandate, the local press was undergoing extensive changes. The number of readers increased in all sectors of the population. Print, cinema, and then radio enabled different channels of disseminating news, each requiring different kinds of preconditions (literacy, access). Following national and language divides, the Jewish and Arab sectors had separate media, but there were some interesting interactions. The telegraph provided such a meeting point, and it turned out to be a conflicting one.

(1) Local press

The Arab press was smaller than its Hebrew parallel, even though the Arab population was much larger than the Jewish one. Literacy rates among Arabs were rather low, although they did increase substantially during the Mandate.3 The Ottoman censorship (somewhat eased after the 1908 Young Turks Revolution) and the larger Arab cultural centres in Cairo and Damascus, meant that that the Arab Palestinian print industry developed slower than in neighbouring countries. Under the Mandate, beginning in the 1920s there was a substantial growth of the journalistic activity.

Ami Ayalon, who studied the written culture of the Arab population in Palestine, describes some of the features of the local Arab press: newspapers were cheap to (p.214) produce (compared to books), they were printed at small local printers, and most did not last for long.4 Reading was often a social event rather than the individual reading to which we are accustomed today. Newspapers were read aloud in cafes, which had become a social and cultural centre in towns and villages—at least for men.5 Later on, when radio emerged, sets were often placed in these cafes.

Journalism was often associated with the cultural and political elite.6 There were some local journalists and publicists. Another source for the news was other news outlets: copying news was a common practice,7 which did not go unnoticed. In one of the British government’s internal communications discussed below, the Postmaster General commented that ‘newspapers published in Egypt reach Palestine the next day and are therefore available for quotation by the local press’.8

The British attitude towards the Arab press was quite dismissive. In 1931 the Postmaster General commented that: ‘The Average Arab newspaper in this country is not so much a newspaper, as a political pamphlet.’9 Later on, a British journalist who worked in Palestine was even blunter: ‘From a strictly journalistic viewpoint, there is little that can be said in favour of the Arab press. Its main aim seems to have been to incite, rather than to inform. Its strongly worded editorials, however, were widely read and discussed. If Arab editors were no journalists, they certainly were excellent propagandists.’10

The 1929 Wailing Wall violent clashes between Arabs and Jews created political waves throughout the region; some of which had cultural implications. One of these was a growing interest in current events, which manifested itself inter alia in an expansion of the Arab press.11 In 1931, there were two daily newspapers: Filastin (Arabic: Palestine), published in Jaffa, and Al Jami’a al-Islamiya (Arabic: The Islamist Society), each with several thousand readers.12

(p.215) This was the background for the appearance of a new daily newspaper, Al Hayat, in 1930. It did not last for long, but it was to contribute, unwillingly, to the development of copyright law in Palestine and the local field of news. Its founding publisher was Adel Jaber (1889–1953). He was a member of the local elite: an educator, teaching at the Supreme Muslim Council, where he later became a librarian. After his publishing adventure, he worked for the government as a member of the Central Censorship Board, and then on the board of the Archaeological Advisory Board. In 1939 he was appointed as a council member in Jerusalem’s municipality.13

Al Hayat was a mid-sized newspaper. At its peak, it reached a circulation of about 1,500, about half the circulation of Filastin, the largest Arab newspaper.14 For the duration of its short existence, it struggled with financial difficulties. Al Hayat was not just another newspaper. It was the voice of a new, younger generation with a clear political line, one which was more nationalist than the other newspapers. Until the early 1930s the Arab press was critical of the Jewish immigration and settlement, but usually did not go farther. During 1931, Al Hayat became the leading platform of a more critical line: it criticized not only the Zionist project, but also the British Mandate, and harshly so. It offered a pan-Arab vision which was also critical of the mainstream Arab politics, exemplified by the Arab Executive.15 This nationalist position was a prelude to the Arab Revolt of 1936–9.

Akram Zu’atyir of Nablus and Kheir al-Din al-Zarkali from Syria were active in a new political party, Istiqlal (Arabic: Independence). They joined Al Hayat. Weldon Matthews concluded that the two managed to control the newspaper in the spring of 1931. Jaber, the publisher, was far more moderate in his politics: he worked for the British government both before and after his publishing venture.16 Matthews points out that the nationalist political line of Al Hayat drew the attention of the British government, which was soon to enhance its censorship.17 The political line of the newspaper explains its intense interest in Zionist affairs.

Al Hayat ceased to publish in September 1931, following the arrest of Zu’atyir. This timing coincided with Al Hayat’s publications about the Zionist Congress, (p.216) which were at the heart of the copyright case that would follow. The case should be read also on the background of this political context: a Jewish-owned business based on a new technology sued a nationalistic Arab newspaper. The British government had no reason to interfere in such a dispute; it was probably all too happy to see that its interests in silencing the Arab national views were fulfilled by others, through the seemingly innocent tool of copyright law.

The local Hebrew press in the early 1930s was divided along political lines: Do’ar HaYom (Hebrew: Daily Mail) was a tabloid, affiliated with the right, Revisionist movement, especially in the late 1920s.18 Haaretz (Hebrew: The Land), was a politically independent paper, with a liberal editorial line.19 Davar (established in 1925) was affiliated with the Histadrut—the powerful union and with the leading political party in the Yishuv, Mapai (the Labour Party).20 All three newspapers were Zionist and interested in local events as well as important foreign affairs, especially those relating to Jewish affairs. The Hebrew newspapers were passive bystanders in the current story.

The Hebrew newspapers employed few reporters; official notices were another source of news, as well as foreign newspapers. The Arab press had similar sources, but as of the mid 1920s to the 1930s, the Hebrew press turned to telegraphic news agencies, first the PTA in Palestine, which as of 1929 also distributed Reuters’ news, and as of 1934, also PalCor (Palestine Correspondence) run by the Jewish Agency.21 Foreign news came mostly from Reuters and United Press International.22

In the course of the 1930s, foreign radio stations became another important source for news, a matter which was of some concern to the government. The BBC commenced its Empire Service in late 1932, but it did not have its own news production for quite a while, and relied on Reuters. In fact, the BBC’s charter explicitly prohibited it from having its own news, so as to protect the financial (p.217) interests of news agencies.23 Towards the inauguration of the service, the Colonial Office circulated a despatch, reminding the colonies of copyright. It recommended, ‘as a precaution against unauthorized rebroadcast and reproduction’ that listeners’ licences include a notice explaining that the licence does not authorize infringements.24 The Palestine Broadcasting Service (PBS) did not have its own news bulletins.

(2) Telegraph and news agencies

The telegraph served a central backbone of Palestine’s growing news market. The first lines were built during Ottoman times in the nineteenth century, but they did not survive World War I. The British built new lines, first between Haifa and Jerusalem, and later between Jaffa and Jerusalem. The lines required technical maintenance of the infrastructure. Operating the telegraph required trained staff. An operator had to send the telegram on behalf of the sender, and another operator at the other end of the line had to receive the messages and decipher them. In other words, one could not use the telegraph independently; its technological architecture was a mediated one-to-one technology. In the case of Palestine, the intermediary was the government. Put in economic terms, there were high fixed costs of building the telegraph network and operating it. The users of the service were those that could afford it: the government, repeat players such as Reuters and other businesses, and occasionally individuals.

The introduction of wireless telegraphy challenged the governmental control of the infrastructure, and hence, its control over the content. The government’s solution was legal control. The Wireless Telegraphy Ordinance 1924 required a licence in order to operate a wireless station. The licence was to be issued by the High Commissioner, who had full discretion as to the form of the licence, its duration, restrictions, and conditions.25

News agencies were established in Europe and the United States in the nineteenth century. By the time the telegraph was utilized to convey news in Palestine, Associated Press was the leader in the United States, and Reuters was well established in Britain.26 Reuters, the French agency (Havas), and the German agency (Wolff) divided the world into regions of operation. Reuters had the Empire. (p.218) Donald Read explains that: ‘Within that huge part of the world, Reuter alone had the right to collect and to sell news for the allowed agencies.’27 The Empire and Reuters had close links. The agency supplied world news throughout the Empire, and conveyed messages from London to its colonies. Read concludes that ‘Reuter was ready to employ its news service (sometimes covertly) to assist official policy’.28 The close relationship served both parties. The Empire had a powerful tool of dissemination of information, and Reuters could trust the government to protect its business interests.

This pattern of relationship was transposed to Palestine. The Mandate government protected Reuters’ interests more than once. In 1929 the government agreed to waive the local terminal charges (6.25 centimes per word) for Reuters’ use of the lines. That was a substantial subsidy, making it difficult for newcomers to enter the market. Reuters published the government’s telegrams, and the government received a few free copies of the news bulletin.29 Thus, Reuters had a substantial financial advantage over any other potential competitor.

(3) The market of telegraphic news

On top of this physical infrastructure, a complex business superstructure developed.

(a) The Jewish Telegraphic Agency

Jacob Landau had many business endeavours in the market for news. Landau was born in Austria in 1892, and grew up in the United States. He was a sharp entrepreneur, always with an open eye for new business opportunities. During World War I he identified the need for news about the Jewish people in Europe. Jews were spread all over Europe, the United States, South America, Palestine, and elsewhere.30 Landau figured out that a news agency tailored to Jewish affairs would have a sufficiently viable global market. He embarked on a long career as a journalist mogul with a Jewish mission. The Jewish Telegraphic Agency (JTA) explains today that Landau realized that the ‘Jewish People needed its own reliable source of information’.31

In 1917, at the age of 25, Landau and a few others established the Jewish Correspondence Bureau in The Hague. It took some years for the agency to (p.219) stabilize, and in 1923 it was renamed the JTA, which still operates to this day.32 Landau was right: there was a demand for news about Jewish affairs. By the end of the 1920s the JTA had 146 correspondents. An observer at the time noted that it served all Jews, regardless of their attitude towards Zionism or their religious movement or views.33 By 1933 the JTA provided news to thirty-eight Jewish daily newspapers around the world, and to ninety-one Jewish weeklies, in various languages; through arrangements with other agencies, it claimed to reach more than 4,000 newspapers.34 It had offices in New York, London, Paris, Berlin, Warsaw, and Jerusalem, and later on also in Prague. As the Nazis came into power the offices shut down: in Berlin (1933), Prague (1938), Warsaw (1939), and Paris (1940).35

(b) The Palestine Telegraphic Agency, the Bulletin, and the Post

The JTA’s office in Palestine was the Palestinian Telegraphic Agency (PTA). It registered in Palestine in 1923, and began its actual operation in 1925. The PTA was an independent legal entity, though for all practical matters, Landau treated it as a branch of the JTA.36

The JTA was proud to announce that ‘Palestine is to have its own news agency’. The PTA’s coverage was geographic—Palestine—rather than the Jewish criteria of the JTA. The JTA’s announcement explained that the PTA was ‘to provide a general news gathering service for the Holy Land’.37 The PTA provided its news to the JTA, which then distributed it to its members. In this sense, as a 1930 commentator explained, ‘incidentally, the service [the PTA] was to interpret current events in mediation between the East and the West and thus to help shape the relations between the Jews and the peoples among whom they live’.38

In each of the countries in which the JTA operated, it published a local bulletin. The Palestinian version was the Palestine Bulletin, which first appeared in January (p.220) 1925.39 It was owned by the PTA. The Bulletin was initially a four-page publication (later six pages) of dense text, published in English and Hebrew.40 For the first two months, the Bulletin stated that it was ‘Published Daily By The Palestine Telegraphic Agency Ltd’. The byline also stated: ‘copyright’, indicating that the Bulletin—and Landau—were aware of the legal aspects at an early stage. During the Bulletin’s first five years, the format remained more or less the same: the first two pages contained foreign telegraphic news, attributed to the PTA. The third page carried local news, without attributing the source. The fourth page was for advertisements.

The Bulletin employed local editors: they decided what would go into the paper and in which order; they edited the telegrams, often combining separate stories into one coherent report. At a later stage, editing turned out to be a crucial point in the litigation. One of the editors was an English barrister who immigrated to Palestine, Edward David Goitein (1900–61). He was with the Bulletin from 1929 to 1931; in 1932 he passed the foreign advocates examination so as to practice law in Palestine.41 He then quit the press, and joined the law firm of Abacarius Bey, a prominent Arab lawyer, in what was the only Arab–Jewish law firm in Palestine.42 Bey and Goitein represented the defendant in the PTA’s lawsuit. Goitein knew first-hand what the (plaintiff) editors’ tasks were.

Another editor was Gershon Agronsky (later: Agron).43 He was born in Ukraine, and raised in the United States until immigrating to Palestine. Agronsky was involved in several journalistic publications, as an editor for the JTA in New York, as an editor for the Palestine Weekly, and as the head of the Press Department of the World Zionist Organization. He joined the Palestine Bulletin as its chief editor.44

In March 1932 Landau and Agronsky fell out; Landau instructed that Agronsky cease writing the Bulletin’s editorial opinion. Agronsky decided to quit the Bulletin and establish a new English paper. One of his friends commented that Agronsky was determined to ruin the Bulletin.45 The timing was bad. The news from Germany was daunting. Soon, Hitler became the German Chancellor, and Landau had to close the Berlin office. In the end, Landau and Agronsky worked out their different opinions, and decided to transform the Bulletin into a new newspaper, which they jointly owned. Agronsky was the chief editor. The Bulletin’s last edition (p.221) appeared on 30 November 1932 and the Palestine Post published its first edition on the following day.46 The British considered the Post to represent the Yishuv’s voice.47 The Post maintained the close affiliation with the PTA. It published a notice stating that: ‘The Palestine Telegraphic Agency is exclusively entitled to all news originating with the Palestine Post.’48 After the establishment of Israel it changed its name to the Jerusalem Post, and runs to this day.

(c) The PTA’s business

In 1929, Landau, who was busy expanding his global network, devoted some attention to his activities in Palestine. He wanted to strengthen the PTA’s position, and increase revenues. He proceeded in two strategies: concluding a deal with Reuters, and approaching the government for various concessions and preferential treatment.

Reuters had an office in Jerusalem, but without local journalistic activity; the nearest journalistic office was the important Cairo office.49 The PTA reached an agreement with Reuters: the PTA received the exclusive right to redistribute Reuters’ news telegrams in Palestine to local newspapers.50 Reuters’ daily telegram, composed of 125 words, was delivered six days a week. Reuters’ caption was to appear on the telegrams. An important condition was that the distribution was to be universal: the PTA had to supply Reuters’ telegrams ‘without priority, to all newspapers in Palestine at a uniform rate of subscription for daily and weekly newspapers’. To complete the deal, the PTA provided Reuters with news from Palestine.51

The agreement was for five years (1929–34), and was then extended for three more years,52 but in early 1936 the contract was discontinued and was transformed into a covenant not to compete.53 We can only assume the reason for the discontinuation of the contract: the PBS was about to commence broadcasting, which included news bulletins, based on Reuters’ news.

As for the second, governmental strategy, Landau met and corresponded with the Secretary of State in London, and then with the Mandate government’s officials. The British realized the importance of the PTA: the Secretary commented about Landau that ‘his organisation is of some importance, and in so far as it disseminates news about our good work both in this country and in the United States can be of real help’. But the British were still a bit suspicious about the (p.222) American entrepreneur, as the PTA’s reports in Palestine ‘have not infrequently sent a good deal of unconfirmed rumour’.54

Landau had concrete requests. He first suggested that the government distribute Reuters’ news to its administrative districts, using his services. This suggestion was rejected outright: the government refused to allow the repetition of Reuters’ news and continued circulating it by post. A second request was that the PTA would enjoy priority in distributing the government’s announcements. The government refused to engage in a discriminatory practice.55

Landau then offered his services to the government for LP150 per year; reported his recent agreement with Reuters, and wrote that he intended to invest LP2,500 in the Palestine Bulletin.56 He further asked for ‘the same facilities as granted to Reuter’, namely, the free delivery of telegraphs over the governmental wires. Landau explained: ‘I have the most earnest wish to place our service on a high level of efficiency, accuracy and objectivity.’ There was yet another bold request, for a sui generis legal protection:

May I also submit a request that the Government protect our news service from reprint by newspapers which have no arrangement with us by enacting regulations customary in other countries by which the property right of news is recognized and its republication for a period of 48 hours is prohibited. May I suggest that this period be extended in Palestine to four or five days. In any one language country 48 hours would suffice to render the news valueless, but it is different in Palestine where the population is divided in three different linguistic groups; where cables in a Hebrew of English daily reprinted by an Arab weekly would still be of news value to its readers.

The government contemplated the requests seriously. As for the legislative proposal, the initial (internal) comment was by the Postmaster General, who did not object but for the duration of the protection: ‘I can see little reason for extending the period beyond 48 hours. It must be remembered that newspapers published in Egypt reach Palestine the next day and are therefore available for quotation by the local press.’57 The matter was referred to the Attorney General, who at that time was still Norman Bentwich. He confirmed that there was no legal basis for the protection of news in Palestine, and mentioned that the issue was discussed in a conference of the League of Nations in Geneva in 1927. He drafted an Ordinance according to the conference’s recommendations, but placed the draft in his draw. Bentwich decided that the enactment should only be considered if there was a ‘considerable demand’.58 Landau’s demand, apparently, was inadequate. The Chief Secretary informed Landau that ‘Government are not prepared at present to make regulations for the protection of Press news’.59 He did not disclose the fact that a draft had been prepared. The draft would remain in the draw for three more years.

(p.223) Landau’s financial requests occupied the government for a while. The Postmaster General suggested that if the government supports the PTA, it should be in the form of payment rather than remission of charges (the charges reached the Post Office, whereas direct payments to the PTA would be made from another department). The Chief Secretary was willing to subsidize Landau’s ventures up to the amount of LP100 and waive the terminal charges, subject to the same conditions as applied to Reuters.60 Landau updated, that he had already undertaken steps to improve his business: he reported that he had hired Goitein to edit the Bulletin, that he had appointed Agronsky to be in charge of the news delivered from Palestine to other places, and that he planned to develop yet another service, the Mid-Eastern News Agency.61

There was one problem, though. Jerusalem’s response to Landau noted that the Secretary of State should approve the agreement. But the Secretary declined.62 Landau was furious. ‘The communication,’ he wrote, ‘means a blow to our Agency and even a menace to the continuation of its work.’ He further wrote that he relied on the agreement with the government, and entered in an agreement with Reuters.63 A request for reconsideration was denied.64 Landau did not give up. The PTA was acting in the name of Reuters, he now explained, and hence it was not asking for a new concession like Reuters’, it was asking for the very same concession that the government had awarded to Reuters.65 He was again dissatisfied with the negative replies.66 The PTA then argued that on the basis of the alleged agreement, it concluded agreements with the newspapers. The government was sceptical, and asked to see the contracts with the newspapers.67

Correspondence continued, to the growing impatience of the officials. In early 1930 there was a new concern: that without governmental support, the PTA would discontinue its agreement with Reuters to distribute Reuters’ news to local newspapers. In such a case, the Chief Secretary warned, the Jewish press might turn to central European news services.68 In other words, the government had an interest (p.224) that Reuters continued to be the de facto exclusive foreign news provider for Palestine. The government trusted Reuters and could control it.69

Discussions continued during 1931 through 1933. In the meantime, the PTA switched to wireless telegraphy, which was cheaper; newspapers increasingly used the telephone to gather news;70 soon they would discover yet another source—foreign broadcasting.

(d) Power and control

The discussion thus far introduced us to the players and their interests:

The government had several interests: promoting the progress of the country was a colonial and Mandatory mission, and the introduction of new technologies fitted this mission. But the government’s chief interest was to maintain control over the means of communication so as to control the flow of information. It achieved control by its ownership of the telegraph infrastructure, and by the law requiring a licence for wireless telegraphy; it further achieved control by relying on the long-standing close relationship between the Empire and Reuters. Ownership of the technological infrastructure and the friendly partner enabled the government to control the flow of news into the country. To maintain the control, it had to protect Reuters and to assure that all newspapers were treated equally, so to receive the same sources of information.

The governmental interest explains its caution in dealing with Landau. The government had less control over the PTA. It was an American business, newer than Reuters, and it was Jewish. The PTA’s agreement with Reuters aligned the two together, and assured that the main source of news in Palestine remained Reuters.

Reuters had substantial power in the local media field, as it had the exclusive and free use of the telegraph lines which it successfully leveraged to the contract with the PTA. As in other places in the Empire, the government’s interests converged with Reuters’. Reuters also had exclusivity over news on the radio, extending its British power over the BBC to the PBS (in 1936).

The PTA and Landau had commercial interests. As we saw, Landau tried everything he could to increase his power: seeking governmental concessions (unsuccessful), exclusivity with the government (unsuccessful), exclusivity from Reuters (successful), and self-interested protective legislative proposals (materialized only later on). Nevertheless, he had quite a powerful position: the PTA received news from Reuters and the JTA, and provided news about Palestine through these (p.225) channels; he owned the Palestine Bulletin, the only daily newspaper in English in Palestine, and then co-owned the Palestine Post.

One player was absent from this picture: the local population. Not only wasn’t the impact of the regulation of the news market on free speech considered, the motivation of the parties was to increase their control of the technological infrastructure and the channels of dissemination so as to control the content. The Mandate government was not a democratic one. The ideas of free press and free speech were yet to enter the local discourse.

C. News in the Courts

The expanding local market of news, the introduction of wireless telegraphy, broadcast, telephone, and the mix of interests of all those involved, meant that each party tried to shape the field using whichever tools it had at its disposal. The government had legislative and executive powers; Reuters and the BBC relied on their British affiliation; the PTA lobbied. Each made commercial, political, and at times proprietary arguments. It was time for a new avenue, copyright litigation. The issue was ownership of news.

(1) Owning news

The legal debates about the protection of news contributed much to shaping modern copyright law around the world. Here is the crux of the legal problem: news is composed of facts about current events. Bare facts are not the independent original creation of any person or entity, but gathering the facts, editing them, presenting the news report, and distributing it, requires the investment of labour and costs. Thus, the case of news presents a challenge for copyright law, of defining the contours of its subject matter: what does it take for the news to become a proper subject matter of copyright law? Is the investment of labour sufficient? What is the original contribution of the journalist (or the editor or the newspaper) that turns unprotected bare facts into a copyrightable expression?

In the United States, during the nineteenth century, it became a common practice for newspapers to copy from one another.71 The practice was indirectly supported by the government, which subsidized the postal distribution of newspapers.72 Robert Brauneis explains that the practice enabled newspapers to have a broader pool of sources. The newspapers were not in competition with one another, as all had local readership. A newspaper in New York did not compete with a newspaper in San Francisco. Even if there was such competition, perhaps between newspapers in closer cities, it was minimized by the lead time: a newspaper could copy from another only after the first had already published the news, and (p.226) after the physical copy of the first newspaper reached the second.73 Another explanation is that a property right, had there been one, would have been difficult to enforce.74

The arrival of the telegraph and its commercial use in the mid-nineteenth century shortened both the distance and the lead time. The technology eliminated the physical barriers: those who had previously cooperated with one another now became competitors. A new business model emerged: news agencies, building on the new, nationwide gathering and distribution channels. AP was established in 1848. Those who invested the time and money in gathering the news had a clear interest in controlling their news. Otherwise, their entire business model would be undermined: if a non-subscribing newspaper could copy the news from a subscribing paper (without authorization), no one would subscribe and the service would not be able to recoup its costs.

The legal challenge was how to enable a viable market while not limiting the diffusion of news. It soon became clear that copyright law would not protect news as such. The facts about the events of the day were not original, in the copyright sense of the term. The first attempt to solve the problem was by amending the legislation. An 1884 bill, backed by AP, drew much attention and raised a public discussion, but it did not become law.75 A second attempt was through litigation. A series of cases followed—but failed. For example, in 1902 the Court of Appeals for the seventh Circuit found that: ‘It is inconceivable that the copyright grant of the constitution, and the statutes in pursuance thereof, were meant to give a monopoly of narrative to him, who, putting the bare recital of events in print, went through the routine formulae of the copyright statutes.’76

The judicial engagement with property in news culminated in the famous INS v AP case, decided by the US Supreme Court in 1918. The facts of the case are well known: INS copied news from newspapers which were AP’s subscribers. INS then transmitted the news to its own subscribers. In some cases, such as transmitting the news from the east to the west coast, INS eliminated the lead time of the subscribing newspapers. This standard understanding of the case, as an unauthorized taking between two competing news agencies,77 has recently been challenged. Douglas Baird argued that it is better understood as a case about the regulation of a natural monopoly: the high fixed costs of building a network of (physical) telegraph lines (p.227) rendered the landline telegraph such a monopoly. The legal rivalry, he argues, was concocted.78

The Supreme Court took it for granted that: ‘Complainant’s news matter is not copyrighted.’79 The majority, however, proceeded to create a new common law tort: misappropriation of hot news. The tort was framed as a matter of unfair competition: ‘What we are concerned with is the business of making [news] known to the world, in which both parties to the present suit are engaged.’80 It was not a property rule that operated against the world at large: it was applied only between the rival parties ‘as between them, it [the news] must be regarded as quasi property’.81 Thus, it was a liability-based tort.

In years to come, INS v AP was much criticized for its dubious foundations and for its limitation of free speech.82 The powerful dissent of Justice Louis Brandeis, stated that: ‘The general rule of law is, that the noblest of human productions—knowledge, truths ascertained, conceptions, and ideas—become, after voluntary communication to others, free as the air to common use.’83 Recently, there has been a fresh argument, explaining the misappropriation tort in a brighter light. Shyamkrishna Balganesh explains that misappropriation is the result of the meeting point of the law of unjust enrichment and the common law doctrine of unfair competition.84 Balganesh emphasizes the high costs of gathering news. Under such circumstances, free riding would be an obstacle to the collective model of news gathering by news agencies. Thus, he presents the misappropriation doctrine as a tailored, proportional measure that was meant to obliterate free riding, and that was meant to encourage cooperative models.

In the United Kingdom, sui generis legislation also failed.85 The issue of copyright in news reached the courts. A first precedent was set in 1892, in the case of Walter v Steinkopff, later also cited by the Palestinian Supreme Court.86 At stake was St James’ Gazette’s copying of two-fifths of an article by Rudyard Kipling, published in The Times on that same day, and twenty-two other articles, though the dispute was narrowed to fewer articles, due to lack of sufficient copyright formalities. The court stated that whereas there might be no copyright in news, there may be copyright in the particular mode of expression. The court further rejected the (p.228) defendants’ reliance on a custom of copying amongst newspapers.87 Unlike the United States, courts did not construct a common law tort.

The challenges raised by the new technologies also troubled other jurisdictions. In the Empire, the first to address these challenges were the Australian colonies. Following petitions of large local newspapers, a series of laws was enacted beginning in the 1870s in some of these colonies (but not all).88 The laws, though criminal rather than civil, provided the first newspaper to print news which originated from a telegraphic message, with the power to prohibit others from publishing the same news, for a limited time. Thus, the initial lead time that was eliminated by the telegraph, was recreated by the laws. The Australian laws served as a model for at least ten other colonies over the years. As we shall see later, Palestine was second to last in this line, enacting a Telegraphic Press Message Ordinance in 1932, followed only by Kenya, in 1934.

Yet other countries had specific references to news, either excluding it from protection, or subjecting it to specific conditions. Interestingly, the Ottoman Authors’ Rights Act 1910 (no longer valid in Palestine, but still valid in neighbouring Trans-Jordan), allowed copyright in news articles, as long as they were accompanied with a copyright notice.89

Thus, by the time the issue of ownership of news reached Palestine, there were at least three legal models to address it: no protection for the facts but only for the original expression thereof (United Kingdom); sui generis laws (the Australian model), or a common law tort (United States).

(2) Litigation strategy

In the meantime, in 1931, Jacob Landau spotted a weak link in his Palestinian business: the local Arab newspapers. They did not subscribe to his PTA–Reuters service. The governmental refusal to subsidize his business meant that he could not afford to turn a blind eye to those who avoided licensing. Landau now turned to litigation. He learnt that the Arab newspapers copied news from the Palestine Bulletin, news which originated from the PTA. He hired a lawyer, Kalman Friedenberg, whom we met as the first lawyer of the foreign performing rights societies (Chapter 7).

We do not know who came up with the idea to go to court:90 Landau was surely familiar with the idea of property in news from his business elsewhere. Friedenberg had already had some copyright experience. He already knew that litigation was an efficient tool to convince reluctant users to join the licensing scheme.

Their first litigation decision was to choose the PTA to be the plaintiff: that was where Landau’s commercial interests were. He was interested in expanding the (p.229) number of licensees to the telegraphic news service. But shortly into the litigation, it was clear that the Palestine Bulletin, the newspaper that edited and printed the telegraphic news, was a better plaintiff. Landau considered both to be one commercial entity, but legally, they were separate. With the judge’s permission, the Bulletin was added as a second plaintiff.

A second decision was to choose the defendant. Al Hayat was an easy target. It was a new newspaper, not yet well established; due to its nationalist editorial line, it did not enjoy the government’s support, which otherwise might have interfered, for example by not allowing a private criminal procedure. Finally, there was clear evidence of copying. Al Hayat published stories about the Zionist Congress that convened in Basle in July 1931. Given the available sources of the local newspapers, such a story could be obtained only from the PTA, probably through the JTA. The stories were translated into Arabic without authorization.

The defendants were Jaber, the publisher, and two other editors, Khaleed Douzdar and Kahir Eddir el-Zarkali.91 They were represented by the law firm of Abacarius Bey, who litigated the case in the magistrate phase and the first appeal to the district court. In the second appeal, to the Supreme Court, David Goitein, appeared on behalf of the defendants.

A third pre-litigation decision was the procedure. In his first copyright litigation, GEMA v Zion Theatre, Friedenberg opted for the criminal avenue. He explained that it enabled him to bypass the tricky issue of proving ownership in the musical works that were publicly performed by the theatre. In the PTA case, ownership turned to be a decisive one. Nevertheless, perhaps a bit traumatized by the critical comments of GEMA and the PRS on his first case, Friedenberg decided not to take chances. He brought both criminal charges and a civil action.

(3) Judgments

(a) The magistrate court

The case landed with Judge Cressall, the British magistrate in Jerusalem. We do not have the courts’ documents, other than the decisions in the case gathered from different archives.92 Based upon the defendants’ consent, the judge tried the criminal and civil cases together. Later on, the Court of Appeals was not impressed with this joint procedure and quashed the criminal conviction.

Abacarius Bey had a preliminary argument: that the Copyright Act was invalid, as it was not duly published in an official publication. Recall that the copyright (p.230) legislation in Palestine was composed of two pieces of legislation. The first was the 1911 Imperial Copyright Act, which was extended to Palestine in 1924 by the King’s Order in Council. The extending Order was published in Palestine’s Official Journal and promulgated by the High Commissioner, but the extended Act itself, the 1911 Act, was not published. The second piece of legislation was the Copyright Ordinance 1924. It was a local enactment by the High Commissioner. It dealt with customs and with the criminal aspects of copyright. The Ordinance was published in the Official Journal.

The judge handed down a separate ruling on the validity of the Act.93 He discussed at length the different kinds of legislation, and concluded that the 1911 Act conferred on the King the power to extend the Act to countries under British protection; the extending orders were Orders in Council, which had the force of an Act of Parliament. These, did not require promulgation to become effective, and they applied as of the date of royal assent, or as of the date mentioned in the Order itself. The road was paved to discuss the substantive issue.

According to one news report, the judge heard some witnesses: the head of the PTA’s office in Jerusalem, and one of the Bulletin’s employees.94 The following month, the judge delivered the judgment on the merits of the case. A first factual finding was straightforward: that in some cases, Al Hayat translated the stories that appeared in the Bulletin or published colourable imitations thereof. A second factual finding was crucial: the Bulletin did not print the PTA’s telegrams in their original form. Rather, the Bulletin edited the telegrams, applying judgment and skill, and produced the stories in a form fit for publication. The editing included printing a ‘definite literary style, divided into paragraphs’. The judge further found that Al Hayat copied the latter, namely from the Bulletin, to which it had access, rather than the original PTA telegrams.

Legal analysis followed, based on the definitions of the 1911 Act and on English case law: copyright subsists in every original work (section 1); the author of the work is the first owner thereof (section 5); copyright means the right of preventing all others from copying a published literary work.95 The term ‘copyright’ means, the judge summarized, ‘the statutory right of preventing the appropriation of the labours of an author by another’. Applying the doctrine to the case, the legal conclusion was that the PTA did not establish the infringement of its own copyright, as the defendant did not copy its telegrams, but rather the defendant copied the Bulletin’s reports. The news was utilized, the judge found, only after it had been ‘“dressed” and put into the language and literary style of the Palestine Bulletin’.

But did the PTA have rights in the news, in their bare form? The judge replied in the negative: ‘news, as such, may not be the subject of copyright, protection is given to, and can be demanded for, the particular form of language or modes of (p.231) expression by which information is conveyed to the public’. He illustrated and elaborated:

The notorious fact that Mr Brown has a pink nose or that the Zionist Congress met in Basle for the 1931 session may not be subject to copyright, but the particular form of literary style in which this information is conveyed to a newspaper public is undoubtedly subject to copyright and entitled to protection. This is based on the principle that where independent labour has been exercised in producing literature which, although derived from facts common to all is the result of mental exertion, such composition is regarded as ‘original’, and is entitled to the protection of the Act.

The application of the legal principles to the facts meant that Al Hayat engaged in ‘literary larceny’, but the Bulletin was the author and owner of the original literary works, rather than the PTA. The judge went on to explain the legal rules that applied to the journalistic field: the use of articles for the purpose of review or criticism is allowed, but the unauthorized copying from another newspaper is illegal; a universal custom of copying, often asserted by newspapers, does not justify taking something one is not entitled to.

The defence further argued that the damages sought were not sufficiently specified. The lawyer pointed to the Ottoman procedural law that was still valid, and applied to the Mandate’s judicial proceedings. But the judge concluded that the Mejelle (the Ottoman civil code) related to contract. Copyright, he stated, was a matter of tort.

Taking into account that Al Hayat did not directly compete with the Bulletin, due to the language differences and the delay in publication—the copied stories appeared a day after the Bulletin’s publication—the judge ordered damages of LP10. The judge refused to issue an injunction: the law did not authorize him to do so; only the district court had the power to issue an injunction. Finally, Jaber was convicted in the criminal charges, and fined by the sum of 100 mils (LP1 had 1000 mils). The two editors were acquitted, as they did not have sufficient knowledge of copying.

(b) The district court

Both Jaber and the PTA appealed to the district court in Jerusalem in late 1931. The appeals were heard in January 1932.96 Jaber’s appeal was against both the civil judgment and the criminal conviction. The PTA appealed against losing its copyright. Importantly, the Bulletin did not appeal—it had nothing to appeal against. The panel was a mixed one, with a British judge residing (de Freitas), a Jewish judge (Valero), and an Arab judge (Majid).

The civil appeal focused on two legal points: the validity of the 1911 Act in Palestine and the unspecified damages. As for the first argument, Bey relied on the Palestine Order-in-Council 1922 and on Ottoman law. The court dismissed the (p.232) Ottoman source, as it was no longer in force in Palestine. The Order-in-Council required publications of local ordinances, not of British enactments. The extending Order in Council 1924, which applied the Imperial Copyright Act to Palestine was published and proclaimed by the High Commissioner, as required. However, the court did recommend that the government publish the 1911 Act. As we saw in Chapter 4, such publication took another two years to materialize. The issue of specification of damages was more difficult. The Magistrates’ Court Jurisdiction Act limited the jurisdiction of those courts to cases in which the damages claimed did not exceed LP100. However, the Copyright Act allowed plaintiffs to obtain an account of profits. The district court sided with the magistrate court, without elaborating. Jaber’s criminal conviction was quashed, due to the wrong tying of the civil and criminal proceedings.

The PTA’s appeal was dismissed. The judges did not elaborate, but they did quote from the Empire Dijest (sic), the headnote about a copyright case in New Zealand (without further details): a newspaper copied a news agency’s telegrams, first published in another newspaper. The summary of the New Zealand case was that ‘as the property had merely a prospective existence there could be no copyright in it’. The judges added nothing more to explain how this applied to the PTA case.

Thus, the decision in the appeal was mostly formalistic, discussing the procedural issues, and not delving at all into the copyright questions.

(c) The Supreme Court

The President of the district court allowed an appeal to the Supreme Court regarding three questions of law: ownership of the copyright in news published by licence of a telegraphic agency in a newspaper, standing to sue, and the question of injunction.97 Thus, the issues of the validity of the law, the joining of the civil and criminal procedures, and the specification of damages were no longer disputed. The Supreme Court heard the case in January 1933, and announced its decision on that same day.98 The panel was once again a mixed one, with the British Chief Justice (McDonnell) residing, along the Jewish (Frumkin), and Arab (Khayat) justices.

Only the PTA appealed, arguing that it owned the copyright rather than the Bulletin. Jaber did not dispute his civil liability (he had no leave to do so). He was the respondent in the case, but once the permission to appeal was limited to the above questions, Jaber was for all matters, a neutral bystander; neither did the Bulletin appeal (it was not even listed as a respondent).

To an outsider, it might seem like a battle between the PTA and the Bulletin, but both were under the same ownership. So what was going on there? Why was it important for the PTA to insist that it was the owner of the news, rather than its sister company that owned the Bulletin? By the time the appeal was discussed, the (p.233) Bulletin no longer existed; it was transformed into the Palestine Post. The PTA was not after the LP10 that the Bulletin won—in any case the damages reached the same pocket. The PTA sought a legal principle: that a news agency owns copyright in the news, rather than the newspapers that received and edited the bare facts.

It was a peculiar setting. Imagine the courtroom: Jaber’s lawyer in the appeal was Goitein. He had little to say on behalf of his client at that point, but he himself was there. Goitein was an editor at the Bulletin prior to joining the law office of Abacarius Bey. He was with the Bulletin in 1931, at the time of the publications at stake. It is not unlikely that he himself edited some of the stories that his client, Jaber, copied. The PTA argued, nevertheless, that it, rather than the Bulletin, owned the copyright.

The judges delivered a one paragraph decision. They relied on the lower courts’ factual findings, that the Bulletin edited the news it received from the PTA. The judges quoted the English 1892 case of Walter v Steinkopff: ‘There is or may be copyright in the particular forms of language or modes of expression by which information is conveyed, and not the less so because the information may be with respect to the current events of the day.’99 The result was that the Bulletin was the owner of the copyright at stake. The court, having answered the first two questions of the appeal, declined to address the third question about injunctions.

Thus, the PTA case articulated several fundamental legal principles. First and foremost, was the fact/expression dichotomy: copyright law provides protection only to original expressions but not to bare facts. Second, the courts indicated their understanding of the requirement of originality. The magistrate court said the most about this point. The investment of independent labour in editing and styling the facts, gave rise to the copyright in the published reports. We do not know what exactly the editors at the Bulletin did with the raw material. The magistrate judge wrote that they ‘dressed’ the facts, but we do not know how much labour or creativity they invested. These were difficult questions at the time and remain so today: the meaning of originality in copyright law is still much debated in Israel and elsewhere.100

Unlike the US Supreme Court in INS v AP, none of the courts searched for non-statutory sources of protection. Constructing common law principles such as the misappropriation doctrine was completely out of question. The Palestinian courts were British in their jurisprudence. The courts understood the law as a closed set of rules, and their judicial role as a limited one—to interpret statutory law. A judicial creation of a non-statutory tort would simply be implausible at the time.

The procedural legal conclusion about the lack of power to issue an injunction, left undecided by the Supreme Court, was an important one. It endured well into the future: for decades Palestinian, and then Israeli plaintiffs in intellectual property cases, had either to sue in the district court and petition for an injunction, or split (p.234) their cases and sue for damages in the magistrate court, and for an injunction in the district court.101

It is also interesting to compare the kind of discourse applied in the case: we do not know how Friedenberg phrased his arguments, but we did see the arguments of Abacarius Bey: he placed much emphasis on procedural issues and relied more than once on Ottoman law. The court, however, replied in substantive rather than procedural statements, and with citing English rather than Ottoman authorities. The law was shifting more and more towards the English colonial system, away from the previous legal system. The process of receiving the legal transplant of colonial copyright advanced one step further.

To complete the picture, we should note that perhaps naturally, the local press, in all languages, reported the case.102 The reports were informative, and in some cases included large sections of the judgments. No legal or other commentary on the case was found.

D. The Impact of the Case

By the time the Supreme Court delivered its opinion, Al Hayat had already closed down, and the Palestine Bulletin was replaced with the Palestine Post. A new law was enacted, protecting telegraphic news. Arab newspapers now subscribed to the PTA’s services. There are no reports of further copyright litigation regarding news, but nevertheless, unauthorized copying continued. In 1938 the Secretary of State circulated a confidential despatch among the colonies, asking about the dissemination of British news.103 The High Commissioner replied that: ‘Only three of the Jewish and none of the Arab daily newspapers take and pay for [Reuters’] service, though certain organs are suspected of making piratical use of Reuters news, from both British and Palestine Broadcasting Services.’104 The (p.235) response indicates that the field has once more changed following the introduction of a new technology: broadcast.

(1) Statutory protection for telegraphic news

In November 1932, while the PTA’s appeal in the Supreme Court was still pending, the government published a draft of the Telegraphic Press Message Ordinance. It became law on 28 December 1932, a week before the Supreme Court decided the appeal.105 The Supreme Court did not mention the Ordinance, but we can assume that it saved the judges the need to contemplate a local common law doctrine.

The Ordinance protected telegraphic news originating from news agencies for seventy-two hours after their first publication in a local newspaper. Although it was a criminal law, the Ordinance deposited the power to allow a second publication in the hands of the newspaper that received the message lawfully from the news agency. The Ordinance allowed the publication of similar news messages that were received in a lawful manner (section 3(b)); the protection was accorded only if the first published message included a heading about the telegraphic source (section 3(c)); transmitting the telegraphic message for the purpose of publication was also was prohibited (section 4); there were evidentiary presumptions (section 5), and finally, penalties (up to LP20 fine for the first conviction; LP50 for subsequent convictions) (section 6).

No evidence regarding back office legislative procedures were found. There was no legislature in Palestine; all work was done by the government, occasionally after consulting an advisory board. Unlike Australia or America, there was no public debate about the bill.106 The draft was published, and a month later it became law. We have some external indications about the process: Landau’s 1929 petition, indicating the private initiative; the government’s 1929 internal discussions, and Bentwich’s draft of an Ordinance, indicating familiarity with the topic. The JTA reported that: ‘The new law has been issued after consultation with the Jewish Telegraphic Agency here, and the Palestine Hebrew and Arab Press.’ The report also summarized the PTA case, indicating the connection between the two.107

There was no law that could be extended from the motherland to Palestine. The informal colonial network was at work: the sui generis telegraphic news laws that began in the Australian colonies in the 1870s spread throughout the Empire in a horizontal manner, copied by colonies from one another rather than imposed by London. Palestine was the sixteenth territory to have a telegraphic news law.108 (p.236) In its contents, the Ordinance was similar to the colonial laws, with minor changes: it included telegrams transmitted from within Palestine, and excluded broadcast.109

One element of the Ordinance turned out to be particularly important. The Ordinance protected telegraphic news ‘other than a message which is broadcast for general public reception’ (section 2). In other words, the Ordinance was technology-based.110 This technology specificity was soon to render the Ordinance obsolete, as newspapers copied broadcast matter rather than telegraphic messages. The Ordinance was subject to judicial interpretation only once, in Israeli courts in the early 1980s.111 It is still valid law in Israel, though a dead letter it is.

(2) Broadcast vs telegraph

The problem just mentioned, of the Ordinance protecting the telegraphic news agencies in a technology-based manner, was noticed at the time of its enactment. As the new law was set in place, a newer technology arrived, once again shuffling the cards in the field of news gathering: radio. By 1933, those who owned or had access to one of the 1,300 radio sets in Palestine,112 could tune in to the BBC Empire Service, where they could listen to Reuters’ news, or they could also tune in to other radio stations, including those from less friendly countries such as the Soviet Union, Germany, and later Italy. This was no minor development. It reflected a trend which is as relevant for the twenty-first century: globalization. The technology of broadcasting defied national borders. It was less controllable than the telegraph. The government did require users to have a licence for their radio set, but it was unable to control what they did with the set, other than the pre-tuned sets which the government itself distributed to the villages.

The shift from the local telegraphy to the global radio meant that the business models of some of those involved were threatened. Let us return to Agronsky in early 1933, shortly after he established the Palestine Post. He tried to bypass the PTA–Reuters monopoly by using the BBC’s news, only to find out that Reuters (p.237) controlled it as well.113 Agronsky now pulled another card: he complained to the government that local press used radio broadcasting from Continental stations as a source for news.114 This was shortly after Hitler was appointed to be Chancellor in Germany. The government then received a similar complaint from Reuters and the PTA, specifically addressed at the Hebrew Haaretz: they complained that Haaretz reproduced news from Continental stations. Unlike Agronsky, Reuters’ representative did not frame his complaint as a British concern, but as Reuters’ interest. He knew that the government considered Reuters’ interest as its own, and there was no need for a pretext.115 The government was indeed concerned, but the officials realized that there was little they could do, but to draw the newspapers’ attention to the radio set licence. They wrote to the Colonial Office in London, emphasizing their concerns, in this order: protection of the BBC’s copyright; protection of telegraphic agencies, the government’s interests in loss of telegraph revenue, and lastly, the danger of undesirable Soviet and other propaganda.116 Eventually, the government’s press officer sent the newspapers a short and rather hollow warning letter.117

The business interests of some newspapers in hindering competition, the news agencies’ interest in assuring their monopoly, and the government’s political and fiscal interests, all converged. Copyright was resorted to as a possible tool to assure control of the news, but it was too weak to serve the purpose. Indeed, the government increasingly used direct censorship. In 1933 it enacted the Press Ordinance, which required a licence to publish a newspaper, and authorized the government to shut down a newspaper.118

E. Conclusion

PTA v Jaber declared fundamental legal principles of the non-copyrightability of news, the fact/expression dichotomy, and originality. The local courts turned to English law as the legal source, thus further anchoring the reception of the foreign legal transplant. But copyright law did not develop out of the blue: it was constructed within technological, commercial, legal, and political contexts. The decision to turn to copyright law was the initiative of a foreign player, in this case Jacob Landau. We have already seen this pattern, where interested foreigners activate the local law. They are often assisted by local intermediaries, in this case it was a lawyer.

(p.238) Each territory had its unique context. In Australia, as noted by Bently, the law protecting telegraphic messages was initiated by leading newspapers. The laws were a tool to raise the barriers for their competitors. In the United States, as argued by Baird, the idea to turn to courts and seek a common law protection for news was a concocted strategy to regulate a natural monopoly—the costly telegraph network.

In Palestine, the market structure was different. The problem of natural monopoly was solved by the government which built the network; the costs of gathering news were not a local problem, as the news at stake were foreign, and gathered by Reuters’. The relevant cost was of accessing and using Reuters’ news. Unlike the free markets in the United States, or the self-governing dominion of Australia, the Mandatory government had its own interests in controlling the flow of information. Its ownership of the infrastructure and the extension of Reuters’ preferred status enabled it to do so. As long as these combined interests were maintained, the government did not care much about the battles between the newspapers and the news agencies. Thus, within this space, the PTA could pursue its goals, of strengthening its own monopoly in the market of delivering news.

Hence, a news agency, rather than the local newspapers, was the one to seek legal protection for news. In fact, the newspapers at stake, the Palestine Post and Al Hayat, were not in competition with each other. Each appealed to a different audience, along national and language divides, with very little spillovers. Returning to the framework of colonial copyright, the copyright principles that emerged from this complex setting further turned the foreign transplant into a local reality.

Notes:

(1) Palestine Telegraphic Agency v Jaber (7 November 1931), available at ISA B28153/14 (Smoira Files).

(2) 248 US 215 (1918).

(3) Adnan Abu-Ghazaleh, ‘Arab Cultural Nationalism in Palestine during the British Mandate’ (1972) 1(3) Journal of Palestinian Studies 37

(4) Ami Ayalon, Reading Palestine: Printing and Literacy, 1900–1948 (University of Texas Press, 2004) 60–1

(5) A British journalist who worked in Palestine wrote in 1949 that: ‘Since only about 40 per cent of the Arabs are literate, it is customary in Arab villages for the men to gather around some literate person in the local coffee house and to listen to the paper being read and expounded.’ Leslie John Martin, ‘Press and Radio in Palestine under British Mandate’ (1949) 26 Journalism Q 186, 187. For the role of the cafe in the cultural lives of the Arabs in Palestine, see Baruch Kimmerling and Joel S Migdal, Palestinians: The Making of a People (Harvard University Press, 1993) 48; Ayalon, Reading Palestine, ibid, at 103–8; Salim Tamari, ‘The Short Life of Private Ihsan’ (2007) 30 Jerusalem Q 31, who describes the rise of the cafe culture as a post-World War I phenomenon.

(6) Bayan Nuweihid Al-Hout, ‘The Palestine Political Elite during the Mandate Period’ (1979) 9(1) Journal of Palestine Studies 85

(7) Ayalon, Reading Palestine, above n 4, at 60

(8) PMG to CS (3 May 1929) ISA M353/3 doc 12.

(9) PMG to CS (2 April 1931) ISA M353/3 doc 92.

(10) Martin, ‘Press and Radio’, above n 5, at 187

(11) Yuval Arnon-Ohanna, The Internal Struggle within the Palestinian Movement, 1929–1939 (Shiloah Center for Middle East and African Studies, 1981) 197

(12) Arnon-Ohanna, ibid, at 199. For an overview of Arab press during the Mandate, see Adnan A Musallam, ‘Palestinian Arab Press Developments under British Rule with A Case Study of Bethlehem’s Sawt al-Shab 1922–1939’ available at http://admusallam.bethlehem.edu/bethlehem/Sawt_Al-Shab.htm. For later developments in the Arab press, see Abu-Ghazaleh, ‘Arab Cultural Nationalism’, above n 3.

(13) The biographic data was reported with Jaber’s 1939 appointment: ‘Adel Jaber New JLM. Councillor’ (27 July 1939) Palestine Post, at 2. Kabha provides some more details: Jaber was born in Jaffa, studied political science and economics in Istanbul and Geneva, and worked for the British Education Department (1918–21). After the 1948 War he resided in Jordan, where he became a member of parliament in 1951. He died in 1953. See Mustafa Kabha, Journalism in the Eye of the Storm: The Palestinian Press Shapes Public Opinion 1929–1939 (Yad Ben-Zvi, 2004) 22 (Hebrew). Tamari provides some details about Jaber during World War I, describing him as a lawyer and journalist who took a pro-Ottoman position. See Tamari, ‘The Short Life’, above n 5, at 40, 45.

(14) For the figures, see Kabha, Journalism, ibid, at 29; Arnon-Ohanna, The Internal Struggle, above n 11, at 200.

(15) See Weldon C Matthews, Confronting an Empire, Constructing a Nation: Arab Nationalists and Popular Politics in Mandate Palestine (I B Tauris, 2006) 84–101; Kabha, Journalism, above n 13, at 22; Arnon-Ohanna, The Internal Struggle, above n 11, at 161–79. For the Istiqlal Party, see also Kimmerling and Migdal, Palestinians, above n 5, at 98–101.

(16) Later on, the Istiqlal Party criticized Jaber for his pro-British positions. For example, he participated in the inauguration of the YMCA building in Jerusalem in April 1933, despite Istiqlal’s non-cooperation programme. See Matthews, Confronting an Empire, ibid, at 182.

(17) Matthews, Confronting an Empire, ibid, at 99.

(18) Daily MailAn Encyclopaedic Lexicon for Media and Journalismhttp://www.the7eye.org.il/Lexicon/Pages/Doar_Hayom.aspxAharon Even Chen, ‘Itamar Ben Avi and “Doar Ha-Yom”’ (1987) 1 Qesher 55 (Hebrew).

(19) Hadshot HaAretzCh 10Benny Morris, ‘Response of the Jewish Daily Press in Palestine to the Accession of Hitler, 1933’ (1999) 27 Yad-Vashem Studies 363

(20) Davar was edited by Berl Katznelson, one of the celebrated ideologists of the Hebrew Labour movement and then the Labour Party. See Historical Jewish Press, ‘Davar’, available at http://jpress.org.il/publications/davar-he.asp (Hebrew).

(21) HaZviOuzi Elyada, ‘The Sensational Journalism in Eretz-Israel at the Early Twentieth Century’ (1992) 11 Kesher 70 (Hebrew).

(22) Morris, ‘Response’, above n 19, at 366

(23) Asa Briggs, The Birth of Broadcasting, 1896–1927 (Oxford University Press, 1995) 130–3

(24) Secretary of State to HC (10 February 1932) ISA M293/8 doc 56.

(25) Gershon Agron, The Loyal Rebel (M Newman Publishing House, 1964) 84

(26) Graham Storey, Reuters’ Century, 1851–1951 (Parrish, 1951)

(27) Donald Read, ‘Reuters: News Agency of the British Empire’ (1994) 8(2) Contemporary Record 195–6

(28) ibid

(29) PMG to CS (26 January 1929) ISA M353/3 doc 1; CS to Reuters, Cairo (26 February 1929) ISA M353/3 doc 5.

(30) Gur Alroey, Immigrants: Jewish Immigration to Palestine in the Early Twentieth Century (Yad Ben-Zvi, 2004) 13

(31) JTA, ‘History’, available at http://www.jta.org/about/history.

(32) For the history of the JTA, see Verena Dohrn, ‘Diplomacy in the Diaspora: The Jewish Telegraphic Agency in Berlin (1922–1933)’ (2009) 54(1) Leo Baeck Institute Yearbook 219. For a later personal account of an American Jew who worked with Landau in the 1940s, see Allen Lesser, Israel’s Impact, 1950–1: A Personal Record (University Press of America, 1984) 123–37.

(33) Victor Rosewater, History of Cooperative News-gathering in the United States (D Appleton & Co, 1930) 368

(34) The figures appear in the JTA’s own infomercial, see JTA, ‘The Jewish Telegraphic Agency at Work’ (16 March 1933) JTA Archive, available at http://archive.jta.org/article/1933/03/16/2798376.

(35) Dohrn, ‘Diplomacy’, above n 32, at 241

(36) HaaretzHaviv Knaan, ‘The Hebrew Press in Palestine during the British Government’ in Dan Caspi and Yechiel Limor (eds), Mass Media in Israel: A Reader (Open University, 1998) 146

(37) http://archive.jta.org/article/1923/07/09/2755425Alfred McClung Lee, The Daily Newspaper in America: The Evolution of a Social Instrument (Routledge/Thoemmes Press, 2000) 542

(38) Rosewater, History of Cooperative Newsgathering, above n 33, at 369

(39) The JTA’s report about its own operation mentioned the Palestine Bulletin, although when it was circulated in March 1933, it was no longer true, as the Bulletin ceased publication three and a half months earlier, and transformed to the Palestine Post. See ‘The Jewish Telegraphic Agency at Work’, above n 34.

(40) The Bulletin is available at the National Library, Jerusalem.

(41) See the Palestine Bulletin’s report (15 April 1932), at 4.

(42) Gabriel Strassman, Wearing the Robes: A History of the Legal Profession until 1962 (Israeli Bar Association Press, 1984) 32–3

(43) After his long journalistic carrier, he became the mayor of Jerusalem (1955–9).

(44) Agron, The Loyal Rebel, above n 25, at 65–6

(45) Agron, The Loyal Rebel, above n 25, at 78

(46) Agron, The Loyal Rebel, above n 25, at 79

(47) Knaan, ‘The Hebrew Press’, above n 36, at 144

(48) (4 December 1932), Palestine Post.

(49) Jack Henry, Reuters in the Middle East (A survey of Reuters, Reuter Archive 8412904, 1988)

(50) PTA–Reuters Agreement (20 March 1929) Reuters Archive LN229 1/8712614.

(51) JTA, ‘Palestine Telegraphic Agency Concludes Agreement with Reuters’’ (18 April 1929) JTA Archive available at http://archive.jta.org/article/1929/04/18/2776861. A similar report under the same heading was published in the Palestine Bulletin (21 April 1929) ISA M353/3 doc 6.

(52) PTA–Reuters Agreement (6 March 1934) Reuters Archive LN229 1/8712612.

(53) Landau to Reuters (16 March 1936; 17 March 1936) Reuters Archive LN242 1/8714730.

(54) Secretary of State to HC (12 March 1929) ISA M353/3 doc 8.

(55) PMG to CS (4 April 1929) ISA M353/3 doc 7.

(56) Landau to CS (29 April 1929) ISA M353/3 doc 10.

(57) PMG to CS (3 May 1929) ISA M353/3 doc 12.

(58) A-G to CS (7 June 1929) ISA M353/3 doc 28.

(59) CS to Landau (13 June 1929) ISA M353/3 doc 35.

(60) CS to Landau (8 May 1929) ISA M353/3 doc 17.

(61) Landau to CS (10 May 1929) ISA M353/3 doc 19.

(62) Secretary of State to HC (26 July 1929) ISA M353/3 doc 38 (‘I do not consider it desirable, on general grounds, to grant special privileges of the kind proposed to a particular agency, and I do not, therefore, see my way to approving the proposals contained in the above-mentioned despatch.’).

(63) PTA to CS (22 August 1929) ISA M353/3 doc 45a.

(64) PMG to PTA (11 September 1929) ISA M353/3 doc 47a.

(65) Landau to HC (19 September 1929) ISA M353/3 doc 50.

(66) Landau turned to another strategy: publicly embarrassing the government. Haaretz newspaper (not under Landau’s control) reported that the government cancelled its concession to the PTA and commented that ‘it would appear that the Government of Palestine intends to take charge of the control of the incoming and outgoing news of Palestine’. Quoted in PMG to CS (29 November 1929) ISA 353/3 doc 64a.

(67) See Landau to HC (19 September 1929) ISA M353/3 doc 50; PMG to Acting CS (17 December 1929) ISA M353/3 doc 69. Upon reviewing the contracts, the government was not impressed with the alleged losses. See PMG to CS (10 January 1930) ISA M353/3 doc 75.

(68) CS to PMG (29 January 1930) ISA M353/3 doc 83.

(69) Later on, the PTA (on a JTA letterhead) asked Reuters to discontinue the service, citing the Mandate government’s position. JTA to Reuters (6 March 1931) ISA M353/3 doc 90a. Reuters was quick to write to the HC (12 March 1931) ISA M353/3 doc 90. However, the PMG was not impressed: he considered it to be the same request for concession in a new guise. PMG to CS (2 April 1931) ISA M353/3 doc 92.

(70) PMG to CS (11 August 1932) ISA M353/3 doc 138; HC to Secretary of State (22 September 1932) ISA M353/3 doc 152. Agron reported the use of the telephone in the Palestine Post, eg in reporting riots in Syria. Agron, The Loyal Rebel, above n 25, at 83. In 1934 journalists petitioned the government to provide them with telephone lines, emphasising the importance of the telephone to their work. ISA M354/3.

(71) Robert Brauneis, ‘The Transformation of Originality in the Progressive-Era Debate over Copyright in News’ (2009) 27 Cardozo Arts & Ent L J 321, 323.

(72) ibid.

(73) Ibid

(74) Ibid

(75) Ibid

(76) National Telegraph News Co v Western Union Telegraph Co 119 F 294, 297 (7th Cir 1902). At stake was a subscriber of a telegraph news service, who received the messages through a ticker machine, and redistributed them. The court concluded that it was a service rather than authorship (at 299). Nevertheless, the court articulated a self-defined precedential equitable remedy, and affirmed the injunction against the redistribution of the news.

(77) The Supreme Court noted that: ‘The parties are in the keenest competition between themselves in the distribution of news throughout the United States’, INS v AP, 248 US, at 230.

(78) Douglas G Baird, ‘The Story of INS v. AP: Property, Natural Monopoly, and the Uneasy Legacy of a Concocted Controversy’ in Jane C Ginsburg and Rochelle Cooper Dreyfuss (eds), Intellectual Property Stories (Foundation Press, 2006) 9

(79) INS v AP, 248 US, at 233.

(80) Ibid, at 235.

(81) Ibid, at 236.

(82) Yochai Benkler, ‘Free As the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain’ (1999) 74 NYU L Rev 354

(83) 248 US, at 250 (Brandeis J, dissenting).

(84) Shyamkrishna Balganesh, ‘“Hot News”: The Enduring Myth of Property in News’ (2011) 111 Colum L Rev 419

(85) Lionel Bently, ‘Copyright and the Victorian Internet: Telegraphic Property Laws in Colonial Australia’ (2004) 38 Loy LA L Rev 71, 169–70

(86) [1892] 3 CD 489.

(87) Ibid, at 499–500.

(88) Bently, ‘The Victorian Internet’, above n 85, at 75

(89) Authors’ Rights Act 1910, s 4. See Ch 4 for discussion of the Act.

(90) Dohrn, ‘Diplomacy’, above n 32Palestine Post’s

(91) This was the spelling in the court’s decision. It is quite likely misspelled. Zarkali is probably Kheir al-Din al-Zarkali.

(92) See the two Magistrate’s decisions: Palestine Telegraphic Agency v Jaber (9 October 1931), published in the Palestine Bulletin (11 October 1931) (hereafter: PTA-1), and the final judgment of 7 November 1931, published in part in the Palestine Bulletin (9 November 1931), with the additional sections that were edited out of the Bulletin’s publication, available at ISA B28153/14 (Smoira Files) (hereafter: PTA-2); the district court’s decision: CA 236/31 Palestine Telegraphic Agency v Jaber (not dated) CZA JAS/1 (hereafter: PTA-3); the Supreme Court’s decision: CA 66/32 Palestine Telegraphic Agency v Jaber [1933] 1 PLR 780 (hereafter: PTA-4).

(93) PTA-1.

(94) ‘Law Suit of Jewish PTA against Al Hayat’ (24 October 1931) Filastin (Arabic).

(95) The English cases cited were Jeffrey v Boosey [1854] 4 HLC 920; Walter v Steinkopff, 69 LT 87 (1892); Walter v Lane [1900] AC 550.

(96) See PTA-3, and a news report about the hearing indicates that it took place in January 1932. See ‘Appeal in the Copyright Case’ (20 January 1932) Haartez (Hebrew).

(97) PTA-4.

(98) PTA-4. That the decision was given on the same day is inferred from a report in Haaretz, The PTA’s Appeal in the Copyright Case (5 January 1933) Haaretz.

(99) PTA-4, quoting Walter v Steinkopff [1892] 3 CD 489, 495. The judges omitted the beginning of the paragraph, which stated: ‘It is said that there is no copyright in news. But there is…’.

(100) Michael Birnhack, ‘Originality in Copyright Law and Cultural Control’ (2002) 1 Aley Mishpat 347 (Hebrew)

(101) Only in 2003 did the Knesset, the Israeli Parliament, amend the law so to authorize the district court to adjudicate intellectual property cases even if the damages sought are within the lower court’s jurisdiction, thus allowing a unified damages and injunction case. Courts Act [Consolidated Version] 1984, s 40(4).

(102) See eg ‘Appeal in the Copyright Case’ (20 January 1932) Haartez (Hebrew); ‘Ownership of Copyright’ (5 January 1933) Palestine Post. The JTA also reported the case: ‘Copyright Act in Palestine: Palestine Telegraphic Agency Wins Important Case against Arab Paper’ (31 October 1931) JTA Archive, available at http://archive.jta.org/article/1931/10/31/2792191. Al Hayat did not live to report its own case, but other Arab newspapers reported it, Filastin being the most popular one. See ‘Delay in the Law Suit of the PTA against Al Hayat’ (10 October 1931) Filastin, at 5 (Arabic); ‘The Royal Act is Valid, Al Hayat Litigation’ (13 October 1931) Filastin, at 6 (Arabic); ‘The Law Suite of the Jewish PTA against Al Hayat’ (24 October 1931) Filastin, at 7 (Arabic); ‘The PTA and Al Hayat’ (31 October 1931) Filastin, at 6 (Arabic).

(103) The first question was about Reuters’ news. The entire confidential file reached Reuters at the time, leaving us with the safe conclusion that Reuters was behind the survey.

(104) HC to Secretary of State (21 March 1938) Reuters Archive LN733 1/970123, 5312/B/38 doc 21. Of the other colonies that responded and mentioned copyright, Gibraltar and Mauritius mentioned that Reuters’ news was reproduced by the press without authorization (see docs 36, 43 respectively).

(105) 2 Laws of Palestine 1404 (Drayton).

(106) See in Australia: Bently, ‘The Victorian Internet’, above n 85, at 108–25; in the United States: Brauneis, ‘The Transformation’, above n 71, at 352–9.

(107) ‘Copyright in Palestine; Important News Protection Law Promulgated’ (2 December 1932) JTA Archive, available at http://archive.jta.org/article/1932/12/02/2796834.

(108) For this feature of the telegraphic press laws, see Bently, ‘The Victorian Internet’, above n 85, at 167–8; Lionel Bently, ‘The “Extraordinary Multiplicity” of Intellectual Property Laws in the British Colonies in the Nineteenth Century’ (2011) 12 Theoretical Inq L 179–81. Kenya was the last country known to have such a law. Unlike the Palestinian Ordinance, the Kenyan Act did not exclude broadcast; the protection there lasted for eighty-four hours. See Telegraphic Press Messages Act 1934, 14 Laws of Kenya, C 512.

(109) Bently, ‘The Victorian Internet’, above n 85, at 72–3

(110) Bently, ‘The Victorian Internet’, above n 85, at 175

(111) CA 361/80 ITIM v Nathan 38(2) PD 154 (1983). ITIM, an Israeli news agency, sued Avraham (Abie) Nathan, a well-known peace activist who founded and managed the Voice of Peace, a radio station that broadcast from an offshore boat. The Voice of Peace transmitted the news broadcasts of the Voice of Israel. ITIM argued that the VoI’s news bulletins included its own news, hence the retransmission violated the Ordinance. The Israeli Supreme Court interpreted the Ordinance narrowly, to refer only to messages transmitted through telegraph, and aimed to print newspapers.

(112) ISA M354/1 doc 54a Appendix A. The figure related to the end of the fiscal year of 1932, ie March 1933. By the end of the 1933 there were already 2,313 sets. See figures in Ch 8.

(113) See Agronsky to CS (26 December 1932) ISA M293/8 doc 79; Officer Administering the Government to Secretary of State (11 January 1933) ISA M293/8 doc 83; Secretary of State to HC (16 February 1933) ISA M293/8 doc 86; CS to the Palestine Post (28 February 1933) ISA M293/8 doc 90.

(114) PMG to CS (8 March 1933) ISA 293/8 doc 92 (reporting Agronsky’s comments).

(115) Internal memo, ISA 293/8 comment on doc 97 (date unclear, 1933) (reporting Reuter’s complaint).

(116) Ibid.

(117) See Press Officer to Palestine Post (21 April 1933) ISA 293/8 doc 102, and similar letters to Hebrew and Arab newspapers (docs 102a, 102b).

(118) Press Ordinance 1933, 2 Laws of Palestine 1214 (Drayton).