As part of the development of this site I’ve been working on an aggregration page that pulls together all of the most recent posts from the top bloggers in medialand. It’s not a particularly complex thing to achieve, but it has got me thinking about the notion of Fair Use of content from external sites. How much of that content, supplied in a handy format by those bloggers in their RSS feeds, is it reasonable to present on this site as long as it includes a link back to the original? All of it? The headline and intro? Will we be driving traffic their way? Or gaining traffic of our own at their expense. And should I be asking permission to do so? In a minuscule way, it reflects the argument that has raged on and off between Google and newspaper publishers for much of the last decade and has recently flared up again with a vengeance.

Earlier this month a group of European newspaper publishers made public what’s been dubbed The Hamburg Declaration, calling for European Commission action on the protection of intellectual property on the internet. Their action reflects a growing sense among publishers that Something Must Be Done to curb the power of a company they perceive as earning fortunes off the back of their expensively-produced content. The group’s statement says that they “no longer wish to be forced to give away property without having granted permission.” Which in turn prompted Google’s default response to such challenges: we agree with you. But if you don’t want us to index your content, it’s very easy to opt out.

For what is basically a polarised argument, there are in fact a number of nuances, and in the current Columbia Journalism Review, Peter Osnos does a very good job of setting them out clearly and dispassionately in a piece entitled What’s a Fair Share in the age of Google? He makes no great claims to have found definitive answers, but says:  “In the haze, I did find a tripartite framework for understanding the major aspects of the issue—let’s call them the doctrines of Fair Conduct, Fair Use, and Fair Compensation.”

By Fair Conduct, he means giving the original source of a news story due credit. He cites the case of Sports Illustrated, which broke the story on its web site of drug abuse by baseball star Alex Rodriguez in Februrary. But the expected surge of traffic didn’t reallly materialise because of the way the story was aggregated – sites including the Huffington Post topped the search Google rankings for the story because of their smarter use of search engine optimisation.

That’s not on, Osnos contends. “The rules of the road for distributing traffic on the Internet need to include recognition, in simple terms, of who got the story. The algorithm needs human help; otherwise, valuable traffic goes to sites that didn’t pay to create the content.”

Fair Use concerns Google’s practice of using aggregation to display headlines and a sentence or two from intro pars on its pages. It takes the view that not only is this legal without express permission from the content creator, it actually benefits the originating site by driving traffic towards it. Newspapers are increasingly of the view that Google should be paying for the right to aggregate, particularly when it is selling advertising on the same pages – as it controversially began to do recently on its US news search pages.

Fair Compensation, though, is really the nub of the matter. Newspapers have reached the conclusion that getting Google’s help in generating large volumes of traffic is not going to be enough to allow them to pay for the journalism that provides much of the content at issue. So they want Google to pony up some of its billions too. Negotiations, behind a wall of non-disclosure agreements, are ongoing. And there’s always the precedent of the Belgian case, in which that country’s newspaper publishers sued Google and won.

Osnos’s suggestion here is that Google facilitates a kind of metering service in which end users pay fractional costs to content providers via their telecoms provider. “Complicated? Yes, but that is the kind of challenge that computers and the engineers who master them are meant to meet.”

In the meantime, though, Howard Weaver (former vice-president of publishing giant McClatchy) believes that it’s time newspapers went on the offensive instead.

“An old politician in Juneau once reminded me that ‘you can’t beat something with nothing,’ he wrote recently. “Newspapers won’t beat Google or other aggregators by building pay walls and leaving the field of battle. To win, they need to provide something better.”

His suggestion is that newspaper publishers take Google on at its own game. By globally combining forces they could provide a search service that does what Google fails to: point news searchers towards the most trustworthy, reliable and accurate sources. And make a tidy sum with search advertising off the back of it.

Unfortunately, Weaver’s calculation that the value of news search to Google is as high as $10billion looks pretty suspect – it’s certainly hotly contested by others who point out that its non-news search advertising that really brings home the bacon. Nonetheless I’d love to think there’s something in what he says. I remember, in the pre-internet age, when newspaper libraries (with  the Telegraph Library as the King of the heap) were the place to call to get a definitive, well-sourced answer to even the most obscure of queries. Michael Frayn wrote a fine recently-revived  play about them, incidentally. An online, searchable version of the world’s newspaper libraries, combining their authority with Google’s global reach could be a compelling offer indeed. Even if it doesn’t bring in the industry-saving amount of cash that Weaver anticipates.