MAKING COPYRIGHT YOUR FRIEND:

JOURNALISM AND FAIR USE

Patricia AufderheideAmerican University

☐ It doesn’t protect authors enough

It protects authors too much☐

☐ I have no idea

What is the main problem journalists have with copyright law?

Our researchers at American University did a year-long study of journalists all over the country, and found that journalists actually don’t know their

rights under copyright law.

In particular, we don’t know how to employ

FAIR USE.

FAIR USE

The right to reuse appropriate amounts of

existing work for a new purpose.

We all need this right every day in order to do journalism.

In fact, we use it every day without thinking about it, such as quoting a document or referring to a report.

As we found in our study, fair use is baked into newsroom

practice across the country.

But when journalists have to consciously exercise their rights—in

newer media to them (such as audio, video and web media) and on newer

digital platforms—they often hesitate.

When people hesitate, they delay and reconsider.

Sometimes, they don’t even attempt possible projects.

In fact, they are regularly self-censoring.

We heard an awful lot of stories like that. We heard about anxiety, fear,

delay, missing opportunity.

And we came to realize… “Hey, this is a freedom of

expression issue.”

We realized that copyright for

journalists was a First

Amendment issue.

Journalists face a world that is almost – with

very few exceptions –

entirely copyrighted.

In order to refer to the existing

world, they have to access

copyrighted works.

Copyright monopoly rights lock up that

work, unless you get permission to use it.

That turns copyright holders into private

censors.

How does the government that gave us the First Amendment get

away with authorizing a monopoly

that produces censorship?

By creating an exception to that monopoly through fair use.

The Supreme Court has said

twice in the last decade, in Golan and Eldred, that

copyright is constitutional

because fair use exists.

So if that’s true, why are journalists often so fearful of employing fair use?

After all, journalists love the First Amendment.

Journalists are understandably worried that the law is vague and that fines can be

steep.

At the same time, major media companies

employ fair use every day.

What do they know that makes them so confident?

Media companies know that judges are very fair use

friendly, and they know how judges

currently reason about fair use.

Judges consider three big questions, based on the copyright law’s infamous

“four factors”:

1. Transformativeness

2. Appropriateness3. Professional

Standards

1. Transformativeness

Did you use it for a new purpose?

2. Appropriateness

Did you use what

you needed for that

new purpose?

This one is just right!

3. Professional Standards

How does your professional

community think about re-using

copyrighted material?

Fair use gets much easier to use when you

know what your community’s

standards for it are.

This inspired the legal scholar Peter Jaszi

to come up with a plan:Get people in a professional field together to decide what they need

from this part of copyright law to get their work done.

Professionals have made fair use consensus documents work for

them, such as…

FILMMAKERS

SCHOLARS

POETSENGLISH TEACHER

S

LIBRARIANS

…and MORE!

All of these professional communities shared a common trait with

journalists:

They were all inadvertently and often unknowingly self-censoring,

through doubt and hesitation.

Once they created consensus

documents about fair use, they were

able to get their work done more

efficiently.

They’ve done new things in new ways.

They’ve changed business practice.

They’ve been able to innovate.

No documents have been challenged. Why?

Because they employ fair use, just like everybody else.Because fair use enables new expression.

Why didn’t these and other news organizations object to consensus codes?

Because fair use doesn’t impair the rights of copyright holders.

It permits the creation of new work and new uses that do not impinge upon existing markets.

Now, for the BREAKING NEWS.

JOURNALISTS

Journalists have also created such

a document in their

Set of Principles in Fair Use for Journalism.

This document was created with the help of

the Society of Professional Journalists and the Online

News Association.

It was also the result of17 meetings in 10 cities

across the country.

The Poynter Institute, American University,

and other endorsers officially launched it

on June 7, 2013.

Endorsers So Far

• Association for Education in Journalism and Mass Communication

• Association of Alternative Newsmedia• Association of Schools of Journalism and Mass

Communication• J-Lab• MediaShift• National Association of Black Journalists, Digital Journalism Task Force• New America Media• Poynter Institute• Robert R. McCormick Foundation

What’s in the Set of Principles for Fair Use in

Journalism?

Here’s a sneak peek…

• Incidental Capture• Proof• Cultural Journalism• Illustration• Historical Reference• Fostering Public

Discussion• Advancing the Story

These are six situations journalists found often

involve fair use:

This document levels

the playing field on fair use claims.You can even use

it to challenge someone who you think infringed on

your rights by going beyond community consensus.

You should be feeling that weight off of your shoulders just about now, because your risk just got a lot

lower.

So: I think it’s time to get back to

doing journalism.

Now, let’s review.

☐ Put everything away

Lock everything up☐

☐ Use all of the law

What is the best way for copyright to enable the future of journalism?

The Supreme Court wants you to choose the last one, and so does the Poynter Institute – and so do I.

STORIES? QUESTIONS?

socialmedia@american.edu

At American University’s Center for Social Media, we’d love to share your stories about how you’re employing fair use – not just to journalism, but

journalistic innovation!

Feel free to share thispresentation in its entirety.

For excerpting, employ fair use.

THANK YOU!