New fair use principles show how copyright can be journalism’s friend

Fair use is an area of copyright law that’s often misunderstood — and feared.

Some publishers think they have limitless rights to use any image they find on Google or social media as they wish. (They don’t.) Another common misconception is the oft-cited yet non-existent “30-second rule” — the idea that you can use up to 30 seconds of audio or video in your work without infringing on an original publisher’s copyright.

Such misconceptions about fair use are all too common — and many journalists fear delving into fair use’s complexities, just wanting to know enough to keep from getting sued.

Today, American University Center of Social Media is releasing a new set of tools that seek to help demystify fair use for journalists — and to help publishers see how this doctrine actually can help online reporting instead of hampering it.

“Legal hurdles can be found everywhere in the entire explosion of new media that journalists will have to live in and explore. And they are not be able to do that if they don’t understand fair use,” said Pat Aufderheide, a professor at American University’s School of Communication, who founded and directs the Center for Social Media and was one of the tools’ creators.

Aufderheide debuted the center’s fair-use principles during her talk, “Making Copyright Your Friend: Journalism and Fair Use,” which kicked off Poynter’s third annual TEDxPoynterInstitute this morning. You can watch a live stream or participate in a live blog of the event here.

Competing effects

Copyright has two sometimes competing effects on publishers.

Publishers see it as a tool to preserve the value of the work they create by preventing other from violating their rights. Yet at the same time, publishers want to use the work of others in the reporting process, and journalists share and use the work of others frequently, both on social media and in their own publications.

Aufderheide referred to this tension as “a balanced set of rights” that the center’s fair-use doctrine helps navigate in a way that “preserves the value of the original work while encouraging the creation of new work.”

Uncertainty about how copyright applies in the digital space can leave some publishers to fear the risks of republishing work created by others, or to decide not to publish their work at all in order to avoid possible copyright infringement.

Aufderheide hopes the center’s principles will give such publishers a road map for answering questions about when it’s appropriate to use music, video or photos created by others in news publications, providing a “zone of greatest comfort” for acceptable fair-use practices.

Seven situations

The principles explore how to apply fair use in seven common situations that journalists perceive to have potential copyright implications. (For more, see the full version here.)

Situation 1: Incorporation of copyrighted material captured incidentally and fortuitously in the process of recording and disseminating news.
Situation 2: Use of copyrighted material as proof or substantiation in news reporting or analysis.
Situation 3: When copyrighted material is used in cultural reporting and criticism.
Situation 4: When copyrighted material is used as illustration in news reporting or analysis.
Situation 5: When copyrighted material is used as historical reference in news reporting or analysis.
Situation 6: Using copyrighted material for the specific purpose of starting or expanding a public discussion of news.
Situation 7: Quoting from copyrighted material to add value and knowledge to evolving news.

In researching the project, Aufderheide interviewed a demographically and geographically diverse selection of 80 journalists to identify common situations that challenge them in navigating fair use.

Aufderheide and her project co-leader Peter Jaszi then met with journalists in a series of small groups to further define limitations to practical applications of fair use in each context. (Disclosure: I participated in one of these small groups last year.)

Building on their research, Aufderheide and Jaszi have published a book, Reclaiming Fair Use and a scholarly paper, “Copyright, Free Speech, and the Public’s Right to Know: How Journalists Think about Fair Use.” These principles add to the center’s expanding catalog of principles and best practices for fair use in other disciplines, including documentaries, library science, poetry, dance archiving and open courseware. The release of this document also inspired a self-directed course on News University which previews today (LINK).

Building confidence

Beyond helping journalists navigate fair use, Aufderheide said the center’s principles could be useful in confronting legal challenges to journalists’ work because they demonstrate accepted practices in the industry.

“When someone adheres to the practices in the principles, they have a clear justification that this is acceptable behavior,” she said.

Even beyond the legal context, Aufderheide said the principles can give editors confidence about when and how they can use copyrighted material in audio, video and social media.

The goal, she said, is that journalists using appropriate amounts of such material won’t “feel they need to get clearance or jump through additional hoops before publishing.”

Related: News University course on copyright and fair use for journalists

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