‘Copyright, Free Speech, and the Public’s Right to Know: How Journalists Think about Fair Use’

The Full report is available on the American University School of Communication Center for Social Media’s website

By Patricia Aufderheide and Peter Jaszi

February 2012

EXECUTIVE SUMMARY ________________________________________________

For journalists and journalistic enterprises,the copyright doctrine of  fair use–the right in some circumstances to quote copyrighted material without permission or payment–is integral to getting work done and distributed. Journalists use it to quote sources and source  material, refer to previous incidents, comment or critique, and to summarize, among other uses. The business of journalism is sustained in part by fair use, which enables appropriate, timely, unlicensed quotations and references to newsworthy material. Fair use incorporates journalists’ free speech rights within copyright.

But journalists are facing ever-greater challenges to applying the doctrine in daily life. Social media, video, and user-generated content pose new challenges and unfamiliar choices. Online aggregators, bloggers and citizen journalists copy original material and further destabilize business models. The executives heading their own news organizations mistakenly point to fair use as imperilling their future. Legal conflicts and claims create confusion and anxiety.

This study, resulting from long-form interviews with 80 journalists, finds that journalistic mission is in peril, because of lack of clarity around copyright and fair use.  Journalists’ professional culture is highly conducive to a robust employment of their free speech rights under the copyright doctrine of fair use, but their actual knowledge of fair use practice is low. Where they have received education on copyright and fair use, it has often been erroneous. Ironically, when they do not know that they are using fair use, they nevertheless do so with a logic and reasoning that accords extremely well with today’s courts’ interpretation of the law. But when they have to actively make a decision about whether to employ fair use, they often resort to myths and misconceptions. Furthermore, they sometimes take unnecessary risks.

The consequence of a failure to understand their free speech issues within the framework of fair use means that, when facing new practices or situations, journalists experience expense, delays and even failure to meet their mission of informing the public. These consequences are avoidable, with better and shared understanding of fair use within the experience of journalistic practice, whether it is original reporting, aggregation, within large institutions or a one-person outfit. Journalists need both to understand fair use and to articulate collectively the principles that govern its employment to meet journalistic mission.

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