13.3 Copyright and fair use in journalism

Copyright and fair use are crucial concepts in journalism. They protect creators' rights while allowing journalists to use content for reporting. Understanding these principles is essential for ethical and legal news production.

Journalists must navigate copyright laws carefully. Fair use allows limited use of copyrighted material without permission, but it's not a blanket exception. Factors like purpose, nature of the work, amount used, and market impact determine fair use.

Copyright Basics for Journalism

Copyright Protection and Scope

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• Copyright is a form of intellectual property protection that grants the creator of an original work exclusive rights to its use and distribution for a limited time period
• Copyright applies to a wide range of creative works, including news articles, photographs, videos, and other journalistic content such as infographics, illustrations, and audio recordings
• Copyright protection is automatic as soon as a work is created and fixed in a tangible form, without the need for registration or notice, although registration provides additional benefits such as the ability to sue for infringement and seek statutory damages
• Copyright protection lasts for the life of the author plus 70 years, or 95 years from publication for works made for hire (works created by employees as part of their job duties)

Permissions and Exceptions

• Journalists and news organizations must obtain permission from the copyright holder to use copyrighted material, unless the use falls under fair use or another legal exception such as using works in the public domain or using government works
• Obtaining permission may involve paying licensing fees, negotiating terms of use, and providing attribution to the copyright holder
• Failing to obtain permission or relying on fair use improperly can result in copyright infringement, which can lead to legal action, monetary damages, and reputational harm
• Journalists should be familiar with their organization's policies and procedures for obtaining permissions and should consult with legal counsel when in doubt about the legality of using copyrighted material

Copyright Infringement vs Fair Use

Copyright Infringement

• Copyright infringement occurs when someone uses copyrighted material without the permission of the copyright holder and the use does not fall under fair use or another legal exception
• Examples of copyright infringement in journalism include republishing an entire article without permission, using a photograph without obtaining a license, or incorporating substantial portions of a copyrighted work into a news story without adding new meaning or commentary
• Copyright holders can sue for infringement and seek monetary damages, injunctive relief (an order to stop the infringing use), and attorney's fees
• Journalists and news organizations can be held liable for copyright infringement even if they did not intend to infringe or were unaware that the material was copyrighted

Fair Use

• Fair use is a legal doctrine that allows limited use of copyrighted material without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research
• Examples of fair use in journalism include quoting brief excerpts from a public figure's speech in a news article, using a short clip from a movie in a film review, or incorporating a photograph into a news story in a transformative way that adds new meaning or commentary
• Fair use is an important tool for journalists because it allows them to report on and analyze copyrighted material without the burden of obtaining permission for every use
• However, fair use is not a blanket exception and must be determined on a case-by-case basis using the four factors outlined in the Copyright Act

Fair Use Factors for News

Purpose and Character of Use

• The purpose and character of the use considers whether the use is commercial or non-profit educational, and whether the use is transformative by adding new expression, meaning, or insight
• News reporting and commentary are generally favored under this factor because they serve the public interest and often involve transformative uses that add new context or criticism
• However, the commercial nature of most news organizations can weigh against fair use if the use is not transformative or if it exploits the copyrighted material for financial gain without adding new value
• Journalists should strive to use copyrighted material in a way that is transformative and serves a journalistic purpose, rather than simply reproducing the material verbatim or using it for decorative or illustrative purposes

Nature of Copyrighted Work

• The nature of the copyrighted work considers whether the work is factual or creative, and whether it is published or unpublished
• Use of factual and published works is more likely to be considered fair use because there is a greater public interest in disseminating factual information and because published works are already available to the public
• Use of creative and unpublished works is less likely to be considered fair use because creative works are entitled to greater protection and because unpublished works have not yet been made available to the public by the copyright holder
• Journalists should be cautious when using highly creative works such as novels, songs, or artworks, and should avoid using unpublished works such as private letters or manuscripts without permission

Amount and Substantiality of Portion Used

• The amount and substantiality of the portion used considers how much of the copyrighted work is used in relation to the work as a whole
• Using a smaller portion of the work is more likely to be considered fair use, while using a larger portion or the "heart" of the work (the most important or recognizable part) is less likely to be considered fair use
• There are no bright-line rules for how much of a work can be used under fair use, but generally using only as much as necessary for the journalistic purpose is advisable
• Journalists should be especially cautious when using photographs, videos, or other visual works, as even using a small portion can be considered substantial if it captures the essence of the work

Effect on Potential Market

• The effect of the use upon the potential market for or value of the copyrighted work considers whether the use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work
• Uses that substitute for the original work or compete with the copyright holder's own uses are less likely to be considered fair use
• News reporting and commentary are less likely to have a negative effect on the market for the original work because they typically serve a different purpose and audience than the original work
• However, journalists should be cautious about using copyrighted material in a way that could be seen as a substitute for the original work, such as reproducing an entire article or publishing a leaked manuscript before its official release date

Digital Media and Copyright

Challenges and Opportunities

• The internet and digital technologies have made it easier to access, copy, and distribute copyrighted material, leading to increased concerns about copyright infringement and the need for fair use
• Social media platforms and online news aggregators have raised questions about the fair use of headlines, snippets, and thumbnail images from copyrighted news articles
• The ease of sharing and embedding content online has blurred the lines between original and borrowed material, making it more difficult to determine the source and ownership of content
• At the same time, digital media has created new opportunities for journalists to incorporate multimedia elements into their stories, engage with audiences, and experiment with new forms of storytelling

Legal and Ethical Frameworks

• The Digital Millennium Copyright Act (DMCA) provides safe harbor provisions for online service providers and a notice-and-takedown system for copyright holders to request the removal of infringing content
• Journalists and news organizations should be familiar with the DMCA's requirements and should have policies in place for responding to takedown notices and counter-notices
• Creative Commons licenses provide a way for copyright holders to grant permission for certain uses of their work in advance, making it easier for journalists and others to use copyrighted material legally
• Journalists should be aware of the different types of Creative Commons licenses and should respect the terms of the license when using material under a Creative Commons license
• The evolving landscape of digital media and the internet requires journalists and news organizations to stay informed about copyright law and fair use, and to develop policies and practices for using copyrighted material ethically and legally
• Journalists should strive to provide attribution and credit for borrowed material, even when not legally required, as a matter of professional ethics and best practices
• News organizations should also consider the ethical implications of their own copyright policies, such as whether to allow others to use their content under fair use or Creative Commons licenses, and how to balance the need to protect their own intellectual property with the public interest in access to information.