Journalists and Fair Use

A new study by Patricia Aufderheide, Peter Jaszi, Katie Bieze and Jan Lauren Boyles, explores the problems that journalists face engaging with copyright and employing the doctrine of fair use. The study was based on open-ended interviews with 80 journalists across a range of media platforms.

The good news is that in situations that journalists have been dealing with for years, their collective intuitions about good practice map pretty closely onto the fair use case law. This is striking because the journalists appear to know very little about copyright law of the ins and outs of fair use. Sometimes the journalists quoted in the study were comically wrong:

“When somebody dies, … it’s in the public domain” … “If you can find it on the Web, then anybody can use it, and anybody can take it.”

So how do journalists get it right? The journalists mission to report the news, space constraints, norms of attribution and originality all lead journalists to seek to use their source material transformatively and limit that use to what is necessary. As the authors note:

“They routinely asked themselves if they were merely appropriating information in order to avoid work, or whether they were repurposing that information in a way matched to their mission to inform the public.”

More troubling is finding that in new media situations journalists did not understand their fair use rights. In this context,

“interviewees were often unable to make a timely decision or justify it to a gatekeeper. They operated from risk analysis, without knowledge of actual risk or of their actual rights.”

The study finds when in doubt, journalists routinely self-censor, causing delays, increasing costs, and even failing their journalistic mission.