Fair use, according to the Merriam-Webster Dictionary, is “a legal doctrine that portions of copyrighted materials may be used without permission of the copyright owner provided the use is fair and reasonable, does not substantially impair the value of the materials, and does not curtail the profits reasonably expected by the owner.”
What this means for journalists is that information can be disseminated to the public without a fear of copyright infringement every time a fact is expressed or a clarification is given via text, photos, videos and links.
“While copyright laws are great for protecting intellectual property, they can also really stifle innovation and discussion, which is where fair use steps in,” said professional blogger Austin Sirkin. “Fair use allows people to talk about a thing without being accused of stealing it, essentially, which is exactly what we do as bloggers. It allows us to talk about other intellectual property in detail without having to be afraid of prosecution.”
The important thing, Sirkin emphasized, is that proper attribution is given to any source you quote or link to. He often blogs about steampunk, a genre of science fiction that has given rise to a subculture of costumers, makers and musicians, and said that in the community, there is an understanding amongst steampunks that images of their work can be used by others as long as it’s attributed and linked to.
“I benefit, as a blogger, because I can make my articles more visually rich and much more specific, but they also benefit because they get free advertising,” Sirkin said. “It’s interesting, because people seem to have come to expect their internet work to be used without permission, though there is still the expectation of attribution.”
The Fair Use Doctrine was added as Section 107 of The Copyright Act of 1976 and was based on a history of judicial decisions. While there is no concrete set for what does and doesn’t constitute fair use, different professions, such as libraries, educational institutions documentary filmmaker sand scholars of communications and film studies, have come up with guidelines have created codes of best practices for fair use to know what can be expected in their field and what is appropriate professionally, according to a report by the Center of Social Media called “Copyright, Free Speech, and the Public’s Right to Know: How Journalists Think About Fair Use.”
Currently, journalism as a whole doesn’t have a set of guidelines put in place by a professional institution. The Society of Professional Journalists, however, is formulating fair use guidelines in a document that The Poynter Institute says should be available in 2013.
For bloggers and digital media professionals, the Electronic Frontier Foundation has created a legal guide for bloggers that addresses fair use. “There are no hard and fast rules for fair use (and anyone who tells you that a set number of words or percentage of a work is “fair” is talking about guidelines, not the law),” says the article. The Copyright Act, however, sets out four factors for courts to look at in fair use cases:
- The purpose and character of the use. Transformative uses are favored over mere copying. Non-commercial uses are also more likely fair.
- The nature of the copyrighted work. Is the original factual in nature or fiction? Published or unpublished? Creative and unpublished works get more protection under copyright, while using factual material is more often fair use.
- The amount and substantiality of the portion used. Copying nearly all of a work, or copying its “heart” is less likely to be fair.
- The effect on the market or potential market. This factor is often held to be the most important in the analysis, and it applies even if the original is given away for free. If you use the copied work in a way that substitutes for the original in the market, it’s unlikely to be a fair use; uses that serve a different audience or purpose are more likely fair. Linking to the original may also help to diminish the substitution effect. Note that criticism or parody that has the side effect of reducing a market may be fair because of its transformative character. In other words, if your criticism of a product is so powerful that people stop buying the product, that doesn’t count as having an “effect on the market for the work” under copyright law.
For Sirkin, taking legal action against someone testing the boundaires of fair use would only happen for two reasons: 1. His work was not properly attributed or 2. It was used to make it seem like he endorsed something he didn’t. So far, Sirkin said, neither of those situations has occurred. If it did, it would have to be “massively damaging to my reputation or business. Having had experience with the American legal system, I try to avoid it as much as possible because more often than not, even the winners end up losers.”
Fair Use, Sirkin said, is essential for bloggers and commentators of any variety, whether they’re journalists, columnists or vloggers.
“Not only is Fair Use essential to these people, but it literally could not be done without,” Sirkin said. “And I do mean literally, because if the government were to withdraw the Fair Use doctrine, it would be entirely unenforceable because it happens in such vast quantities in so many places. If I had to generalize, nearly 70 percent of all posts that I see on a given day are relying on Fair Use.”
University of South Florida Mass Communications student Torie Doll did this video on me for her internship. Fair Use lets me embed it on my online portfolio or on this blog without a fear of legal implications. It gives credit to her and links back to the YouTube site it’s embedded on, which gives them the page views. I also asked her permission to repost it.