Journalists, Fair Use and Free Speech

The Center’s latest report, Copyright, Free Speech, and the Public's Right to Know: How Journalists Think about Fair Use, conducted in conjunction with American University's Washington College of Law, funded by the McCormick Foundation, reveals the cost to journalistic mission of not understanding a crucial free speech right. It results from interviews with 80 journalists, and documents the high—and rising—price of confusion.

“When journalists don’t know their rights,” said Center director Patricia Aufderheide, who co-authored the report, “they can delay or deform their work, incur needless costs, put themselves at risk, or even self-censor because they just aren’t sure what to do.”

Fair use--the right in some circumstances to quote copyrighted material without permission or payment-- has often been demonized by journalists and news executives, as the culprit for decline in traditional business models. As this report shows, this is a dangerous misunderstanding.  While some aspects of copyright may work against journalism’s traditional business model—for instance, under copyright facts are not copyrightable—fair use is the journalist’s friend.

“As the Supreme Court has recently underlined,” said legal scholar Peter Jaszi, the other co-author on the report, “fair use is critical to exercising First Amendment rights. Journalists need to know and articulate their rights better.”

Journalists use fair use every day 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, without being sure how much is too much. The executives heading journalists’ own news organizations mistakenly point to fair use as imperiling their future. Legal conflicts and claims create confusion and anxiety. In new situations, journalists today lack knowledge of how to make a fair use determination.  Journalists today are at risk of shrinking their field because, as the report documents, they have not yet articulated their common values and principles around fair use.

“This is extremely valuable information for journalists, to be able to do their jobs better," said Kevin Smith, a former president of the Society of Professional Journalists and head of SPJ's ethics committee. "I hope to see a set of principles evolve, which can make it easier to know what's the right thing to do." 

"In gaining an understanding of fair use, people in fields from documentaries to poetry have been able to exercise their rights more fully and create richer work.  It's high time we in journalism found the keys to do the same," said Geneva Overholser, former editor of the Des Moines Register and director of the USC Annenberg School of Journalism. "I'm excited and hopeful and eager to gather with other journalists to move this work forward."

Smith and Overholser participated in a January convening of 25 journalism experts who convened at American University in January to discuss and refine the draft report.

Journalists need both to understand the value of fair use and to articulate collectively the principles that govern its employment to meet journalistic mission.