TEDx Journalism and Fair Use Presentation

1. MAKING COPYRIGHT YOUR FRIEND: JOURNALISM AND FAIR USE Patricia Aufderheide American University
2. What is the main problem journalists have with copyright law?
3. ☐ It doesn’t protect authors enough It protects authors too much ☐ ☐ I have no idea
4. FAIR USEThe right to reuse appropriate amounts of existing work for a new purpose. FAIR USE
5. As we found in our study, fair use is baked into newsroom practice across the country. But when journalists have to consciously exercise their rights—in newer media to them (such as audio, video and web media) and on newer digital platforms— they often hesitate.
6. When people hesitate, they delay and reconsider; sometimes they don’t even attempt possible projects.
7. In fact, they are regularly self-censoring.
8. We realized that copyright for journalists was a First Amendment issue.
9. That is because journalists face a world that is almost—with very few exceptions—entirely copyrighted. In order to refer to the existing world, they have to access copyrighted works.
10. Copyright monopoly rights lock up that work, unless you get permission to use it. That turns copyright holders into private censors.
11. FAIR USE How does the government that gave us the First Amendment get away with authorizing a monopoly that produces censorship? By creating an exception to that monopoly through fair use.
12. Supreme Court Fair use protects freedom of expression The Supreme Court has said twice in the last decade, in Golan and Eldred, that copyright is constitutional because fair use exists.
13. So if that’s true, why are journalists often so fearful of employing fair use?
14. These organizations all vigorously employ fair use every day. What do they know that makes them so confident?
15. JUDGES They know that judges are very fair use friendly, and they know how judges currently reason about fair use.
16. Judges consider three big questions. These questions rebundle the infamous “four factors” that are mentioned in the law. 1. Transformativeness 2. Appropriateness 3. Professional Standards
17. Transformativeness Did you use it for a new purpose?
18. Appropriateness What do you need for that new purpose? This one is just right!
19. Professional Standards
20. If people in a professional field could get together and determine what their consensus was around their professional employment of fair use, this would lower risk. It would vastly reduce the ambiguity around what is appropriate, what is in the center of acceptable professional practice.
21. …and MORE!
22. All of these professional communities shared a common trait with journalists: they were all inadvertently and often unknowingly self- censoring, through doubt and hesitation. By not using all their rights, they were limiting not only their current work but their own future—by foregoing innovation.
23. The reason why large copyright holders don’t challenge them is the same reason that professionals, all of them copyright holders, felt free to create them: because fair use doesn’t impair the rights of copyright holders.
24. JOURNALIST S SET OF PRINCIPLES IN FAIR USE FOR JOURNALISM JUNE 20 13 centerforsocialmedia.org/journalism pijip-impact.org/fairuse/journalism Most recently, journalists have also created such a document, in their Set of Principles in Fair Use for Journalism.
25. This document was created with the help of locals of the Society of Professional Journalists and the Online News Association, and resulted from 17 meetings in 10 cities across the country.
26. Endorsers So Far • Association for Education in Journalism and Mass Communication • Association of Alternative Newsmedia • Association of Schools of Journalism and Mass Communication • J-Lab • MediaShift • National Association of Black Journalists, Digital Journalism Task Force • New America Media • Poynter Institute • Robert R. McCormick Foundation • National Lesbian and Gay Journalist Association
27. Seven situations in which journalists asserted their fair use rights • Incidental Capture • Proof • Cultural Journalism • Illustration • Historical Reference • Fostering Public Discussion • Advancing the Story
28. This document dramatically lowers your risk.
29. SET OF PRINCIPLES IN FAIR USE FOR JOURNALISM JUNE 20 13 centerforsocialmedia.org/journalism pijip-impact.org/fairuse/journalism Please use and share the Principles. http://www.centerforsocialmedia.org/journalism
30. In closing… What is the best way for copyright to enable the future of journalism?
31. ☐ Give everything away Lock everything up☐ ☐ Use all of the law
32. QUESTIONS? socialmedia@american.e du
33. Feel free to share this presentation in its entirety. For excerpting, employ fair use.
34. THANK YOU!

Editor's Notes

Here’s a poll to start your day—what’s the worst problem journalists have with copyright law today? Sadly, we learned in research we did at American University that journalists are shortchanging themselves because they do not know all their rights under copyright law.
In particular, they do not understand how best to use fair use, although ironically they often use this right every day without knowing it.
As we found in our study, fair use is baked into newsroom practice across the country. But when journalists have to consciously exercise their rights—in newer media to them (such as audio, video and web media) and on newer digital platforms—they often hesitate.
When people hesitate, they delay and reconsider; sometimes they don’t even attempt possible projects.
In fact, they are regularly self-censoring.
We realized that copyright for journalists was a First Amendment issue.
That is because journalists face a world that is almost—with very few exceptions—entirely copyrighted. In order to refer to the existing world, they have to access copyrighted works.
Copyright monopoly rights lock up that work, unless you get permission to use it. That turns copyright holders into private censors.
How does the government that gave us the First Amendment get away with authorizing a monopoly that produces censorship? By creating an exception to that monopoly through fair use.
The Supreme Court has said twice in the last decade, in Golan and Eldred, that copyright is constitutional because fair use exists.
So if that’s true, why are journalists often so fearful of employing fair use? After all, journalists love the First Amendment. They aren’t irrational. They are understandably confused by the vagueness of a law that says, Go ahead and use copyrighted work without permission if you’re using it to generate more culture—oh, and just think about at least four factors but maybe other stuff too. Oh and by the way, there are big fines if you guess wrong.
They know that judges are very fair use friendly, and they know how judges currently reason about fair use.
Judges consider three big questions. These questionsrebundle the infamous “four factors” that are mentioned in the law. The first is transformativeness.
The second question is the amount or kind of the use. Did you use what you needed for that new purpose? Like Goldilocks, not too much and not too little—just enough. And just enough might be 100 percent of something, but it might not be 100 percent at a high resolution, unless you really need that for the new purpose.
Finally, judges ask what are the standards of the professional community? If people in a professional field could get together and determine what their consensus was around their professional employment of fair use, this would lower risk. It would vastly reduce the ambiguity around what is appropriate, what is in the center of acceptable professional practice. This is an insight that we are indebted to a group of legal scholars for understanding.
This third question, what are professional customs and standards, led to my fellow researcher Peter Jaszi’s great insight. If people in a professional field could get together and determine what their consensus was around their professional employment of fair use, this would lower risk. It would vastly reduce the ambiguity around what is appropriate, what is in the center of acceptable professional practice. The first professional community to create such standards was documentary filmmakers, who used it successfully to lower their insurance rates and to get better insurance. Others soon followed.
All of these professional communities shared a common trait with journalists: they were all inadvertently and often unknowingly self-censoring, through doubt and hesitation. By not using all their rights, they were limiting not only their current work but their own future—by foregoing innovation. After they created codes, though, they were able to get their work done more efficiently. Filmmakers made films more quickly and with lower budgets, poets were able to publish more easily, scholars were able to circulate their research.
Now for the breaking news: Journalists have also created such a document, in their Set of Principles in Fair Use for Journalism.
This document was created with the help of locals of the Society of Professional Journalists and the Online News Association, and resulted from 17 meetings in 10 cities across the country.
Here are the six situations in which journalists asserted their fair use rights. The Principles themselves are at centerforsocialmedia.org/journalism.
Here are the six situations in which journalists asserted their fair use rights. The Principles themselves are at centerforsocialmedia.org/journalism.
I hope you’re feeling a sense of relief! This document dramatically lowers your risk. Now you know what the professional consensus of your field is about acceptable fair use, and that means so would a judge and of course anyone who would challenge you. It also empowers you to challenge someone who is infringing on your own work rather than employing fair use.
Please use and share the Principles.
A final poll before we leave: Which of these options do you think is the best way for copyright to enable the future of journalism? The Supreme Court wants you to choose the last one, and so does the Poynter Institute, and so do I.
At the Center for Social Media, we’d love to share your stories about how you’re employing fair use.

TEDx Journalism and Fair Use Presentation

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Editor's Notes