And how about Sid? Fair use is not his enemy. It actually has enabled journalism for the last 150 years. Copyright law does permit other uses that aggregators seize on—for instance, copyright does not extend to simple facts (Japan hit by hurricane), or to announcements of those facts (such as headlines and many ledes). But this part of the law has nothing to do with fair use. In fact, if Sid understood fair use better, he could distinguish legal aggregating from copying so extensive (publishing extensive chunks of his reporters’ stories) that it becomes infringement.

All of our journalists might say, as many do, “Sure, I could exercise my rights, but people can always sue me, and then my outfit would go under (or I’d lose my job), no matter how right we were.” And that is true with any exercise of First-Amendment rights, all of which are contextual and have penalties for excess. That doesn’t stop journalists in other areas, even though charges of libel, slander, obscenity, and treason could be just as crippling. But journalists have a pretty good seat-of-the-pants idea of what is acceptable and appropriate. They don’t know exactly where the line at the edge of acceptability is, but they have pretty good sense of when they are a good distance away from it.

Of course, if you don’t have any idea of your community’s best practices around fair use, you have a tough time knowing whether or not you’re in the comfort zone. Several other communities—documentary filmmakers, English teachers, archivists, librarians, and professors of film, communication, and art—have articulated the principles that inform their application of fair use. It has enabled easier, quicker decision-making that assesses risk much more accurately.

Journalists are about to weigh in, and it is long overdue. The Society of Professional Journalists is working with American University’s Washington College of Law and the Center for Social Media to create such a statement of fair-use principles, in conjunction with journalists nationwide. We look forward to a time when journalists can make their fair-use decisions on the basis of journalistic mission, not avoidance, fear, or needless courage. 

 

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Patricia Aufderheide is a professor at American University's School of Communication, and co-author with Peter Jaszi of Reclaiming Fair Use: How to Put Balance Back in Copyright.