Copyright, Free Speech, and The Public's Right to Know

Abstract

This study explores the problems that US journalists face in employing the copyright doctrine of fair use under copyright in their work, and heralds a solution. US copyright policy's expansion of monopoly rights since 1976, harshly shrinking the public domain, has forced journalists to understand their fair use rights better. Fair use permits use of copyrighted material without permission or payment, under some circumstances. Without vigorous application of fair use, freedom of the press and its public sphere functions are impaired. Interviews with 81 journalists in a range of media show that journalists receive inadequate and conflicting fair use advice in their education and work environments, and often share misinformation. As a consequence they delay, limit coverage and even choose not to release information. The problem is most acute in emergent digital platforms and in small organizations. Journalists made aware of this problem have taken action to shape a set of principles interpreting their fair use rights. This set of principles offers an opportunity to share journalistic standards for US fair use, following the model of other communities of practice that have been able to do their work more easily and effectively as a result. The US situation is particular to US law, but has international implications.

KEYWORDS:

• copyright
• fair use
• First Amendment
• freedom of expression
• freedom of the press
• journalism
• news
• public sphere

ACKNOWLEDGEMENTS

We thank Phoebe Connelly, who served as project manager for the project's launch and during the first interviews. We also thank Janet Liao and Mark Hallett who shepherded this project through the McCormick Foundation's granting process. Finally, we thank Center for Social Media Associate Director Angelica Das, who kept a steady hand on the process throughout.

Notes

1. An extensive bibliography of newspaper coverage of Righthaven lawsuits, as well as links to the lawsuits themselves, is available at http://www.righthavenlawsuits.com/index.html.