⚖️Law and Ethics of Journalism Unit 7 – Copyright and Fair Use in Journalism

Key Concepts in Copyright Law

• Copyright protects original works of authorship fixed in a tangible medium of expression
• Grants exclusive rights to the copyright owner to reproduce, distribute, perform, display, and create derivative works
• Does not protect ideas, facts, or works in the public domain
• Copyright exists automatically upon creation of a work, but registration provides additional benefits
  • Allows for statutory damages and attorney's fees in infringement lawsuits
  • Serves as prima facie evidence of copyright ownership
• Duration of copyright varies depending on factors such as the date of creation and the type of work
  • For works created after January 1, 1978, copyright generally lasts for the life of the author plus 70 years
• Exceptions to copyright, such as fair use, allow for limited use of copyrighted material without permission
• Infringement occurs when someone violates the exclusive rights of the copyright owner without permission or a valid exception

Historical Context of Copyright

• Copyright law has evolved over time to adapt to new technologies and societal needs
• The Statute of Anne (1710) in England was the first modern copyright law, granting authors exclusive rights for a limited time
• The U.S. Constitution (Article I, Section 8, Clause 8) empowers Congress to enact copyright laws to promote the progress of science and useful arts
• The first U.S. copyright law was enacted in 1790, initially covering only maps, charts, and books
• Major revisions to U.S. copyright law occurred in 1831, 1870, 1909, and 1976
  • The Copyright Act of 1976 is the current basis for U.S. copyright law
• International treaties, such as the Berne Convention (1886), have harmonized copyright protection across countries
• The Digital Millennium Copyright Act (DMCA) of 1998 updated copyright law to address digital technologies and online infringement

Copyright in Journalism: Basics

• Journalists often rely on copyrighted material in their reporting, such as quotes, images, and video clips
• Original journalistic works, including articles, photographs, and news broadcasts, are protected by copyright
• Journalists must obtain permission from copyright owners to use their work, unless an exception like fair use applies
• News organizations typically own the copyright in works created by their employees within the scope of their employment
• Freelance journalists usually retain copyright in their works, unless they sign an agreement transferring rights to the publisher
• Journalists should be aware of the terms of their employment contracts or freelance agreements regarding copyright ownership
• Proper attribution of sources is essential, but does not substitute for obtaining permission when required

Fair Use Doctrine Explained

• Fair use is a legal doctrine that allows limited use of copyrighted material without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research
• Four factors are considered in determining whether a use is fair:
  1. The purpose and character of the use, including whether it is commercial or non-profit educational
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for or value of the copyrighted work
• Fair use is a case-by-case determination, and no single factor is dispositive
• Transformative uses, which add new meaning, message, or purpose to the original work, are more likely to be considered fair use
• Uses that are critical, educational, or informative are more likely to be fair than purely commercial uses
• The less of a work that is used, and the less important the portion used is to the original work, the more likely it is to be fair use

Applying Fair Use in Reporting

• Journalists often rely on fair use to incorporate copyrighted material into their reporting
• Quoting brief portions of a work for the purpose of commentary, criticism, or news reporting is typically considered fair use
• Using copyrighted images or video clips may be fair use if they are essential to the news story and used in a transformative manner
• Providing proper attribution and context for the copyrighted material used can support a fair use argument
• Journalists should consider the four fair use factors and consult with legal counsel when unsure about the applicability of fair use
• Some news organizations have internal guidelines or best practices for applying fair use in their reporting
• Relying too heavily on fair use or using more of a work than necessary can increase the risk of infringement claims

Digital Age Challenges

• The internet and digital technologies have created new challenges for copyright law and journalism
• Online news aggregators and content-sharing platforms can facilitate the unauthorized distribution of copyrighted news content
• Social media has made it easier for individuals to share and republish news articles, sometimes without permission or proper attribution
• Digital rights management (DRM) technologies can restrict access to and use of copyrighted works, even for fair use purposes
• The DMCA provides a safe harbor for online service providers that remove infringing content upon receiving proper notice, but also prohibits circumvention of DRM
• Journalists must navigate the tension between the public's interest in access to information and the rights of copyright owners in the digital environment
• Emerging technologies, such as artificial intelligence and blockchain, may present new opportunities and challenges for copyright and journalism

Legal Cases and Precedents

• Court decisions in copyright cases involving journalism help shape the boundaries of fair use and other legal doctrines
• New York Times Co. v. Roxbury Data Interface, Inc. (1977): The court found that the use of a copyrighted index in a news article was fair use because it was used for criticism and commentary
• Harper & Row v. Nation Enterprises (1985): The Supreme Court ruled that The Nation's unauthorized publication of excerpts from Gerald Ford's memoirs was not fair use, emphasizing the commercial nature of the use and its effect on the market for the original work
• Núñez v. Caribbean International News Corp. (2000): The court held that a newspaper's publication of copyrighted photographs was fair use because it was transformative and served the public interest in news reporting
• Katz v. Google Inc. (2015): The court found that Google's use of copyrighted images in its search results was fair use, noting the transformative nature of the use and its benefit to the public
• These cases demonstrate the fact-specific nature of fair use analysis and the importance of considering the purpose, context, and impact of the use in journalism

Ethical Considerations for Journalists

• Journalists have an ethical obligation to respect copyright and use copyrighted material responsibly
• The Society of Professional Journalists' Code of Ethics states that journalists should "abide by the same high standards they expect of others," including in matters of copyright
• Journalists should strive to obtain permission for the use of copyrighted material whenever possible, even if fair use may apply
• Proper attribution and acknowledgment of sources is an ethical imperative, demonstrating respect for the original creators and promoting transparency
• Journalists should consider the potential impact of their use of copyrighted material on the rights and interests of copyright owners
• In some cases, journalists may need to balance their ethical obligations with their duty to inform the public and hold the powerful accountable
• News organizations should provide training and resources to help journalists navigate copyright and fair use issues ethically and responsibly
• Journalists should be transparent about their use of copyrighted material and be prepared to defend their choices if challenged