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Fair Use: Journalism Can’t Succeed Without It

DEEPLINKS BLOG
February 24, 2017

The idea that you don’t need a subject’s permission to report on them is fundamental to a free press. If a powerful or influential person, or company, could veto any coverage they don’t like, or make sure any embarrassing or incriminating statements disappear, there’d be little point to having a news media at all. Journalism relies on fair use, the idea that you can use a copyrighted work (like a video or audio clip, or piece of text) in certain ways without the copyright holder’s permission.  Indeed, the section of U.S. law that defines fair use even explicitly calls out its importance to news reporting and commentary.

If we want to protect free and independent journalism, then we need to protect and strengthen fair use.

You don’t need to look far to see how frequently journalists rely on fair use protections to do their jobs. In 2011, Bloomberg obtained and published a recording of a conference call that Swatch Group had held to discuss its financial performance. When Swatch sued for copyright infringement, a judge warned that the company’s demands were a threat to a free speech: “That kind of activity, whose protection lies at the core of the First Amendment, would be crippled if the news media and similar organizations were limited to sources of information that authorize disclosure.”

We recently wrote about Rafael Correa, the Ecuadorian president who’s repeatedly used the Digital Millennium Copyright Act to censor media coverage about himself. Today, with a U.S. president who campaigned on a promise to “open up” libel laws so that he could more easily sue newspapers for their coverage of him, and who recently called the mainstream press an enemy of the American people, it’s more important than ever to protect journalists from censorship-by-copyright.

And those protections are just as necessary for publishers with minority views as mainstream ones, if not more so. In 1968, Time Inc. attempted to sue a book publisher over its use of the Zapruder Film, the famous document of President John F. Kennedy’s assassination. The book used stills from the film in order to advance a theory that multiple gunmen had participated in the assassination. As the judge noted, “Thompson [the author] did serious work on the subject and has a theory entitled to public consideration.” Regardless of your opinions about the Kennedy assassination, it would be disastrous to allow copyright to be used to keep the public from reading unpopular opinions.

Again and again, large entertainment companies attempt to trivialize fair use, treating it like an archaic flaw in copyright law—or at best, the realm of hobbyists on YouTube. Fair use isn’t just about your right to make funny videos (as important as those are); it’s about the public’s right to news and information, and the crucial role of the press to hold those in power accountable.

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This Week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

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