Fair Use Practices for Scholarly Communication

7/31/2019 Fair Use Practices for Scholarly Communication

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CODE OF BEST PRACTICES IN

FAIR USE FORSCHOLARLY RESEARCH

IN COMMUNICATIONJUNE 2010INTERNATIONAL COMMUNICATION ASSOCIATION

Funded by the Ford Foundation, through the

Center for Social Medias Future of Public Media

centerforsocialmedia.org/ica icahdq.org/fairuse
http://centerforsocialmedia.org/icahttp://icahdq.org/fairusehttp://icahdq.org/fairusehttp://centerforsocialmedia.org/ica


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CODE OF BEST PRACTICES IN

FAIR USE FOR

SCHOLARLY RESEARCH

IN COMMUNICATION


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code of best practices in fair use for scholarly research in communication

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WHAT THIS IS

This document is a code o best practices that helps U.S. communication scholars

to interpret the copyright doctrine o air use. Fair use is the right to use copyrighted

material without permission or payment under some circumstancesespecially

when the cultural or social benefts o the use are predominant. It is a general right

that applies even in situations where the law provides no specifc authorization or

the use in question.

This guide identifes our situations that represent the current consensus within the

community o communication scholars about acceptable practices or the air use o

copyrighted materials.

WHAT THIS ISNT

This code o best practices does not tell you the limits o air use rights. Instead, it

describes how those rights should apply in certain recurrent situations. The air use

rights o U.S. communication scholars may, o course, extend to other situations as well.

It is not a guide to using material that people give the public permission to use, such

as works covered by Creative Commons licenses. Anyone can use those works the

way their owners authorizealthough other uses also may also be permitted under

the air use doctrine. Likewise, it is not a guide to the use o material that has beenspecifcally licensed, which may be subject to contractual limitations.

It is not a guide to material that is already ree to use without considering copyright

(copyright.cornell.edu/public_domain). For instance, all ederal government works

are in the public domain, as are many older works. For more inormation on ree use,

consult the document Yes, You Can!(centerorsocialmedia.org/fles/pd/ree_use.pd).

It is not a guide to using material that someone wants to license but cannot traceback to an ownerthe so-called orphan works problem. However, orphan works

are also eligible or air use consideration, according to the principles detailed below.

And it does not address the problems created by the 1998 Digital Millennium

Copyright Act, which creates barriers to otherwise lawul air uses o copyrighted

materials that are available only in ormats that incorporate technological protections

measures (such as encryption).

June 2010


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HOW THIS DOCUMENT WAS CREATED

This code o best practices was created by a committee o communication scholars

within the International Communication Association (see committee member list on p.

14). The process was coordinated by Patricia Auderheide and Peter Jaszi at American

University. The code was reviewed by a legal advisory board (see member list on p. 15).

CHARACTERISTICS OF THIS FIELD

Communication scholars study, teach, and apply knowledge o all aspects o human

and mediated communication. The divisions o the International Communication

Association (ICA) indicate the broad diversity o approaches and interests. Divisional

subjects include mass communication, political communication, law and policy,

technology, journalism, organizational communication, visual communication,history, public relations, eminism, philosophy, and popular communication.

Scholars commonly ocus on three areas o concern: political and social; cultural;

and technological. Popular culture is a common subject area o research, particularly

in countries with thriving, internationally distributed entertainment media.

However diverse the topics, the discipline o communicationwhich burgeoned

ater World War II and with the growing signifcance o mass communication in

societydraws upon the research methods typical o social sciences and humanitiesdisciplines, such as history and anthropology. In the social sciences, empirical

researchboth qualitative and quantitativeis typical. Scholars who work on the

humanistic side o the discipline, especially history, depend more on citation and

quotation o closely read sources.

Media and communication products, oten rom commercial media companies,

are important raw data or communication research. The raw material may

range rom newspaper articles to blog commentaries to radio commercials totelevision programs to computer sotware to childrens educational media to

election advertising and reporting to video games to e-mails to social networking

pages. Scholars use this material to ask questions about, or instance, persuasion,

inuence, political process, adoption o new technologies, the ormation o social

networks, or the validity o a particular theoretical approach, among other things.


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They oten archive data relating to their research interests, in analog and digital

ormats, or long periods o time. They may re-use this data or dierent research

projects over time.

They may employ a range o scholarly methods, including quantitative and

qualitative textual analysis, experiments employing media as triggers or responses,

participant-observation that may involve participation in media environments,surveys that may require response to excerpted media, and historical analysis that

may involve comparison o media processes and productions. All o these methods

may well employ copyrighted material. To provide one typical example, rom 1974,

o research involving popular culture: a team o experimental researchers used re-

edited material rom the popular childrens program The Flintstones, into which they

inserted advertisements so that they could study childrens responses.

This data is valuable once again in the distribution o scholarly research. Scholarsroutinely quote copyrighted work in research results that may be published in

journals, in books, online, and in media products, such as podcasts and flms. They

develop curricula that include their own and others research results, across all media

platorms. Inclusion o illustrative or demonstrative material is routine. For instance,

print journals have long incorporated, to the extent technically possible, illustrative

material. Online journals such as International Journal of Communication, Canadian

Journal of Communication, Cultural Studies Review, and Flowall incorporate a range o

links, images, and sounds to illustrate and demonstrate scholarly arguments.


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PROBLEMS OFTEN ENCOUNTERED

These time-tested research methods, building upon the raw data o cultural

expression and oten resulting in specialized and personal archives, have been

challenged in recent years, partly because o increased capacity to research and

produce research results across digital media platorms and partly because o

increased public campaigns and public awareness o copyright issues. Increasingly,

scholars fnd their research goals stymied because o conusion over their rights toquote copyrighted material, particularly in newer digital ormats. Graduate students

are being asked by advisors to pick other topics; librarians doubt whether they

can archive electronic theses that include illustrative material that is copyrighted;

publishers discourage inclusion o evidence that involves copyrighted material. There

is disconcertingly wide variety in practice. Some publishers and distributors allow

extensive unlicensed use o copyrighted material, while other publishers demand

permissions or any and all illustrations. Insecurity over basic copyright knowledge

and the interpretation o exemptions and limitations, such as air use, thus hobbles

communication research. This happens at many levels: when selecting materials,

analyzing them, sharing them, and publishing them.

In a 2009 survey o ICA members, summarized in the report Clipping Our Own

Wings(centerorsocialmedia.org/clipping), respondents reported that in the current

environment they are oten insecure about their rights to use unlicensed copyright

materials, and as a result nearly a third avoided some research subjects or questionsand a ull fth abandoned research already under way because o copyright concerns.

Topics avoided or scholarly research included television news, fction flm, online

games, and political cartoons. When they begin research, communication scholars

oten fnd it difcult to collect materials, in signifcant part because o copyright

insecurity. Communication scholars have also abandoned research, particularly when

using popular commercial culture, because o copyright insecurity. In addition,

many ICA members aced resistance rom publishers, editors, and university

administrators when seeking to include copyrighted works in their research. Theyexperienced these problems and resistances as violations o their expectation to be

able to conduct research on media in society. In some cases they overcame these

problems and resistances, oten only to fght the same battles again the next time.

Other ICA members, some working in less highly visible or raught subject areas,

were more routinely able to make scholarly uses o copyrighted material that

they believed were justifed by the academic mission o the feld. The accounts


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that communication scholars give o how and why they make responsible use o

copyrighted media material, in situations where they are able to do so, resonate

strongly with the evolving copyright doctrine o air use. The best practices in air

use described below draw rom the traditions o the feld, scholars expectations

when acing resistance, and the routine practice o the scholars who did not indicate

intimidation or resistance in the survey.

FAIR USE

Law provides copyright protection to works o authorship in order to oster the

creation o culture. Its best-known eature is protection o owners rights. But

copying, quoting, and generally re-using existing cultural material can be, under

some circumstances, a critically important part o generating new culture. In act,

the cultural value o copying is so well established that it is written into the social

bargain at the heart o copyright law, as inscribed in the United States Constitution.The bargain is this: we as a society give limited property rights to creators to

encourage them to produce culture; at the same time, we give other creators the

chance to use that same copyrighted material, without permission or payment,

in some circumstances. Without the second hal o the bargain, we could all lose

important new cultural work.

Copyright law has several eatures that permit quotations rom copyrighted works

without permission or payment, under certain conditions. Fair use is the most

important o these eatures. It has been an important part o copyright law or more

than 170 years. Where it applies, air use is a users right. In act, as the Supreme

Court has pointed out (in its 2003 Eldreddecision), air use helps to keep copyright

rom violating the First Amendment. New creation inevitably incorporates existing

material. As copyright protects more works or longer periods than ever beore,

creators ace new challenges: licenses to incorporate copyrighted sources become

more expensive and more difcult to obtainand sometimes are simply unavailable.As a result, air use is more important today than ever beore.

Copyright law does not speciy exactly how to apply air use, and that gives the

air use doctrine a exibility that works to the advantage o users. Creative needs

and practices dier with the feld, with technology, and with time. Rather than

ollowing a specifc ormula, lawyers and judges decide whether an unlicensed use o


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copyrighted material is air according to a rule o reason. This means taking all the

acts and circumstances into account to decide i an unlicensed use o copyrighted

material generates social or cultural benefts that ultimately are greater than the costs

it imposes on the copyright owner.

Fair use is exible; it is not unreliable. In act, or any particular feld o critical or

creative activity, lawyers and judges consider expectations and practice in assessingwhat is air within that feld. In weighing the balance at the heart o air use analysis,

judges reer to our types o considerations mentioned in Section 107 o the Copyright

Act: the nature o the use, the nature o the work used, the extent o the use, and

its economic eect (the so-called our actors). This still leaves much room or

interpretation, especially since the law is clear that these are not the only permissible

considerations. So how have judges interpreted air use? In reviewing the history o air

use litigation, we fnd that judges return again and again to two key questions:

Did the unlicensed use transorm the copyrighted material by using it or a

dierent purpose than that o the original, rather than just repeating the work

or the same intent and value as the original?

Was the material taken appropriate in kind and amount, considering the nature

o the copyrighted work and o the use?

I the answers to these two questions are yes, a court is likely to fnd a use air.

Because that is true, such a use is unlikely to be challenged in the frst place.

Both key questions touch on, among other things, the question o whether the use

will cause excessive economic harm to the copyright owner. Courts have told us

that copyright owners are not entitled to an absolute monopoly over transormative

uses o their works. By the same token, however, when a use supplants a copyright

owners core market, it is unlikely to be air. Thus, or example, a textbook authorcannot quote large parts o a competitors book merely to avoid the trouble o

writing her own exposition. Another consideration inuences the way in which

these questions are analyzed in practice: whether the user acted reasonably and

in good aith, in light o general practice in his or her particular feld. The act

that community practice inuences judicial decisions makes it important or

communities o practice to understand and articulate their air use rights.


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In any case, air use is not medium specifc. The principles o air use apply equally

to a university publication and to a Web site. However, since all air use instances are

context dependent and case-by-case, potential air users o copyrighted material will

weigh all the circumstances in making a decision about how to proceed.

Communication scholars ability to rely on air use will be enhanced by this code

o best practices, which will serve as documentationboth or scholars and or thegatekeepers who control access to distribution o their knowledge in universities,

publishing houses, and media companies, among otherso commonly held

understandings drawn rom the experience o scholars themselves and supported

by legal analysis. Thus, the code helps to show that the uses o copyrighted materials

described here are reasonable and appropriate or the purposes o scholarship

in communication.

Fair use is in wide and vigorous use today in many proessional communities.For example, historians regularly quote both other historians writings and

primary textual sources; flmmakers and visual artists use, reinterpret, and critique

copyrighted material; scholars illustrate cultural commentary with textual, visual,

and musical examples. Equally important is the example o commercial news media.

Fair use is healthy and vigorous in daily broadcast television news, where reerences

to popular flms, classic TV programs, archival images, and popular songs are both

prevalent and routinely unlicensed.

In some cases proessional communities have set orth their understandings in

consensus documents, which may be useul to those who are involved with these

creative practices. For instance, documentary flmmakers have established their own

code (http://www.centerorsocialmedia.org/resources/publications/statement_o_

best_practices_in_air_use/); so have flm scholars, who routinely use popular flms

in their teaching (dii4.com/documents/SCMSBestPracticesorFairUseinTeaching-

Final.pd); and now a code o best practices has been established or online videocreators as well (centerorsocialmedia.org/remix). Although proessional groups

create such codes, no one needs to be a member o a proessional group to beneft

rom their interpretations.
http://dii4.com/documents/SCMSBestPracticesforFairUseinTeaching-final.pdfhttp://dii4.com/documents/SCMSBestPracticesforFairUseinTeaching-final.pdfhttp://centerforsocialmedia.org/remixhttp://centerforsocialmedia.org/remixhttp://dii4.com/documents/SCMSBestPracticesforFairUseinTeaching-final.pdfhttp://dii4.com/documents/SCMSBestPracticesforFairUseinTeaching-final.pdf


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CODE OF BEST PRACTICES IN FAIR USEFOR COMMUNICATION SCHOLARS

GENERAL POINTS ABOUT PRINCIPLES

This code o best practices identifes our sets o current practices in the use o

copyrighted materials in communication scholarship to which the doctrine o air

use clearly applies.

These situations may involve all orms o media. In all cases, a digital copy is the

same as a hard copy in terms o air use, and an online use (unless otherwise noted)

is equivalent to an o-line one. I a use is air in the course o scholarship, then it is

air in the publication and distribution o that scholarship by any means, including

publishing and media distribution, and in the archiving o that scholarship.

The situations identifed concern air use without a license o copyrighted materials

or communication scholarship, not the way those materials were acquired. When

a user obtained a copy illegally or in bad aith, that act may aect air use analysis.

The same may be true i the user acquired the material rom a source, such as an

academic library, which had acquired it subject to specifc restrictions on use, and

the user agreed to be bound by those restrictions. Otherwise, o course, where a use

is air, the origin is irrelevant.

GENERAL POINTS ABOUT LIMITATIONS

The principles are all subject to a rule o proportionality. Communication

scholars air use rights extend to the portions o copyrighted works that they need

to accomplish their goalsand sometimes even to works in their entirety. By the

same token, the airness o a use depends, in part, on whether the user took only

what was needed to accomplish his or her legitimate purpose. That said, there are no

numerical rules o thumb that can be relied upon in making this determination. Itis the general practice o communication scholars to articulate the methodology o a

project beore engaging in research activity. The development o a protocol involves,

among others things, a description o the necessary research materials. Determining

what kind and amount o copyrighted content is required should generally be a part

o the scholars planning process.


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Communication scholars share values, not only about what uses o copyrighted

material are justifed by their academic mission, but also about what constitutes best

practices in the ways those uses are made. An example is the issue o attribution.

Merely identiying the source material does not make an otherwise unjustifed

use air, nor does the law literally require that uses be accompanied by attribution

in order to be considered air. But as is reected below, communication scholars

believe strongly that there is an ethical and academic imperative to provide properattribution. And, sel-evidently, i it is important to use specifc copyrighted

content in a particular scholarly project, appropriate citation will help to make that

justifcation more apparent.

SITUATION ONE: ANALySIS, CRITICISM, AND COMMENTARy OF

COPyRIGHTED MATERIAL

DESCRIPTION: Scholars oten direct their writing to the analysis o specifc media works

and their role in the communication system, with emphases on their production,

consumption, or both. They may analyze aesthetic or presentational decisions;

quantity o words, images, or tropes; reception by individuals; transmission o

knowledge about the works through social networks; or they may otherwise analyze

particular works. They may compare works o a particular genre or on a particular

topic. In practice, critical analysis generally will be most persuasive i the work or

works in question can be reproducedwhether in part or (as in the case o somephotographs, announcements, or advertisements) in wholeboth in the process o

research and in exposition o research results.

PRINCIPLE:No category o use illustrates transormative air use better, or is more

widely regarded as legitimate in everyday scholarly practice, than this one.

Nevertheless, copyright owners oten reuse to permit such uses when asked, or

seek to impose unacceptable terms and conditions (such as the right to review the

scholars work). Nevertheless, scholars may confdently invoke air use to employ

copyrighted works or purposes o analysis, criticism, or commentary directed

toward those works. This air use, made to enable the research, extends as well to

the distribution o their research results, whether in the classroom, on a Web site,

in printed work, in conerence presentations, or by other methods o disseminating

scholarly knowledge.


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LIMITATIONS:

A scholar should determine the extent o use based on the scholars analytic

objective. The scholar should not employ more than is needed or the scholarly

objective, either to conduct the original research or to explain it to others.

Scholars should provide citations in a orm and manner typically used in

communication scholarship or the material used in any publication o sharedresults o the study.

SITUATION TWO: QUOTING COPyRIGHTED MATERIAL FOR ILLUSTRATION

DESCRIPTION: Communication scholars oten reproduce copyrighted material in their

term papers, conerence papers, academic presentations, journal articles, books, theses,

and audiovisual media productions as illustrations or examples o an economic, social,

or cultural phenomenon with which their scholarship is concerned. Depending on the

illustrative context, these reproductions may be partial or complete.

PRINCIPLE:Scholars may invoke air use to reproduce copyrighted material where

it serves to explain or illustrate their scholarly insights or conclusions about

communications in relation to social, cultural, political, or economic phenomena.

Generally speaking, such uses transorm the material reproduced by putting it in

an entirely new context; thus, a music video clip used to illustrate trends in editing

technique or attitudes about race and gender is being employed or a purpose

entirely distinct rom that o the original, and is typically directed to an entirelydistinct audience rom that or which it originally was intended. This is true even

in situations where the media object in question is not subjected to specifc analysis,

criticism, or commentary.

LIMITATIONS:

A scholar should determine the nature o the excerpt (or the use o a work in its

entirety) based on the scholars academic objective in choosing the illustration;

merely decorative or entertaining uses o copyrighted material, under the guise o

illustration, are inappropriate. However, should a work chosen or its signifcance

to a scholarly argument also be entertaining, that act should not disqualiy the

use rom being considered air. A scholar should determine the extent o use (both

as to the number o illustrations employed and the amount excerpted rom each)

based on the scholars illustrative objective. Scholars should provide citations in a


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orm and manner typically used in communication scholarship or the material

used in any publication o shared results o the study.

SITUATION THREE: USING COPyRIGHTED MATERIAL TO STIMULATE

RESPONSE, DISCUSSION, AND OTHER REACTIONS DURING RESEARCH

DESCRIPTION:Various scholarly research practices in communication require the ability

to reproduce copyrighted material in experimental and collaborative research situations.

For instance, communication scholars conducting media eects research need to

test the responses o individuals and groups to various kinds o media in controlled

research settings, such as experiments. They may also execute surveys, conduct ocus

groups, and be participant-observers using ethnographic observational methods. Some

scholars conduct research on open and participatory media environments within those

environments, using copyrighted material either to elicit a discussion or response or to

analyze discussions or responses occurring in that environment.PRINCIPLE: The air use doctrine applies where a communication scholar employs

copyrighted materials to elicit reactions or initiate a conversation or scholarly

research purposes, in either an o-line or an online environment. Assessing the

response o research subjects to media is an obvious example o transormative use,

since the ocus o such projects will be on reception rather than on content as such.

LIMITATIONS:

Scholars should select copyrighted material in relationship to the design o ascholarly research project.

The amount used should correspond to the research purpose.

Access should be limited to subjects taking part in the research study and to

purposes that are related to it, such as the dissemination o research results.

Scholars should provide citations in a orm and manner typically used in

communication scholarship or the material used in any publication o shared results

o the study.


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SITUATION FOUR: STORING COPyRIGHTED MATERIAL IN COLLECTIONS

AND ARCHIVES

DESCRIPTION:Communication scholars oten make private copies o individual

copyrighted works that are the objects o scholarly inquiry to enable or acilitate their

research, and they sometimes maintain organized research collections o copyrighted

material or an indefnite period as their research interests evolve. In this, they are

doing what scholars across disciplines do: make private archival collections o primary

data to reer back to as their research interests develop. Examples include electronic

reproductions o transient works (such as broadcasts and Internet content), and

photocopies or scans o newspaper or other periodical articles, which enable the scholars

who assemble them to better sort, manipulate, or markup materials. In addition, other

scholars and students pursuing related projects may wish to access these collections.

Some archiving activities may be justifed under express and implied licenses, but others

may require justifcation on the basis o air use i they are to proceed.PRINCIPLE:Fair use applies to personal archiving o copyrighted material or scholarly

purposes, either immediately or within a set o ongoing research interests, with

the expectation o allowing scholarly consultation o it by others, both within

the discipline o communication scholarship and on an interdisciplinary basis.

The materials in question, generally topical or even ephemeral in character, are

transormed by collection or organization into a research corpus, which exists or

a new and undamentally dierent purpose.

LIMITATIONS:

Material included in a collection governed by this principle should be related to

a scholars defned set o research interests in the feld.

Material archived in reliance on air use should be intended only or scholarly

use, including such unctions as explaining scholarship results to others and

distribution o scholarly results.

Personal collections should be maintained only until individual scholars no longer

hold the research interests that motivate the collection, or until the collection no

longer is required to support published research based on items in it. At that point,

such a collection should be destroyed or donated to either an institutional archive

or to other scholars pursuing similar research interests. Maintenance o a personal

collection may involve, as appropriate, ormat migration and back-up copying.


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Scholars who wish to open their collections o archived material to others should

adopt policies appropriate to the medium, aimed at limiting access to scholars

doing research in the relevant area and establishing appropriate limitations on the

purposes to which the materials will be put.

Archived material should be clearly marked as to its source, and (wherever possible)

metadata associated with that material should be preserved.


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INTERNATIONAL COMMUNICATION ASSOCIATION AD HOC COMMITTEE

ON FAIR USE AND ACADEMIC FREEDOM

Chair:Bruce Williams, University o Virginia, Chair o Media and Communications

Policy Task Force, ICA

Ex ofcio:Michael Haley, Executive Director, International Communication Association

Members:

Patricia Auderheide, American University

Chris Boulton, University o Massachusetts

Edward L. Carter, Brigham Young University

Aymar Jean Christian, University o Pennsylvania

Peter Decherney, University o Pennsylvania

Michael X. Delli Carpini, University o Pennsylvania

Tarleton Gillespie, Cornell UniversityLarry Gross, University o Southern Caliornia

Eszter Hargittai, Northwestern University

Bill D. Herman, Hunter College

Renee Hobbs, Temple University

Peter Jaszi, American University

Sut Jhally, University o Massachusetts

Steve Jones, University o IllinoisChicago

Mark Latonero, Caliornia State UniversityFullerton

Kembrew McLeod, University o Iowa

Hector Postigo, Temple University

Jonathan Sterne, McGill University

Lokman Tsui, University o Pennsylvania


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LEGAL ADVISORy BOARD

Jamie B. Bischo, Esq.

Ballard Spahr Andrews and Ingersoll LLP

Philadelphia, Pennsylvania

Jack Lerner

Director, USC Intellectual Property and Technology Law ClinicGould School o Law

University o Southern Caliornia

Michael J. Madison

University o Pittsburgh

School o Law

Pittsburgh, Pennsylvania

Virginia Rutledge, Esq.

New York, New York

Funded by the Ford Foundation through the Center or Social Medias Future

o Public Media Project

COORDINATORS

Proessor Peter Jaszi coounded the Program on Inormation Justice and Intellectual

Property, which promotes social justice in law governing inormation dissemination

and intellectual property through research, scholarship, public events, advocacy,

and provision o legal and consulting services. The program is a project o the

Washington College o Law at American University in Washington, D.C., led by

Dean Claudio Grossman.

Patricia Auderheide ounded and directs the Center or Social Media, which

showcases and analyzes media or social justice, civil society, and democracy, and

the public environment that nurtures them. The center is a project o the School

o Communication, led by Dean Larry Kirkman, at American University in

Washington, D.C.


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Feel free to reproduce this work in its entirety.

For excerpts and quotations, depend upon fair use.

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