Fair Use Week 2019: Fair Use in the News

Fair Use Week is here and it’s a great excuse to spend a little time thinking about the importance of fair use in our work and lives. Fair use allows for the “…copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work” (Stanford Libraries). For many of us, fair use comes up most within the context of teaching material. Looking at fair use through the lens of teaching and scholarship is especially useful and can help us create dynamic, engaging course content. But there are fair use debates happening outside our academic context as well–one recent fair use development may affect the news and political information that we are able to access.

After a five-year court battle, TVEyes, a subscription search engine and monitoring website for broadcast television, will no longer be able to index Fox News pieces. TVEyes allows its users to search, share, and archive content from more than 1400 channels. The company has long been a go-to source for political reporters, government entities, and businesses seeking aggregated, searchable news coverage. While Fox successfully argued that the site’s services were outside the bounds of fair use, TVEyes claimed that their use of the copyrighted material was transformative, as it enables users to track and monitor broad media trends and compare news coverage, and therefore falls within the fair use doctrine.

In a memorandum submitted to the Southern District Court of New York, TVEyes asserted that they offer a unique service that benefits the public interest:

For example, journalists use TVEyes to comment on and criticize broadcast news channels (including Fox), often by comparing and contrasting how the major news networks cover particular news events. Government officials and corporations use TVEyes to monitor the accuracy of facts reported by the media so they can make timely corrections when necessary…The White House uses TVEyes to evaluate news stories and give feedback to the press corps, including Fox News. Without TVEyes or a service akin to it, there would be no way to effectively accomplish these objectives.

Without a tool like TVEyes, it would be nearly impossible to keep tabs on, correct, or critique the US’s political and news coverage. Arguably, the fair use doctrine is intended to provide protection for the vital work of public discourse and criticism, and discourse requires access to the information provided at national and local levels. Access to a comprehensive spectrum of news coverage supports robust analysis and critique and the teaching of critical media literacy skills.

TVEyes will still offer users access to a huge number of broadcast channels, but unfortunately Fox News won’t be one of them.

If you are interested in engaging with questions related to fair use in your classes, the Campus Library’s Scholarly Communication and Open Access Team can help. We are available to consult on lesson planning and assignments that relate to these critical issues.

Fair Use Week

February 22-26 is Fair Use Week, an annual event designed to highlight and promote further understanding of this important doctrine. In brief, fair use is a legal means of balancing the exclusive rights granted to authors and creators (as outlined in U.S. Copyright Law) with the ability of the public to use and benefit from copyrighted works without acquiring prior permission from the copyright holder. The judicious application of fair use enables you to publish an article including excerpted texts from other scholars and provide selected readings to your students via Canvas. In other words, fair use is invaluable to all of our work in higher education!

Determining whether your desired use is a fair use requires an evaluation of the four fair use factors: purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the work used, and the effect of the use on the potential market. This can feel like a daunting task, since the flexibility inherent to fair use means there is no single, correct answer; rather, each use falls somewhere along a spectrum of “less likely to be a fair use” to “more likely to be a fair use.” Generally speaking, uses for the purpose of nonprofit education, scholarship, and research are favored as fair uses, particularly if that use is “transformative” (using the original work for a new and different purpose and/or resulting in the creation of an entirely new work) and of a defined, limited scope.

Thankfully, there are several resources available to guide you through this evaluation process. The Center for Social and Media Impact at American University has collaborated with various communities to create best practices tailored to different situational and disciplinary contexts. The American Library Association’s Office for Information Technology Policy produced a Fair Use Evaluator tool to walk you through each factor step-by-step. And if you prefer a more personalized approach, your librarian is happy to help you think through the various issues at play for your particular use (with the important caveat that we are not lawyers and do not provide legal advice).

You can learn more about fair use and its applications via this handy infographic or the Campus Library’s Copyright Resource Guide. Happy Fair Use Week!

*some information adapted from NYU Libraries’ Copyright guide