Fairer Fair Use

“Fair use” is one of the best-known copyright terms outside the legal community. Fair use is the ability to freely use another person’s content that would otherwise be copyright-protected. Most people may not know how to determine whether their use of someone’s work constitutes a fair use, but they know that copyrighted content can sometimes be used without getting a license (permission) to use the author’s work. After all, how else would we have parodies of well-known songs, YouTube reviews of games and movies, and quotes from news articles in books and academic articles?

Fair use is an integral part of the copyright system. Most producers of original content, including journalists, rely on it at some point in their careers to produce new creative works or to inform the public about current events. Whether it’s a review of the latest novel or an article about a recent report on global warming, journalism depends on the right to quote and refer back to other creative works. These are exactly the kind of uses the fair use doctrine, as established in the Copyright Act, aims to protect. However, as most good things, fair use comes with a flip side.

News publishers invest considerable resources to produce high-quality journalism that supports a healthy, informed society. The articles these publishers produce on a daily basis inform citizens and decision makers about issues of national importance. And they do this in an increasingly digital ecosystem largely dominated by a few big online platforms that results in decreased advertising and subscription revenues for the publishers. Ensuring sustainable revenues is vital for the preservation of high-quality journalism. The judicial expansion of the fair use doctrine beyond its reasonable bounds has largely decimated the copyright protections for news publishers, exacerbating the already dire situation many news publishers find themselves in.

Despite Congress’s best efforts, the Copyright Act does not provide a clear-cut standard for deciding what is fair use. Instead, the courts are required to evaluate and balance four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the market effect of the allegedly infringing use. So far, so good – judges have to balance similar factors every day. However, the Supreme Court’s decision in Campbell v. Acuff-Rose Music in 1994 led courts to increasingly analyze fair use using a so-called “transformative use” test, which has greatly expanded the scope of the fair use doctrine.

Utilizing the transformative use test, courts have found everything from Google Books to services that record and provide access to television and radio content for profit to be fair use. While some of these decisions have been reversed upon appeal, the expansion of the fair use doctrine has effectively rendered many of the copyright protections unavailable for news publishers.

Unfortunately, many of the services benefiting most from the expansion of the fair use doctrine are those already dominating the online ecosystem. Google, Facebook and others not only regulate which news articles and outlets are uplifted or featured in search results so that users can easily access them, and what content is acceptable on the platforms, but they do so while using news content for free to generate even more revenue and entice users to stay on their platforms. In effect, the dominant online platforms are making money off the backs of newspapers, while also deciding how these publishers can engage with the readers.

Meanwhile, publishers are left without recourse, and finding a solution to this systemic problem is becoming increasingly important. News deserts in the United States are spreading at an unprecedented rate, and while the online audience for newspapers has increased rapidly, too many news publishers have had to cut costs because of revenue lost to the digital giants, jeopardizing the sustainability of high-quality journalism in the United States. In order to preserve a vibrant and inclusive news media, news content needs to enjoy the full protection of our copyright laws, both online and offline. Across the pond, the European Union is about to adopt a Publishers’ Right that will grant news publishers an effective and enforceable right to protect their content online against the online platforms. In the U.S., the over-extension of fair use still stands as a challenge. While some recent court decisions have started to recognize the need to rein in the fair use doctrine, there’s still a long way to go.

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