Fair use: What public media makers are doing right and how they can do even better

Fair use, the right to employ copyrighted material in certain situations without licensing it, is in resurgence after two dismal decades of widespread misinterpretation — and nowhere is the right getting more exercise than in public broadcasting.

Public broadcasters have been leaders in asserting their rights appropriately, and can use them even more to advance public media in a participatory and digital era.

As Peter Jaszi and I detail in our new book, Reclaiming Fair Use: How to Put Balance Back in Copyright (University of Chicago Press, 2011), media makers are recognizing fair use as an essential free-speech right at a time when the fundamental bargain between the public and copyright owners has become dangerously imbalanced in favor of rights holders.

Fair use enables new cultural expression — free-speech acts ranging from news to artistic experiment — because it permits creators to reference the world around them. Fair use balances the rights of copyright holders, while ensuring that their limited monopoly rights remain in place.

Fair use is deliberately defined in law only in generalities; the law basically encourages unlicensed use if it is not simply aimed to exploit the copyright holder’s  original market or purpose — and if the new user takes only as much of the original work as needed for its new use. In such cases, you are adding value to the culture by doing something new with that material, and you are not replacing the original market.

Of course, there are scary penalties for guessing wrong, so it pays to know what normal means in your daily work with fair use. Various communities of practice — including documentary filmmakers, teachers, makers of open courseware and scholars, among others — have improved their understanding of and ability to employ fair use by developing codes of best practices through their professional associations. With those codes of best practices, they have brought about shifts in business practice, added new material to the culture, and streamlined creative process. Public broadcasters have benefitted.

News and public affairs. In one area, public broadcasting producers and programmers did not need much encouragement to exercise fair use: news and public affairs. Programs such as All Things Considered, PBS NewsHour and Frontline and every other broadcast news outlet have routinely employed fair use for decades. The journalists themselves often don’t really know exactly why it’s okay for them to assert their free speech rights this way, but so long as it’s traditional newsroom practice, they’re very confident.

Documentary films. Much more has changed as public broadcasting documentarians, producers and programmers have become better acquainted with their fair-use rights. Documentary filmmakers routinely need to quote copyrighted material, even if it’s just music playing in the background of a scene of daily life. They may need to signal the significance of a historic moment visually by showing a montage of news coverage from the period. Or they might need to play a piece of music or a sequence from a film for viewers to understand what they’re talking about.

Exercising the right used to be excruciatingly hard, because documentarians, need to get errors and omissions insurance, even for broadcast on public television. For decades, E&O insurers simply excluded material that would require a fair-use rationale from their coverage; broadcasters were reluctant to show work that only had partial insurance. Only when insurers were able to consult the Documentary Filmmakers’ Statement of Best Practices in Fair Use were they able to make an informed risk assessment. These days, E&O insurers routinely insure for fair use, and rarely even impose an extra charge, and that makes it easier for public broadcasters to accept the films.

Even before the big turnaround, though, public television backed thoughtful documentarians, whose work relied on fair use. One of the splashiest releases was Byron Hurt’s Hip Hop: Beyond Beats and Rhymes, finished just as the Statement was released. The film is fully loaded with unlicensed clips from famous (and notoriously litigious) hip-hop artists, whose ever-more-misogynistic and violent tendencies were critiqued by Hurt. ITVS, an original signatory to the Statement, picked it up with confidence and showcased it on Independent Lens to great acclaim — and no pushback. Now, PBS program strands from POV to American Masters showcase work that appropriately relies on fair use.

Producer training. Public broadcasters are accumulating fair-use experience and sharing the knowledge with future producers. For instance, each year, WGBH hosts a PBS Producer’s Academy, where aspiring makers pick up new skills — including how to exercise their fair-use rights appropriately and safely.
Fair use could be public broadcasters’ friend as they face challenging issues in the digital transformation.

Questions

Here, for instance, are questions public broadcasters and producers for pubcasting have lobbed our way:

Q. What happens when I want to podcast a program that I made using music under public broadcasting’s blanket licenses?

A. Those licenses for broadcasts don’t cover webcasting or other new digital venues, so you’ll want to ascertain your fair-use rights and tweak or recut the program where advisable. Not all your uses will probably be covered, but some will. Also, where fair use doesn’t apply, you might employ original music instead of previously copyrighted works so you can cut down on tweaking and licensing as you let your programs out into the digital wild.

Q. At our news/public affairs program, we’re beginning to make videos for the website. How do I deal with licensing for that?

A. Your fair-use rights for broadcast and print materials apply just as well across all media — and, yes, that includes music and video. That will also mean learning why you have such robust justification for fair use in those traditional journalistic media.

Q. A blogger (or maybe an aggregator) is stripping our content off our site and planting it on theirs! Fair use isn’t working for me!

A. It’s probably not working for them, either. They may be exceeding their legal ability to quote from and repurpose your material under the law. So it’s important to know limits to fair use, as well as its availability.

Q. We’d love to open up our archives digitally to the general public (we already let people visit our analog archives in person), but we don’t know what to do about the copyright issues!

A. Most archives are full of material whose copyright belongs to others. Archivists in the world of dance faced the same problems and came up with a code of best practices in fair use that lets them share material appropriately. Public broadcasters, if they know the law, can craft environments where fair use gives users access to archives.

Moving forward

How can public broadcasters expand their own access to fair use without impairing their limited monopoly rights to their own output or those of others who trust them to guard those rights? You can do three things:

• Read Reclaiming Fair Use, which describes the sea change in practice around fair use over the last two decades (and pat yourself on the back for your part in making it happen!).
• Apply the already-existing codes of best practices where appropriate. For instance, the documentary filmmakers’ code enables TV programs to employ fairly used work without fear. A separate code for online video is a sturdy guide to web-video practice. The open courseware code and the media literacy code offer guides for educational material.
• Where others’ codes of best practices don’t extend far enough, public broadcasters can consider deliberating together to craft an appropriate code of best practices. Reclaiming Fair Use shows you how to do it.