During the ICA midyear Board of Directors meeting in January, several board members were charged with the task of discussing the issue of Fair Use as it relates to the Association, and to the field of communication. As we might hope, the conversation was wide-ranging and informative, focusing both on specific instances concerning Fair Use as it applies to ICA, and on broader dimensions of Fair Use in its ongoing evolution.
The conversation began with a discussion of the definition of Fair Use. Fair Use is a legal term that is used to describe a broad range of provisions whereby copyrighted materials may be used without the permission of the copyright owner. ICA’s own code of best practice around Fair Use describes it as “the right to use copyrighted material without permission or payment under some circumstances—especially when the cultural or social benefits of the use are predominant.” Outside of the USA, it is often referred to as Fair Dealing. Even where the terms “Fair Use” and “Fair Dealing” do not apply, similar kinds of exemptions from copyright law are often in place. Fair Use has been invoked to protect the use of copyrighted content by search engines and in news reporting, criticism, parody, and scholarship.
Of course it is the last of these—scholarship—that applies most directly to ICA members. It is easy to take Fair Use provisions for granted when we teach or when we publish our scholarship. Whether we attend to it or not, Fair Use has become a bedrock principle for academic freedom in the 21st century.
One theme that emerged from the Fair Use discussion at the midyear Board meeting was the basic fact that publishers and other media companies often employ understandings of Fair Use that differ from the understandings that scholars often hold. To further complicate the matter, one searches in vain amongst publishers and media companies for a consensus definition of Fair Use. There is very fertile soil to nurture all kinds of misunderstandings—which is anything but helpful.
ICA members should know that, as mentioned above, ICA has a code of best practices in Fair Use for scholarly research in communication. Published in June 2010, this document defines Fair Use; explains how the field of communication guides its constituents to use particular types of copyrighted material; explains some problems in Fair Use application that communication scholars frequently encounter; and helpfully delineates how scholars can navigate the oft-confusing applications of Fair Use in their scholarly work.
One of the issues we currently face in the communication field is that media scholars so frequently draw from media content to support their arguments and claims. In other words, our field directs itself toward exactly the kinds of scholarship that prompts some of the most charged concerns related to definitions and implementations of Fair Use.
The lively discussion at the midyear Board meeting concluded with recommendations that there be a working group formed, and that this group should be charged to accomplish three goals:
to determine media companies’ views concerning Fair Use policy and implementation to share with our members
to make links with other academic organizations to gather information about how they approach Fair Use and to find common cause with them as we work to enhance the reach of academic writing to investigate how scholarly organizations and media companies regard the issue of Creative Commons licensing
Dave Park will assemble this working group, and they will report to the ICA board during the May meeting in San Diego.