My research team analyzed public media in the United States, Mexico and Canada, for a comparative analysis. I understand we have a fair use right to collect and also to reproduce for analysis and illustration in the U.S. But I also know fair use is a U.S. law. Did we violate Mexican and Canadian copyright by collecting this material? Also, do we need permission from copyright holders to use illustrative material in international journals?
You’re entirely right that fair use doctrine exists in U.S. law, and all copyright law is limited in its jurisdiction to the nation where it was written. Fair use also exists in a few other countries, including Israel, Taiwan, Singapore, the Philippines and Korea. Canada’s fair dealing acts, for scholarly purposes, very much like fair use.
In terms of copyright and research, the relevant copyright law for you is where you are doing the research. So if you do the research in the U.S., no matter where the copyrighted material originates, you are subject to U.S. law in using it.
In terms of publishing, international journals are subject to the law of the country where they are published. It is interesting that in practice, many international journals follow a basic fair use logic. This may be because in their nations, copyright policy includes exemptions that permit scholarly uses.
But we have also seen again and again that journals in the U.S. have editorial practices that demand permissions. This is an old-fashioned and out-of-date approach to publishing, but you may have to do some ground-level education of your editor and your editor’s superior to convince them. Sharing the ICA’s Code of Best Practices in Fair Use for Scholarly Research in Communication is a good place to begin; the best practices of a field provide very solid ground for making a fair use decision.
Patricia Aufderheide for ICA
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