Do Communication Scholars Need Fair Use?

A Guest Post for Fair Use Week

by Aram Sinnreich
Rembrandt looking at a book

Rembrandt didn’t have to worry about copyright. But we do.

How ironic is it that communication scholars are rusty on their fair use rights?

Fair use is a vital tool for communication scholars working in the U.S. Fair use, the right to use copyrighted material without permission under some circumstances, is essential to what we do. We need it because the creative communities we research—from documentary filmmakers to vloggers to digital music producers—rely on it.

We need it for our own work, whether it’s teaching with examples, or doing big-data scans or close reading of popular culture. We need it to share our work, whether it’s quoting copyrighted material or using illustrations. We use fair use, sometimes without even knowing it, every day.

So it’s odd that communication scholars are so…well, clueless about what they can do with it.

The fair use renaissance.  

It’s especially odd because, since 1990, fair use–a 180 year old doctrine–has been having quite the renaissance in the courts. Meanwhile, in various fields, including communication scholarship, the communities of practice have shaped codes of best practices in fair use. (Huzzahs to my colleagues Patricia Aufderheide and Peter Jaszi, who facilitated many of them, and to the Center for Media & Social Impact, where they’re all housed.)

The Code Of Best Practices In Fair Use For Scholarly Research In Communication, written under the aegis of the International Communication Association (ICA), was published in 2010.

We have the data. 

Patricia Aufderheide and I have actual data that shows us the troubling depth of confusion. And we have ideas for what to do about it.

In 2015, in conjunction with ICA, we conducted a survey of 350 students and teachers in our field, across a range of nations and levels of experience. In all, nine-tenths of our respondents worked at research universities, about two-thirds of them were based in the U.S., and a little more than half of them had been working in the field for 10 years or longer.

Since then we’ve followed up with panels, workshops, FAQs and conferences for communication scholars.

Good news and bad news. 

The good news was that communication scholars had changed their behavior for the better in the years since the publication of the Code, with increased use of open licenses and open access options — especially among newer faculty.

The bad news? Communication scholars were all too often unaware of their fair use rights, despite their beliefs that they understood the law.

Without this knowledge, they can’t assert their rights when it matters most. And they’re often surrounded by gatekeepers who also don’t know the law well–librarians, general counsels, editors, publishers, and funders. For instance, scholars are routinely told to get permission for all illustrations in an academic article. But usually their uses are a clear fair use. Did they ever push back when told to get permission? Almost half said, “I didn’t know I could do that.”

And yikes. Four out of five respondents—especially senior scholars—don’t know that widely respected publishers such as Oxford University Press, Princeton University Press and University of Chicago Press accept fair use claims for third-party material in books.

Communication scholars go into classrooms where they teach the next generation of digital creators. They need to know the law, not just for themselves but for the next generations.

Knowledge to the rescue. 

Fortunately, U.S. communication scholars have a tool at their disposal: The Code of Best Practices in Fair Use for Scholarly Research in Communication, endorsed by both the ICA and the National Communication Association.

It’s short, clear, and easy to read. Oh, and it’s free.

Happy Fair Use Week!

Aram Sinnreich is Professor of Communication Studies in the School of Communication.


If You Could Be the Judge of Fair Use….