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Fair Use for Researchers in Communication: A Resource

Teachers of language and literature need to be mindful of fair use in the classroom, but they also may need to be mindful of fair use in their capacities as researchers and scholars. One organization that tries to provide guidance to educators as they confront fair use issues as both teachers and scholars is the Center for Social Media, an institute sponsored by the School of Communication at American University. Among the resources the Center provides is a web page with links to codes of best practices developed by professional and scholarly associations whose members are especially likely to confront fair use issues. The teacher-scholar may find especially useful a recently added link that takes the reader to a Code of Best Practices in Fair Use for Scholarly Research in Communication. Developed by the International Communication Association’s Ad Hoc Committee on Fair Use and Academic Freedom, this Code articulates the fair use standards applicable in four situations commonly confronted by researchers who are working with copyrighted materials. This Code, according to its authors, represents the “current consensus within the community of communication scholars about acceptable practices for the fair use of copyrighted materials” in the four situations under discussion.

Communication is a diverse field, encompassing a wide variety of media, including newspaper articles, radio and television commercials and programs, video games, and computer software. When this “raw material” is in the form of copyrighted content, confusion on the part of both publishers and scholars over what is and is not fair use may hobble research programs. According to the authors, currently “[g]raduate students are being asked by advisors to pick other topics; librarians doubt whether they can archive electronic theses that include illustrative material that is copyrighted; publishers discourage inclusion of evidence that involves copyrighted material.”  The Code is an attempt to address this confusion, at least on the part of researchers and scholars.

Fair use (Section 107, Title 17) is often discussed with reference to the following four factors: “the nature of the use, the nature of the work used, the extent of the use, and its economic effect.” These four factors underpin two questions that determine the outcomes of most fair use litigation:  “Did the unlicensed use ‘transform’ the copyrighted material by using it for a different purpose than that of the original, rather than just repeating the work for the same intent and value as the original?” and “Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?” These two questions largely inform the authors’ discussion of best practices for communication scholars.

The first scenario addressed by the Code is that of the scholar who wishes to comment upon, analyze, or critique a copyrighted work. Such commentary, analysis, or criticism will be most effective if the work in question is reproduced, perhaps even in its entirety, depending upon the medium and upon the nature of the analysis. This reproduction of as much of the copyrighted material as is necessary for commentary, criticism, or analysis is a repurposing of that material. Therefore, in spite of the attempt of copyright owners to obstruct or control such use, “scholars may confidently invoke fair use” when reproducing copyrighted works for the purposes of analysis or criticism.

The second scenario is the reproduction of copyrighted material for the purpose of illustrating “economic, social, or cultural phenomenon.”  As in the case of analysis or criticism, copyrighted material may be reproduced in whole or in part depending upon the nature of the “illustrative context.”  And, again, this use represents a repurposing, for

[…] such uses transform the material reproduced by putting it in an entirely new context; thus, a music video clip used to illustrate trends in editing technique or attitudes about race and gender is being employed for a purpose entirely distinct from that of the original, and is typically directed to an entirely distinct audience from that for which it originally was intended.  This is true even in situations where the media object in question is not subjected to specific analysis, criticism, or commentary.

The next scenario addresses the reproduction of copyrighted material in studies in which scholars expose subjects to media in order to collect data on their responses. Such data may be collected in experiments or via surveys or focus groups or observation. In this scenario, researchers may “us[e] copyrighted material either to elicit a discussion or a response or to analyze discussions or responses occurring in that environment.”  Once again the use is transformative, as this type of research focuses on how the copyright material is received rather than on the content per se.

The last research scenario involving fair use arises from the fact that scholars may not only need to make copies of copyrighted works but may need to retain those copies for a period of time—perhaps even indefinitely—as they continue to pursue their research interests. Again key to fair use is the transformative repurposing involved in the creation of an archive. Since each scholar is creating a “research corpus,” the purpose of the materials in question is “new and fundamentally different.” Given that materials that are being used fairly may be disseminated to others, such personal archives can be shared with others. Other researchers may consult the recordings of audio or video broadcasts, the screen captures of web pages, the photocopies of newspaper articles that one scholar has assembled.

The latter point is applicable to all four scenarios. The authors of the Code observe that “[i]f a use is fair in the course of scholarship, then it is fair in the publication and distribution of that scholarship by any means, including publishing and media distribution, and in the archiving of that scholarship.” Thus, for example, the reproduction of copyrighted material, if fair use in a presentation, is also fair use in an article or a book, or, indeed, in any medium.

Other Fair Use Codes accessible via the website of the Center for Social Media:

Submitted by
Kim D. Gainer
Department of English
Radford University

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