The rise of citizen media carries with it questions on what journalists can borrow and upload from the Web. Lawyers David Ardia and Michael Geist offer advice to citizen journalists on what's fair use and how they can protect themselves.
Media law can be confusing. Even for traditional print reporters, decoding the difference between libel and slander requires patience and education. And when it comes to online citizen reporting, the blurry distinction between what is legal to upload becomes even more paramount.
To help Digital Journalists define fair use and give tips on what to "borrow" from the Web, Digital Journal spoke to David Ardia, co-founder of the Citizen Media Law Project at Harvard University's Berkman Centre. We also spoke to Canadian lawyer and professor Michael Geist to help Canadians understand the legal implications of their citizen media journalism, and why websites aren't responsible for what their users post.
One of the more difficult decisions a citizen reporter must make concerns uploading images. What photos are copyright-free? What can be used with attribution, and what licenses are ideal for reporters to look for?
Ardia says citizen journalists should work under the assumption that all images found online are copyright, unless there is a license dictating otherwise. "Remember, a copyright exists on content whether it is registered or not," Ardia notes. It's a well-worn subject: copyrights belong to someone as soon as they type a word into a document or the moment they upload an image onto a site. "There's no magic language, or statements of 'all rights reserved' required to copyright material," he adds.
Ardia recommends looking for Creative Commons-licensed photos on sites such as Flickr (which many Digital Journalists are doing). He says many photos are free for journalists to use, just as long the reporter understands the various Creative Commons licenses.
But what about photos that are copyright? The Citizen Media Law Project states that "The policy behind copyright law is not simply to protect the rights of those who produce content, but to 'promote the progress of science and useful arts.'"
That's where the fair use clause comes in. Section 107 of the U.S. Copyright Act outlines fair use in details, so to offer a summary here's what citizen media leaders need to know:
• Reporters can upload photos if the new work is "transformative" and adds a new meaning or message. Look at the Shepard Fairey story, and how the artist changed an AP photo of Obama to create his own iconic T-shirt image. He added a different meaning to the photo by shading it stylistically, and playing with the colours. He may be covered under fair use because he didn't just outright steal the photo of Obama and reprint it on shirts; he took it as an inspiration to craft something unique.
• Fair use lets reporters use copyrighted images if they accomplished the intended purpose or conveyed a message. Under fair use, the photo should be relevant to the editorial. A photo of a random U.S. politician to illustrate a story on corruption in the White House may not be the best use of photography.
• Newsworthy photos are especially applicable. Finding photos that relate to the news item will help a reporter's case when courts need to determine fair use.
• If using that material doesn't hurt the potential market for the copyrighted work, fair use may apply. So a photo taken from an Associated Press article would not be fair use because uploading that image could hurt the photo's market potential. After all, AP makes money on selling images, and if the citizen news industry just stole AP photos without permission, then the wire agency would have a case for copyright infringement.
If the photo is newsworthy that factor works in the favour of the citizen reporter. Even better if the photo or image is at the heart of the story (i.e. the Danish cartoons of Muhammad that were controversial could be reprinted by other media under fair use because the article was about that image). "It's the same thing when it comes to writing about a viral video," Ardia says. "Illustrating the news report with the applicable media is crucial."
Another characteristic of fair use may not be as clear as newsworthiness: a photo's transformative value. Ardia says that if an image is tweaked slightly to add a different shading of value to the original, then the courts may consider that content fair use.
He compares this idea to the music business. "Look at file-sharing and how it's become a pariah for the industry because people simply exchange the song without changing it at all," he notes. "But when an artist remixes a song and adds different layers to the compositions, it's a new work and would be considered fair use."
Ardia has another tidbit of advice: "Give traffic back to the creator of the original content. Play fair. If you pull a photo from somewhere, attach correct attribution and include a website of the source. It's all about respecting the copyright holders." He pauses. "And being nice means you might not get sued."
Third Party Responsibility
Also of concern to the citizen media market is the liability potential on user-generated sites. One of the more contentious issues is third-party content. Because a site such as DigitalJournal.com allows third-parties to upload media and comment on articles, who is responsible for defamatory or litigious comments or content?
The Digital Millennium Copyright Act in the U.S. protects website owners from user-generated content, to a certain extent. The "safe-harbour" provision protects website operators and ISPs from the conduct of its users. As Ardia writes in the Citizen Media Law Project: "The three main things you need to do to take advantage of the safe-harbor provisions are (1) designate a copyright agent to receive takedown notices; (2) adopt and communicate to users an effective 'copyright infringement policy'; and (3) properly comply with takedown notices when received."
But what about Canada?
According to media law expert Michael Geist, the Canadian law is unclear, so far. "There is no specific rule relating to third-party uploading content," he says in an interview. "But based on a number of past suits, the site owner will unlikely be responsible for third-party infractions."
Citizen media is always changing, but the adept writers and website operators will keep on top of this evolving market. As more business models spring up across the world, decisions need to be made on how best to represent this new face of journalism. It won't be easy, it might not please everyone all the time, but the efforts to strengthen citizen media won't go unnoticed.