Can Fair Use Improve Sports Coverage Online?

It seems that broadcast journalists are unnecessarily curtailing their online sports coverage, because of copyright concerns. By using the Set of Principles in Fair Use for Journalism, created by journalists for journalists, they could be making wiser choices.

Andrew Tyndall, the author of The Tyndall Report, which authoritatively and critically covers broadcast network news coverage, has emailed us to share fascinating research results.

He finds that video packages originally appearing on broadcast network newscasts are almost always repurposed for video streaming online -- with a single area of exception, namely journalism that includes sports footage, both when such footage is used to illustrate a non-sports story, or, more seriously, when a legitimate area of controversy arises in the field of sports itself (performance enhancing drugs, concussions and brain injuries, municipal subsidies for stadiums, and so on).

He has flagged this problem in his blog. Some of his observations were also noted in a recent blog post.

He attributes this choice to copyright decisions—broadcast licenses for third-party material such as that produced by major league sports do not carry over to online venues. And he thinks it’s been bad for journalism, having resulted in a perceptible alteration in the national news agenda, as the medium for video news shifts from broadcast to online. The subtraction of sports news, through the failure to mount a robust defense of the fair use doctrine, amounts to a distortion of journalistic decision making, redounding to the benefit of the sports industry.

His research shows this is a problem particular to major league sports:

There is no evidence of a similar chilling effect, comparing the broadcast medium to the online medium, with entertainment or show business stories, where a similar need for robust assertion of fair use might conceivably apply. Only sports rights-holders appear to exercise a chilling effect.

We agree with Tyndall that copyright confusion leads to bad journalistic decision-making. At the same time, journalists have often found fair use hard to interpret, since the law defines it abstractly. Now, there’s good news for journalistic standards.

Consensus codes in all kinds of professional groups have made a night-and-day difference in interpreting fair use. For instance, documentary filmmakers found that creating one allowed their errors-and-omissions insurers to insure against fair use claims routinely for the first time in decades

Journalists have just released their Set of Principles, launched at the TEDxPoynter conference in June. These principles define seven situations in which fair use applies, and also describe the limits upon its application. They allow journalists to employ fair use with confidence, and with the knowledge that so doing will not impair their own rights as copyright owners.

In an online environment, as Tyndall notes, journalists and others often wonder whether U.S. fair use (it is national law, and not universally shared by other national copyright regimes) can apply in an Internet context. As we note in our book Reclaiming Fair Use, major businesses nationally and internationally currently assume, apparently uncontroversially and following precedent in the pre-Internet environment, that national law of the site of production (if not otherwise clear, where the servers are) applies. Thus, U.S.-generated and –housed content produced under fair use falls under U.S. law.

Thanks to Andrew Tyndall for researching patterns and trends that are hard to see on a day to day basis. And thanks to journalists for working with the Center for Social Media and the Program on Information Justice and Intellectual Property, in a project funded by the McCormick Foundation, for finding the comfortable center of smart journalistic practice in fair use.