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Does "Fair Use" Allow Nonprofits To Reproduce News Articles on Their Websites?

The Answer May Surprise You!

Does your organization republish news articles in their entirety on your website? Are you aware that in doing so, you may be exposing yourself to a copyright infringement lawsuit? Here's what you need to know about copyright, news articles and "fair use."

"But," you protest, "everyone is doing it. It's 'fair use,' right?"

Maybe, maybe not.

It's true that lots of websites, including some very popular ones like CommonDreams.org, reproduce the full text of copyrighted news articles along with a "Fair Use Notice" that reads something like:

This site contains copyrighted material the use of which has not always been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of environmental, political, human rights, economic, democracy, scientific, and social justice issues, etc. We believe this constitutes a 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml. If you wish to use copyrighted material from this site for purposes of your own that go beyond 'fair use', you must obtain permission from the copyright owner.

But does this really provide legal cover?

Maybe, maybe not.

Groundwire offers nonprofit organizations the following recommendations on reposting copyrighted news articles:

  • In most cases, we recommend that you avoid reposting news articles in their entirety on public websites

  • Instead, we recommend that you summarize, quote, discuss and/or link to the original article

  • Making copies of articles for an internal archive or other non-public-facing repository is probably pretty safe. It would be much easier to show that you're not harming the market for the original work

  • Always check the website's Terms of Use and always err on the side of caution if you're unsure what it means

(Obligatory disclaimer: we're not lawyers. You should probably talk to yours about this stuff.)

Whether or not a specific use falls under the protection of fair use is a very gray area of the law. There's no way to tell in advance whether a given use is "fair" or not -- the only way to find out for sure is to get sued! If you get hauled into court, the judge will consider four factors:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes -- Courts are more likely to find fair use where the use is for noncommercial purposes.
  2. The nature of the copyrighted work -- A particular use is more likely to be fair where the copied work is factual rather than creative.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole -- A court will balance this factor toward a finding of fair use where the amount taken is small or insignificant in proportion to the overall work.
  4. The effect of the use upon the potential market for or value of the copyrighted work -- If the court finds the newly created work is not a substitute product for the copyrighted work, it will be more likely to weigh this factor in favor of fair use.

(Thanks to EFF for this summary.)

If we apply these tests to a case where a nonprofit organization has republished news articles on its public website:

  1. Commercial vs nonprofit educational: One might well argue successfully that the use is a "nonprofit educational use." However, this doesn't mean that nonprofits have blanket permission to copy anything, nor do "educators."
  2. The nature of the copyrighted work: News articles are somewhere in the middle between highly creative work and hard facts.
  3. The amount of the work that is reproduced: A pretty clear slam dunk against fair use here.
  4. Market use: Some newspapers charge a fee to access their older archives, and most newspapers sell advertising space on their website. This means that reproducing the article on your website would very likely be found to infringe on the market for that article.

There's been only one similar well-known case -- in 1999, the highly-trafficked conservative website FreeRepublic.com lost a lawsuit in which they raised a fair use defense.

Although the... Court found that the primary purpose of posting articles to the Free Republic site is to facilitate the discussion, criticism and comment of users, it nevertheless held that the commercial elements of the websites operations cut against the fair use defense. Because Free Republic solicited donations from visitors to its website, facilitated links to other webpages where donations to Free Republic and its affiliates were solicited, and ran advertisements for its parent company, its use of the newspapers articles was considered to be commercial.

The fact that the newspaper articles were republished in their entirety also weighed heavily against the fair use defense. Where media criticism is concerned, one can well understand a critic arguing that an offending article must be viewed in its entirety to assess the context and any subtle bias of the author. But the Court was unmoved by that argument, and it held that the Free Republic had failed to show how full-text copying was essential to its discussion forum. The Court implied that posting summaries of the articles or providing a link to the newspapers websites where the full articles could be read were alternatives that Free Republic should have employed. Finally, because the availability of the papers articles in full text on the Free Republic site fulfilled at least some demand for the original works on the papers own websites, and because widespread copying of this type would have a deleterious effect on the papers markets, the fourth factor weighed against the fair use defense.

In the end, in fact, the Court found that only one factor favored the fair use defense: that newspaper articles are predominantly factual rather than expressive in nature. Accordingly, the fair use claim was stronger than it would have been had purely fictional works been copied.

 

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