The Copyright Claims Board: Good News or Bad News for Communication Scholars?

Authors

  • Patricia Aufderheide School of Communication, American University
  • Aram Sinnreich American University

Keywords:

copyright, communication, scholarship, fair use, Copyright Claims Board, right to research, freedom of expression

Abstract

The U.S. Copyright Claims Board (CCB), created in 2020 by the Copyright Alternative in Small-Claims Enforcement Act, creates a nonjudicial administrative venue to resolve copyright infringement claims up to $30,000. Supporters claim it will help “little guy” creators protect their work. Detractors claim that it will increase corporate intimidation and copyright trolling. We surveyed communication and Internet scholars to assess appetite for risk when challenged for an appropriate fair use and legally permitted reuse of copyrighted material. We found that the CCB does not serve its stated purpose because of scholars’ fear of legal entanglements. Nor will it offer scholars a way to protect copyrighted work because well-informed defendants are most likely to opt out of the venue. We believe the actions of the nascent CCB deserve scrutiny from communication and Internet scholars particularly because the Copyright Office must report to Congress on its effectiveness after three years.

Author Biographies

Patricia Aufderheide, School of Communication, American University

Patricia Aufderheide is University Professor in the School of Communication at American University in Washington, D.C., and founder of the Center for Media & Social Impact. Her books include Reclaiming Fair Use: How to Put Balance Back in Copyright (University of Chicago Press), written with PeterJaszi; Documentary: A Very Short Introduction (Oxford); The Daily Planet (University of Minnesota Press), and Communications Policy in the Public Interest (Guilford Press). She has been a Fulbright and John Simon Guggenheim fellow and has served as a juror at the Sundance Film Festival. Aufderheide has received numerous journalism and scholarly awards, including career achievement awards, in 2010 from Women in Film and Video, 2008 from the International Digital Media and Arts Association and in 2006 from the International Documentary Association. In 2015, she received the George Stoney Award for Documentary from the University Film and Video Association.She is available at paufder (at) american.edu.

Aram Sinnreich, American University

Aram Sinnreich is a Professor and chair of the Communication Studies division at American University’s School of Communication. Sinnreich’s work focuses on the intersection of culture, law and technology, with an emphasis on subjects such as surveillance, critical data studies, intellectual property, remix culture, and music. He is the author of three books: Mashed Up (2010), The Piracy Crusade (2013), and The Essential Guide to Intellectual Property (2019). He has also written for publications including The New York Times, Billboard, Wired, The Daily Beast, and The Conversation.

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Published

2022-10-14

Issue

Vol. 16 (2022)

Section

Features

License

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Fair Use

The U.S. Copyright Act of 1976 specifies, in Section 107, the terms of the Fair Use exception: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; &
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. In accord with these provisions, the International Journal of Communication believes in the vigorous assertion and defense of Fair Use by scholars engaged in academic research, teaching and non-commercial publishing. Thus, we view the inclusion of “quotations” from existing print, visual, audio and audio-visual texts to be appropriate examples of Fair Use, as are reproductions of visual images for the purpose of scholarly analysis. We encourage authors to obtain appropriate permissions to use materials originally produced by others, but do not require such permissions as long as the usage of such materials falls within the boundaries of Fair Use.

The International Journal of Communication encourages authors to employ fair use in their scholarly publishing wherever appropriate. Fair use is the right to use unlicensed copyrighted material (whether it is text, images, audio-visual, or other) in your own work, in some circumstances. We consult the Code of Best Practices in Fair Use for Scholarly Research in Communication, created by the International Communication Association and endorsed by the National Communication Association, and you should too. If you have any questions about whether fair use applies to your uses of copyrighted material (whether it is text, images, audio-visual, or other) in your scholarship, simply include your rationale, grounded in the Best Practices, as a supplementary document with your submission.