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Fair Use of Online Content with Content Curation

I spoke at an AMA webinar today sponsored by Curata talking about content marketing and content curation. There were a number of questions about the “fair use” of online content when it comes to content curation.

Since this is a topic we get questions about all the time, I thought the following information should help.

By the way, I am not a lawyer…please seek legal advice for situations where you need it.

What’s the Law on Fair Use with Online Content?

Kimberley Isbell from the Nieman Journalism Lab has a very lengthy article on the legal aspects of aggregated content.

Kimberley brings out this important point:

“For all of the attention that news aggregators have received, no case in the United States has yet definitively addressed the question of whether their activities are legal.”

Even the US Government Copyright office states that  “the distinction between fair use and infringement may be unclear and not easily defined.”

This paper from Jonathan Band for the Journal of Business and Technology Law does an excellent job reviewing the legal cases when it comes to Google and Fair Use.

In it, Band states that according to section 107 of the Copyright Act, …“fair use 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; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.”

Even issues about online video and fair use are discussed in articles like this as “tricky” or “hard to determine.”

So, in general, it’s hard to determine fair use from a content curation standpoint. The best overall interpretation comes from the US Copyright office which states:

Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work.

What I was hoping to find was a specific character or word number, but no such guidance exists to my knowledge.

Best Practices in Fair Use

The best advice comes from a combination of the Isbell article and this post from Hivefire (see the marketing reasons for each).

1. Reproduce only those portions of the headline or article that are necessary to make your point or to identify the story. Do not reproduce the story in its entirety.

Marketing reason: The more you link to third parties, the more likely they are to link back to you – which ultimately improves your SEO.

2. Try not to use all, or even the majority, of articles available from a single source. Limit yourself to those articles that are directly relevant to your audience.

Marketing reason: A good content curator is selective an only links to the most relevant content on a specific topic or issue. They do not simply reproduce every article under the sun.

3. Prominently identify the source of the article. (as hopefully done in the post)

Marketing reason: Demonstrating that you have curated content from a wide variety of sources, and content from some very reputable sources, makes you more credible as well.

4. Whenever possible, link to the original source of the article.

Marketing reason: Again, linking to the original source may drive traffic away from you momentarily, but makes you more credible for identifying relevant content in other well-known publications.

5. When possible, provide context or commentary for the material you use.

Marketing reason: The more original context you provide, the more of your marketing message you can place on third party content. Furthermore, if your audience values your commentary, they are far more likely to return to you rather than go to the original sources in the future.

Overall, it’s unfortunately very subjective, so best practice is to act like a human being:  give credit when credit is due, and always give your point of view on someone else’s content (which lets your brand’s (or the individual’s) expertise shine through).

What say you?