The Code of Best Practices in Fair Use functions as a critical protection for academic freedom by validating scholars’ professional practices, reducing copyright-induced “chilling effects” that suppress legitimate research, providing institutional backing for fair use determinations, and enabling the intellectual autonomy essential to teaching and research. Empirical research demonstrates that scholars routinely avoid using materials they have clear legal right to use—a self-imposed restriction grounded not in law but in fear and institutional uncertainty. The Supreme Court has recognized that without fair use, copyright itself would create an unconstitutional constraint on free expression. The Code addresses this problem by documenting professional consensus that scholarly practices—quotation, citation, analysis, and criticism—constitute fair use, thereby reducing anxiety and enabling scholars to exercise their full legal rights. For institutions, adoption of Code-based policies demonstrates commitment to academic freedom and counteracts the overly cautious copyright positions taken by some institutional counsel. This report examines how fair use doctrine and the Code specifically support academic freedom, document the chilling effects when copyright restrictions suppress legitimate scholarship, and identify institutional strategies for protecting scholarly autonomy.
Academic Freedom: The Fundamental Right
Defining Academic Freedom
Core Principle:
“Fair access and use of works is central to teachers’ professional and academic freedom.”
Academic freedom rests on a fundamental premise: “Educators and researchers need to have the autonomy to decide what materials to include in their teaching and research activities. Their choice should not be constrained by excessive publication prices, restrictive copyright policies, or editorial control”.
This autonomy is not merely professional preference—it is constitutionally rooted:
Constitutional Foundation
The Dual Purpose:
The First Amendment and the Copyright Clause both aim toward the same goal: “wide dissemination of expression and ideas.” The Framers “intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the incentive to create and disseminate ideas”.
Yet copyright can paradoxically restrict this dissemination.
The Constitutional Balance:
“Without fair use and related exceptions, copyright would create an unconstitutional constraint on free expression.” This statement from the Supreme Court recognizes that fair use is a constitutional necessity—not merely a policy preference, but a requirement of the First Amendment.
Fair Use as Safety Valve:
Fair use “guards against the chilling effect that would inhibit public speech if copyright owners were granted unlimited freedom to control the use of their creative works.” It serves as a “safety valve” allowing courts “to permit technical infringement of a copyright in certain situations where speech interests require the use of another’s particular expression.”
The Chilling Effect: When Fear Suppresses Legal Rights
The Problem: Self-Imposed Restrictions
A critical and well-documented problem in academic research is the chilling effect—the phenomenon where scholars avoid exercising legitimate legal rights out of fear, risk aversion, or institutional uncertainty rather than actual legal prohibition.
Blake’s “Mind-Chain’d Manicles”: The poet William Blake’s phrase describes restrictions people impose on themselves rather than those imposed by law.
Empirical Evidence: How Much Research is Chilled?
Communication Scholars Study:
The International Communication Association (ICA) surveyed 350 communication scholars worldwide about their use of fair use in research:
| Finding | Percentage |
|---|---|
| Scholars who employed fair use in recent research | 59% |
| Scholars who changed course/publication due to copyright concerns | 53% |
| Scholars who sought permission despite believing they had fair use rights | 40% |
| U.S. scholars rating fair use “absolutely necessary” for research | 62% |
The Core Problem:
“More than half of all respondents, equally among U.S. and international scholars, have changed or have changed their work to accommodate their or others’ copyright concerns. The most common reason for making changes was NOT pressure from institutions or rights holders; rather, it was their own initiative, born of risk aversion.”
The Knowledge-Action Gap:
Confidence in fair use knowledge rose 30% (to 87%), yet copyright concerns still led 53% of scholars to change their work. This suggests the problem is not simply ignorance, but institutional uncertainty and anxiety despite theoretical understanding.
Text-Mining Research Chilled
Researchers conducting text- and data-mining research reported systemic obstacles:
Sources of Problems:
- High prices for proprietary data
- Terms of use that inhibit research
- Legal policies including copyright, privacy, and anti-hacking laws
Consequences:
- Changing research design
- Delaying research
- Abandoning research
- Failure to collaborate across jurisdictional borders
The Right Not Being Exercised: “Researchers experience challenges in access, use, sharing of data, and storage” even where legal rights exist.
Root Cause: Institutional Blindness, Not Legal Prohibition
The Key Finding:
“The challenge resides not merely with the ignorance of individual scholars but with a discipline-wide, institutional blindness to fair use rights and their value.”
Scholars are not primarily blocked by law; they are blocked by:
- Institutional policies discouraging fair use
- Publishers demanding permissions
- University counsel exaggerating copyright risk
- Lack of professional consensus validating their practices
Quote from University Counsel Problem:
“Many counsel at universities have been legal Swiss Army knives, moving between different aspects of law as problems come up, and they may not be familiar with contemporary copyright law interpretation. Without a robust understanding of the current logic of fair use, they may exaggerate risk.”
Impact on Scholarship and Academic Expression
How Chilling Effects Harm Research
The Paradox:
“Scholars and creators are not exercising their full legal rights, and, as a consequence, their work has frequently suffered.”
Scholars report:
- Avoiding use of particular materials due to copyright uncertainty
- Refusing to entertain certain research directions because copyright concerns deem them too risky
- Changing course content rather than risk infringement
- Research delayed, abandoned, or remaining unpublished
Scholarly Practice Fundamentally Depends on Fair Use
Quotation and Citation Are Fair Use:
“Use of quotations, still frames, illustrative excerpts, and the like is common practice in scholarly writing, and is at the heart of fair use.”
Without fair use protection, scholars could not:
- Quote from previous scholarship in their own research
- Cite and analyze primary sources
- Create derivative works building on others’ intellectual contributions
- Develop new theories grounded in analysis of existing work
This is not peripheral to scholarship; quotation and citation are the fundamental building blocks of academic inquiry.
Academic Mission Requires Material Access
Right to Education:
“Fair access and use of works is a fundamental part of the right to education…. Meeting this obligation requires ensuring that countries provide copyright exceptions and limitations that facilitate the use of copyrighted works for teaching, learning and research.”
Innovation Requires Creative Reuse:
“The doctrine is intended to enable creation of new works, derivative works, and transformative uses.” Examples—parody, satire, remixes, mashups, critical analysis—all fundamentally depend on access to copyrighted expression.
If copyright owners could forbid parody, satire, and transformative uses, creative culture would be strangled.
How the Code of Best Practices Supports Academic Freedom
1. Validating Professional Practice
What the Code Does:
The Code explicitly documents that scholarly practices—quotation, citation, analysis, criticism—are fair use.
Academic and Research Libraries Code Principle:
“Fair use ensures that copyright owners do not have a monopoly over transformative uses of their works. The converse is also true. When a use merely supplants a copyright owner’s core market rather than having a transformative purpose, it is unlikely to be fair.”
Effect on Academic Freedom:
By documenting that scholarly quotation and analysis constitute fair use, the Code legitimizes practices scholars have been conducting for decades. It provides professional consensus.
2. Reducing Copyright Anxiety
The Chilling Effect Solution:
The Code reduces fear-based chilling effect by creating professional consensus.
How It Works:
“Code helps to show that the uses of copyrighted materials described here are reasonable and appropriate for the purposes of scholarship, enabling scholars to ‘confidently invoke fair use.'”
Rather than scholars asking “Am I allowed to do this?” with uncertainty, the Code enables them to ask “Is this scholarly practice?” with confidence.
Scholarly Communication Code Principle:
“Scholars may confidently invoke fair use to employ copyrighted works for purposes of analysis, criticism, or commentary directed toward those works. This fair use, made to enable the research, extends as well to the distribution of their research results, whether in the classroom, on a Web site, in printed work, in conference presentations, or by other methods of disseminating scholarly knowledge.”
This explicitly protects scholarly freedom across all dissemination modes.
3. Providing Institutional Backing
Institutional Policy Development:
For institutions, Code provides framework for protecting academic freedom through policy.
ARL Code Enhancement:
“The fair use case will be stronger when institutions have developed or adopted a clear institutional policy about appropriate use of quotations, illustrations, etc., in faculty and student scholarship.”
Effect: Institutions can formally adopt Code-based policies protecting academic freedom at institutional level. This pushes back against overly cautious counsel positions.
Quote on Institutional Responsibility:
“While educators benefit from access to fairly priced and locally relevant curated teaching materials, they also need to be able to supplement and adapt these materials with, for instance, copyrighted works for teaching, learning and research.”
Institutions adopting Code-based policies declare institutional commitment to this principle.
4. Enabling Scholarly Expression Across Media
Distance Learning and Online Teaching:
“Fair use is designed as a highly flexible doctrine, such that it is not limited to yesterday or today’s uses, media forms, or technologies.”
The Pandemic Example:
When COVID-19 made in-person teaching impossible, scholars needed to move to online environments. Fair use’s flexibility enabled this emergency transformation, whereas rigid statutory exemptions might not have.
Flexibility in Action:
“Its flexibility comes into play when circumstances change radically, potentially making copyright a dealbreaker for getting our work done. The reason goes back to the basic logic of fair use: its ability to liberate copyrighted material for re-use is one of the ways that copyright continues to be a ‘limited’ monopoly.”
5. Supporting First Amendment Values
Constitutional Necessity:
The Supreme Court has recognized that “fair use is that keeps copyright from violating the First Amendment”.
Fair Use as Constitutional Safeguard:
Fair use “provides a narrow exception for some types of use” and serves as “safety valve” guarding against chilling effect that would violate free expression rights.
Parody Example:
“If subsequent users cannot appropriate the expression of a first work, their ability to create a parody is eliminated.” Parody is a classic fair use protecting First Amendment interests; the Code provides professional consensus validating parody as fair use.
The Scholarly Community’s Own Fair Use Codes
Communication Scholars Code
The International Communication Association, recognizing the chilling effect in their discipline, adopted their own Code of Best Practices in Fair Use for Scholarly Research Communication.
Why It Was Needed:
“A majority of communication scholars are changing or have changed their work to accommodate their or others’ copyright concerns. Most scholars’ concern was not pressure from institutions or rights holders; rather, it was their own initiative, born of risk aversion.”
Key Principles Protecting Academic Freedom:
- Scholarly Analysis and Criticism: “Scholars may confidently invoke fair use to employ copyrighted works for purposes of analysis, criticism, or commentary.”
- Research and Distribution: “This fair use extends to distribution of research results, whether in classroom, Web site, printed work, conference presentations, or other dissemination methods.”
- Amount Determination: “Scholars should determine the extent of use based on scholarly objective. The scholar should not employ more than needed.”
- Proper Attribution: “Scholars should provide citations in form and manner typically used in communication scholarship.”
Effect of Disciplinary Codes
Confidence and Clarity:
After publication of communication scholars’ Code, confidence in fair use knowledge increased 30%.
Institutional Validation:
“Lawyers and judges consider expectations and practice in assessing what is fair within that field. For any particular field of critical or creative activity, the fact that community practice influences judicial decisions makes it important for communities of practice to understand and articulate their fair use rights.”
By adopting codes, scholarly communities signal to courts and institutions what their actual practices are.
Teaching Fair Use as Academic Value
Educational Mission
Academic institutions have responsibility beyond protecting scholars’ rights; they must teach students their fair use rights and ethical use practices.
Educational Goal:
“As educators, we are responsible for equipping our students with not only knowledge of how to use technology effectively but also the ability to understand the ethical and legal considerations in their creative endeavors.”
Teaching Framework
Four Components:
1. Contextual Understanding:
Provide real-world examples where fair use enabled iconic creations—parody in literature, mashups in music, critical analysis in visual arts. Discuss how fair use enabled cultural innovation.
2. Legal Literacy:
Break down the four fair use factors into digestible concepts. Present hypothetical scenarios. Develop critical thinking about when fair use applies.
3. Ethical Reflection:
Explore perspectives of both creators and consumers. Emphasize attribution, integrity, and respect for intellectual property while recognizing fair use as legitimate right.
4. Creative Projects:
Engage students in hands-on projects creating multimedia while adhering to fair use guidelines. Provide feedback cultivating responsible creativity.
Outcome
“By imparting understanding of fair use principles and providing opportunities for practical application, we cultivate a culture of creativity, critical thinking, and digital citizenship. Students embark on creative journeys empowered not only to create great work but also to do so responsibly and ethically, respecting the rights of others while pushing the boundaries of innovation.”
Institutional Responsibility for Protecting Academic Freedom
Policy Framework
Institutions should adopt clear policies supporting fair use, educate faculty on rights, and reduce copyright anxiety through transparency.
Specific Steps:
- Adopt Code-Based Policy: Institutions should formally adopt policies based on Code of Best Practices, explicitly protecting quotation, citation, analysis
- Educate Legal Counsel: Train university counsel on contemporary fair use doctrine to prevent risk exaggeration
- Support Faculty Confidence: Provide faculty with written guidance explaining their fair use rights
- Document Decisions: When faculty make fair use determinations, document reasoning using Code framework
- Monitor Legal Trends: Stay current with fair use case law and judicial decisions
Addressing Legal Chill
The Problem:
“Copyright concerns can cause significant anxiety and emotional labor, which may lead to a legal chill that hampers teaching, research, and provision of accessible materials.”
Institutional Solution:
- Explicitly communicate to faculty that reasonable fair use determinations are backed by institution
- Educate counsel on current copyright law
- Adopt clear institutional policies
- Reduce anxiety through transparency
Education Unions and Professional Organizations
Advocacy Role:
“Education International, representing education unions worldwide, advocates that educators need autonomy to decide what materials to include in teaching and research. Their choice should not be constrained by excessive publication prices, restrictive copyright policies, or editorial control.”
Professional organizations like Education International explicitly defend educators’ fair use rights as component of “professional freedoms and human rights”.
The Distinction: TEACH Act vs. Fair Use for Academic Freedom
TEACH Act’s Limitations
The TEACH Act provides statutory exemption for distance education, but it is narrow and does not protect many scholarly uses.
Why Fair Use Superior:
“U.S. teachers have something close to a blanket exemption from copyright infringement, so long as they are within the four walls of the classroom.” But this exemption “often was not helpful” when professors:
- Ask students to post work online
- Place materials in learning management systems
- Want to share pedagogical techniques with colleagues outside classroom
Solution:
“Fair use is not limited to classroom use; it applies more broadly to anyone within the U.S. jurisdiction. If educators want to argue that their uses conform to the fair use doctrine, which applies to anyone within the jurisdiction of the U.S., they can go beyond [TEACH Act restrictions].”
Flexibility Advantage:
Fair use “is designed as a highly flexible doctrine, such that it is not limited to yesterday or today’s uses, media forms, or technologies.”
The Gap Between Law and Practice
Why Code Matters
The empirical reality reveals a gap: scholars have legal right to fair use, but institutional uncertainty and anxiety prevent them from exercising that right.
The Code bridges this gap by:
- Making law practical: Translating abstract four-factor analysis into concrete scholarly scenarios
- Validating community practice: Documenting what scholars actually do and showing it is fair use
- Providing institutional reference: Giving institutions and counsel a framework for policy development
- Reducing decision-making burden: Rather than each scholar analyzing four factors, Code provides guidance
- Creating confidence: Enabling scholars to make decisions rather than seek permissions
Conclusion: Fair Use Code as Academic Freedom Infrastructure
The Code of Best Practices in Fair Use functions as critical infrastructure protecting academic freedom by:
- Validating scholarly practices as legitimate fair use, grounding them in professional consensus rather than individual risk assessment
- Reducing chilling effects caused by copyright anxiety, fear, and institutional uncertainty
- Providing institutional backing for academic freedom through Code-based policies
- Enabling scholarly expression across media and formats, from traditional print to digital and online environments
- Supporting First Amendment values by recognizing fair use as constitutional necessity protecting free expression
- Facilitating innovation and creativity by explicitly protecting transformative and derivative uses
- Teaching students their rights and responsibilities as creators and users of copyrighted material
The empirical evidence is clear: without the Code and professional understanding of fair use, scholarly practice is chilled. Researchers avoid projects they have legal right to pursue. Faculty change courses they want to teach. Scholars seek permissions despite having fair use rights.
The Supreme Court recognized that “fair use keeps copyright from violating the First Amendment.” The Code operationalizes this principle within academic communities, transforming abstract constitutional language into actionable guidance protecting the intellectual autonomy that defines academic freedom itself.
For institutions committed to academic freedom—not merely as aspirational ideal but as operational principle—Code adoption and fair use education are essential infrastructure supporting the university’s core mission: the free and open exchange of ideas in pursuit of knowledge.