Today, the Center for Social Media at American University released its Code of Best Practices in Fair Use for Online Video, a publication meant to help online video creators, service providers, and copyright holders to interpret the copyright doctrine of fair use. The Code (full-text pdf) provides a guide to "current acceptable practices, drawing on the actual activities of creators" and backed by a panel of legal and media scholars, including Berkman fellow Lewis Hyde, Anthony Falzone from Stanford's Center for Internet and Society, Henry Jenkins from M.I.T., and Pamela Samuelson from U.C. Berkeley. Pat Aufderheide and Peter Jaszi of American University coordinated the project.
The Code, which takes an optimistic view on fair use ("Fair use is flexible. It is not uncertain or unreliable."), identifies six common situations that online video makers may face:
- Commenting on or critiquing of copyrighted material
- Using copyrighted material for illustration or example
- Capturing copyrighted material incidentally or accidentally
- Reproducing, reposting, or quoting in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon
- Copying, reposting, and recirculating a work or part of a work for purposes of launching a discussion
- Quoting in order to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between the elements.
For each of these factual situations, the Code provides a general principle to follow, while noting important limitations and potential pitfalls. I'm sure that content owners will dispute some of the guidance in the Code, but upon an initial perusal it strikes me as an excellent treatment of a potentially tricky area. More importantly, as the Code explains it, the principles outlined are not legal arguments but evidence of current, commonly held understandings among online video creators and other creative communities, such as documentary filmmakers. The point of the exercise is to build common practices and understandings, not to argue abstractly about the law.
The Code draws on two previous and highly influential publications from the Center for Social Media: The Documentary Filmmakers' Statement of Best Practices in Fair Use and Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video.
(Note: Lewis Hyde and the CMLP are both affiliated with the Berkman Center for Internet & Society. Pamela Samuelson is a former fellow of the Berkman Center.)
