[A2k] Best Practices in Fair Use released by American University

Tue May 19 15:39:01 2009

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Best Practices in Fair Use

Posted By Michael Madison On May 19, 2009 @ 7:27 am In Intellectual Propert=
y
| No Comments

Yesterday, the Program on Information Justice and Intellectual Property at
American University=92s Washington College of Law and the Center for Social
Media at AU=92s School of Communication released =93Remix Culture: Fair Use=
 Is
Your Friend [1],=94 a video that accompanies and explains the Code of Best
Practices in Fair Use for Online Video [2], released jointly by the two
centers last July. The video was underwritten by Google and was produced in
collaboration with Stanford Law School=92s Fair Use Project [3].

The Code itself is one of four recent =94best practices=94 statements suppo=
rted
by AU (in particular, by Pat Aufderheide at the CSM and Peter Jaszi at the
law school) and/or inspired by the =93best practices=94 model.

The first is the =93Documentary Filmmakers=92 Statement of Best Practices i=
n
Fair Use [4],=94 released in late 2005.

The others are the Code of Best Practices in Fair Use for Online Video [2],
the Code of Best Practices in Fair Use in Media Literacy Education [5], and
the recently-released =93Statement of Best Practices in Fair Use of
Dance-related Materials: Recommendations for Librarians, Archivists,
Curators, and Other Collections Staff [6],=94 produced by the Dance Heritag=
e
Coalition.  Full disclosure:  Law faculty and practicing lawyers who
specialize in copyright law vetted each of these publications, and I was on=
e
of vetters.

None of these publications claim to state definitive rules for what is or i=
s
not fair use even within the domains of practice to which they refer, let
alone for all purposes.  Instead, they offer guidelines for practices that
are believed likely to be legally acceptable, given a fair reading of the
law of fair use and a fair survey of actual creative practices in the
relevant domain.  And they also offer guidelines for what likely crosses th=
e
fair use line, again given fair readings of both law and practice.  The
relevant audiences include not only practitioners in each field but also
relevant gatekeepers =97 ISPs and insurance companies among them =97 who pl=
ay
major roles in determining what may or may not be published, promoted,
displayed, and distributed.

Among other things, the best practices approach is one way of rendering
concrete an emerging sense that fair use in copyright law is neither as
radically indeterminate nor as toothless in operation as the conventional
wisdom might suggest.  For scholarship that bolsters that view, see a recen=
t
paper by Pam Samuelson [7] and slightly older papers from Barton Beebe [8]
and me [9].

The best practices approach is not a panacea, and it is far from costless.
Producing these statements and working with gatekeepers to acknowledge them
is time-consuming, challenging work.  And there is no assurance that if
tested in court, a copyright defendant=92s reliance on a Best Practices
approach or publication would be persuasive to a judge or jury.  The hope,
however, is that the more robust the set of Best Practices followed by
creators in these fields, the less likely it is that litigation will ensue.

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URLs in this post:

[1] Remix Culture: Fair Use Is Your Friend:
http://centerforsocialmedia.org/resources/online_video

[2] Code of Best Practices in Fair Use for Online Video:
http://www.centerforsocialmedia.org/resources/publications/fair_use_in_onli=
ne_video/

[3] Fair Use Project: http://cyberlaw.stanford.edu/fair-use-project

[4] Documentary Filmmakers=92 Statement of Best Practices in Fair Use:
http://www.centerforsocialmedia.org/resources/publications/statement_of_bes=
t_practices_in_fair_use/

[5] Code of Best Practices in Fair Use in Media Literacy Education:
http://www.centerforsocialmedia.org/resources/publications/code_for_media_l=
iteracy_education/

[6] Statement of Best Practices in Fair Use of Dance-related Materials:
Recommendations for Librarians, Archivists, Curators, and Other Collections
Staff: http://danceheritage.org/fairuse/

[7] Pam Samuelson: http://ssrn.com/abstract=3D1323834

[8] Barton Beebe:
http://www.bartonbeebe.com/documents/Beebe%20-%20Empirical%20Study%20of%20F=
U%20Opinions.pdf

[9] me: http://ssrn.com/abstract=3D442441