Fair use and video online

The US Center for Social Mediarecently published a report entitled Code of Best Practices in Fair Use for Online Video. Its aim is to help creators to interpret the copyright doctrine of fair use. Fair use is a set of exceptions defined by the DMCA. The document does not define the limits of fair use. When reading it, you quickly understand that these limits are extremely fuzzy. Everything is about balance and judgment.

The paper gives a good overview of fair use doctrine. It clearly states the two questions which are at the heart of fair use:

  • Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?
  • Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?
  • Then, it provides some guidelines for 6 typical cases:
      • 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
      • And quoting in order to recombine in elements to make a new work that depends for its meaning on (often unlikely) relationships between the elements

The funniest part of the document is the section about myths and truths of fair use. Some supposedly questions:

  •  If I’m not making any money off it, it’s fair use.
  • If I’m making any money off it (or trying to), it’s not fair use.
  • Fair use can’t be entertaining
  • If I try to license material, I’ve given up my chance to use fair use.
  •  I really need a lawyer to make the call on fair use.

If you ask yourself some questions about fair use, read it. Although its target is video, I am sure that it is easily extrapolated to other type of copyrighted materials.

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