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This is the final part of my three-part email roundtable discussion looking at the new Code of Best Practices in Fair Use of Online Video created at the behest of the Center for Social Media at American University.

In the first part, the respondents in this email roundtable talked about what the Code means, how they might put it into practice, and some thoughts on the way artists work without thinking about the law. In the second part, the group talked about ways to spread the Code through a special video explaining fair use to video producers.

In this final installment, the discussion turns to legal options, and whether the copyright law should be updated for fair use, possibly creating safe harbors for certain types of work that would be shielded from lawsuits.

Many people complain that the U.S. fair use rules are vague, and that copyright law hasn’t really been updated for the digital age. How do you think the laws should be changed to help protect copyright holders while also respecting video remixes and fair use? Or do you think the laws are fine as is?

Peter Jaszi
law professor at American University and co-chair of the Code of Best Practices committee

Trying to “fix” fair use through legislation would be a high risk undertaking. The codification of the doctrine in 1976 was, generally speaking, a victory for the creators, educators, journalists, artists, and others. Developments in the courts since then (especially the rise of “transformativeness” analysis) have underlined just how big a victory it actually was! For one thing, as it now stands the doctrine is technogically non-specific, which has proved to be a boon in times of rapid change.

By and large, the doctrine works pretty well most of the time for a wide range of different kinds of users — which is one reason that copyright owners haven’t always been enthusiastic about it. If Sec. 107 were “opened up” for amendments there is a real chance (nay, a near certainty) that owners would seize the opportunity to rework the statute to their own advantage — and (believe me) there are many ways this could be accomplished. We would be looking then at a naked political contest that I’m afraid users would lose, as they have in so many other battles in recent years. It may be the case that the “vagueness” (though I’d call it the “flexibility and dynamism”) of fair use can sometimes be a problem. But that’s where efforts like to Code of Best Practices Can come in.

Anthony Falzone
executive director of the Fair Use Project at Stanford University

I think the open-ended nature of the fair use framework is a net positive. While it can reduce predictability in some situations relative to say, a laundry list of very specific exemptions, it’s that open-ended nature that makes fair use a dynamic tool that can respond effectively to changes in technology and culture.

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Anthony Falzone

Fair use was only codified once in 1976, and section 107 has only been amended once since then. If it laid down a series of specific exemptions rather than an open-ended standard, it would have hobbled innovation. Who in 1976 would have foreseen Internet search engines, or understood the tremendous societal benefit they create despite the fact they copy massive amounts of copyrighted information every day? If we had needed to create a new statutory exception to accommodate them, it would have taken years, and there is a very good chance big media companies would have stopped that process altogether.

That’s not to say the burdens of the open-ended framework aren’t real. It makes decisions more complicated and costly. The people who feel that most are the masses — the ordinary people who create for the sake of creating and do so non-commercially. For them, the system is complicated and expensive to use and they are not equipped to bear the risk of guessing wrong. The burdens this system imposes on ordinary people who use copyrighted content in genuinely creative and transformative — but non-commercial — ways is tremendous, and seriously out of whack relative to the tiny impact these non-commercial uses have on copyright holders. I think it would make a lot of sense to create safe harbors for certain uses that will relieve non-commercial actors of this burden.

Peter Jaszi
law professor at American University and co-chair of the Code of Best Practices committee

I like the safe harbor idea, too, but I have a few worries. My first concern is the notorious indistinctness of the commmercial/non-commercial distinction. This line is difficult in two ways. One is the difficulty of classifying activities that yield indirect (i.e. reputational) rather than direct (i.e. sales-based) financial benefit. The other is the problematic fact that works created for “non-commercial” purposes often get commercialized (by the maker or others) after the fact. The second (and related) concern is that carving out any set of uses from the overall “fair use” scheme could make things tougher analytically for the uses that aren’t carved out. Given the fact that there are going to be many uses that fall on the “wrong” side of the commercial/non-commercial line, no matter how it’s drawn, I think this merits attention.

JD Lasica
co-founder of Ourmedia media-sharing site, new media expert and videoblogger

I’m surprised that none of the legal scholars here have pointed out that, regardless of how the laws are crafted, fair use is, and always will be, a fuzzy concept. We will never have a set of rules that say, “absolutely, in this case, you’re in the clear under the law,” because of all the variables that fair use entails. That’s the shortcoming of fair use — it’s not an affirmative right. In layman’s terms, it’s a set of case-by-case exceptions to the Copyright Act, which means if charges are brought against you, you have this defense to stand on.

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In my book “Darknet,” I suggested that the digital generation will eventually come to embrace the concept of digital rights, some of which will be codified in federal law but much of which will become embedded in the cultural norms that are now taking shape. In due time, Congress should specify users’ digital rights by mapping out an expansive, affirmative set of rights delineating the scope of the public’s right to sample, reuse, build upon, and share the digital works they legally acquire. Such a declaration, with reasonable protections for copyright holders, should include the right to time-shift, space-shift, make personal backup copies, change formats, tinker with stuff you buy, engage in personal editing, and share personal media with others, depending on the circumstances.

But as those who have lobbied Congress for copyright reform know, the current Congress is much more likely to impose tighter, not looser, restrictions. At a time when the Internet is collapsing time frames and enabling people to breathe new life into dormant works, it’s still illegal to resurrect and rework movies from the 1920s.

Instead, I think the solution is in our own hands. Individuals ought to use Creative Commons licenses on their videos, photos and podcasts whenever possible, allowing others to reuse or republish the works under the ground rules that the individual lays out. (Tens of millions of photos on Flickr now carry CC licenses.)

More broadly, we’re turning from a society of consumers to a society of users and producers. Whenever we pick up the tools of digital media creation, we’re participating in a shared experience, and together we’re sorting out the rules of engagement for the digital age. People — especially the young — want to access, rip and remix their culture. There’s no going back to the rules and norms of the analog era.

Owen Gallagher
digital media entrepreneur; founder of TotalRecut, a network of fans and creators of video remixes, recuts, and mash-ups

In an ideal world, the copyright laws would be changed to create an established set of rights for legitimate uses of copyrighted material without permission. However, as JD pointed out, it appears that the current Congress appears to be moving in the opposite direction, promoting tighter controls and restrictions, rather than freer access. How many times have copyright laws been extended in the last 50 years?

I’m a big fan of extra-legal solutions, like Creative Commons. Although not without its own issues, this system provides content creators with a choice that they would not otherwise have, i.e. to give explicit legal permission for others to share and reuse their work. I think that Creative Commons is even more important outside of the United States, as many countries do not have a fair use provision in their copyright law. The closest equivalent, ‘fair dealing,’ does not offer as much freedom as fair use. For example, in Ireland and the UK, fair dealing does not extend to works of parody. Unfortunately, Creative Commons is not yet fully established in every country (Ireland still doesn’t have its own country specific version).

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Owen Gallagher

The meaning of copyright law has been skewed in recent decades. Copyrights are meant to create a balance, providing benefit to society at large by giving us more creative works while also providing benefit to the individuals who bring those works to us. Copyright was meant to ‘promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries.’

In reality, copyright law is now being abused to line the pockets of large companies that own most of the well-known creative works in the world. The balance has been lost and the result is the chilling effect we mentioned before, where essentially, less creative works are being made because people are afraid of being sued. Hopefully, with such important initiatives as Creative Commons and the Code of Best Practices in Fair Use for Online Video, harmony will be attained.

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What do you think? Should the laws be updated or left as is? How useful do you think the Code will be for video mash-up artists who want to learn more of their legal options? Share your thoughts in the comments below.

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