World's Fair Use Day: Aufderheide on Best Practices

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The Best Practices in Fair Use model has changed industry practice, expanded the creativity of communities of practice, and made clear that fair use is not a murky part of US copyright law but a vibrant, useable and essential balancing feature to copyright ownership.

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  • Nicholas Poussin’s painting is used as an illustration, under fair use, in Wikipedia’s entry on the phrase, “Standing on the shoulders of giants.” (Although the painting is in the public domain, the Met’s photo of it is copyrighted.) Cedalion standing on the shoulders of Orion from Blind Orion Searching for the Rising Sun by Nicolas Poussin , 1658, Oil on canvas; 46 7/8 x 72 in. (119.1 x 182.9 cm), Metropolitan Museum of Art
  • Fair use and copyright exemptions generally are escape hatches to the owner’s monopoly in copyright.
  • We used the best practices approach to address the problem. This is a process of discovering the hidden norms of interpretation within the group of practitioners/makers/users.
  • 11/14/09
  • 11/14/09 The first stage was researching the problem. We interviewed about 60 filmmakers with open-ended questions about their creative decisions when faced with questions of using copyrighted material to do their work. We discovered big problems— Difficulty finding copyright holders Terrible prices Avoidance of fair use at all costs (too dangerous!) But the biggest problems were: Changing reality in order to film it Avoiding large sections of reality because they felt it would be unfilmable Music Movies Politics News Celebrities (e.g. anchors on news programs!) Filmmakers believed that understanding how to interpret fair use would stop the worst of these problems, self-censorship, and also lower costs, without impairing their ownership rights.
  • Filmmakers through 5 major organizations, which convened small-group “quiet meetings” across the country, easily identified four areas in which fair use came up: Critiquing media (Outfoxed) Media as illustration (“During the Estado Novo…) Incidental (someone sings Happy Birthday) Historical (this one was very limited, making fair use only applicable when archives could not make material available basically, and when the material was not the central topic of the film) Then a legal advisory board looked over the work. Two major foundations, the John D. and Catherine T. MacArthur Foundation and the Rockefeller Foundation, paid for this work.
  • 11/14/09 Teachers came to us because they had a common problem whenever they taught using popular culture, and especially when they taught “media literacy”—criticism and analysis of popular culture. Once again we conducted research, and discovered teachers were overcomplying, avoiding teaching with this material when they used it, closed the classroom door and swore their students to secrecy. Used bad or inadequate material, e.g. making up their own ads to simulate common advertising. They too worked through their organizations to determine norms of interpretation, and again a legal advisory board looked over their work. The Ford Foundation paid for this.
  • 11/14/09 The interpretation was organized according to uses that teachers make (in a classroom, preparing materials, and circulating materials) and uses that students make (making it and circulating it).
  • When YouTube was bought by Google, Viacom sued YouTube for copyright infringement. Free speech advocates were concerned that any settlement could preclude fair use. We worked with Ford Foundation money to conduct research to identify the actual practices on online video sites of makers who use old work to make new work (e.g. mashups, fan videos, vids, remixes, recuperated video, material posted as an example of an issue that the poster wants to discuss). We found nine kinds of common uses. But there was no reachable “community” to convene through associations. We then convened electronically a group divided into fair use-friendly lawyers and DIY/new media/fan culture cultural studies experts, to construct a code of best practices. They worked over four months to establish a common understanding of 1) current practices 2) legally viable ways to phrase these practices 3) limits of fair use for these practices.
  • The resulting categories of practice were deliberately designed to be familiar to people more rooted in the analog media and meatspace world, and to refer back to legal precedent on other kinds of media. Google immediately funded the making of a video about the Code, to be posted to YouTube and other sites.
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  • World's Fair Use Day: Aufderheide on Best Practices

    1. 1. COPYRIGHT & FAIR USE: BEST PRACTICES Pat Aufderheide Center for Social Media American University
    2. 2. THE PURPOSE OF COPYRIGHT
    3. 3. ONE PURPOSE: TO PROMOTE THE CREATION OF CULTURE
    4. 4. By: <ul><ul><li>Rewarding creators with limited monopoly </li></ul></ul><ul><ul><li>Encouraging new makers to use existing culture </li></ul></ul>
    5. 5. WHY BALANCE? <ul><li>All culture created on existing culture (we used to know that) </li></ul><ul><li>The First Amendment (no censorship) </li></ul>
    6. 6. “ Standing on the shoulders of giants.”
    7. 7. HOW WE FORGOT BALANCE: <ul><li>Copyright term extension </li></ul><ul><li>Default copyright </li></ul><ul><li>Punishing penalties (statutory damages) </li></ul><ul><li>Large content holders’ aggressive tactics </li></ul>
    8. 8. The Escape Hatch! FAIR USE:
    9. 9. <ul><li>FAIR USE </li></ul><ul><li>Legal, unauthorized use of copyrighted material—under some circumstances </li></ul><ul><li>Flexible </li></ul><ul><li>Broad </li></ul><ul><li>Adaptable </li></ul>
    10. 10. INDIVIDUALS FEAR… <ul><li>Will I get it wrong? </li></ul><ul><li>Will I get sued? $125K+ per infringement!!) </li></ul><ul><li>Will my boss/librarian/client get angry? </li></ul>
    11. 11. BEST PRACTICES
    12. 12. EDUCATION <ul><li>Knowledge of the law </li></ul><ul><li>Awareness of problem </li></ul><ul><li>Define interpretation of fair use </li></ul>
    13. 13. COMMUNITIES DEFINE FAIR USE FOR THEMSELVES <ul><li>Documentary filmmakers </li></ul><ul><li>Film scholars </li></ul><ul><li>Media literacy teachers </li></ul><ul><li>More </li></ul>
    14. 14. STORIES UNTOLD Creative consequences of the rights clearance culture for documentary filmmakers
    15. 15. DOCUMENTARY FILMMAKERS
    16. 16. RESULTS <ul><li>Broadcasters program films </li></ul><ul><li>Cablecasters program films </li></ul><ul><li>Filmmakers develop new kinds of projects </li></ul><ul><li>Television/web companies expand their plans </li></ul><ul><li>All insurers of errors and omissions insurance now accept fair use claims </li></ul>
    17. 17. ENGLISH TEACHERS
    18. 18. MEDIA LITERACY CATEGORIES <ul><li>Classroom teaching </li></ul><ul><li>Producing texts </li></ul><ul><li>Publishing texts online/print </li></ul><ul><li>Student projects </li></ul><ul><li>Students posting/publishing their work </li></ul>
    19. 19. RESULTS <ul><li>Teachers share syllabi, curriculum </li></ul><ul><li>Work is published using the code </li></ul><ul><li>School districts adopt code </li></ul><ul><li>Code used for national student contests </li></ul><ul><li>Other teachers want to know how they can employ fair use </li></ul>
    20. 20. ONLINE VIDEO
    21. 21. ONLINE VIDEO CODE <ul><li>Comment/critique </li></ul><ul><li>Illustration/example </li></ul><ul><li>Accidentally/incidentally </li></ul><ul><li>Preserve/recall </li></ul><ul><li>Discuss </li></ul><ul><li>Collage (Remix) </li></ul>
    22. 22. RESULTS <ul><li>Google funds video on the Code </li></ul><ul><li>Plethora of YouTube “citations” </li></ul><ul><li>Continuing stream of users to website </li></ul><ul><li>Use in K-12, film schools, contests </li></ul>
    23. 23. OTHER COMMUNITIES AND CODES <ul><li>OpenCourseWare </li></ul><ul><li>Archivists </li></ul><ul><li>Film/media scholars </li></ul>
    24. 24. COMING SOON! <ul><li>Librarians </li></ul><ul><li>Poets </li></ul><ul><li>Communications scholars </li></ul>
    25. 25. CHALLENGES TO COME <ul><li>Extending the model (music, literature) </li></ul><ul><li>Publicizing the model </li></ul><ul><li>DMCA issues </li></ul><ul><li>International congruence </li></ul>
    26. 26. CORE CONCEPT People can act together to make fair use more useable Or…..
    27. 27. PRACTICE MAKES PRACTICE
    28. 28. Please feel free to share this presentation in its entirety. For excerpting, kindly employ the principles of fair use.
    29. 29. CONTACT INFO Pat Aufderheide Center for Social Media School of Communication American University Washington, DC [email_address] 202-885-2069

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