Online Video Creators Getting Fair Use Guidelines

Last week, the Center for Social Media (CSM) at American University’s School of Communication unveiled a project to develop a set of guidelines for fair use of copyright protected material aimed at video creators who publish online. The center will work in conjunction with the Program on Information Justice and Intellectual Property; the two organizations issued a comparable set of fair use guidelines for filmmakers back in 2005.

The project is being funded by the Ford Foundation; its first phase, which entails researching current prevailing practices, will be spearheaded by CSM fellow Neil Seiling. In April, CSM produced a short video demonstrating a number of unique ways in which people are appropriating copyrighted content to create new work with online tools. The second phase will be to work with online video-sharing sites on how best to inform their users about their fair use rights.The project comes on the heels of a study of young online creators which detailed how few of them understood their rights, which I wrote about in June. The worry is that, not understanding the law, people will “self-censor” by not producing or publishing content for fear of litigation.Codifying best practices should also make it easier for companies like BayTSP, which polices online video-sharing sites for rights holders like Viacom (VIA), to make more informed decisions on whether or not to issue a DMCA takedown notice in cases where copyrighted material is included in original work.The guidelines developed for documentarians [PDF] are certainly a good starting point, and are a must-read for anyone publishing online. Independent production manager Robby Fahey also provided answers to questions about fair use for creators in a NewTeeVee interview last February.

But as the Remix Culture video makes clear, inexpensive tools and online distribution are giving rise to entirely new forms of derivative and transformative works that create new cultural value which many feel should be protected. And because the forms are so new, there is little in terms of legal precedent to clarify what constitutes non-infringing use in the context of mashups. Whatever conclusions the CSM arrives at, the value of any guidelines will be determined by the extent to which creators and rights holders respect them.

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