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Best Practices in Fair Use

Following up on Ann’s post yesterday, and cross-posted from Concurring Opinions:

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

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

The first is the “Documentary Filmmakers’ Statement of Best Practices in Fair Use,” released in late 2005.

The others are the Code of Best Practices in Fair Use for Online Video, the Code of Best Practices in Fair Use in Media Literacy Education, and the recently-released “Statement of Best Practices in Fair Use of Dance-related Materials: Recommendations for Librarians, Archivists, Curators, and Other Collections Staff,” produced by the Dance Heritage Coalition.  Full disclosure:  Law faculty and practicing lawyers who specialize in copyright law vetted each of these publications, and I was one of vetters.

None of these publications claim to state definitive rules for what is or is 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 the 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relevant gatekeepers — ISPs and insurance companies among them — who play major roles in determining what may or may not be published, promoted, displayed, and distributed.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 recent paper by Pam Samuelson and slightly older papers from Barton Beebe and me. 

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’s 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.