How They Did It: The Center for Social Media's fair use guides

By on January 25, 2012

More and more journalists are using images and other types of materials found on the web to create stories and multimedia packages. Without a dedicated media department, independent journalists in particular can easily run afoul of existing copyright laws. Fair Use provides a small haven by allowing exceptions to strict copyright laws for reasons of critique or news reporting. But how many reporters or media makers truly understand their rights? Patricia Aufderheide, director of the Center for Social Media at American University, recently co-authored Reclaiming Fair Use: How to Put Balance Back in Copyright and agreed to speak with ONA about free speech rights, documentary filmmaking and SOPA (the Stop Online Piracy Act).

Why did American University’s Center for Social Media choose to take on writing a guide for Fair Use? What were the conversations like around Fair Use before you created the guide, and how have they changed?

Fair use is the right to use copyrighted material without permission or payment, under some circumstances. It is a fundamental free speech right — without it, all copyright holders would become private censors, with the permission of the government, which created copyright policy. And that would make copyright unconstitutional, for violating the First Amendment. So fair use is a critical free-speech right, but that hasn’t been well understood. That is why the legal scholar Peter Jaszi, who is at American University’s Washington College of Law, and I decided to write Reclaiming Fair Use: How to Put Balance Back in Copyright (University of Chicago Press, $12).

The book among other things describes the evolution of The Project on Fair Use and Free Speech. The project began in 2004, with research by Peter and myself. We investigated, with support from the Rockefeller Foundation, how documentary filmmakers changed their creative choices when faced with licensing problems. This documented a clear tendency to self-censorship, because of insecurity and misinformation about copyright. The biggest area of misinformation was around the doctrine of fair use, which allows anyone to re-use copyrighted material, if they are doing so for a different purpose (i.e., not just downloading the music because you don’t want to pay, but quoting from it in order to make a point about it), and if they are using an appropriate amount (i.e. the amount needed to accomplish the new purpose).

We realized that if documentary filmmakers could learn how to make their own fair use decisions in the most common situations, they could make their work more efficient and also stop self-censoring themselves. We also knew that community practice was an important, if sometimes implicit, part of judicial thinking about fair use. So if documentary filmmakers could agree on how they interpreted fair use, and could link it to execution of their mission, this would dramatically lower the risk of lawsuit. (This would make fair use much more like their other free speech rights, which are also used on a case-by-case basis and also with potentially harsh penalties, but mostly are used with a much better notion of where risk lies.)

We worked with documentary filmmakers over the next year, with help from the MacArthur and Rockefeller Foundations. They were able to define four very common situations in which fair use was useful to them, and to articulate principles to guide their decision-making, as well as limitations beyond which fair use would not apply.

Since the Documentary Filmmakers’ Statement of Best Practices in Fair Use was launched in late 2005, industry practice has turned around. In particular, filmmakers can now get errors and omissions insurance — required for theatrical and TV distribution — for fair use claims, without incremental charges. Creating a code of best practices allowed insurers to understand how low the risk was for filmmakers who acted within the terms of their Statement.

Since then, nine other codes of best practices have been created — including for film professors, media literacy teachers, dance archivists, poets, makers of open courseware, and more. Each of them has had an impressive effect in making it easier and less anxiety-producing to do necessary work.

On Jan. 26, the Association of Research Libraries is releasing the Code of Best Practices in Fair Use for Academic and Research Libraries, created with support from the Mellon Foundation. This will be very welcome for any librarian, teacher or student who wants to know how much unlicensed copyrighted material can be posted on a course’s electronic platform, or whether copyrighted material can be included in a student paper or a thesis, or whether they can assemble a digital archive of copyrighted materials for the use of a particular committee’s work.

What was the production process like on the guides and the book? How long did it take to create these works?

In each case, there has been a period of research, to identify how community practice intersects with copyright understanding. Then, small groups of practitioners were gathered together by representative organizations to discuss the most common situations in which fair use applies, the principles that apply in those situations, and the limitations. Then we synthesized those understandings, presented them to the groups, and had them reviewed by a panel of outside legal scholars and lawyers. Finally, we issued them. All the codes, including codes produced in a similar manner but not by us, are available at Peter and I describe the process in our book, Reclaiming Fair Use .

You’ve created multiple guides geared at educators, researchers and online video creators. How have the guides impacted the legal landscape? What challenges have there been against your advice?

The legal landscape is the same as before.

Ironically for those who tremble at the thought of employing their free speech rights under fair use, judges for the last 15 years have been enthusiastic about fair use. Fair use is a rarity in court, but when fair use cases are heard, they are judged on the basis of “transformativeness” (did you use the material for a different purpose) and appropriate amount. So the challenge has been to make this clear to non-lawyers, and to tailor the rather abstract doctrine of fair use to particular kinds of uses.

None of the codes have been challenged in court. In fact, large copyright holders have not criticized them. As I said, fair use litigation is very rare in any case, but it is interesting that there has been no pushback to date from large copyright holders to the codes.

One possible reason is that fair use has been vigorously and consistently used within the commercial media, even in the last two decades when it became seen as a dangerous or risky practice among individual creators. For instance, commercial broadcasters use fair use every day all day in news coverage; they have a strong fair use claim to repurpose copyrighted material. When a famous singer dies, airing clips of the singer’s music to the extent that it connects the singer’s name to her work is an entirely legitimate fair use. Even entertainers use it. Jon Stewart and Stephen Colbert’s shows are wall-to-wall fair use, and their shows are owned by Viacom. Newspapers employ fair use so routinely, both online and in hard copy, that journalists aren’t even aware that it is fair use they are employing when they quote someone’s remarks in an interview, or excerpt a key sentence from a corporate memo, or reproduce a statement from an email someone sent them.

Last year, we saw some concern from international news archives that having some of their users, for instance, documentary filmmakers, employ their fair use rights would jeopardize the archives’ future income. (The doc filmmakers’ code actually makes it very clear that most archival uses would not, in the estimation of the filmmakers, be acceptable fair use.) But the archives have been unable to demonstrate that this is more than a hypothetical concern, and they have been careful not to suggest that people do not have those rights. In fact, one news archives executive told me, “Having this code makes it easier for me to show them why they’re not going to be able to employ fair use for the purpose they’re considering.”

In the end, I think the effect of the codes has been to reduce friction in the marketplace by eliminating fruitless and frustrating quests for licenses (because often rights holders don’t even respond to small-time requests), and more importantly, to make it possible for people to stop self-censoring their creative decision-making.

Boing Boing published a piece called “Why fair use doesn’t work unless you’ve got a huge war-chest for paying lawyers” – how does AU compensate for the fact that much of fair use is still up to individual judge’s decisions? Are you planning to address this in another guide?

Fair use is always a case-by-case decision, like all other free speech rights. It has limits, as do all other free speech rights. In exercising other free speech rights, people implicitly always make a risk analysis. For many years, partly as a result of misinformation and partly as a result of confusion over the differences between P2P fire sharing and fair use, people have made an exaggerated risk analysis around fair use. The codes of best practices allow risk to be lowered to the level someone wants it to be. If you stay within the terms of the code, your risk is so vanishingly low that insurers of errors and omissions for documentary film–not entities with a stake in free speech at all–understand it to be insignificant.

Considering that we are in the time of SOPA and the Protect IP act, how do you think the Center for Social Media guides will fit into the national conversation around copyright?

Both SOPA and PIPA pose grave threats to fair use, because they propose new ways to pre-emptively punish people for employing copyrighted material without permission or payment, without any checking to see whether people are doing so legally. The policies that Internet Service Providers now have in place to issue takedowns pre-emptively for use of copyrighted material have the same problem; the takedowns are done by ‘bots, not by human beings who could make a fair use decision. (In the case of takedowns and Content ID matches, it is possible for legal users to demand reinstatement on fair use grounds, of course, but that is annoying and discouraging, and people who don’t know their rights get scared.) But SOPA and PIPA go far beyond this problem in the potential damage they could do. The provisions to be able to block sites threatens the Internet as a whole.

I hope that the effect of the Fair Use and Free Speech Project is to make it possible for people to claim their free speech rights under copyright without fear. The law may be unbalanced in the direction of existing copyright holders, but in fact it has quite a bit of room for new creators and users who are repurposing, such as librarians, to move.

The so called “copyleft” critics of copyright make a good point that copyright policy at the moment is unbalanced, but they run the risk of throwing away perfectly usable rights. Furthermore, when people do use the rights they have, they become confident social actors, more engaged citizens, and more aware of the value of their rights.

They can become better stewards of those rights in political arenas, when issues emerge. For instance, some members of the communities that have created codes of best practices in fair use have also gone to the Copyright Tribunal to request exemptions from the Digital Millennium Copyright Act’s criminalization of de-encryption, for fair use purposes. And they have won. This means that film teachers can now crack encryption on a DVD in order to find illustrations for class lectures and discussion. Vidders and other critics can crack encryption on works of popular culture, such as Firefly, to make social commentary. Students in media literacy classes can rework commercials, to analyze and comment on their techniques. Documentary filmmakers can break encryption on DVDs in order to comment, illustrate, and even make a historical reference.