Fair use session at DML2010

Fair use session

Opened with some thoughts on the fear/anxiety around copyright issues – much of which comes from a misunderstanding of the educational use guidelines – guidelines around a certain percentage of use, 500 words etc that aren’t even in copyright law. There is also confusion around 2002 Teach act – but these only apply to distance learning.

One of the things that led media educators to fair use was teachers’ own anxiety about what could be used. 5 principles of fair use that the Center for Social Media at American University http://www.centerforsocialmedia.org/ were drawn up to help educators feel confident in understanding ‘transformativeness.’ Expounded their view that ‘fair use’ is a use it or lose it right and that educators need to take on a political role in advocating for fair use rights.

Best practice: Pat Aufdeheide presented a view that fair use is not about getting away with something it is about working with communities of practitioners who themselves are copyright owners and who use material created by others. The first code of best practice that Center for Social Media put out was made with and for documentary filmmakers in 2005. Results: it collectively empowered documentary filmmakers– in 2005 Sundance – there were no films with copyrighted materials/ fair use defense – yet by 2006 3 films were entered into competition with un-cleared copyright material and a fair use defense including Hip-Hop Beyond Beats and Rhymes as just one example, in Sundance 2010 countless films are now using copyrighted material empowered by having a code that liberates practice.

The latest code of best practice that the Center for Social Media has produced with Google/ MacArthur/Ford support is for online video. http://www.centerforsocialmedia.org/resources/publications/fair_use_in_online_video/

This is due to be endorsed by google when they are out of their lawsuit with Viacom. Aufdeheide speaks of the benefits of a best practices model = what people do influences what people feel empowered to do.

Steve Anderson of USC http://cinema.usc.edu/ talks about his critical commons project – again MacArthur funded http://criticalcommons.org/ – as a way to share media with copyright material/fair use defense without fear of takedown.

Lawyer and fair use scholar Jason Schultz at UC, Berkeley http://www.ischool.berkeley.edu/people/faculty/jasonschultz talked about the detail of copyright law. Started first with a reality check: the number of legal actions is very low – most people never hear from lawyers – digital millennium copyright law 1998 http://www.copyright.gov/legislation/ (making online posters responsible for filtering) is responsible for most of the take down on youtube. etc..

How can we fight back:

1. Pro bono lawyers

2. Post counter notice to whoever has taken your media down -10-14 days goes back up

3. Know the 512f provision of the copyright law – you can sue the hosting site for sending a malicious take down notice

e.g. Lenz v Universal a mom had used Prince’s Let’s Go Crazy accompanying her baby dancing – Prince demanded it be taken down, UC Berkeley’s fair use clinic picked up case http://www.eff.org/deeplinks/2008/08/judge-rules-content-owners-must-consider-fair-use- Landmark ruling content owners must consider fair use before issuing a take down notice.

During question session international issues were raised, Pat Aufdeheide commented that only the US has fair use clause, in practice if you mount a successful fair use defense in the US then you are unlikely to encounter issues elsewhere.