Best Practices in Copyright and Fair Use for User-Generated Content

American University's Center for Social Media has released of a new code of best practices in fair use for creators in the burgeoning online video environment (www.centerforsocialmedia.org/remix). The code, grounded in the practices of online video makers and in the law, was collaboratively created by a team of scholars and lawyers from leading universities. It was coordinated by American University professors Pat Aufderheide and Peter Jaszi.

The first of their kind, these best practices will allow users to make remixes, mashups, and other common online genres with the knowledge that they are staying within copyright law. The code identifies, among other things, six kinds of unlicensed uses of copyrighted material that may be considered fair, under certain limitations. They are:

Commenting or critiquing of copyrighted material;
Use for illustration or example;
Incidental or accidental capture of copyrighted material;
Memorializing or rescuing of an experience or event;
Use to launch a discussion;
Recombining to make a new work, such as a mashup or a remix, whose elements depend on relationships between existing works.

For instance, a blogger's critique of mainstream news is commentary. The toddler dancing to the song "Let's Go Crazy" is an example of incidental capture of copyrighted material. Many variations on the popular online video "Dramatic Chipmunk" may be considered fair use, because they recombine existing work to create new meaning.

Until now, anyone uploading a video has run the risk of becoming inadvertently entangled in an industry skirmish, as media companies struggle to keep their programs from circulating on the
Internet. As online providers have begun to negotiate with media companies, everyone has agreed that fair use should be protected. Before the code's release, there was no clear statement
about what constitutes fair use in online video.

"This code of best practices will protect an emerging creative zone -- online video -- from de-facto censorship," said Aufderheide. "Creators, online video providers and copyright holders will be able to know when copying is stealing and when it's legal."

"The fair use doctrine is every bit as relevant in the digital domain as it has been for almost two centuries in the print environment," said Jaszi. "Here we see again the strong connection between the fair use principle in copyright and the guarantee of freedom of speech in the Constitution."

Some public broadcasting organizations and Internet video sharing platforms will recommend the code to their users on the day of its release. They are PBS's P.O.V., the Independent Television Service, the Corporation for Public Broadcasting's National Minority Consortia, Miro, RemixAmerica, Rocketboom, and Witness/The Hub.

"For anyone who has wondered, 'Will I be sued for creating and posting this video online?,' the code of best practices in fair use is an invaluable guide," said Dean Jansen, outreach director for the Participatory Culture Foundation, the organization behind Miro.

The committee that compiled the code is made up of individuals affiliated with Harvard University; Georgetown University; Massachusetts Institute of Technology; Stanford Law School; University of California, Berkeley; University of Pittsburgh School of Law; and University of Southern California. A complete list of committee members is available at the end of the release.