The EFF (Electronic Frontier Foundation) has formed a coalition with a number of universities and law schools who are attempting to clarify the concept of fair use in our remix age.

Background to Fair Use

Fair use has been part of established copyright almost as long as there has been copyright, however as written, it was restricted to excerpts and quotations made by either journalistic (reviews, commentaries, etc.) or incidental (e.g. a home video just happens to catch a few seconds of a copyrighted work) pieces.

Fair use never used to matter much because most of the actual use of a copyrighted work did not involve making a copy, however in the modern digital age just about all use of a copyrighted work requires that a copy be made. So suddenly, fair use has become important to a lot of people as various rights holders have attempted to clamp down on what they have perceived to be infringing works.

This has been bad news for the so called "remix culture" where existing works are chopped up and turned into something quite new (a modern take on '70s pop art, if you will). Unfortunately most current interpretations of copyright legislation set these new, modern, works quite firmly in the copyright infringing (and therefore illegal) camp. No matter that the number of infringers run into the millions. Just look at sites such as YouTube - most of its content could be regarded as copyright infringing.

EFF's Six Guidelines

The EFF and their coalition have defined six guidelines, or tests, that can be used by rights holders to determine if a work ought to be considered fair use, for example: should an AMV (Animated Music Video) made by a kid in their bedroom, which if popular is likely to be good advertising for both the anime and the music it is set to, be taken down? Or, should the latest episode of an anime series, also recorded by a kid in their bedroom, and also potentially good advertising for the show, but lacking any advertising revenue for the broadcasters and producers, be taken down?

In the EFF's opinion, in the above example, the AMV should be regarded as fair use (as it can be considered a new work made up of existing material), whereas the episode of an anime series should not be covered by fair use as it is clearly a copy of the show simply for the sake of making a copy.

A summary of the guidelines follows:

1. A Wide Berth for Transformative, Creative Uses: Pursue nontransformative verbatim copying of copyrighted materials but consider everything else fair use.
2. Filters Must Incorporate Protections for Fair Use: Don't issue blanket and unthinking DCMA takedowns, don't block on a first (or even second) offence, don't block non-infringing material by the same user.
3. DMCA Notices Required for Removals: Don't remove material without a formal DCMA notice - the notice provides legal protections for both parties.
4. Notice to Users upon DMCA Takedown: When a DCMA notice is given (to an ISP or hosting company like YouTube) tell the user, and when you tell them, provide them with a copy of the entire takedown notice along with details of what they can do next.
5. Informal "Dolphin Hotline": Who you can call when a when fair use "dolphin" is caught in a net intended for infringing "tuna".
6. Mandatory Reinstatement upon Counter-notice or Retraction: Service providers should establish and follow the formal "counternotice-and-putback" process contemplated by the DMCA.

Conclusions and Observations

From an international perspective copyright was agreed and set down by the Berne Convention in 1886, and while enforcement of the conventions and specific excluions were left up to the sigining countries to sort out themselves it generally sets out everthing we normally regard copyright(s) to be. Since 1886 the convention has been revised and amended a few times but the last time it was touched was in 1979.

Yep - 1979. Back in the days before PCs, mobile phones, video cameras, photo copiers, and of course the Internet.

Since 1979, life (and our culture) has moved on somewhat. Today no matter what side of the copyright and intellectual property argument you come down on, you are likely to agree that the laws for both are in need of an overhaul.

Until that overhaul happens I think these guidelines are both fair and reasonable to all parties. I hope they are adopted.

References

• For "Fair Use Principles for User-Generated Video Content"
• For the gallery of fair use videos
• UK Copyright law and fair use
• The Berne Convention for the Protection of Literary and Artistic Works
• Lessig: Free Culture
• Remix Culture: The Early Years