Well, we’ve been down this road before.

What is fair use? According to the American University Center for Social Media, fair use can be defined as follows:

Fair use is the right, in some circumstances, to quote copyrighted material without asking permission or paying for it.

Okay, we’re already off on the wrong foot. Most of that sentence is fairly reasonable, but the AU professors behind this have to know that fair use is not a right. Copyright is a right. Fair use is a limitation on that right, which is not absolute. Specific methods of fair use are defined in court, and then only for that use. Fair use, then, is an affirmative defense the user can cite in court if sued for infringement.

With that cleared up, let’s look at an announcement the AU Center put out today. They have published a Best Practices Guide for fair use in online video. This is a dangerous effort. We at the Copyright Alliance support education on fair use and have information on our site. But our information is intentionally broad; we do not want to be in the position of giving legal advice to specific end-users of copyrighted works.

But that is precisely what the best practices guide writers run the risk of doing, although some review of the site suggests that there isn’t much “there” there. What is implied suggests a significant expansion of the current established thinking of fair use, going far beyond legal precedent. Lord help the individual who follows their guidance and finds out that just because AU says it’s fair use doesn’t mean it’s fair use.

That goes for a compilation video AU includes on the site, one that shows various YouTube videos that infringe on compositions, sound recordings, motion pictures and television programs. Most are fairly familiar, some are fairly funny, and AU acknowledges that all infringe. So is AU saying that these works should all be examples of fair use? Is AU saying all of these works are in fact fair use? Is AU saying that copyright law prevents these works from being made?

My guess is AU would say “yes” to all three questions. My three points would be: 1) The ability to create a video and put it online does not erode the derivative rights of the original creator, without whom a derivative work couldn’t have been made. 2) It is not AU’s place to define fair use. 3) Note that nothing stopped these works from being created, and it seems they haven’t been sued by the copyright owners.

A derivative copy can’t exist without an original. There is a long history of derivative licensing which is seen in today’s culture everywhere you look. The Internet obviously hasn’t changed that. The Founding Fathers and Congress have put copyright’s primary focus on promoting original creation, above these secondary users, these downstream mashers. That was, is, and will continue to be the proper focus, no matter how many amateur mashups appear online.

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This entry was posted on Monday, July 7th, 2008 at 2:50 pm by Patrick Ross and is filed under copyright law, copyright opponents, creators, education, fair use, founding fathers, licensing. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.