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New Copyright and Fair Use Project Announced!

American University’s Center for Social Media and Program on Information Justice and Intellectual Property are undertaking a multifaceted project. "Copyright and Fair Use in Participatory Media," to promote standards for the use of copyrighted materials in user-generated media that is broadcast over the internet. This project builds on the two organizations’ success in helping to establish "best practices" for Fair Use by documentary filmmakers.

Nonprofessional, online video now accounts for a sizeable portion of all broadband traffic, with much of the work weaving in copyrighted material. "We're pretty much a mixed-media generation," one student told American University researchers. A new culture is emerging--remix culture, an unpredictable mix of the witty, the vulgar, the politically and culturally critical, and the just plain improbable. For a greatest-hits-of, watch Remix Culture.

What’s fair in online-video use of copyrighted material? The healthy growth of this new mode of expression is at risk of becoming a casualty of the efforts of copyright owners to limit wholesale redistribution of their content on sites like YouTube, and of videomakers’ own uncertainties about the law.

Political and cultural commentaries are endangered by "takedowns" (Internet service providers’ taking down of videos upon demand) that sometimes are examples of hyper-vigilance and sometimes are simply in error. The National Football League insisted on a takedown of 33 seconds of a football game, 13 seconds of which were a copyright announcement. Viacom even demanded a takedown of a parody of Stephen Colbert’s parody of right-wing punditry ("Stop the Falsiness"), until the Electronic Frontier Foundation objected. Indeed, copyright holders often back off, once someone objects; but many people don’t even know they can.

These occasional problems with freedom of expression, generated by copyright confusion, once internalized become self-censorship. This is already happening. Students interviewed for a Center for Social Media study, The Good, the Bad, and the Confusing, often decided not to make or release work, for fear of copyright laws that they didn’t understand.

Industry efforts to address this issue, such as the negotiations around the Viacom v. Google lawsuit, have not taken into consideration users or the potential of the emerging culture of participatory (or user-generated) video production. And yet there are useful approaches that can include users, extend best practices, and encourage problem-solving as new cultural habits develop. These approaches depend on the balancing features of copyright law, most importantly the "Fair Use" doctrine.

Fair Use is the part of copyright law that permits use of copyrighted material so long as the public benefits more than the owner loses. The interpretation of Fair Use depends on the situation, and therefore, requires interpretation according to creative practice. The CSM/PIJIP project will carry Fair Use into participatory content environment, in three stages.

Phase one of the project consists of a study of how makers of online video currently use copyrighted materials. The study will be headed by CSM Research Fellow Neil Sieling, a media arts curator, television producer, and media systems architect. Examples of today’s practices are showcased in the short video Remix Culture: The Early Years.

Phase two includes collaborative work with online video providers to provide best-practices information on copyright and Fair Use on their sites. Revver.com provides an excellent example in showcasing the Documentary Filmmakers’ Statement of Best Practices in Fair Use on its copyright page.

In the final phase of the project, CSM and PIJIP will convene a stakeholder meeting on developing best-practices for user-generated content and participatory media, building on the groundbreaking convening, Unauthorized.

A Ford Foundation grant given to the Center for Social Media to explore the future of public media funds this work.