This is old news now, but I want to talk about it anyway.
Last month, American University released a document called Best Practices in Fair Use. Authored by filmmaker groups and endorsed by more, the guide lays out principles for “best practices” when dealing with the fair use doctrine of U.S. copyright law.
The plight of fair use, particularly in the realm of documentary filmmaking, is well documented — see for example Chapter 7 of Lessig’s Free Culture. When I first heard about this project in May, I immediately recognized it as work of great value. I’m glad to hear it’s come to fruition.
Since the statement is approved by filmmakers themselves, they can read the statement and adopt its principles without doubt: they know the authors are looking out for their best interest. This is a powerful tool: not just for filmmakers who want to use the work of another, but on the supply side as well. Not only does this document inform filmmakers of their rights, it informs them of their obligations as well. Not only will this embolden filmmakers when they receive a cease & desist letter or are told they have to get permission to quote in their film — hopefully this will reduce the number of cease & desist letters sent in the first place.
The excellent work of the Center for Social Media and the Program on Intellectual Property and the Public Interest will go a long way in encouraging education and discussion of copyright, particularly among the creators themselves.
The free culture student movement can help spread this document within their campus communities and ensure its wide reach. And we should.
The model of “best practices” for fair use did not originate in this report, and the model does not have to end here. Fair use is intentionally an open-ended doctrine, the grease that keeps the wheels of copyright turning: Congress hates to codify it and tends to do a poor job of it besides. Case law can be complex, unclear, contradictory — and the only way to be totally sure of something is a slow, expensive, and risky process. So the model of developing sector-wide statements of best practices makes particular sense for fair use. And the process of developing, adopting, and implementing these best practices is an enlightening one itself, and turns the question of “How should the law work?” into a very tangible one.
If I may, I’d like to suggest one field where this is desperately needed: academia.
As students, this hits particularly close to home for us. But in the academy, where information is the key commodity, there is far too little understanding and too little discussion of fair use. The prime example here would be the Association of American University Presses’ response to the Google Print program (now called “Google Book Search”). The AAUP is the group that represents the publishing houses of U.S. universities and university systems (including mine); as such, AAUP is ostensibly bound to universities’ commitment to work for the public good and increase access to information. But AAUP’s stand with the Authors Guild and their lawsuit to kill Google Print evinces AAUP’s true loyalties: to copyright maximalism, control, and profit over the public good.
I suspect this is a case of one hand not knowing what the other is doing, rather than all the universities represented by AAUP actually being in the maximalist camp. But universities must protect themselves: they should be sure that all their activities are furthering (or at least not attacking) their central goals. Therefore it seems appropriate to develop a model for university-wide best practices, inviting all the parties to take part in the process: researchers, administrators, publishers, and students.
