[Commons-Law] Important study by Center for Social Media on usage of copyrighted material in user-generated videos

[Pranesh Prakash]

Dear All,
American University's Center for Social Media (generously funded by the Ford
Foundation)
has conducted what I believe is a very important study on categorisation of
copyrighted material usage in user-generated video.  They've found that much
usage of copyrighted materials falls into one of the following categories:

1. Satire and Parody
2. Negative or Critical Commentary
3. Positive Commentary
4. Quoting in Order to Start a Discussion
5. Illustration or Example
6. Incidental Use
7. Personal Reportage/Diaries
8. Archiving of Vulnerable or Revealing Materials
9. Pastiche or Collage

They give the "top five" examples for each of those at
http://www.centerforsocialmedia.org/resources/publications/recut_reframe_recycle/
The complete database of all the videos they consulted:
http://www.centerforsocialmedia.org/files/pdf/Recut_Reframe_Recycle_Excel_Database.xls
The full report is available at
http://www.centerforsocialmedia.org/files/pdf/CSM_Recut_Reframe_Recycle_report.pdf

I haven't gone through the report yet, but have my doubts as to whether all
nine of those would fall within the bounds of fair use under U.S. law.  For
instance, as far as I remember, parody (very narrowly construed) has been
given protection as fair use, but satire has not (in *Campbell v. Acuff-Rose
*).  Also suspect are uses 6
through 10. 6 (Incidental use) on factual grounds, that the uses are
not in fact incidental.  7 (personal reportage) because while your
appearing in a show can possibly give you some right (say publicity
rights, etc.), it does not give you a fair
use defence (or does it?).  8:
Can all archiving be said to be legitimately "for archival purposes"?
Don't you have to be a library, or such to do so?  (The Internet
Archive, at
http://www.archive.org is recognized as a library under Californian
law now.) And finally as for 9: I just don't get it.  Why would that
be given protection?


Any corrections or comments?


http://www.centerforsocialmedia.org/resources/publications/recut_reframe_recycle/

*Recut, Reframe, Recycle*

When college kids make mashups of Hollywood movies, are they violating the
law? Not necessarily, according to the latest study on copyright and
creativity from the Center and American University's Washington College of
Law.

The study, Recut, Reframe, Recycle: Quoting Copyrighted Material in
User-Generated Video, by Center director Pat Aufderheide and Peter Jaszi,
co-director of the law school's Program on Information Justice and
Intellectual Property, shows that many uses of copyrighted material in
today's online videos are eligible for fair use consideration. The study
points to a wide variety of practices—satire, parody, negative and positive
commentary, discussion-triggers, illustration, diaries, archiving and of
course, pastiche or collage (remixes and mashups)—all of which could be
legal in some circumstances.

Fair use is the part of copyright law that permits new makers, in some
situations, to quote copyrighted material without asking permission or
paying the owners. The courts tell us that fair use should be
"transformative"—adding value to what they take and using it for a purpose
different from the original work. So when makers mash up several works—say,
The Ten Commandments , Ben-Hur and 10 Things I Hate about You , making Ten
Things I Hate about Commandments —they aren't necessarily stealing. They are
quoting in order to make a new commentary on popular culture, and creating a
new piece of popular culture.

Unfortunately, this emerging, participatory media culture is at risk, with
new industry practices to control piracy. Large content holders such as NBC
Universal and Viacom, and online platforms such as MySpace and Veoh are
already crafting agreements on removing copyrighted material from the online
sites. Legal as well as illegal copying could all too easily disappear.
Worse still, a new generation of media makers could grow up with a deformed
and truncated notion of their rights as creators.

The study recommends the development of a blue-ribbon committee of scholars,
makers and lawyers to develop best-practices principles. Such principles,
similar to ones documentary filmmakers developed in the Documentary
Filmmakers' Statement of Best Practices in Fair Use can help new creators
and online providers decide what's legal, and assure that the Internet
remains a safe space for new forms of self-expression.

The study is part of a larger Participatory Media project, funded by the
Ford Foundation as part of the Center for Social Media's Future of Public
Media Project.

When college kids make mashups of Hollywood movies, are they violating the
law? Not necessarily, according to the latest study on copyright and
creativity from the Center and American University's Washington College of
Law.

The study, Recut, Reframe, Recycle: Quoting Copyrighted Material in
User-Generated Video, by Center director Pat Aufderheide and Peter Jaszi,
co-director of the law school's Program on Information Justice and
Intellectual Property, shows that many uses of copyrighted material in
today's online videos are eligible for fair use consideration. The study
points to a wide variety of practices—satire, parody, negative and positive
commentary, discussion-triggers, illustration, diaries, archiving and of
course, pastiche or collage (remixes and mashups)—all of which could be
legal in some circumstances.

Fair use is the part of copyright law that permits new makers, in some
situations, to quote copyrighted material without asking permission or
paying the owners. The courts tell us that fair use should be
"transformative"—adding value to what they take and using it for a purpose
different from the original work. So when makers mash up several works—say,
The Ten Commandments , Ben-Hur and 10 Things I Hate about You , making Ten
Things I Hate about Commandments —they aren't necessarily stealing. They are
quoting in order to make a new commentary on popular culture, and creating a
new piece of popular culture.

Unfortunately, this emerging, participatory media culture is at risk, with
new industry practices to control piracy. Large content holders such as NBC
Universal and Viacom, and online platforms such as MySpace and Veoh are
already crafting agreements on removing copyrighted material from the online
sites. Legal as well as illegal copying could all too easily disappear.
Worse still, a new generation of media makers could grow up with a deformed
and truncated notion of their rights as creators.

The study recommends the development of a blue-ribbon committee of scholars,
makers and lawyers to develop best-practices principles. Such principles,
similar to ones documentary filmmakers developed in the Documentary
Filmmakers' Statement of Best Practices in Fair Use can help new creators
and online providers decide what's legal, and assure that the Internet
remains a safe space for new forms of self-expression.

The study is part of a larger Participatory Media project, funded by the
Ford Foundation as part of the Center for Social Media's Future of Public
Media Project.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://mail.sarai.net/pipermail/commons-law/attachments/20080103/435c02be/attachment-0001.html