Pat Aufderheide Peter Jaszi American University

FAIR USE IN PUBLIC BROADCASTINGTHE BEST PRACTICES MODEL

THE PURPOSE OF

COPYRIGHT

ONE PURPOSE :

TO PROMOTE THE CREATION OF CULTURE

By:

• Rewarding creators with limited monopoly

• Encouraging new makers to use existing culture

WHY BALANCE?

• All culture created on existing culture (we used to know that)

• The First Amendment (no censorship)

BIGGEST BALANCING FEATURE:

FAIR USE legal, unauthorized use of

copyrighted material--under

some circumstances

FAIR USE legal, unauthorized use of

copyrighted material--under

some circumstances

HOW WE FORGOT

BALANCE:• Copyright term extension

• Default copyright

• Punishing penalties (statutory damages)

• Large content holders’ aggressive tactics

DECADES OF MISINFORMATION

• Guidelines end up as limiting rules

• Corporate mis-education of users

• Tyranny of self-appointed experts, and….

Business model terror!

• Fair use unfairly blamed for business challenges

• Fair use confused with P2P

• Fair use actually enables current and future business models

GOOD NEWS…• Judges love

balancing features

• Supreme Court upholds term extension because fair use exists

• Fair use judicial interpretation has greatly shifted in last 15 years

INTERPRETING

FAIR USE

THE “FOUR FACTORS”

• Reason for the use

• Kind of work used

• Amount used

• Effect on the market

PLUS…

Custom and practice of individual creative communities…

...especially when well-documented

AND IN THE LAST 15 YEARS…

• Transformation

• Amount related to transformative purpose

Judges focus on

JUDGES ASK:

• Did you transform the use?

• Did you use the appropriate amount to satisfy the transformative use?

FEAR…• Will I get it wrong?

• Will I get sued?

• Will my boss/general counsel/client get angry?

BEST PRACTICES

EDUCATION

• Knowledge of the law

• Awareness of problem

• Articulation of consensus around fair use

COMMUNITIES INTERPRET FAIR USE:

• Documentary filmmakers

• Scholars

• Media literacy teachers

• Online video

• Dance collections

• OpenCourseWare

DOCUMENTARY

RESULTS:• TV programmers air films

• New kinds of films

• All insurers of errors and omissions insurance now accept fair use claims

• Lawyers use the Statement to build their practices

MEDIA LITERACY

TEACHERS

MEDIA LITERACY

CATEGORIES• Teaching with copyrighted material

• Using copyrighted material in curriculum materials

• Circulating curriculum materials with copyrighted material in them

• Student use of copyrighted materials in their work

• Circulating student work

ONLINE VIDEO

ONLINE VIDEO CODE

• Comment / critique

• Illustration / example

• Accidentally / incidentally

• Preserve / recall

• Discuss

• Collage

DANCE COLLECTIONS

OPEN COURSEWARE

Categories:• Scholarship

• Teaching

• Preservation

• Exhibition

• Disabilities

Pubcasters’ needs

• Journalism

• Docu films

• Archives

• Educational materials

• What else?

Headscratchers

• Web pages? Pod-casting? Web-casting?

• Digital archives?

• What else?

Resources

•Our new book, Reclaiming Fair Use•Center for Social Media web resources • *Codes•*Teaching

tools• *Videos

FAIR USE:

Practice Makes Practice

Please feel free to share thispresentation in its entirety.For excerpting, kindly employthe principles of fair use.

Please feel free to share thispresentation in its entirety.For excerpting, kindly employthe principles of fair use.

THANK YOU!

MacArthur, Rockefeller, Mellon and Ford Foundations Pubcasters everywhere

CONTACT INFO

Pat Aufderheide Center for Social MediaSchool of Communication American University Washington, DC paufder@american.edu202-885-2069