‘Fair Use’ guidelines for video remixes
p2pnet news | Freedom:- Five freedom of expression organisations have just published a set of ‘Fair Use’ principles to help minimize the damage copyright enforcement efforts may inflict on video creators who are “remixing” copyrighted material into new video creations.
The coalition includes:
ACLU of Northern California; Berkman Center for Internet and Society at Harvard Law School; Center for Social Media, School of Communications, American University; Program on Information Justice and Intellectual Property, Washington College of Law, American University; and, Public Knowledge.
“As video hosting services begin to implement copyright filtering technology, it is time to discuss concrete strategies to protect creative videos that remix material from movies, TV and popular music,” says EFF senior intellectual property attorney Fred von Lohmann.
“Our aim is to speak for the interests of the millions of amateur creators who are fueling the popularity of YouTube and similar sites.”
The six guidelines are:
1 – A Wide Berth for Transformative, Creative Uses: Copyright owners are within their rights to pursue nontransformative verbatim copying of their copyrighted materials online. However, where copyrighted materials are employed for purposes of comment, criticism, reporting, parody, satire, or scholarship, or as the raw material for other kinds of creative and transformative works, the resulting work will likely fall within the bounds of fair use.
But a commitment to accommodating “fair use” alone is not enough. Because the precise contours of the fair use doctrine can be difficult for non-lawyers to discern, creators, service providers, and copyright owners alike will benefit from a more easily understood and objectively ascertainable standard.
Accordingly, content owners should, as a general matter, avoid issuing DMCA or other informal takedown notices for uses of their content that constitute fair uses or that are noncommercial, creative, and transformative in nature.2
2 – Filters Must Incorporate Protections for Fair Use. Many service providers are experimenting with automated content identification technologies (”filters”) to monitor their systems for potential copyright infringements. If a service provider chooses to implement such filters, the following precautions should be taken to ensure that fair uses are not mistakenly caught in them:
A. Three Strikes Before Blocking: The use of “filtering” technology should not be used to automatically remove, prevent the uploading of, or block access to content unless the filtering mechanism is able to verify that the content has previously been removed pursuant to an undisputed DMCA takedown notice or that there are “three strikes” against it:
1. the video track matches the video track of a copyrighted work submitted by a content owner;
2. the audio track matches the audio track of that same copyrighted work; and
3. nearly the entirety (e.g, 90% or more) of the challenged content is comprised of a single copyrighted work (i.e., a “ratio test”).
If filtering technologies are not reliably able to establish these “three strikes,” further human review by the content owner should be required before content is taken down or blocked.
2. Humans Trump Machines: Human creators should be afforded the opportunity to dispute the conclusions of automated filters. If a user’s video is “matched” by an automatic filter, the user should be promptly notified by the service provider of the consequences of the “match” and given the opportunity to dispute the conclusions of the filtering process. Notice should be provided to the user whether or not the “match” results in the blocking of content (e.g., a parodist may not want the target of the parody receiving a share of revenues generated by it).
If the user disputes a “match” pursuant to the above dispute mechanism provided by the service provider, the provider should promptly notify the relevant content owner. The service provider may choose to impose a brief “quarantine” period on the content (no more than three business days), in order to afford content owner an opportunity to issue a DMCA takedown notice after human review of the disputed content.
3. Minimization: In applying automated filtering procedures, service providers should take steps to minimize the impact on other expressive activities related to the blocked content. For example, automated blocks should not result in the removal of other videos posted by the same user (e.g., as a result of account cancellation) or the removal of user comments posted about the video.
3 – DMCA Notices Required for Removals: The DMCA’s “notice-and-takedown” procedures provide two important protections for creators whose noninfringing materials are improperly targeted for removal: (1) the right to sue where the removal is the result of a knowing material misrepresentation3 and (2) a “counternotice-and-putback” procedure that overrides a takedown notice unless a content owner is willing to file an infringement action in court. 4
In order to preserve these protections, service providers should require compliant DMCA takedown notices from content owners before removing content in any manner that does not afford users the ability to contest and override the removal (such as the dispute and notice procedure described in Principle #2b above).
4 – Notice to Users upon DMCA Takedown: Upon issuance of any DMCA takedown notice by a content owner, the service provider should provide prompt notice to the user who posted the allegedly infringing material. Such notices should include (1) an entire copy of the takedown notice, (2) information concerning the user’s right to issue a DMCA counter-notice and the provider’s procedures for receiving such notices, and (3) information about how to contact the content owner directly in order to request a reconsideration of the takedown notice (see Principle #5 below).
Where feasible, this information should be made available to the posting user on the page where the content formerly appeared, as well as in private communications (such as email).
5 – Informal “Dolphin Hotline”: Every system makes mistakes, and when fair use “dolphins” are caught in a net intended for infringing “tuna,” an escape mechanism must be available to them. Accordingly, content owners should create a mechanism by which the user who posted the allegedly infringing content can easily and informally request reconsideration of the content owner’s decision to issue a DMCA takedown notice and explain why the user believes the takedown was improper.
This “dolphin hotline” should include a website that provides information about how to request reconsideration, and a dedicated email address to which requests for reconsideration can be sent.5 Service providers should ensure that users are informed of these mechanisms for reconsideration, both on the site where the removed material previously appeared, as well as in the notice described in Principle #4 above.
Upon receiving an informal request for reconsideration of a particular takedown notice, the content owner should evaluate the request promptly, generally within three (3) business days, and retract the notice where it was issued in error.
6 – Mandatory Reinstatement upon Counter-notice or Retraction: Service providers should establish and follow the formal “counternotice-and-putback” process contemplated by the DMCA. Service providers also should provide users with a streamlined mechanism to reinstate content in cases when a takedown notice has been retracted by the content owner.
Click here for the gallery of fair use videos.
Also See:
EFF – Fair Use Advocates Issue Principles for Protecting Online Videos, October 31, 2007
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