Best Practices for Fair Use

American University’s Center for Social Media has released a Code of Best Practices in Fair Use for Online Video [PDF]. This is one in an extensive series of fair use guidelines documents.

There were a few of interesting things I noted about these guidelines. One of them was that the panel generally broke with mythical notions of isolated auteurship and instead recognized the unbroken tradition of appropriation in the production of culture. For another, these guidelines specifically recognize recombinance and juxtaposition as a valid form of expression in itself. The authors note that appropriation should be covered by fair use standards in cases where, “QUOTING [is employed] IN ORDER TO RECOMBINE ELEMENTS TO MAKE A NEW WORK THAT DEPENDS FOR ITS MEANING ON (OFTEN UNLIKELY) RELATIONSHIPS BETWEEN THE ELEMENTS.”

Finally, and perhaps most importantly, is a notion stated explicitly in the video accompanying the written guide: that determining the boundaries of fair use is more an issue of determining community standards than it is a question of interpreting the letter of the law.

Much like the question posed in our last post about where we can locate the lower horizon for proprietary concepts (as distinct from the non-ownable background of fundamental processes and tools), we trying here to find the upper horizon for how much of officially proprietary cultural content can be appropriated without restriction for the purposes of cultural expression and dialogue.

The argument here is that the process for locating these horizons must incorporate an investigation into the changing standards of the multiple, overlapping communities (geographical, virtual, artistic, economic, etc.) where the appropriation is happening. And these investigations should not simply be conducted by corporate content owners and legislative bodies for the purposes of “knowing thy enemy”, but rather for the purpose of determing whether the legal horizons for fair use are being applied appropriately in relation to the horizons established by these communities.

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2 Comments on “Best Practices for Fair Use”

  1. pizzapelsa Says:

    You revealed two really interesting questions, here:
    (1) Are there other ways of governing (what counts as fair) use besides the law? You suggest yes – there is something like custom, consensus, a social standard.
    (2) What is the relationship between these community-oriented forms of governance and legal/state governance? You seem to suggest that the laws of the state work best when they “fit” in some organic way with the society and customs that they govern. That good states/laws, in other words, have some democratic relationship to everyday customs. Very Habermas.

  2. P Says:

    I think you’ve aptly drawn out the position that I think I share with the Center for Social Media, which is that some sort of “community standards” have to be taken into account alongside legal precedent when determining guidelines for fair use. I use quotes above because I recognize that this assertion is uncomfortably close to arguments that has been employed to stifle free expression, pornography, same-sex marriage, and so on (though sometime it’s logic backfires). In other words, this logic can be applied to produce either more regulation or less.

    Sidestepping that issue momentarily, I’d point out that we need to consider not only the potential conflict between community standards and the law, but also between multiple communities’ standards. For example, if web video remixers are a community, so then must be corporate content producers, or their IP lawyers, and so forth.

    Thus, you second question becomes more difficult to answer. The laws of the state do currently seem to be aligned with one particular set of interests (i.e., copyright holders) and yet it doesn’t seem to be working very well (uh oh…have I just created some kind of janky synthesis for the commercial/community dialectic?). So, in order for the law to work best, are we arguing that it must serve a different community (i.e., free culture advocates) or that it must strike a better balance between conflicting sets of community values? I guess probably the latter.


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