Fair Use Is an Exception to Copyright Law
Fair use is an important exception to copyright law and an affirmative defense in copyright infringement litigation. It allows consumers of copyrighted materials to use those materials in ways that would otherwise constitute infringement. Because of fair use, consumers are allowed to record television programs to watch later without first receiving permission from the copyright owner. Without fair use, playing a clip of a classic song—even if done for the purpose of commentary or parody—would be illegal.
Although the Copyright Act of 1976 defines broadly the meaning of fair use, a long line of court rulings have clarified the nature of fair use. As user-driven media portals such as YouTube have taken off in the past few years, competing interpretations of fair use have arisen in several high-profile lawsuits. Now that anybody can easily create a video and post it online, copyright owners devote significant resources to identifying infringing content in order to file takedown notices. Debates over fair use, no longer relegated to courtrooms and legal briefings, now matter to a wide range of Internet users. Bloggers need to know how much of a copyrighted article can be excerpted without triggering litigation, and amateur video producers must be aware of the circumstances in which they can show clips from copyrighted programs.
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Thank you CEI for this quick and clear synopsis of the evolution of fair use over the past forty odd years. You're right. It has had quite an interesting journey and what makes it even more interesting and elusive is that the definition will continue to evolve as the copyright issues we face continue to.
For many who use YouTube, now more than ever, this issue is cropping up and often confusing users into thinking they can't do what they do best -namely remixing, mashing up or simply creating a new work that has copyrighted material in it.
In the fall of last year, we at the Center for Social Media along with the Electronic Frontier Foundation the ACLU and others, sent an open letter to mass media corporations such as CBS, FOX and NBC asking them to stop sending Digial Millenium Copyright Act takedown notices to YouTube
The letter explained, "Not only are such notices contrary to the law, but they also threaten to silence an exciting new source of political expression...This new form of expression, often built on quoting and remixing from news and other mainstream media sources, does not threaten the copyright interests of your organizations." (Read the full report by CNET and the open letter here )
And just recently on our blog's monthly series Fair Use Question of the Month we answered a question pertaining to issues of downloading videos off of YouTube where the advice we shared was that you need to abide by the terms of service created by YouTube when using their material. Read that here.
So, each situation regarding YouTube and fair use needs to be handled on a case by case basis. If you're experiencing confusion about a particular fair use issue you can email us at socialmedia@american.edu but before you do that be sure to read our Code of Best Practices in Fair Use for Online Video.
Micael Bogar
Projects Manager
Center for Social Media