A Code of Best Practices in Fair Use for Online Video

A group of legal, cultural, and social scholars have published a “Code of Best Practices in Fair Use for Online Video”, providing an important framework to help address the growing challenge of allowing fair use of online content in the face of more-and-more-powerful DRM and intellectual property right regimes, which inevitably over-protect content and often restrict valid fair uses.

Here is the introduction:


This document is a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances.

This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video and backed by the judgment of a national panel of experts. It also draws, by way of analogy, upon the professional judgment and experience of documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses.


This code of best practices does not tell you the limits of fair use rights.

It’s not a guide to using material people give permission to use, such as works using Creative Commons licenses. Anyone can use those works the way the owners say that you can.

It’s not a guide to material that is already free to use without considering copyright. For instance, all federal government works are in the public domain, as are many older works. In most cases, trademarks are not an issue. For more information on “free use,” consult the document “Yes, You Can!” and copyright.cornell.edu.

It’s not a guide to using material that someone wants to license but cannot trace back to an owner—the so-called “orphan works” problem. However, orphan works are also eligible for fair use consideration, according to the principles detailed below.

The Code provides best practices in six key areas:

  1. Commenting On Or Critiquing Of Copyrighted Material
  2. Using Copyrighted Material For Illustration Or Example
  3. Capturing Copyrighted Material Incidentally Or Accidentally
  4. Reproducing, Reposting, Or Quoting In Order To Memorialize, Preserve, Or Rescue An Experience, An Event, Or A Cultural Phenomenon
  5. Copying, Reposting, And Recirculating A Work Or Part Of A Work For Purposes Of Launching A Discussion
  6. Quoting In Order To Recombine Elements To Make A New Work That Depends For Its Meaning On (Often Unlikely) Relationships Between The Elements

[via danah boyd]

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