Code of Best Practices in Fair Use for Online Video

It is common today for people, students, to make and share videos to tell stories, complete projects or start debates. The internet and websites like YouTube have helped to make it so much easier to share these video creations. This digital platform allows "old" culture to be transformed into new and for a generation to express themselves on a medium they are very comfortable with. To deny the right of these individuals to be creative, would stifle the emerging culture. The number one question that gets asked is "Can I use this video content in my class?". Up until recently, that questions was met with discussion of copyright and fair use. But what does "fair use" mean? Fair use is the right to use copyrighted material without permission or payment under some circumstances. This definition still left lots of room for interpretation.
A distinguished panel of experts, from cultural scholarship, legal scholarship and legal practice, came together to develop a Code of Best Practices. This code was based on research, current personal and nonprofessional video practices and on fair use. This code of best practices was not designed to be restrictive but to give some guidance and framework as individuals are creating their stories, mashups and debates.
Code of Best Practices
1. COMMENTING ON OR CRITIQUING OF COPYRIGHTED MATERIAL – Individuals have the right to evaluate, scrutinize and comment on copyrighted material. This is a safeguard for freedom of expression.
2. USING COPYRIGHTED MATERIAL FOR ILLUSTRATION OR EXAMPLE – When using copyrighted material for example, individuals simply need to give proper credit just as someone does who is writing a paper.
3. CAPTURING COPYRIGHTED MATERIAL INCIDENTALLY OR ACCIDENTALLY – If it was captured by accident and not staged, it is OK for limited use.
4. REPRODUCING, REPOSTING, OR QUOTING IN ORDER TO MEMORIALIZE, PRESERVE, OR RESCUE AN EXPERIENCE, AN EVENT, OR A CULTURAL PHENOMENON – If an individual takes video of themselves at a concert to remember the experience and they capture some of a song, that is fair use.
6. QUOTING IN ORDER TO RECOMBINE ELEMENTS TO MAKE A NEW WORK THAT DEPENDS FOR ITS MEANING ON (OFTEN UNLIKELY) RELATIONSHIPS BETWEEN ELEMENTS – It is the same as creating a collage of pictures. Individuals will put together completely unrelated video segments to create something brand new.
These are simply guiding principles that can be used in a variety of hybrid situations. As video making, mashups continue to evolve so with the fair use practices.
To read the full paper go to Code of Best Practices in Fair Use for Online Video
Update (Malcolm Hays): To help underscore the point the authors of this paper are making about Fair Use, they have added a still image of the "Dramatic Chipmunk" video that made its way around the Internet some time ago. The video linked here is simply a short snippet of a longer video wherein a prairie dog turns to face the camera suddenly. Someone put this short snippet to dramatic music and an Internet sensation was born! This could loosely be construed to fit within guideline number 5 above, as it certainly sparked some notoriety and discussion on the Internet (along with spawning a dozen different variations on this theme).

Dial F for Frankenstein

In 1964, science fiction author Arthur C. Clarke wrote a short story titled "Dial F for Frankenstein", wherein he postulated the idea that the phone network (this was written long before the Internet as we know it today existed) had become so large and complex it was effectively a giant brain that becomes self-aware.
The central idea of this story is one that has been exploited for decades in such movie franchises as The Matrix series and The Terminator series of movies. Most folks don’t see this as a very credible threat to our existence, even though spam email and bot networks are really clogging the available bandwidth on the world wide network.
Why is this important? Luke Fernandez wrote an article in Campus Technology ("Frankenstein in the University") that also addresses the issue of technology and how it impacts human behavior. One could argue that even though machines are not self-aware, they still require us humans to care and feed them in order to function properly (our IT server administrators keep a very close eye on the Data Center on campus to make sure that it continues to operate and are very quick to respond when it doesn’t, much like training a new pet).
Fernandez suggests that there is some anxiety in academic circles over new inventions that may be controlling the way human beings teach and learn, instead of us humans being the driving force in the learning environment. Ideally, the computer should just be another set of tools such as pen and paper (the traditional method of learning for thousands of years).
For instance, the popularity of YouTube and other video-hosting services such as LiveLeak and even iTunes (which hosts video podcasts) has led to an explosive increase in more visually-oriented materials, even if it is simply an instructor presenting a standard classroom lecture to a roomful of bored students. Fernandez notes that critics of this new technology point out how difficult it is to compare visual media against each other to find the inconsistencies, thus leading to further investigation and deepening our knowledge on any given subject. Written media–this blog entry is an example–can be compared to each other and studied at leisure. In fact, I find the transcript of a video much easier to digest than the video itself, even though the video may be amusing or entertaining on a different level (for one thing, the transcript can be edited to remove the verbal pauses and stutters we are all guilty of when we speak–we don’t consciously notice these, but they are definitely noticeable when replaying a video several times to understand the speaker’s content and meaning).
Continuing with the Campus Technology article, Fernandez notes that many faculty are extremely skeptical of digital learning tools in the classroom. To some faculty, the online course represents a threat to their academic freedom, especially when the move to a technological platform for education is driven by university administrators instead of by the faculty (especially if the faculty have no say in the decision process).
One of the biggest challenges universities face when they adopt technology for use on campus is what technology to implement and how to manage it over a long period of time, especially if the technology does not live up to its promises. Enterprise-level software solutions are hideously expensive to purchase and maintain. They generally require significant investments in time and energy to keep them running. Upgrading software to the latest version also can be expensive, as both the IT staff and the campus community need to be trained in its use and operation (the transition to Office 2007 is a prime example of this).
Fernandez concludes his article on a positive note, commenting that even though technology is here to stay, we should not just give in and accept that we have no control over how it is used. We all retain a measure of agency. There are a wide variety of technological tools to assist us in education. The real challenge is to find the tool that serves our needs best and improves the learning outcomes for students, who have grown up with this technology. They will have to be prepared to deal with the technological challenges of future generations.