Most statutory copyright exceptions tend to be very narrow in scope and limited by explicit requirements or restrictions. In comparison, fair use is quite broad; the statute cites just four general factors to consider when evaluating fair use. Such flexibility permits the use of copyrighted materials in many contexts and for many purposes, but this lack of specificity can also lead to confusion over what may actually qualify as fair use. In fact, the only way to definitively establish fair use is to receive a decision from a judge!
To the detriment of creators and consumers alike, doubts about fair use and anxiety over the penalties for infringement may prevent creators from pursuing educational, creative, and socially useful projects that could potentially constitute fair use. For instance, a recent study on copyright, permissions, and fair use in the arts reports that confusion and apprehension regarding these issues led to self-censorship and abandoned projects for one third of visual artists and visual arts professionals (e.g. editors, publishers, and historians).
Fair use best practices have been established to address this confusion and to help establish acceptable industry customs. Community-specific best practices help creators feel more confident in their rights and justify the reliance on fair use for a variety of projects. Besides providing guidance for practitioners, community-specific fair use codes may influence court decisions by contextualizing individual fair use cases within industry common practice.
Emerging community-driven best practices recognize the short comings of arbitrary and impractical directives such as the 1976 Classroom Guidelines* and focus on articulating moderate, community accepted practices rather than establishing a maximum or minimum of fair use. Best practice codes help users avoid fair use fantasies and intimidating misinformation when developed in partnership with reliable sources, such as the American University College of Law and Center for Media & Social Impact.
American University regularly partners with communities to devise best practice codes appropriate for those industries. The guidelines produced thus far include:
- Academic and Research Libraries
- Use of Images for Teaching, Research, and Study
- Online Video
- Dance-related Materials
- Media Literacy Education
- Documentary Filmmaking
- Media Studies Publishing
- Teaching for Film and Media Educators
- Scholarly Research in Communication
*Don’t be fooled: The 1976 Classroom Guidelines do not have the force of law!
Timid About Fair Use? – Inside Higher Ed
By Jessica Meindertsma, Rights Management Specialist at The Ohio State University Libraries’ Copyright Resources Center