Fair use and online video

2 Washington DC professors (with an impressive line up of contributors) have released a Code of Best Practices in Fair Use for Online Video …

How they describe their Code:

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.

3 things:

The Code is not the law, even in the USA; it is trying to identify best practices.

The Code has attracted the ire of some commentators and Prof. Patry has a go at setting at least one of them to rights here.

Australia, of course, doesn’t have fair use; we have fair dealing and various other defences and no first amendment. So it won’t all follow. Nonetheless, you may find some useful ideas and things to think about here.

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