[Videolib] [Fwd: FW: Code of Best Practices in Fair Use for OpenCourseWare]

From: <ghandman@library.berkeley.edu>
Date: Thu Oct 22 2009 - 13:05:56 PDT

Hi all

Not sure Larry's provocative discourse on the Center for Social Media's
Code of Best Practices in Fair Use for OpenCourseWare ever made it onto
videolib (at any rate, I didn't see it posted). I'm reposting for your

gary h

Videolib subscribers may be interested in new guidelines on fair use
prepared by the Center for Social Media at American University in
collaboration with the Washington College of Law, the OpenCourseWare
(their orthography) Consortium and MIT, with support from the Ford


In way of background, the Center for Social Media is an influential
advocate for the political promise of social networking, user-generated
content and open source ("free") on-line communities. It has worked
vigorously to "push (some have said, rip) the envelope" of fair use. The
Center serves as a "think tank" for major foundations, including Ford,
as they replace their funding of independent documentary with support
for "new media" projects.

I think these guidelines raise some provocative questions about "fair
use" of educational media in academic settings. I find it a bit
unsettling that the code appears to have been drafted by a committee of
OpenSourceWare directors and university attorneys, without the apparent
participation of educational content producers, copyright holders,
publishers, distributors, independent counsel or print and non-print
librarians. Hence, it has not benefited from the experience of the
people who have grappled with these issues on a daily basis for years.
As a distributor, I would counsel caution about adopting these
guidelines since I think many of my colleagues (the potential litigants
in this case) would agree with some possible interpretations of this

My confidence in the code was not increased by the drafters' candid
acknowledgement that it had been written explicitly to provide a
"shield" for what could generously be called "creative" fair use
claims. In my reading, the code tends to equate any legitimate,
educational use of a text as ipso facto a transformative use and hence a
fair use. Im hoping members of the list can show me that I've
misconstrued these guidelines and that, in fact, they prevent the
interpretations I find dubious.

For example, the code seems to accommodate any use of a text, in whole
or in part, if the purpose of that use is "to critique or analyze" that
text. It seems to me that most texts used in academic settings are
meant to be read or viewed analytically and critically, from "The
Iliad" to "On Grammatology." Most of the filmmakers I know, certainly do
not intend their work to be viewed absent-mindedly or credulously.

Similarly, the code appears to invite the unrestricted use of
copyrighted material if they illustrate curricular points. It only
excludes use to entertain or duplicate material already illustrated. Few
instructors, I believe, would claim that they were using a text to
divert their students or to repeat themselves. Most Newsreel films were
clearly intended to illustrate various social conditions and concepts -
at considerable expense and sometimes personal risk to the producer.
Would their incorporation into OpenSourceWare to illustrate the points
they illustrate constitute a transformative use?

Finally, the code permits "explanatory" use of copyrighted material if
it "furthers understanding by demonstrating or illustrating a process,
procedure or arrangement" and if there is no "readily available
substitute." But the intended use of many instructional materials is to
do precisely this - from how to wind a firehose to how economics impacts
healthcare delivery. Furthermore, it seems unlikely that anyone would
produce, let alone purchase, a film if a substitute were "readily

The preamble to the guidelines reduces to two the four criteria for fair
use usually cited on this list.. One of these two appears somewhat
tautological,: namely that a use is a fair use if it is "appropriate to
its re-use." Again, I can't help but wonder if the code equates any
"appropriate" educational use (to analyze, critique, illustrate or
explain) with a fair use?.

Content producers and distributors have long recognized that quotation
is a fair use of a copyrighted work but we have argued that a line has
been crossed when a quotation is used as a substitution for the text.
This has in the past been judged by the two criteria omitted from the
code: first, a comparison between the length of the excerpt and the
length of the text and, second, the financial damge to the copyright
holder if the use obviates purchase of the text. Use of a text or
excerpt from a text for the use(s) intended by that text or excerpt
would, it seems to me, be cause for careful scrutiny in making any fair
use claim.

I invite readers of the list to weigh-in with their opinion on these
issues with regard to their treatment in this "code of best practices in
fair use." Thanks.

Larry Daressa
California Newsreel

VIDEOLIB is intended to encourage the broad and lively discussion of issues relating to the selection, evaluation, acquisition,bibliographic control, preservation, and use of current and evolving video formats in libraries and related institutions. It is hoped that the list will serve as an effective working tool for video librarians, as well as a channel of communication between libraries,educational institutions, and video producers and distributors.
Received on Thu Oct 22 13:06:27 2009

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