Fair Use of Online Video In This Mashed-Up World: What’s Best; What Isn’t

Fair use in online video is hard to define, especially when sharing has changed and morphed how and where people create and consume the video. American University’s Center for Social Media has taken a crack at it, and has come up with six different principles under which use of online video would be considered fair use, and limitations of each of those principles. The code was put together by AU professors Pat Aufderheide and Peter Jaszi and a panel of experts.

Among its slightly controversial recommendations: if a video has been posted with the intent to foster a discussion, then it might be considered fair use. “When content that originally was offered to entertain or inform or instruct is offered up with the distinct purpose of launching an online conversation, its use has been transformed. When protected works are selectively repurposed in this way, a fundamental goal of the copyright system–to promote the republican ideal of robust social discourse–is served.” With that yardstick, pretty much all YouTube videos could be considered legal, since comments usually turn heated on any kind of video.

But, it goes on to clarify that: “The purpose of the copying and posting needs to be clear; the viewer needs to know that the intent of the poster is to spur discussion. The mere fact that a site permits comments is not enough to indicate intent. The poster might title a work appropriately so that it encourages comment, or provide context or a spur to discussion with an initial comment on a site, or seek out a site that encourages commentary.” What this means is if you title a video you post in a provocative way, or something that constitute a point of view on a video, it is fair use. Now you know: when in doubt, be creative…it is fair use.