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Fair Use Principles

by mark on November 1st, 2007

Under the sub-title “Six Concrete Guidelines Aim to Balance Free Speech Rights and Copyright” the EFF (Electronic Frontier Foundation) and “a coalition of leading public interest groups issued a “Fair Use Principles” document that sets out six concrete guidelines designed to minimize the collateral damage that copyright enforcement efforts may inflict on video creators who are “remixing” copyrighted material into new video creations.”

This is an important step because it is designed “to protect creative videos that remix material from movies, TV and popular music,” said EFF Senior Intellectual Property Attorney Fred von Lohmann.

So, if you effectively quote a movie by excerpting part of that movie and using it in yours that would be considered “fair use” and not a copyright infringement.

The Six Principles;

1. A Wide Berth for Transformative, Creative Uses: Copyright owners are within their rights to pursue nontransformative verbatim copying of their copyrighted materials online.

2. Filters Must Incorporate Protections for Fair Use. Broken down further into three parts;

a) Three Strikes Before Blocking: The use of “filtering” technology should not be used to automatically remove, prevent the uploading of, or block access to content unless the filtering mechanism is able to verify that the content has previously been removed pursuant to an undisputed DMCA takedown notice or that there are “three strikes” against it;

1. the video track matches the video track of a copyrighted work submitted by a content owner;

2. the audio track matches the audio track of that same copyrighted work; and

3. nearly the entirety (e.g, 90% or more) of the challenged content is comprised of a single copyrighted work (i.e., a “ratio test”).

b) Humans Trump Machines: Human creators should be afforded the opportunity to dispute the conclusions of automated filters.

c) Minimization: In applying automated filtering procedures, service providers should take steps to minimize the impact on other expressive activities related to the blocked content.

3. DMCA Notices Required for Removals: Service providers should require compliant DMCA takedown notices from content owners before removing content in any manner that does not afford users the ability to contest and override the removal.

4. Notice to Users upon DMCA Takedown: Upon issuance of any DMCA takedown notice by a content owner, the service provider should provide prompt notice to the user who posted the allegedly infringing material.

5. Informal “Dolphin Hotline”: Every system makes mistakes, and when fair use “dolphins” are caught in a net intended for infringing “tuna,” an escape mechanism must be available to them.

6. Mandatory Reinstatement upon Counter-notice or Retraction: Service providers should establish and follow the formal “counternotice-and-putback” process contemplated by the DMCA.

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