Time to get your head round Fair use

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Yesterday I commented on a post from Bill Thompson about suggested changes to European legislation that ‘may’ open the door to the music industry having the power to ban people from the web. I reflected that the journalism industry had yet another lesson in how not to behave, writ large, from the music industry.  It also gave me pause to reflect on the way the way journalists are having to get to grips with legislation and legal matters once ‘referred up’ to subs, editors and lawyers.

A good example of this is copyright or, to be more accurate, a part of the copyright legislation Fair dealing.

Bills post landed in my reader at about the same time that Mark Comerford Twittered me about a new set of guidelines The Center for Social Media has put together: Code of Best Practices in Fair Use for Online Video

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.

It’s worth a visit for the clear way it sets things out and though the guide is not a binding set of rules it does a pretty good job of outlining what you can and can’t use when you are reporting and how. There is an especially nice FAQ style q&a at the end. A nice resource

It’s a timely document.  Over the last few months I have seen a number of conversations on newsgroups and had conversations whilst training about the bounds of fair use. In particular when it comes to using music on web video.

The general feeling seems to be that you can use a chunk of copyright music over the top of you movies because you are ‘reporting’.  As long as you don’t use more than 30 seconds you are safe under fair dealing.

Of course that isn’t true.

Fair dealing gives allowances for those involved in (using the UK lingo) Criticism, review and news reporting. Traditionally you could say that it’s had most use as the thing that allows use to publish snippets of books for review.  You can use a ‘chunk’ of content to make a point. Whether you fit within the bounds of fair use is dependent on how much you use and how you use it.

It doesn’t give you a time limited carte blanche to use any music. The only ‘kind of’ exception in the ‘incidental’ inclusion of music – sound playing in the background or someone leaving Coronation Street on when you interview them. As long as you don’t make a feature of it.

So go and have a read of the CSM guide but if you are in the UK don’t take it as read.

This side of the pond

Fair use and copyright is a different (in places) kettle of fish in the UK. The copyright people have a quick guide to fair use if you want an overview. But the real meat of it is in the copyright legislation.

Here is the UK part of copyright law that covers fair dealing as far as it directly impacts on journalists. (with the recent changes)

Criticism, review and news reporting
(1)Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgment and provided that the work has been made available to the public.

(1A) For the purposes of subsection (1) a work has been made available to the public if it has been made available by any means, including –

(a) the issue of copies to the public;
(b) making the work available by means of an electronic retrieval system;
(c) the rental or lending of copies of the work to the public;
(d) the performance, exhibition, playing or showing of the work in public;
(e) the communication to the public of the work,

but in determining generally for the purposes of that subsection whether a work has been made available to the public no account shall be taken of any unauthorised act.
(2)Fair dealing with a performance or recording for the purpose of criticism or review, of that or another performance or recording, or of a work, does not infringe any of the rights conferred by Part 2 provided that the performance or recording has been made available to the public.
Fair dealing with a performance or recording for the purpose of reporting current events does not infringe any of the rights conferred by Part 2.
(3)No acknowledgement is required in connection with the reporting of current events by means of a sound recording, film, or broadcast where this would be impossible for reasons of practicality or otherwise.

Incidental inclusion of copyright material

(1)Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film, broadcast or cable programme.

(2)Nor is the copyright infringed by the issue to the public of copies, or the playing, showing, broadcasting or inclusion in a cable programme service, of anything whose making was, by virtue of subsection (1), not an infringement of the copyright

(3)A musical work, words spoken or sung with music, or so much of a sound recording, broadcast or cable programme as includes a musical work or such words, shall not be regarded as incidentally included in another work if it is deliberately included.

Weighty isnt it. But not that opaque. But there is an excpetion.

Fair play on photos

The terms of fair use, as far as I understand it, don’t include photographs. Something that’s worth considering when you are thinking about image slideshows or when you are looking to lift a picture from social networks. Forget fair use. Forget public interest (unless you really are in a mood to refer it up).

For more on that particular issue you might want to look at a post at the BBC from Steve Herrmann thinking about the use of images from facebook. Then have a read through the comments. As Andrew Rogers commented on his blog. A bit of an eye opener.

So it seems that there is a lot more to law than just contempt and libel. Perhaps that hour you set aside to teach yourself soundslides or play with Twitter might be better spent having a chat to your Photographers, your subs and lawyers.

Have you had experience of this? Need to put me straight on the law? Please leave a comment.

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