Fair Use and Copyright…

The grey area which represents the limits of fair use has created contention in the intellectual property arena for some time. The permissions to use copyrighted material within the boundaries of a certain type of usage is governed loosely by certain guidelines. The argument continues; when are people infringing on copyright and when does it fall within the category of fair use? Although these guidelines can be adhered to with some degree of clarity, it appears debate will inevitably arise due to the conflict of goals and self interest between different parties. From recent cases, it seems fair use is still not concrete enough to allow users firm rights to fairly use and publish material owned by a party who opposes this idea. Right now it really boils down to the content owners not only understanding of the terms of fair use but understanding its place in modern society and embracing it.

Youtube has been under some heat for this very reason in the recent Hitler parodies case in which Constantin Films, through Youtube’s content ID system, pulled down Youtube clips of a parodied Hitler Scene, to which it owns the rights to the original film. We can see the same argument- disgruntled Youtube users and uploaders who believe (and fairly so) that the way they have used this video is within the boundaries of fair use, whilst Constantin Films hold an evident contrariness  of the same matter. Whether or not fair use should be determined by the owner of the content is debatable. Youtube’s imposition of a content ID based system has summoned a somewhat hostile response from creators and users.  YouTube acknowledges that uploaders are usually the types people rights holders should be embracing but argues that content owners have the right to account for fair use of its own content. YouTube’s attempt to solicit some sort of happy medium in an area which is not clear has created problems, but is there another way to address this problem to satisfy everyone?

YouTube is in a difficult position as a platform provider for (almost) free expression. Achieving balance as an intermediate body between consumers, creators and owners of content is indeterminable challenge- there are high expectations for YouTube to provide a space where people can express themselves in the spirit of creativity, community and common interest in the grounds of fair use for both users and consumers, whilst big media companies which are still coming to terms with the web 2.0 phenomenon are trying to hold what is theirs, close to their chest.

Part of problem as I see it is the long history in strict copyright standards and enforcement prior to the internet revolution and a longstanding history of piracy which has been difficult to control, has given rise to longstanding practice of enforced protectionism, which is still embedded in modern business psyche of many. Piracy is an issue so aggressively defended but remains an ever growing issue which can’t be stamped out that, naturally, rights owners are protective of their work and strongly associate fair use with copyright breach. What is needed is a widespread shift in attitude and culture in order to re-establish norms in this area which are more flexible and cohesive to accomodate today’s online economy in order to support the innovation and proliferation of sharing ideas and expressing oneself in innovative and new ways.

But for all the industries and companies which have been using the same aggressive tactics to suppress fair use to this day, there have been rapidly rising numbers of forward thinking organisations, businesses, artists, individuals, programmers and so on… which now advocate and participate in movements such as Lessig’s Creative Commons.  Multitudes of other open source projects exist on the internet which understand that building on existing creation is actually a new way of creating and expressing oneself and should not be quelled. This new culture of building and sharing information is invaluable in terms of social enrichment, nurturing innovation and even growing economies. It seems that cultural shift is indeed happening and although very quickly gaining momentum, it is has not yet caught up with expeditious pace of web 2.0 although, hopefully eventually, it will.


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