Getting to Know Your Code of Best Practices

Peter Jaszi
July 13, 2008

The July 7 release of the new “Code of Best Practices in Fair Use for Online Video” (coordinated by the Center for Social Media and PIJIP) has given rise to an important question about how to interpret the document’s six “Principles” and their associated “Limitations.” So it may be worth noting that all the principles also are subject to some general limiting considerations. One of these is what might be called a “rule of proportionality.” At the top of p. 4 of the document, users are encouraged always to ask: “Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and the use”? Even when proportionality isn’t mentioned as a specific “Limitation” on a given “Principle,” it is an important touchstone. Take, for example, the fifth principle, concerning “Copyright, Reposting, and Recirculating a Work or Part of a Work for Purposes of Launching a Discussion.” The Code says that such uses are fair when “content that originally was offered to entertain or inform or instruct is offered up for the distinct purposes of launching an on-line discussion” so long as the discourse-promoting intent of the person who does the offering is both subjectively sincere and objectively clear. It does not say, in so many words, that the amount of material used should be proportional to the purpose, but that qualification is implied. Thus, for example, the Code would support posting a brief relevant clip from a recent feature film to start a discussion on the implicit racism in the depiction of screen villains, but it could not be used to justify putting up the film in its entirety. Of course, application of the rule of proportionality depends on the length of the work involved. The Code would support posting an entire 30-second public service announcement to kick off a stream of comments on government policies on the promotion of sexual abstinence.

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