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Two Reports on the Dangers of Our Clearance Culture

(November 22, 2005) - Two just-published reports highlight the problem of overly restrictive copyright control but also point out ways to help restore the copyright-free expression balance.

On November 18, the Center for Social Media at American University released its long-awaited "Documentary Filmmakers' Statement of Best Practices in Fair Use." Co-authored by five filmmakers' organizations, the Statement outlines four areas where the right of fair use should allow documentarians to incorporate copyright-protected material without obtaining permission and facing the often excessive permission fees that are charged by corporate copyright holders.

The four major areas of fair use outlined by the report are:

r Employing copyrighted material as the object of social, political, or cultural critique.

r Quoting copyrighted works of popular culture to illustrate an argument or point.

r Capturing copyrighted media content, such as music on the radio or a poster on the wall, in the process of filming something else.

r Using copyrighted material, such as archival footage, in a historical sequence.

The Statement is designed to give filmmakers guidance, to encourage them to assert fair use in appropriate circumstances, and to persuade distributors, insurers, and other media industry gatekeepers to recognize the importance and legitimacy of fair use.

The Intellectual Property Clinic at the University of Southern California, meanwhile, has published a Summary Report titled Efficient Process or "Chilling Efffects"? Takedown Notices Under the Digital Millennium Copyright Act. Based on a sample of nearly 900 "take-down" notices sent by copyright owners to Internet service providers demanding that they remove material from their servers, the researchers found "a disturbing number of legal flaws" in these notices, with a third of them demanding removal despite "a clear legal defense" to the claim of copyright infringement. The report concludes that "few are well-served" by the take-down process authorized by the Digital Millennium Copyright Act, or DMCA.

The Brennan Center's forthcoming report, Will Fair Use Survive?, to be released on December 5, will address these issues from the perspective of artists, scholars, Web bloggers, and others who need to rely on fair use in order to contribute to culture and democratic discourse.

The report gives background on fair use and other free expression safeguards in copyright and trademark law. It evaluates a sample of 320 take-down letters sent under the authority of the DMCA, and summarizes scores of firsthand stories from artists, writers, and others, attesting to the frequent chilling effects that take-down notices, cease and desist letters, and industry-wide "clearance cultures" have on their ability to communicate and create. The report concludes with six recommendations for change.

For information on how to order printed copies of Will Fair Use Survive?, go to http://www.fepproject.org/policyreports/fairuseflyer.html.