What can best practices do for us?

As promised, I want to look at a different kind of “new tool” to help users of copyright-protected content figure out what they can and cannot do as they work on new creations.

Best practices are a relatively new phenomenon in the copyright environment. The Center for Social Media at American University, a joint project of School of Communications and the Washington College of Law, has really lead the way in creating statements of best practices around fair use in video production. The first one, produced in cooperation with several documentary film groups, is a Documentary Filmmakers’ Statement on Best Practices in Fair Use. That statement has proved very successful in gaining recognition both amongst filmmakers and from the ancillary organizations like the insurance companies that support and underwrite documentary film projects.

Next there was a report on user-generated video called Recut, Reframe, Recycle that spelled out six creative practices that, the report’s authors felt, were potentially legal but were in danger of being curtailed by the draconian measures being sought by many in the content industry to combat online sharing of video and music files. Even though creative remixing is a very different activity, both legally and in its value to society as a whole, much of the “anti-piracy” rhetoric seems unable to make even the grossest distinctions. Thus the stakeholders in that conversation felt the need to articulate another set of best practices, released last week.

The Code of Best Practices in Fair Use for Online Video is intend to provide support for the activities of filmmakers who create works like “Dramatic Chipmunk,” which is used to illustrate the report’s cover. Such works are new creations built from the building blocks of other people’s work. This, of course, was the original purpose for the “copyright bargain” Congress was empowered to make by the Constitution (although the Framers probably did not foresee some of the results of that bargain!). This new code of best practices describes itself this way: “This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video and backed by the judgment of a national panel of experts. It also draws, by way of analogy, upon the professional judgment and experience of documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses.”

For me, an immediate question is how these statements of best practices differ from the various attempts to articulate guidelines to define fair use, attempts that have caused great anxiety and a notable “chilling effect” on fair use despite the best intentions of those who promulgated them. The quickest answer is that best practices are usually generated from within an industry or an industry segment, whereas guidelines have traditionally been negotiated between users and rights-holders. “Best practices” are not an attempt to define a “safe-harbor” that will necessarily protect one from lawsuit, especially since many such attempts have proved illusory in the past. Rather, their aim is to accurately describe a consensus with a particular user group about what is and is not acceptable. Such a consensus can serve a couple of purposes.

First, it can help prevent the kind of “self-censorship,” or chilling effect, that is all too familiar among users; the decision by a filmmaker to forgo the best shoot or abandon good footage because a copyrighted work was accidentally captured in some of the frames, for example. Best practices can provide reassurance to that filmmaker that what she hopes to do is well within the standard practice through her industry.

Second, best practices could provide courts with exactly the kind of “industry standard” that is useful in determining when to find infringement or to protect a particular use as fair use. These documents can provide courts with a synoptic view of what kinds of practices are necessary for professional filmmakers and amateur videographers alike to create new works. By spelling out what kinds of practice are needed, as far as fair use is concerned, for creativity to flourish, statements of best practice can show courts that the particular industry is acting in good faith and can provide a broader perspective on the specific issue that has come before that court.

Best practices will not solve all the problems in the highly contested world of copyright and user rights, but they can serve a useful purpose. It is important to distinguish that purpose from the more grandiose and unrealistic claims made for copyright guidelines. Best practices may not stave off lawsuits, but they can help courts judge those lawsuits fairly and they can help users avoid letting the fear of a lawsuit overwhelm their urge to create.

Note — after completing the above post I discovered this contribution to a debate about best practices, which I now call to the attention of interested readers.