October 31, 2007 | By Fred von Lohmann

Fair Use Principles for "UGC"

Today EFF and a group of other public interest groups devoted to protecting free speech and fair use issued a document entitled "Fair Use Principles for User Generated Video Content [PDF] [HTML]." Accompanying the document is a "test suite" of sample videos that EFF believes should not be blocked by automated copyright filters, but may nevertheless be in jeopardy based on their use of excerpts from pre-existing copyrighted material.

We know that media companies and video hosting providers are negotiating over new mechanisms to address copyright infringement while protecting fair use. Today's "Fair Use Principles" are intended to supplement those efforts, giving both the lawyers and the engineers something to "test against" as they engage in these negotiations.

The "Fair Use Principles" document describes a set of concrete steps that service providers and content owners can and should take to protect the "remix culture" that has been a foundation for sites like YouTube. A critical component of the Principles is a detailed description of a "three strikes" threshold before materials are automatically blocked. In addition, the document includes a "humans trump machines" rule, which is to say that users must be afforded the opportunity to dispute and override the conclusions of automated identification or filtering mechanisms.

The "test suite" of sample videos is intended to give engineers concrete examples of transformative, creative "remixes" of copyrighted materials that should not be caught in automated copyright filters. We also happen to think that they are examples of fair uses, but that's not the point. Any debate over the fair use merits of these videos requires human review, and is not something for automated filters to decide.

Here's hoping that these proposals lead to real progress in striking a balance between the interests of UGC creators, media companies, and video hosting services.

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