Danah Boyd points out that the center for social media has released an informative paper entitled Recut Reframe Recycle concerning the boundaries of fair use (fair dealing in Canada) in digital media.
Types of use they point out:
• Parody and satire
• Negative or critical commentary
• Positive commentary
• Quoting to trigger discussion
• Illustration or example
• Incidental use
• Personal reportage or diaries
• Archiving of vulnerable or revealing materials
• Pastiche or collage
Some of these can push the limits of fair use, take for example D.J. Danger Mouse’s Grey Album (a mix of the Beatle’s White Album and Jay-Z’s The Black Album) which I discussed in Mashups: from hobby to art form to controversy.
The report concludes:
Some of these practices also fit comfortably into the evolving pattern of fair use jurisprudence. By contrast, other video makers appropriate material wholesale and without context or comment, in ways that clearly are not fair use. In all these cases, informed judgment on fair use, following established precedent, should be relatively straightforward. Many times, however, for instance within the category that our researchers called “pastiche or collage,” creators are developing practices that are at or near the boundaries of contemporary fair use analysis. Traditional fair use analysis would neither definitively exclude nor include them—at least until there is a better understanding of motive, context, circulation, and use of the new works. Since fair use doctrine evolves with creative practice, these borderline cases provide important areas for future research and analysis.
They call for “a code of best practices around fair use in online video needs to be articulated, both to educate new makers and to provide guidance for regulators private and public.” It will be a contentious process to push for more definition in the massive legal grey areas that exist in copyright law regarding fair dealing but it has such big implications for the (legal) limits of creativity that creators everywhere should be pushing hard for clarity. Unfortunately the effect of the law thus far has been largely the reverse: Danah gives a good background on why this is such a critical issue in the USA currently:
fair use is quite tricky because courts address it on a case by case basis after someone is sued. There is no list of what constitutes fair use. Thus, remixers engaging in practices that would collectively be viewed as fair use never have certainty that what they’re doing is legal. Because court cases are extremely costly (especially for the lone defendant in the face of Big Mega Corp), corporations can wield a lot of power through the egregious use of “Cease and Desist” letters. Most creators bow down in the face of them even if what they’re doing is totally legit because they are terrified of being sued. In legal terms, a “chilling effect” is when practices are squelched by fear of persecution. Right now, when it comes to remix, we’re in the middle of an ice age. The Chilling Effects Clearinghouse website attempts to counteract some of this effect by collecting and publishing Cease and Desists and other nefarious attempts by corporations to silence fans and critics.
This problem is increasingly relevant to Canadians as a US-corporation sympathetic government in Canada enables and encourages such business practices.