The Contractual Infrastructure of Fair Use
A major obstacle to filmmakers wishing to use footage under fair use is risk aversion on the part of their contractual partners. Television stations and insurers typically take a conservative position with regard to potential disputes and require changes to the film rather than risk litigation. As a consequence, uses that are fully within the law have been unnecessarily cut, creating a vicious circle: aggressive rightsholders and a refusal to fight bogus claims pushes back the bar for fair use, and uses which should be free become subject to insane licensing fees.
Two years ago Pat Aufderheide, Peter Jaszi and the Center for Social Media at Washington University began working with documentary filmmakers to develop a set of best practices on fair use in November 2005. These have had a special value due to being the product of peer-consultation in the film community and have begun to influence commercial practice elsewhere in the product cycle, including broadcasters such as Independent Television Service and Discovery.
Now it has been announced that an errors and omissions insurance company, National Union, will offer a policy that will include fair use coverage providing a copyright lawyer attests to their belief that the use stands within the terms of the exception. This should make it a lot more difficult to intimidate filmmakers into self-censorship and enable the taking of test cases that can invert the current protectionist tendency.
Similar best-practice prcesses are underway in other sectors, such as music educators, in collaboration with writer and activist Kembrew McLeod.
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