Speak for VDO creators : Should we have clear rules for "Fair Use" of online videos?

Nowadays, the cultural value of copying is so well established. More and more, video sharing depend on the ability to use and circulate existing copyrighted work. This circulation of the videos is an emerging part of the business model, as the sale of YouTube to Google demonstrated. It is important for video makers, online service providers, and content providers to understand the legal rights of makers of new culture, as policies and practices evolve. As copyright protects more works for longer periods, however, it makes new creation harder. Creative needs and practices differ with the field, with technology, and with time. As a result, "Fair Use" is the most important tools for the creators to take advantage in creating their innovations. Copyright law does not exactly specify how to apply fair use, and that is to creators' advantage.

Many scholars believe that current fair use doctrine is flexible. In fact, for any particular field of critical or creative activity, lawyers and judges consider expectations and practice in assessing what is "fair" within the field. In weighing the balance at the heart of fair use analysis, judges refer to four types of considerations mentioned in the law: (1) the nature of the use, (2) the nature of the work used, (3) the extent of the use and (4) its economic effect. However, this still leaves much room for interpretation, especially since the law is clear that these are not the only necessary considerations. To justify the "use" as "fair," one must demonstrate these four-factor balancing test. One of the key considerations with respect to the fair use doctrine for VDO makers is the extent to which use is interpreted as "transformative." However, as noted by the U.S. Copyright Office, the distinction between "fair use" and infringement may be unclear and not easily defined.

VDO makers can take heart from other creator groups' reliance on fair use. For example, historians regularly quote both other historians' writings and textual sources; filmmakers and visual artists reinterpret and critique existing work; scholars illustrate cultural commentary with textual, visual, and musical examples. Equally important is the example of commercial news media. Fair use is healthy and vigorous in daily broadcast television news, where references to popular films, classic TV programs, archival images, and popular songs are constant and routinely unlicensed. Unlike many nonprofessional and personal video makers often create and circulate their videos outside the marketplace. Such works, especially if they are circulated within a delimited network, do enjoy certain copyright advantages. Not only are they less likely to attract the attention of rights holders, but if noticed they are more likely to receive special consideration under the fair use doctrine.

The "fair use" doctrine should be defined the clearly accepted that apply with equal force across a range of commercial and noncommercial activities. At least, the clearer rules of what are the transformative works, which often underly an individual creator's investment of substantial time and creative energy in producing a mashup, a personal video, or other new work. This emerging cultural expression deserves recognition for transformative value as much as more established expression.