One of the most frustrating obstacles to fair use of copyrighted content has been the failure of insurers to recognize the fair use doctrine. Typically, insurers have demanded that every scrap of copyrighted material be “cleared” — that is, licensed — which requires would-be users to (1) exert a lot of logistical effort to locate rightsholders, (2) beg them for permission, and (3) often pay exorbitant fees charged for even minor uses of content. When fair use applies, of course, neither permission nor payment should be required. This state of affairs has been especially damaging in the realm of documentary film, where it is well-nigh impossible to have your work distributed, either in theaters or through broadcast outlets, without carrying errors and omissions (“E&O”) insurance.
Two related institutions affiliated with American University, the Center for Social Media and the Program on Intellectual Property in the Public Interest, prepared a fantastic joint report [PDF] a few years ago highlighting this problem, and then followed it up with action: they gathered documentary filmmakers’ groups to draft a Statement of Best Practices explaining when filmmakers are entitled to invoke fair use. One function of the Statement is to serve as an accessible handbook for filmmakers. But another is to create some recognized standards that would give comfort to the risk-averse gatekeepers who prevent documentarians from relying on fair use — insurers prominent among them.
Well, it worked! One of the major E&O insurers has now begun accepting adherence to the Best Practices as an acceptable substitute for the license-everything mandate of the past. This is further demonstration that the “best practices” model has potential to help give life to fair use rights in other areas — as we suggested in last year’s Berkman Center white paper on copyright and digital content in education. I understand that there are other communities of content users gathering to develop their own versions of best practices. This may well be a powerful approach to preserving fair use without direct legal action. Stay tuned…
Update & Clarification: It has been pointed out to me that this post could make it seem as if the insurer just accepts the filmmaker’s promise that all unlicensed uses of content qualify as fair use and adhere to the Best Practices. I didn’t intend to suggest quite that. As the more detailed post to which I linked makes clear, there must also be an “appropriate lawyer’s letter” ratifying this fair use analysis. Such an arrangement still represents a big improvement over the previous situation, where fair use was, for all practical purposes, unavailable.