I reported last week the great news that a major insurer agreed to provide coverage against copyright liability for documentary films that rely on the fair use doctrine in accordance with the Documentary Filmmakers’ Statement of Best Practices in Fair Use (as certified by a lawyer’s letter).
Now comes even better news: another insurer has agreed to provide such coverage too, and — this is the best part — has partnered with the Stanford Center for Internet Studies and L.A. copyright/entertainment lawyer Michael Donaldson to provide the accompanying legal work necessary to certify adherence to the Best Practices (either pro bono or at reduced rates). Larry Lessig has the details, and he is very excited:
In my just about 10 years working on these issues, this is the most important announcement yet.
This is a huge breakthrough. As many of us have been arguing, the real constraint of fair use comes not from the courts, but from those in the market who are trying to avoid any risk of copyright exposure. This market-based solution will now clear the way for many films to be released which before could not secure insurance. And we are eager to use the inevitable cases that will emerge to solidify the fantastic Statement of Best Practices developed by the Center for Social Media.
Wow. This is indeed a dramatic development. Hopefully, as filmmakers and insurers become comfortable with the requirements of Best Practices, the necessity of heavy legal involvement at the front end will decline. This will especially be so given the willingness of the Stanford folks to defend any litigation that emerges at the back end after filmmakers have responsibly adhered to the Best Practices. The combination of insurance and legal aid can help turn the Best Practices into something of a fair use safe harbor for filmmakers. The folks involved in putting together the original Best Practices must be proud.
As I noted last week, our Berkman Center white paper on digital content in education contemplated transfering the best practices model from the film-editing studio to the classroom. These early successes should spur thinking about best practices in multiple other domains of fair use. Ultimately, many types of users have power to shape the contours of fair use if they follow in the filmmakers’ footsteps: take the initiative and pursue a balanced approach.