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The Need for Fair Use Guidelines for Remixes

The U.S. copyright system strives to create a careful balance between rights and exceptions. Businesses, libraries, consumers, and especially the creative community rely on a range of exceptions and limitations, such as fair use, on a daily basis. Fair use, a fundamental element of the U.S. copyright system, is a legal doctrine that permits the unlicensed use of copyright-protected works under certain circumstances. Because it is technology-neutral, it can be applied in a flexible manner during times of dynamic technological change.

"Fair Use/Fair Dealing Week" presents an opportunity to explore various aspects of this vital part of U.S. copyright law. We would like to add to the conversation by highlighting some recommendations that the Commerce Department's Internet Policy Task Force (IPTF) recently made in the area of remix and fair use.

At Commerce, the U.S. Patent and Trademark Office and NTIA teamed up to release in January a major new report on copyright policy. The White Paper on Remixes, First Sale, and Statutory Damages (White Paper) considers, inter alia, the roles of fair use and licensing arrangements as they apply to remixes.

User-generated content has become a hallmark of the Internet and "remixes" are part of this growing trend. Advancements in technology have made it easier than ever for people to remix content into new works, opening up new, digital avenues for creative expression. At the same time, however, remixes can raise licensing and other issues because they typically rely on someone else's copyrighted work as source material.

Remixes may or may not qualify as a fair use. A remix that incorporates parts of an original work, altering it in order to create new meaning or purpose, might be considered "transformative" (which is one aspect considered in the fair use analysis) but other important questions remain about the use, for example: How much does the remix borrow from the original? Does the remix adversely affect the potential market for the original? Did the remixer create his or her new work for commercial reasons?

While precedent exists for fair use claims made in defense of some new works built from portions of copyrighted ones, and while sector-specific guidelines have before been developed to help creators make informed choices when using others’ copyrighted works, considerable uncertainty about fair use remains. Leading up to the White Paper, and based upon extensive public discussion, it became clear to the IPTF that developing guidance on fair use remixes through a multistakeholder process may help all involved or affected by fair use, including rights holders, users, and online intermediaries.

In response, the White Paper recommends that interested stakeholders convene to develop such non-binding, normative guidance under the auspices of a disinterested third party. The goal need not be (and probably could not be) a document that defines all activities that are lawful and all that are not. A more modest endeavor, aiming to identify what conduct can be agreed on as permissible or impermissible, could serve a valuable function for the broader community. Such an effort could be an important step forward toward a greater, shared understanding of the role fair use plays in the creative process.