The purpose of Fair Use is really to give people a way of getting around copyright in limited and reasonable cases that serve the public good, such as reporting the news. Fair Use is not a hard and fast set of rules. It’s defined by needs, intentions, existing practice, case law (court rulings), reasonable uses, and other fuzzy factors. For example, there is no hard and fast rule dictating “you can use five minutes of a copyrighted movie for non-profit purposes.” People assume that those rules exist, but they don’t.
Now enter the Digital Millennium Copyright Act (DMCA). One thing that was pretty clear from the DMCA: it is illegal to break the Content Scrambling System that is on most commercial DVDs. So if you own a DVD at home and want to make a digital copy to put on your iPad and take on a trip, you can’t legally do it if the DVD is encrypted. [Some companies are adding a “digital download” or “electronic copy” included as part of purchasing the DVD. There are also ways around this like recording a television that is playing a DVD, but there is usually significant loss in the audio and video quality and it’s a time consuming process.]
Got all that so far? Even what I stated above is an oversimplification, but you should get the gist: Fair Use guidelines say that you can use video clips for purposes such as education, criticism, and parody. But you can’t get those clips from DVDs since that would involve breaking the DVD encryption.
Those rules changed on July 28. According to the new rules, people can circumvent DVD encryption for the purpose of incorporating “short portions of motion pictures into new works for the purpose of criticism or comment” as long as there is no other reasonable way to get the video. Specifically, it mentions educational uses by college and university faculty, film and media students, documentary film-making, and non-commercial videos.
It appears that a non-film student could use video clips, as long as they are non-commercial. They also have to become part of a new work – so you aren’t allowed to take a video clip and just post it online. If you make that video clip part of another video that talks about the first, you should be in good shape. What if you embed that video clip in your blog and write about the clip? Is that a new work? Good question. I don’t have an answer. They may mean a new video work, but that’s not specified.
And what does “short portion” mean? This is where that Fair Use fuzziness comes into play again. My rule is the same that I use for writing: only take what you really need and make sure everyone gets credit for their work.
[To be fair, the ruling also included decisions that will affect the cell phone market, eBook text-to-speech functions, and software testing. You may want to read it yourself. It’s pretty short and understandable.]
There is a lot of interest in this new ruling and what it means for higher education. For other perspectives on the decision, you may want to check out the following: