A couple of weeks ago, a group of commercial copyright owners and operators of several user-generated content (UGC) services issued a set of Copyright Principles for UGC Services. To their credit, these principles include "the accommodation of fair use" among the goals. The main thrust of the principles, however, is to call on UGC sites to take more active responsibility for preventing users from posting infringing content -- and in particular, to implement filtering technologies to identify unauthorized copyrighted content automatically.
The principles go into significant detail about how UGC sites should combat infringement, while the nods to fair use consist of little more than bare references. For example, the shortest of the fifteen principles is number six, which reads in its entirety: "When sending notices and making claims of infringement, Copyright Owners should accommodate fair use." Stating a general commitment to accommodating fair use is certainly welcome. But it doesn't provide any guidance on the tricky practical questions concerning what such a commitment actually means and how to make it real and effective. Accommodating fair use is not a straightforward task, particularly where companies are relying on automatic filtering tools. Filtering tools may be able to identify unauthorized copyrighted content, but they can't parse the nuances of fair use.
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