On January 28, 2016, The Department of Commerce Internet Policy Task Force issued a white paper entitled Copyright Policy, Creativity, and Innovation in the Digital Economy. The white paper addressed three areas in which the growth of digital media is challenging the boundaries of copyright law: (1) remix activity; (2) the first sale doctrine; and (3) statutory damages. This post will discuss the Task Force’s findings regarding remix activity. I will address the other topics in later posts.
By “remix activity,” the Task Force was referring to works that utilize pre-existing copyrighted materials to create a new work. For music, this can include mashups and digital sampling of tracks, as is often seen in hip hop. For visual art, this often includes “fan art” (i.e. art that reimages famous works, particularly comic book or pop culture imagery). For audiovisual works, this can include commentary tracks for films and video games or parody videos that redub famous films.
The white paper attempted to shed light on whether a remix constitutes fair use and when the remix author must obtain a license. Sometimes, the answer is clear, but remix activity often falls in a grey area. The white paper identified certain prevalent features of remix activity that affect the determination whether a license is warranted or the remix activity is fair use. For example, most (but certainly not all) of remix activity is not commercial. This favors fair use. However, many remixes, including non-commercial ones, are accessible for free on various social media and content distribution platforms, rendering the works widely accessible to a global audience. This favors licensing.
The Task Force did not propose a single solution. Instead, it weighed a number of options, including various forms of licensing and providing better clarity for fair use, such as a statement of best practices. With respect to licensing, the Task Force evaluated various licensing regimes, including voluntary, compulsory and blanket licensing. The Task Force seemed to favor voluntary license regimes, as opposed to other regimes that would force copyright holders to cede control over their works (e.g. a compulsory license regime). The Task Force took particular interest in the concept of micro-licensing (i.e. licenses tailored to the particular form of use. For example, the Task Force noted that YouTube’s ContentID system allows music rights holders the option to share in the revenue of a video containing their music. However, by encouraging licensing, the Task Force noted that this may have an adverse impact on the fair use defense (specifically, the fourth fair use fact of market harm).
With respect to fair use, the Task Force encouraged that stakeholders should create a guide of best practices, similar to what has been done for documentarians, journalists, user-generated content and academics. Furthermore, the Task Force recommended that such “best practice guides” should be tailored to specific uses, since fair use can be medium specific. However, the Task Force did note that such best practices guides have limited utility, since they cannot possible cover every type of conceivable use.
In sum, the Task Force seemed to punt on the issue of remix activity, encouraging stakeholders to come up with their own options, like better access to licensing and creating best practice guides.
In the interest of full disclosure, in response to the Task Force’s Request for Comment to its 2013 Green Paper, Rom Bar-Nissim was a co-author of a public comment on behalf of deviantART, the largest artist oriented social media platform in the world.