Dans la lignée du web 2.0 et précisément de l’affaire Youtube, je viens de tomber sur le court rapport trouvé aujourd’hui sur le site de Michael Madison s’intitulant "The Copyright Conundrum in Participatory Video - A Convening Report", rédigé par Pat Aufderheide and Peter Jaszi.

On peut notamment y lire à la toute fin une série de conclusions et recommandations :

The group found common points of agreement :

• Participatory video is a vigorous new phenomenon that is promising both for free speech and for new business opportunities ; however, it is in its embryonic stages and needs to develop.

• Existing copyright management techniques are either poorly exploited (fair use) or imperiled (section 512). • Finding successful ways to manage unauthorized use is critical to keeping existing spaces for new opportunities for public expression and for business growth.

To that end, the group found a range of potential activities, focusing again on fair use and section 512.

Fair use

The emerging range of creative practices that are being generated by new media opportunities needs to be better understood. Such understanding, in turn, would to foster a conversation about the implications of copyright policies for cultural creativity. A typology needed ; the group imagined a spectrum of activity ranging from the “DVR to the world” approach (posting Saturday night’s TV on Sunday morning), through criticism/analysis/tribute, to solo content creation. This research is basic to any discussion of transformativeness in this emerging environment.

Fair use in areas of established practices also needs to be better understood, and better explained by new creators. Existing knowledge needs to be consolidated so that, as new habits and customs develop, they also depend on solid established practice such as is articulated in the Documentary Filmmakers’ Statement of Best Practices in Fair Use. Such knowledge could be spread through institutions ranging from online platforms to media literacy websites, and viral videos would be one means of doing so. A dynamic process where each decision adds to the body of knowledge would be enormously helpful and appropriate to the medium.

Litigation possibilities include asking for declaratory judgments on behalf of participatory media makers who practices are threatened, although there are significant legal roadblocks in the way of this strategy.

512

Educating new creators about their opportunity to issue counter-takedowns (counternotifications) through Sec. 512(g) is an important balancing feature to current use of the takedown option by content providers.

Educating rights holders about best practices in issuing taketowns is also possible. Some suggested approaches include :

• A “dolphin hotline” that could provide expedited measures for unauthorized uses that could be considered fair use or otherwise acceptable ;

• A guarantee of human review of clips before takedown ;

• A commitment to avoid demanding take-down of transformative and other creative uses.

Litigation can be used challenge unreasonable use of takedowns, and some of the best practices just described might emerge as such lawsuits are resolved.

Finally, those who see the free speech issues and emerging business opportunities as important need to prepare for the possibility that both fair use and 512 will come under attack by overzealous content providers and their allies. They need to develop a political plan for action in the event of such attack.