[Air-L] Video Game Research - Fair Use?

Fri May 6 08:38:24 PDT 2016

Dear Todd -- 

As Patricia points out, she is not a lawyer or a legal scholar. 

The answer to your first question is that copyright is territorial --
any given nation's copyright law (mostly) ends at the border. Fair use,
fair dealing, and other user privileges or exemptions are defenses to
what would otherwise be an act of infringement. Infringement will be
determined by the law at the place where the act occurred. 

The Internet sometimes complicates the question of "where the act
occurred." Several of us have spent a good chunk of our careers trying
to work that out. But if you assume the law at the place of the download
applies, you will be mostly right most of the time. 

Your second question is a little difficult to parse, but I believe that
what you are getting at is that fair use is circumstantial. All of the
exemptions we have been talking about are statutory. However, a court
determining fair use is required by the statute to take into account (at
least) four circumstantial factors, so that a determination of fair use
will come out differently in different circumstances. 

This is why fair use is radically different than fair dealing or other
exemptions, which are limited to particular situations. 

You are entirely correct that the guidelines that you mention are an
agreed upon statement about what could be fair use, not a fair dealing
type statutory provision as to what *is* fair use. 

DLB 

On 2016-05-06 06:56, Patricia Aufderheide wrote: 

> Fair warning, US-tilted post ahead! :)
> Thank you so much, Todd! Fair use is definitely part of the last (Sec. 107
> of the Copyright Act). It was codified in 1976, after more than 100 years
> of judge-made law. (For more detail [gratuitous plug], there's our book,
> info in signature.)
> If you would like help with students, we have a number of resources at
> cmsimpact.org/fair-use. The latest code, with visual arts professionals
> <http://archive.cmsimpact.org/fair-use/best-practices/fair-use-visual-arts [1]>,
> elaborated an FAQ, with some nice scenarios, too. As well, the librarians'
> code <http://archive.cmsimpact.org/libraries [2]> has good video and FAQs, as
> does the documentarians' code
> <http://archive.cmsimpact.org/fair-use/best-practices/documentary-filmmakers-statement-best-practices-fair-use [3]>
> and the journalists' code <http://archive.cmsimpact.org/journalism [4]> does
> too. One thing teachers like with the documentarians' code is the visual
> examples of fair use.
> BTW we are looking for good suggestions for what visual arts teachers would
> like us to make in the way of curriculum materails...Survey opportunity!
> https://american.co1.qualtrics.com/jfe/form/SV_6FP1AJOdghEehrT [5]
> In terms of your presentation, our understanding (I'm not a lawyer, I just
> work with them) is that you made it in the US, and people in the other
> country (oh let's just say Germany, which btw is pretty good on user
> rights) are just consuming this material/learning from you. You're fine.
> OpenCourseWare people faced this problem when they made their code.
> <http://archive.cmsimpact.org/ocw [6]>They and their advisory board of
> independent lawyers agreed that under today's international law, they are
> fine presenting their material worldwide on the Internet for
> consumption/use. People in other countries who want to take their material
> and work with it to make something of their own will have to use the laws
> of their country. The fairly used material is clearly marked, to
> differentiate it from the CC'd material, fyi.
> Fair dealing is legislated, but individual countries have tailored it very
> differently within the Commonwealth. Canada's fair dealing looks the
> closest to fair use. I hope others on this list who have looked at user
> rights in the Commonwealth can give Todd more clarification!
> 
> On Fri, May 6, 2016 at 9:36 AM, Todd O'Neill <Todd.O'Neill at mtsu.edu> wrote:
> First, I applaud Patricia's work at the American University Center for Social Media. I have been using their materials (videos, booklets and website) in all my classes and have recommended them to many colleagues for many years. Thank you Patricia. Second, seems like AIR could use a panel at the conference on fair use and fair dealing internationally?? (Wish I could go.) Lastly, a publishing question. If I have a paper published in a non-U.S. journal or give a presentation at a non-U.S. conference which jurisdiction's fair use/fair dealing guidelines apply to my work? The country of origin or the country of publication or presentation? Just wondering. Also, is "fair dealing", in the United Kingdom for example, law or judicial precedent? As I understand it, fair use in the U.S. is judicial precedent and is essentially up to interpretation by the user (or re-creator) and the creator. I have started explaining fair use guidelines as "defensible positions" so that students don!
 't
consider the guidelines as part of copyright law. Cheers! Todd O'Neill Assistant Professor, New Media Electronic Media Communication Department College of Media and Entertainment Middle Tennessee State University todd.oneill at mtsu.edu LinkedIn: toddoneill | FaceBook: OneillTodd | Twitter: mtsunewmedia On May 6, 2016, at 8:14 AM, Patricia Aufderheide <paufder at american.edu> wrote: Well, said, Dan, thank you for the nuances and the help to Ben! And I do hope that US researchers can gain greater awareness of their resources through this exchange, and that Ben gets to do his research with the hope that Dan holds out! On Thu, May 5, 2016 at 10:10 PM, Dan L. Burk <dburk at uci.edu> wrote: Benjamin's question is rather more complicated than that. I was on a panel in London a few weeks ago, and was surprised to learn that UK courts do not treat video games as audiovisual works, as they
 would 

>> be in the U.S. The concept is not available to them, which has produced some fairly "dodgy" (as my UK colleagues would say) jurisprudence
 regarding 

>> computer games. My instinct is that what Benjamin wants to do, display and/or
 performance 

>> of a lawfully owned copy of a game, is probably outside the exclusive rights of the copyright holder, and you would never need to reach the
 fair 

>> dealing issue. But I am poignantly aware of my own limitations on the subject, which is why I recommended talking to some actual experts. One of the benefits of an international organization (and an
 international 

>> listserv) is that one learns to become somewhat more modest about the
 reach 

> of one's localized knowledge. Which is a valuable thing. DLB On 2016-05-05 15:50, Patricia Aufderheide wrote: So true that copyright law is nationally based! Thank you for that reminder, Dan! So use the copyright law where you are based. In some nations, fair dealing can either be ample (Canada's fair dealing in some cases allows for more amplitude than US fair use!), specifically exempt research, or have unsuspected crevices. Some nations have a "right of quotation" clause that can be filled with practice--among them South Africa, and all the Scandinavian nations. So definitely explore your options! On Thu, May 5, 2016 at 6:46 PM, Dan L. Burk <dburk at uci.edu> wrote: Please see my previous message regarding fair dealing in the UK. I am a big fan of the fair use best practices project for the U.S., and possibly for jurisdictions like Israel that have emulated the U.S.,
 but the 

> doctrine is not universal. YMMV. Regards, DLB On 2016-05-05 15:05, Patricia Aufderheide wrote: Delighted to share with you clear guidance from communication
 researchers, 

> where you can see the practices that will put you squarely within fair
 use 

> for your research:

http://archive.cmsimpact.org/fair-use/related-materials/codes/code-best-practices-fair-use-scholarly-research-communication
[11] 

> (look at the third category) Created by ICA scholars and endorsed as well by NCA. On their websites, it's only a PDF but if you want to be assured that a national
 association 

> of scholars has vetted this, here are the two websites:

http://www.icahdq.org/pubs/reports/fairuse.pdfhttps://www.natcom.org/uploadedFiles/More_Scholarly_Resources/Publishing_Primer/PDF-publishingprimer-fair_use.pdf
[12] 

> On Thu, May 5, 2016 at 6:02 PM, Benjamin Turpin <b.turpin at outlook.com> wrote: Hello all, I'm in the process of planning a research project that will involve recording how players emotionally and cognitively respond to particular types of video games. I'm hoping to allow participants to
 play a 

> commercially available game for 60-90 minutes in lab conditions. There
 will 

> be three different games with ten participants for each game. I had intended to use my personal copies of these games (purchased on Steam)
 for 

> the experiment, but am unsure if this would make me legally vulnerable without seeking permission of the developers. Does anyone have any knowledge of whether this type of distribution would be considered
 'fair 

> use' of copyrighted materials? Any advice much appreciated! Ben Turpin
 PhD 

> Student, Sociology University of Essex _______________________________________________ The Air-L at listserv.aoir.org mailing list is provided by the Association of Internet Researchers http://aoir.org [7] Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org [8] Join the Association of Internet Researchers: http://www.aoir.org/ [9] -- Patricia Aufderheide, University Professor and Founder Center for Media & Social Impact, School of Communication American University 4400 Massachusetts Av., NW American University, Washington, DC 20016-8017 McKinley Hall 323 @paufder @cmsimpactwww.cmsimpact.org<
 http://www.centerforsocialmedia.org/
[13]>paufder at american.edu202-643-5356 

> Sample *Reclaiming Fair Use! * <http://cmsimpact.org/reclaiming [10]> Order Reclaiming Fair Use: How to Put Balance Back in Copyright,
 University 

> of Chicago Press, 2011. <

http://www.amazon.com/Reclaiming-Fair-Use-Balance-Copyright/dp/0226032280/ref=sr_1_2?ie=UTF8&qid=1321544105&sr=8-2
[14] 

> _______________________________________________ The Air-L at listserv.aoir.org mailing list is provided by the Association of Internet Researchers http://aoir.org [7] Subscribe, change options or unsubscribe at:
 http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org [8] 

> Join the Association of Internet Researchers:http://www.aoir.org/ [9] -- School of Law University of California, Irvine 4500 Berkeley Place Irvine, CA 92697-8000 Voice: (949) 824-9325 Fax: (949)824-7336 bits: dburk at uci.edu -- School of Law University of California, Irvine 4500 Berkeley Place Irvine, CA 92697-8000 Voice: (949) 824-9325 Fax: (949)824-7336 bits: dburk at uci.edu
 _______________________________________________ The
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-- 
School of Law
University of California, Irvine
4500 Berkeley Place
Irvine, CA 92697-8000
Voice: (949) 824-9325
Fax: (949)824-7336 
bits: dburk at uci.edu

Links:
------
[1]
http://archive.cmsimpact.org/fair-use/best-practices/fair-use-visual-arts
[2] http://archive.cmsimpact.org/libraries
[3]
http://archive.cmsimpact.org/fair-use/best-practices/documentary-filmmakers-statement-best-practices-fair-use
[4] http://archive.cmsimpact.org/journalism
[5] https://american.co1.qualtrics.com/jfe/form/SV_6FP1AJOdghEehrT
[6] http://archive.cmsimpact.org/ocw
[7] http://aoir.org
[8] http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org
[9] http://www.aoir.org/
[10] http://cmsimpact.org/reclaiming
[11]
http://archive.cmsimpact.org/fair-use/related-materials/codes/code-best-practices-fair-use-scholarly-research-communication
[12]
http://www.icahdq.org/pubs/reports/fairuse.pdfhttps://www.natcom.org/uploadedFiles/More_Scholarly_Resources/Publishing_Primer/PDF-publishingprimer-fair_use.pdf
[13] http://www.centerforsocialmedia.org/
[14]
http://www.amazon.com/Reclaiming-Fair-Use-Balance-Copyright/dp/0226032280/ref=sr_1_2?ie=UTF8&qid=1321544105&sr=8-2