Several times during the past few weeks, I have drawn on an article I read recently, The Cost of Copyright Confusion for Media Literacy. The article was published by The Media Education Lab of Temple University, The Program on Information Justice and Intellectual Property of the Washington College of Law at American University, and The Center for Social Media at the School of Communication at American University, led by Professors Renee Hobbs, Peter Jaszi, and Patricia Aufderheide, respectively.
The article seems to make two cases. One is that we do not have a clear and authoritative definition of fair use for education and libraries — and second, that our current notions of fair use are excessively conservative, and that what and how students learn in our schools is suffering as a result.
The fair use guidelines that are followed most frequently is the Copyright in an Electronic Environment document, posted here at the North Carolina State Department of Public Instruction web site. According to the Cost of Copyright article, the group who established this document were almost exclusively content producers and owners with little or no influence from the needs of education and public information (libraries). The only badge of authority is that the document is mentioned in the Congressional Record.
The article goes on to suggest that educators and librarians should work together to establish a document that ties more specifically to the admittedly vague allowances of Copyright Law, but one that empowers educators to teach with media and to teach about media literacy. The authors described a similar effort by a coalition of Documentary Filmmakers organizations to establish a best practices document, Documentary Filmmakers’ Statement of Best Practices in Fair Use.
Following its release, the Statement had an immediate effect. Filmmakers themselves, commercial networks, and the Public Broadcasting System all refer to it on a regular basis. Perhaps the most powerful evidence of the transformation that the Statement has helped to work is the fact that most of the insurers who offer errors and omissions insurance to filmmakers are now offering to cover appropriately documented fair use claims.
In conclusion, the article suggest that…
First, the media literacy education community needs to educate itself further about the clear and unambiguous use rights that its members already enjoy under copyright law, including the important exception in the Copyright Act for the use of audiovisual materials in the course of “face-to-face” teaching.
Second, there is an urgent need to develop and desseminate a code of practice for the fiar use of copyrghted materals by media literacy educators, based on colelctive discussions of the ways in which education actually do and reasonably could use such materials, consitent with the law. It is time for media literacy education to move beyond outworn “guidelines” and dubious and even unhelpful “rules of thumb.” The imprimatur of leading professional associations on a new articulation of codes of practice would provide crucial legitimacy.
Image Citation:
Daniel, Jennifer. “Closed Information Booth.” KansasLiberal’s Photostream. 14 Apr 2007. 25 Feb 2008 <http://flickr.com/photos/kansasliberal/458565230/>.
The question is: who is going to do this? Can the “media literacy community” be influenced to change their tune?
This is urgent and vital for all world wide. The lines are so blurred and if you really try to stick to the letter it’s so restricting in a educational environment and it really needn’t be.
My understanding of “fair use”, the way it was explained to me, is that the reason why we have no clear definition of it is… because there is no legal definition. “Fair use” is something that you can claim if someone is trying to sue you for copyright infringement, but its determined on a case by case basis. Therefore its impossible for us as educators to come up with our own parameters as to what it constitutes. The best we can do, and should be doing, is discussing with our students how to use materials that are not their own responsibly, and giving credit where it is due.
I’ll start by saying that I am not a lawyer. However, last year I attended a day long inservice on Copyright in Education that was led by a nationally known copyright lawyer. My notes from the day are linked above, but the most interesting thing to me was this tidbit of information he shared in closing:
Copyright law is FEDERAL law. If you sue someone for copyright violations, you must sue in FEDERAL court. About 12 years ago The Supreme Court started ruling in strict adherence to the Eleventh Amendment, which says that a STATE cannot be held liable for damages in a FEDERAL court. Teachers are representatives of the STATE! If you are knowingly and willfully violating copyright law you could be found guilty, just like anyone else. However, if you are found to be violating fair use guidelines unknowingly they can force you to stop doing violating that copyright, but you CANNOT be sued for financial damages in a Federal court. Case dismissed.
I recently read “The Cost of Copyright Confusion for Media Literacy” very thoroughly hoping to find answers, and all I really got was more questions. The section you highlighted on how the most commonly quoted fair use standards for teachers come from “Copyright in an Electronic Environment” document which the authors of the article feel is very restrictive.
Recently there was an interview with David Pogue on the e-School news network, and he was talking about copyright infringement and “illegal” copying and how what he used to view as a “black and white issue” is now many shades of gray.
So many of our students are “borrowing” images and movie clips and sound clips to created their own media (not necessarily mashups)that it is becoming very difficult to know what is acceptable and what is not.
We need better guidelines on what is acceptable for citation for student projects rather than just letting them “help themselves” to the vast resources available on the web.