Copyright Confusion

Copyright and fair use issues are definitely things that I think about often and have written about in the past. I work with teachers both within my building and through state run programs and I have always taught people that in order for use of media to be considered appropriate and fair one must consider the following

1. What is the purpose for which you are using (commercial or nonprofit)
2. What is the nature of the use
3. What amount of the work being used
4. What is the effect of your use on copyright holder
   

In order to be "clear" in these "rules" I have also been steering teachers and students to use copyright friendly materials which follow fair use guidelines in the creation of their own original projects. If it didn't "fit the guidelines" we would not consider publishing the student work. HOWEVER a recent webinar on copyright and fair use has REALLY started to challenge the way I think about digital media project creation. (link at post end). The webinar was hosted by..Renee Hobbs Professor at Temple's Media Education Lab and Peter Jaszi who is a professor of Law at American University who specializes in Copyright Law. Using a model started by the Documentary Filmmakers' Statement of Best Practices in Fair Use they are working to create a statement to assist media educators in making better use of their fair use rights under copyright law. The project has been written about in many newspapers, magazines and blogs, including The Chronicle of Higher Education, School Library Journal, and Youth Media Reporter and they shared with us some of the "survival strategies that they encountered in developing their own ideas and guidelines.

During the webinar, Peter told us that one of the ways that the courts have begin to think about whether or not a given use is fair or not is through the concept of transformativeness. The idea is that when the user of copyright material has added value to existing material and has re purposed the material for an audience that is different from the one it was originally intended then the creator can go forward. Most educational uses are inherently transformative. As Peter said it is good news for educators, but it is good news that needs to be translated into more specific guidelines in order to be effective. NOT the circulating guidelines which are often given more weight or the the wrong kind of weight in practice. They were well meaning, but misunderstood as the law rather than someone's attempt to interpret the law and outerlimits vs safe harbors...floors rather than ceilings they are certain to be fair use but by no means are the limits. We also need to understand that not everything educational falls within the domain of fair use. Trying to develop guidance not from OUTSIDE the community but within a best practices in fair use for education. That the rules we learned are not really rules at all, but negotiated agreements to provide guidance but that actually limit our ability to take advantage of the full legal power of fair use.

I had some SERIOUS QUESTIONS during the webinar about what I have been asking kids to do and also how we have been limited the quality...the transformativeness of their work by holding them to these strict "guidelines" so afterwards and I contacted one of the research assistants in the project, with my questions. I shared a project in which the kids as a part of a video comparing the genocide in Darfur to the Holocaust, used an entire licensed song. Although the video was AMAZINGLY powerful, we did not publish the video. Katie & Renee seemed to feel based on their work that it would constitute fair use of the material...WOW, this changes EVERYTHING

I was really excited to be invited to join them in a discussion this past Friday night, one of several to be held around the country designed to develop a common understanding of how copyright and fair use applies to what is happening in schools. Among the folks in the room were Joyce Valenza who wrote in her Neverending Search Blog for School Library Journal... Fair use and transformativeness: It may shake your world:

"I am no longer sure that anything I learned, or anything I regularly share relating to fair use, is either helpful or relevant....

Ok, good, I wasn't the ONLY ONE who was feeling like my world was rocked...

Renee Hobbs director of the project shared with this group: copyright is designed not only to protect the rights of owners, but also to preserve the ability of users to promote creativity and innovation. Teachers are often afraid to share their innovative practices, to post materials online or distribute samples of their students’ work because of misinformation and fear. Another POWERFUL concept for me to mull around.....After introducing the project and much of the information shared at the webinar, we were asked to examine and discuss a variety of scenarios to determine what did and did not constitute fair use under the definition. I am not going to review each one and my notes were quite random, but here were some of the big talking points or questions that arose.

Is there a difference between a paper copy and a digital copy? Is it different if you make 20 copies of an article or offer 1 copy online? What about sharing 60 min video…does time make a difference. There was lots of conversation about repurposing and how once you commit to putting something online, it is out there

• Sharing in classroom
• Sharing in conference
• Sharing in an email
• Sharing on the web
• All have different risks / ethical and moral
  

Can you "publish" someone's lesson plan in a book of model examples if you share it with the same purpose? What about sharing as a critical example? We shared several student examples. And what about student use of copyrighted material? If we continue to steer to creative commons and say you can ONLY have this, this or this type of content (creative commons) aren’t you doing both the kids and the creative process a disservice

I brought up an example where a teacher asked her kids to take a section of Beowolf and retell in comic form. The fun part of the project was that they were asked to think of modern day people to represent the characters in the story...The kids immediately went to google, and I cringed... The folks in the room seemed to think that this was clearly a transformative use of any images the kids found. In addition, the fact that kids needed to think through and reason WHO in the modern world make a good Beowolf is clearly a higher level skill. The conversation turned to the idea that if we send them to copyright friendly sites: then copyright becomes a wall we can’t go past and those guidelines become less of guidelines and more of rules.

Ok so why do places like the Library of Congress then offer clearly animated directions that follow these guidelines....

Peter brought up that the Library of Congress is a wholly owned subsidiary of the copyright industry…When you stop to critically analyze…WHO PAID FOR IT…isn’t that a model of higher level thinking skills? The copyright industry is a fee dependent organization that is funded by movie making, music industries..they know who is paying their bills...they are going to protect the rights of these copyright holders-and who is protecting OUR rights as educators?

One of the reasons that I was so excited about this project is that in order to maintain our own creative rights, we need to articulate our OWN positions and reclaim our legal rights under the fair use doctrine and it CAN'T be just the media educators who are involve in this process.

The pedagogy of practice modeled during this experience is worth analyzing as well. Renee used an instructional method that is reasoning of principals it made us think “Fair use is an application of reason and I have to do that as an educator…” This whole process is moving us TOWARD the critical thinking goals, it is a new paradigm they are bringing to the table.
One of the stated final goals is to produce something that will make it possible for media educators to be effective, successful and model the full range for students…so when they feel challenged they have something to fall back on. I think it is essential that this information gets out to ALL teachers who are integrating technology. After all, isn't our purpose in assigning projects where kids are creating content to get them to think deeply about the material?

As Joyce wrote... Transformativeness gives us new freedoms in a mix-up, mash-up world of broadly shared media and ended her post with some pretty powerful questions I highly encourage everyone reading to check out the resources at the Media Education Lab. Watch the video Download the PDF: The Cost of Copyright Confusion
Think about the definition of transformativeness and encourage your students to do the same. And follow the work coming out of Temple Media Education Lab . It is sure to transform our practice.
THOUGHTS? What have you been teaching about fair use? Does this change the way you think?

Link to the full webinar recording

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