Wednesday, November 12, 2008

The END to Copyright Confusion~and a new beginning

Yesterday at the National Constitution Center the The Code of Best Practices in Fair Use for Media Literacy Education (pdf) was released. I have to say I have been looking forward to this for the past year!

The code outlines five principles, each with limitations:

Educators can, under some circumstances:

  • Make copies of newspaper articles, TV shows, and other copyrighted works, and use them and keep them for educational use.
  • Create curriculum materials and scholarship with copyrighted materials embedded.
  • Share, sell and distribute curriculum materials with copyrighted materials embedded.

Learners can, under some circumstances:

  • Use copyrighted works in creating new material.
  • Distribute their works digitally if they meet the transformativeness standard.

The limitations and circumstances are explained more fully in the report.

Five different attorneys reviewed the work and it has already been endorsed by the National Association for Media Literacy Education, the Action Coalition for Media Education, the National Council of Teachers of English, the Visual Communication Studies Division of the International Communication Association, and Media Education Foundation. The code was facilitated by Peter Jaszi and Patricia Aufderheide of American University, and Renee Hobbs of Temple University.

At the event there were 2 panels who spoke about their involvement with the work and statement. Here are some of my take aways from the event:

Jamie Bischoff: Partner at Ballard Spahr a copyright attorney quoted the Chicago manual of Fair use...This right of fair use is a valuable one to scholarship and it should not be allowed to decay through the failure of scholars to employ it boldly. The most radical thing in the code, she suggested, is the suggestion that educators CAN figure out...not that any use you want to make is not a fair use, but there are a lot of rights in educational context that rely don't need to be cleared....Fair Use is a RIGHT, that we WILL lose it if we don't continue to employ it boldly, actively and in good faith!

Peter Jaszi: spoke about the the theoretical underpinnings of the larger movements of creation of statements of best practices in fair use. He listed 2 "pillars"

  1. Fair use doctrine has become more important especially as we embrace a new way of thinking of fair use ANALYSIS...not just following "guidelines" and deciding whether new use that is being undertaken is or is not transformative. That if copyrighted material is used it both adds value to what was taken and repurposes it-offers for a different end or goal.
  2. The other pillar was that when use communities speak...the courts listen! Consistently over time if a court wants to know if a given use of unlicensed material is or is not fair they look to the use community in which that use occured.
Peter also talked about the guidelines that are what most folks follow when they think about using copyrighted materials and are quite contrary to the statement they presented, as a "trap for the unwary". While they are well intended to create minimum safe harbors, are inadequate in scope and are often misrepresented by copright owners and misunderstood by educators as representing outer limits. The code of Best Practices is designed to demonstrated that your rights as educators and learners will make clear that fair use is dynamic, living and should not be defined to a rule book!

Pat Aufderheide who did her work with the documentary filmmakers reminded us that in order to have creativity in education we need to have conversations with the "gatekeepers" to get them beyond the rigid guidelines where folks can assert their rights... and Kathy Im from MacArthur foundation came to discuss how MacArthur Foundation is supporting the work because of the desire to keep a balance...and reclain the ORIGINAL INTENT of Fair Use. Fair use has been misconstrued for some time. Participation in digital environment is are different and the interest is to have kids have a CRITICAL EYE!!!!

Joyce Valenza decribed how her kids and teachers WANT to be TRANSFORMATIVE, but that there is a MAJOR disconnect between what her kids put up on youtube and facebook and what they will put ups as a school because of the strict "guidelines". Before this release, she felt uncomfortable posting on school server some work that is clearly transformative, but now her real work begins-informing people about what transformativeness really is....Rhys from The Media Spot talked about the importance of critical decision making in fair use. Sherry Hope Culver talked about how important the document is and how useful it will be in classroom settings...WE CAN make the changes now with this support.

As I listened to the release conference yesterday (and again today in the recording) I realized that this is not was that this release is not as the slide show that was used in the presentation claimed, the END to Copyright Confusion, but a new beginning... the FIRST STEP towards understanding.

Educators need to step up and start to talk about it. We need to stop feeling threatened by the so called “rules” and reclaim our rights under Fair Use and teaching teachers and students to think critically about their use of any materials in creatNational Council of Teachers of English has adopted the statement released yesterday and from the section entitled THE TYRANNY OF GUIDELINES AND EXPERTS states…

Today, some educators mistakenly believe that the issues covered in the fair use principles below are not theirs to decide. They believe they must follow various kinds of “expert” guidance offered by others. In fact, the opposite is true. The various negotiated agreements that have emerged since passage of the Copyright Act of 1976 have never had the force of law, and in fact, the guidelines bear little relationship to the actual doctrine of fair use. Sadly, as legal scholar Kenneth Crews has demonstrated in “The Law of Fair Use Guidelines,” The Ohio State Law Journal 62 (2001): 602-700, many publications for educators reproduce the guidelines uncritically, presenting them as standards that must be adhered to in order to act lawfully. Experts (often non-lawyers) give conference workshops for K-12 teachers, technology coordinators, and library or media specialists where these guidelines and similar sets of purported rules are presented with rigid, official-looking tables and charts. At the same time, materials on copyright for the educational community tend to overstate the risk of educators being sued for copyright infringement — and in some cases convey outright misinformation about the subject. In effect, they interfere with genuine understanding of the purpose of copyright — to promote the advancement of knowledge through balancing the rights of owners and users.

In fact, this is an area in which educators themselves should be leaders rather than followers. Often, they can assert their own rights under fair use to make these decisions on their own, without approval. In rare cases where doing so would bring them into conflict with misguided institutional policies, they should assert their rights and seek to have those policies changed. More generally, educators should share their knowledge of fair use rights with library and media specialists, technology specialists, and other school leaders to assure that their fair use rights are put into institutional practice.

Frank Baker asked a question that CathyJo Nelson posted on her blog

OK, if you watched the stream of the event (or if you plan to watch it after the fact) here is my BIG question”

Does this report clarify it for you? or does it muddy the copyright/fair use waters?

Just curious.

The media lab has some great case studies and teaching materials that you can use right away. I say whether it clarified or muddied the water, you can non deny that the need to think critically and to teach our students to view material with a critical eye...I encourage folks to download the statement , listen to the recording, JOIN THE WIKI and become advocates for their educational rights under fair use.


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  2. I wanted to let you know about the release of our new “Schoolhouse Rock” style music videos designed to teach about copyright and fair use. We think EFF members will love them!

    Here’s a link to learn more:
    Music Videos Help Educators Erase Copyright Confusion

    The release of two animated music videos completes the Copyright and Fair Use Curriculum Guide, developed by the Media Education Lab asa component of a two year research project funded by the John D. and CatherineT. MacArthur Foundation, which included the Code of Best Practices in Fair Use for Media Literacy Education, released in November at Philadelphia's National Constitution Center with our partners Patricia Aufderheide of the Center for Social Media and Peter Jaszi at American University Washington College of Law.