Fair Use

Yesterday afternoon I took part in a conversation about what fair use and copyright looks like in the K-12 classroom. I was invited when the head of our upper-school was unable to attend, and because I am the adviser to the yearbook and the newspaper and I teach Journalism and Media Studies, I was asked to fill his chair. This was not a place to learn what we can and cannot do; this was a conversation about what is normative practice in the classroom. The discussion was organized and moderated by Renee Hobbs of Temple University’s Media Education Lab and the research is funded by the John D. and Catherine T. MacArthur Foundation.

The conversation was one of perhaps eight such conversations that the researchers from Temple and American Universities are undertaking to essentially poll the studio audience. Peter Jaszi, copyright law scholar from AU, expressed the researchers’ thinking this way. If there was a major challenge to the fair use exemption of copyright protection in schools, judges deciding the case would not look to other judges to make a decision but to the community of practice to determine what constituted fair use. So, they have set about to determine exactly what is the practice in the K-12 classroom. He suggested that almost everything we as teachers assume about copyright law is probably not quite true, (see their initial findings about copyright confusion and media literacy here) and he was candid about the fact that we probably restrict ourselves too much as teachers. He cited a very much for-profit case where the fair use exemption of copyright protection was upheld. If you are curious about the case (the Grateful Dead coffee table book), you can read the decision here: Bill Graham Archive v Dorling Kindersley Publishing

It seemed to me that all of the benchmarks that we traditionally look to fall away in the face of “transformative use.” When we or our students create something new from existing work, we would appear to be covered by the fair use exemption. Did we bring the work to a new, unanticipated audience? That’s transformative. Did we analyse it or put it in a context not intended in its original publication/release? That’s transformative. Did we alter it in any way? That’s transformative.

New ways of making work available, like Creative Commons, makes it easier for us to share, remix, mashup, and reuse. But we also need to be assured that the fair use exemption to copyright law is there to help us create, innovate, and teach. With copyright law much stronger and longer, it’s hard to find an author/artist/copyright holder whose work falls into the public domain. The fair use exemption allows us to flex creative muscles and lets our students flex theirs. But, Jaszi reminded us last night, it’s a use or lose it proposition. When there is a challenge to an educator regarding their use of the fair use exception to copyright law, the courts will look to us as a community to see how we work with copyright law.

I am looking forward to November when the Center for Social Media publishes its second set of findings. They are looking to create a Best Practice in Fair Use for teachers. Using the model that they developed with the Documentary Filmmaker’s Statement, they hope to clarify best practices and peel away the myths that surround copyright law.

I came away from last night’s conversation confused (what I thought I know, I don’t know) and oddly relieved. Now I don’t know nothin’ ’bout copyright law, but I’m willing to take a chance!

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