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Saturday
Nov152008

Fair Use Scenarios

Applying fair use reasoning is about reaching a level of comfort, not memorizing a specific set of rules. Hobbs, Jaszi, and Aufderheide, "10 Common Misunderstandings About Fair Use."

It's long been my contention that you can't "teach" values. The best someone can do is create situations that help people define or refine their own values derived from information, conversation and reflection.

To this end, I've always used "scenarios" anytime I work with others on questions of ethics (and online safety). Scenarios form the heart of my book Learning Right from Wrong in the Digital Age.

The quote above from the professors at the Temple University Media Education Lab strikes me as great reason that some new scenarios need to be written that deal with fair use and copyright. Can such scenarios help librarians, teachers and students reach "a level of comfort" using copyrighted materials within fair use guidelines?

Here's what one* might look like:

The PTO at Johnson Middle School is creating a "video yearbook" for students and families that document the school year. One parent wants to add a few news clips from network television and excerpts from popular songs and movies of the year along with the original video of school activities and events. "We want our children to remember not just what happened in school this year, but what happened in society," she opines. The PTO will sell the videos for just enough to cover the cost of production and fund a class field trip.

1. What is the copyrighted material? Who owns it?

2. Does the use of the work fall under fair use guidelines? Is the use transformational in nature? Can this be considered "educational" use?

3. What is your level of comfort in helping create such a product? Are there any changes or limits you might like to see that would make you more comfortable with this project?

OK, this is sort of the same old, same old. But here is what is exciting...

In visiting with Jim Ulsh, Director of Student Publishing at ProQuest at the SLJ Leadership Summit at breakfast this morning, we talked about putting these scenarios online and allow readers to vote on their "level of comfort" with particular uses of copyrighted materials. (OK, the idea was Jim's, but I am still taking credit.)

What do you think? Would this be a valuable resource? How might the idea be improved? Any particularly knotty situations on fair use that scenarios should be written?

OK, I'm going back now to paying attention to the panel discussion I'm attending.

* Links to additional scenarios created

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Reader Comments (8)

If I were you, I'd only talk about educational fair use. I'd start by saying "If you've got questions about fair use by schools for non-educational uses, go ask someone else, I don't care about that. This is about teaching and learning and someone else can tell you what can go in the yearbook."

Adding in these non-educational scenarios really muddies the water to no good end, makes the whole thing look even more complicated than it is. I strongly suspect that people confuse the "what you can do in the school dance" and "what you can do in public performance of the school play" analysis with the "what you can do in the classroom" analysis, with the end result of making people do less in the classroom than fair use would allow them to.

November 15, 2008 | Unregistered CommenterTom Hoffman

Do we even have fair use as a possibility in Canada? I thought fair use was only an American legal term and not applicable in Canada. I've been trying to determine what is fair when wanting to share a digital form of a picture book for a larger audience in a school setting. I know it isn't covered under Access Copyright rules. It 'feels' like fair use to me. I'm not going to sell the product, just promote it's wider circulation. I had the opportunity to talk about it with a Canadian illustrator in person, he said he owned the copyright of his illustrations and didn't have a problem with the use of the picture book in this kind of scenario. I know it doesn't cover the current scenario you are presenting but this is more everyday for me than the yearbook piece. I can't get a read on my feel for a more broad-based scenario such as the one you are presenting until I have a better understanding of fair use in Canada. I would very much appreciate your advice on where to get information on fair use in Canada, particularly in comparison to fair use in the USA.

November 15, 2008 | Unregistered CommenterSusan

@ Hi Tom,

This is a great point. I will certainly make the bulk of the scenarios about educational fair use. I do think it may be helpful to have some “non-educational” fair use questions for a couple reasons.

First, it may not hurt to have people consider what can actually be considered “educational” use. In the scenario I gave, the actions involve schools, kids and educational organizations, but can the activity be considered “educational?” Something good to talk about.

The second reason to perhaps include some non-educational scenarios is that caring adults need to help students think about the use of IP in their “non-school” lives. Perhaps a second set clearly labeled as “non-educational?”

But yes, your point is absolutely valid. I appreciate it.

Doug

@ Susan,

I don’t know anything at all about Canadian IP laws. But I am forwarding your question to two brilliant Canadian library experts who may be able to help.

Rose an Esther, if you can help, let me know about good resources to learn more about Canadian IP laws too. Thanks!

Doug

November 16, 2008 | Unregistered CommenterDoug Johnson

Thanks Doug. I've been watching the fair use discussion and been wondering about if it applies to me. Thought you might have a person or two you could ask.

November 16, 2008 | Unregistered CommenterSusan

I am still learning about fair uses and it seems a little confusing. As long as I am not replicating something for profit its ok right?

November 20, 2008 | Unregistered Commenterjas0025

Mr. Johnson,
I got behind on your blog, but want to participate in these fair use questions. I enjoy this give and take, and thank you for providing it. I often second guess myself with these issues. This scenario makes me uncomfortable. Then I get uncomfortable with myself for getting uncomfortable! It is the selling of the yearbook video which makes me uncomfortable. It doesn't seem to me to fall under educational use, either.

November 20, 2008 | Unregistered CommenterJoan Tracy

Hi Joan,

The purpose for the scenarios is to encourage discussion and reflection. If they have done that for you, I’m happy!

All the best,

Doug

November 22, 2008 | Registered CommenterDoug Johnson

A video yearbook has no educational value and since this is a for profit venture, this scenario puts us in an uncomfortable position. If this was for educational purposes, then music and video would be covered as acceptable under the fair use act.

January 12, 2009 | Unregistered CommenterGroup 6

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