Teasers from Best Practices in Fair Use

As I was re-reading the Center for Social Media's Code of Best Practices in Fair Use for Media Literacy (released with great pomp yesterday, including an excellent short address by Joyce Valenza), these lines jumped out at me:

[Fair use] is a general right that applies even in situations where the law provides no specific authorization for the use in question—as it does for certain narrowly defined classroom activities. (p.1)

Like literacy in general, media literacy is applied in a wide variety of contexts—when watching television or reading newspapers, for example, or when posting commentary to a blog. Indeed, media literacy is implicated everywhere one encounters information and entertainment content. (p.2)

...there is a climate of increased fear and confusion about copyright, which detracts from the quality of teaching. Lack of clarity reduces learning and limits the ability to use digital tools. Some educators close their classroom doors and hide what they fear is infringement; others hyper-comply with imagined rules that are far stricter than the law requires, limiting the effectiveness of their teaching and their students’ learning. (p.4)

...there have been no important court decisions—in fact, very few decisions of any kind—that actually interpret and apply the doctrine in an educational context. This means that educators who want to claim the benefits of fair use have a rare opportunity to be open and public about asserting the appropriateness of their practices and the justifications for them. (p.5)

In fact, the cultural value of copying is so well established that it is written into the social bargain at the heart of copyright law. The bargain is this: we as a society give limited property rights to creators to encourage them to produce culture; at the same time, we give other creators the chance to use that same copyrighted material, without permission or payment, in some circumstances. Without the second half of the bargain, we could all lose important new cultural work. (p.5)

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. (p.7)

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. (p.8)

We don’t know of any lawsuit actually brought by an American media company against an educator over the use of media in the educational process. (p.17)

And lastly...

The next step is for educators to communicate their own learning about copyright and fair use to others, both through practice and through education. (p.14)

OK, folks, I hope your interest has been piqued. Download this document and read these statements in context where they are even more powerful. Share the document with fellow educators (especially your favorite librarian). Keep in mind these words from the document:

Educators need to be leaders, not followers, in establishing best practices in fair use.

New guidelines for Fair Use!

Well, I'm really excited! Check out this press release from the Center for Social Media:

TEMPLE UNIVERSITY Philadelphia, Pennsylvania 19122
A Commonwealth University

Yes, You Can Use Copyrighted Material in the Classroom
New Code Outlines Five Principles of Fair Use for Teachers, Students

PHILADELPHIA, PA (November 11, 2008)— A national magazine tells a professor she needs
hundreds of permissions to use its cover photos in her class, when in fact, she could claim fair
use, which does not require payment or permission. Many teachers want to use YouTube as a
teaching tool but aren’t sure if it’s legal; others warn their students not to post their video
assignments to YouTube. Under fair use, both actions are legal.

All manner of content and media is now available online, but fear and misinformation have kept
teachers and students from using this valuable material, including portions of films, TV
coverage, photos, songs, articles, and audio, in the classroom.

Now, thanks to a coordinated effort by the media literacy community, supported by experts at
American University and Temple University, teachers and students have a guide that simplifies
the legalities of using copyrighted materials in an academic setting: The Code of Best Practices
in Fair Use for Media Literacy Education, available online at:
http://www.centerforsocialmedia.org/resources/fair_use_and_teaching/.

The code, which will be released on Tuesday, November 11, at the National Constitution Center
in Philadelphia, was developed 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 the
Media Education Foundation, and facilitated by Peter Jaszi and Patricia Aufderheide of
American University and Renee Hobbs of Temple University.

Educators use copyrighted materials from mass media and popular culture in building students'
critical thinking and communication skills. For example, a teacher might have a class analyze a
website or a television ad to identify purpose, point of view, and source credibility. With the rise
of digital media tools for learning and sharing, it is more important than ever for educators to
understand copyright and fair use.

Fair use, a long-standing doctrine that was specifically written into Sec. 107 of the Copyright
Act of 1976, allows the use of copyrighted material without permission or payment when the
benefit to society outweighs the cost to the copyright owner.

“The fair-use doctrine was designed to help teachers and learners, among others,” said Peter
Jaszi, director of the Program on Information Justice and Intellectual Property at American
University’s Washington College of Law. “It's one of the best copyright tools teachers have.”

“Finally, copyright confusion among educators will be a thing of the past,” said Hobbs, founder
of Temple University’s Media Education Lab and professor of broadcasting,
telecommunications and mass media at the university’s School of Communications and Theater. “In an increasingly copyrighted world, the code of best practices clarifies copyright and fair use
for educators and students.”

The code, which outlines basic principles for the application of fair use to media literacy
education, articulates related limitations, and examines common myths about copyright and
education, is a follow-up to a 2007 report, The Cost of Copyright Confusion for Media Literacy.
The report found that teachers’ lack of copyright understanding impairs the teaching of critical
thinking and communication skills. Too many teachers, it found, react by feigning ignorance,
quietly defying the rules or vigilantly complying.

The Code of Best Practices in Fair Use for Media Literacy Education outlines five principles,
each with limitations:

Educators can, under some circumstances:
1. Make copies of newspaper articles, TV shows, and other copyrighted works, and use them
and keep them for educational use.
2. Create curriculum materials and scholarship with copyrighted materials embedded.
3. Share, sell and distribute curriculum materials with copyrighted materials embedded.

Learners can, under some circumstances:
4. Use copyrighted works in creating new material.
5. Distribute their works digitally if they meet the transformativeness standard.

As part of the project, the Center for Social Media has produced a video to help teachers and
students understand how they can use copyrighted materials. The Code, video and other
curriculum materials for educators are available at http://centerforsocialmedia.org/medialiteracy
and can also be found at http://mediaeducationlab.com/.

“The best practices approach has worked superbly for other creative communities, such as
documentary filmmakers,” said Aufderheide, director of American University’s Center for
Social Media, part of the university's School of Communication. “The code will empower
educators to work as creatively as they want to, with a much better understanding of their rights
under the law.”

This project was funded by the John D. and Catherine T. MacArthur Foundation, with additional
funding from the Ford Foundation.

For more information, contact Katie Donnelly at katie.donnelly@temple.edu.

Press Contacts:

Jazmyn Burton, Temple University, jazmyn.burton@temple.edu, 215-204-7594
Maggie Barrett, American University Media Relations, barrett@american.edu, 202-885-5951

One of my pet projects this year has been trying to get the role of the librarian in dealing with copyright issue changed from "copyright cop" to "copyright counselor." This document, I'm sure, will be a featured resource in my efforts.

According to Cathy Nelson, Joyce Valenza will be doing a live presentation tomorrow as well. Be there or be square!

A

So long as I don't have to watch

There is a very interesting discussion taking place on the NECC 2008 Ning about what policies ISTE should adopt regarding the audio and video taping of its conference sessions.

Leslie Connery, Deputy CEO of ISTE and NECC Conference Chair, writes:

Amended Code of Conduct for NECC 2008

ISTE recently disseminated a code of conduct regarding video and audio recordings at NECC 2008 which has generated some thoughtful and energetic discussion.

We welcome your interest and comments and would like to clarify and amend the code of conduct for NECC 2008.

For NECC 2008, ISTE’s permission is not required for non-commercial video and audio recording of sessions and workshops.

However, for NECC 2008, written permission from the session or workshop presenter is required prior to capturing a video or audio recording. Any permitted recording should respect the presenter’s rights and not be disruptive.

Under no circumstances may any length or quality of video/audio capture be used for marketing, advertising, or commercial purposes without express written permission from both the session presenter(s) and ISTE.

Thank you. We look forward to an ongoing dialog about fair use.

You have until the new guidelines are expected to be published in January 2009 to comment, with a draft to be made available in early December 2009.

There are far more erudite minds than mine weighing in on this topic on the Ning already, but here is my take:

• Presenters should have the right to determine whether their sessions are recorded or not, and this preference should be clearly stated in the program itself. Personally, I think it is both professionally and economically unwise not to let oneself be taped. (Although Kathy Shrock makes a good case why she doesn't like recordings being made of her sessions.) Simply, we all need to share our knowledge in all formats as professionals; professional speakers and consultants ought to be glad of the free publicity. But you should should always give people the option to do foolish things. It makes the world a more interesting place.
• ISTE should designate a single Creative Commons license for how the recorded works can be used.
• ISTE should establish a common clearning house of all taped sessions. (If my writing won't help you get to sleep, maybe one of my conference sessions might and this would make them easy to locate.)

I've always allowed anyone to tape my sessions on the single condition that I never am obligated to watch or listen to the damn things*. Perhaps that should be a part of the policy as well.

Anyway, it is a very interesting discussion and it should engage all of us as educators who want to help our students understand copyright, intellectual property, and fair use issues.

What are the policies on this that other organizations like ALA have adopted? Or is ISTE on the bleeding edge?

Please add your ideas and opinions to the NECC Ning!

*I did once find watching a presentation I gave instructive. It seems, back when I was starting out as a speaker, I spent a great deal of time playing with the change in my pocket while I presented. I looked like a pervert that should not only not be in education but not be allowed within 500 yards of a school. I learned to remove everything from my pockets before every talk I give.

Is still do.