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Doug Johnson's Tech Proof

Fair Use of Fair Use

"All rights reserved. No part of this book may be reproduced, transmitted, or stored in an information retrieval system in any form or by any means, graphic, electronic, or mechanical, including photocopying, taping, and recording, without prior written permission from the publisher."

Some version of the statement above accompanies every copyrighted work -- print, audio-visual, or digital. Unfortunately, such statements completely ignore the fair use rights of consumers. And that can have harmful consequences to education.

So claims the 2007 document "The Cost of Copyright Confusion for Media Literacy," published by American University's Center for Social Media. The authors coin a new term -- hyper-comply -- meaning that educators over-comply with copyright law, and even forego using legitimate teaching tools and techniques for fear of violating copyright."

According to the report, teachers also might cope with the confusion over fair use by attempting "studied ignorance" or though "quiet defiance" of copyright laws as they understand them.

Copyright instruction and enforcement needs to change from describing narrow limits to emphasizing how educators and students can fully -- and legally -- use copyrighted materials.

Our instructional efforts need to include:

Teaching users that the use of copyrighted material in research, if properly cited and if it supplements, rather than supplants the researcher's product, is perfectly legal. Our district's "Guide to Cheating and Plagiarism" clearly describes when information needs to be cited and when it does not, how to cite a source, and how to avoid inadvertent plagiarism.

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The question we should be asking is not what percent of another's work did you use," but what percent of your product is of your own making?"

Teaching the concepts and tests of Fair Use. Both staff and students should be able to name and explain the factors surrounding fair use:

  • the purpose and character of the use;
  • the nature of the work;
  • the amount of the work used; and
  • the effect on its potential earning.

Just as importantly, teachers and students should understand that these are not laws set in stone, but simply "safe harbor" guidelines.

Teaching that a copyrighted works use is considered Fair Use if it is of a "transformative" nature. The Web site "Recut, Reframe, Recyle" defines the use of copyrighted works in online videos as "transformative" and meeting Fair Use guidelines if the use involves:

  • Parody and satire
  • Negative or critical commentary
  • Positive commentary
  • Quoting to trigger discussion
  • Illustration or example
  • Incidental use
  • Personal reportage or diaries
  • Archiving of vulnerable or revealing materials
  • Pastiche or collage

Informing teachers of all special rights given to them as educators. Teachers can show personal copies of copyrighted videos in class; off-air broadcasts can be re-shown to classes; and photocopies of copyrighted news and magazine article can be given to students. Homemade audio recordings of copyright materials can be made for special needs students. (Some restrictions apply, but these are legal.)

Teaching the Fair Use Guidelines For "Educational Multimedia." These guidelines (as described by Linda Star on Education World) state that educators and students who create educational multimedia projects containing copyrighted materials may use those projects for a wide variety of purposes including face-to-face instruction, directed student self-study, remote instruction, such personal uses as job interviews, and portfolios of academic work.

Educators need to know the "outer limits," not just the "safe harbors," of the use of copyrighted materials -- and allow their students to explore those outer limits as well. An educator's automatic assumption should be that, unless it is specifically forbidden and legally established in case law, the use of copyrighted materials is allowable. (It is interesting to note that, according to Temple University's Media Education Lab, "There's never been a lawsuit involving a media company and an educator over the rights to use media as part of the educational process.")

Hobbs, Jaszi and Aufderheide, in "Ten Common Misunderstandings about Fair Use," wisely write: "Applying fair use reasoning is about reaching a level of comfort, not memorizing a specific set of rules." Shouldn't that statement apply to all issues involving copyright and intellectual property?

This is a serious and evolving issue. Take some time this summer to read these provocative thoughts on how schools should comply with intellectual property laws:


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