Using Media, Fair Use and Copyright

Recently, when youth media educators learned about the legal victory of the music industry over the single mother from Minnesota ordered to pay more than $220,000 for sharing a mere 24 songs online, it only confirmed their suspicions that the copyright landscape is rapidly changing.
After learning of this court decision, Shay Taylor, a high school video production teacher from Montgomery County, Maryland expressed her fear, explaining, “I’ve got a stash of videotapes with copyrighted excerpts of TV shows, movies, advertising, news and music videos that I use all the time in my teaching. I wonder if they’re going to come after me some day.”
At a time when online digital technologies are enabling users to create and share an ever-widening array of multimedia texts, there is an increasing climate of fear among educators about the use of new resources for teaching and learning. The changing legal environment and high levels of copyright confusion surrounding digital media affect educators and their students in a variety of school, university and non-profit settings.
It is important that media literacy educators better understand their rights, since under the fair use provision of copyright law, they are entitled to use such materials in their work.
The Cost of Copyright Confusion
In K-12, higher education, and afterschool programs and workshops, educators face conflicting information about their rights, and their students’ rights, to use copyrighted material. They also confront complex, restrictive copyright policies in their own institutions and organizations. Although copyright law permits a wide range of uses of copyrighted material without permission or payment, educators today have no shared understanding of what constitutes acceptable fair use practice.
On September 25, 2007, Renee Hobbs of Temple University’s Media Education Lab, Pat Aufderheide of the Center for Social Media at American University and Peter Jaszi of the Program on Information Justice and Intellectual Property in the American University Washington College of Law released The Cost of Copyright Confusion for Media Literacy, a report funded by the John D. and Catherine T. MacArthur Foundation. More than 60 educators, youth media professionals, librarians and college faculty were interviewed about their understanding of copyright and fair use as these concepts apply to their work.
This research revealed that, in order to deal with copyright restrictions, teachers may adopt one of several coping strategies: they may avoid sharing lesson plans, curriculum materials, or student productions; they may “hyper-comply,” by creating unnecessary copyright restrictions for students as a result of ignorance or fear; or they may blatantly ignore copyright all together, close the doors of their classroom, and do whatever they like. As Renee Hobbs pointed out, “Some of the fundamental goals of media literacy education—to cultivate critical thinking about media and its role in culture and society in order to strengthen creative communication skills—are compromised by lack of understanding about copyright law.”
Building Consensus about Fair Use
In the current phase of the project, Hobbs and her colleagues are attempting to create a shared understanding of fair use among media literacy and youth media educators by hosting small-group consensus-building meetings in cities across the country. So far, meetings have been held in Boston, New York and San Francisco.
The meetings brought together diverse groups of youth media educators, university faculty, and K-12 teachers. The discussions were led by Peter Jaszi of the Washington College of Law at American University, who is one of the country’s leading legal experts on copyright and fair use.
Fair use is the most important (and most misunderstood) tool in copyright law for educators, and many youth media educators and K-12 teachers are unfamiliar with the concept. It is intended to balance the rights of owners with the rights of users by encouraging the widespread use of cultural products. While most educators see copyright as primarily protecting the property rights of creative producers, in fact, the concept of fair use shows that users are entitled to borrow, quote, or make use of the creative work of others in developing their own ideas, with proper citation.
Unfortunately, educators often receive conservative copyright advice from lawyers who wish to minimize the potential for lawsuits. For example, one youth media curriculum developer at a major nonprofit organization described her experience of developing curriculum materials: “When we actually published the curriculum, our attorney said we could not provide people with material or suggest how they obtain it—we could not say ‘photocopy’ or ‘tape.’ I got around this by just saying ‘obtain.’ These restrictions made it difficult for us to be creative.” Limitations like this constrain the development of media literacy programs nationwide.
In each city, key themes emerged from meetings with media educators. In New York, educators questioned fair use and digital sharing. In Boston, the focus was more about getting copyright permission and in San Francisco, educators were curious how to balance the rights of owners and users.
New York, NY: What’s Fair about Digital Sharing?
It is no surprise that life in a digital world changes the way creative work is circulated. It is easier than ever for educators to copy and distribute the intellectual property of others, and in a meeting held at the Academy for Educational Development in New York City this fall, educators discussed “what’s fair” about such sharing. Participants discussed various hypothetical situations that elucidated points of consensus and disagreement among educators.
A discussion based on photocopying copyrighted materials immediately shifted to a conversation about scanning, digitizing and electronically distributing documents. There was confusion among educators regarding the acceptable scale of distribution regarding the educational use of copyrighted works. Several participants noted that various gatekeepers at their institutions prevented them from making copies—usually based on an arbitrary guideline or rule with no legal standing. Many agreed with one university administrator, who remarked that when it comes to using copyrighted materials for educational purposes, it is a “Don’t ask, don’t tell” culture.
Media literacy educators are highly aware of the changing economic models emerging in traditional mass media and new media industries. As organizations like The New York Times grapple with how to preserve their own economic interests in a digital world, youth media educators who rely on timely and current information find they cannot afford to wait for industries to finalize their business models. One youth media curriculum developer in New York City warned that media educators need to be careful about balancing creators’ interests with their own: “As educators, where do we draw the line? I don’t want to stifle media producers from producing.”
Music and popular culture are prime artifacts of the cultural environment and more and more students want to be able to use appropriation and remix techniques in creating their own work. However, there is great confusion over the role of music in youth media productions. “It’s a mash up world,” said one youth media educator, “but we are afraid of letting students get away with this, especially if they want their work seen in screenings and festivals.”
The fear surrounding the appropriation of popular music was disproportionately higher than fear concerning the use of video, photocopies or other forms of media— perhaps because the music industry has been aggressive in taking legal actions against unauthorized sampling and downloading.
Boston, MA: What’s Fair about Permissions?
When should media literacy and youth media educators get permission to quote from or use the copyrighted works of others? When is permission unnecessary? In a meeting at Wheelock College in Boston, hosted by Professor Petra Hesse, this issue was hotly debated. Participants argued over when it was appropriate to ask a copyright holder for permission to use his or her work.
Most youth media and media literacy educators agreed that when engaged in the practice of “comment and criticism,” permission is not needed. But one university professor eschewed the idea of asking permission to use copyrighted works in the classroom for any purpose, stating: “I feel entitled to use whatever I want to use in the classroom—it is my raw material, like numbers are a mathematician’s raw material.”
Many participants voiced concern about business models that allow for copyright holders to charge educators to access their works. According to one participant who worked with incarcerated youth, “I have a huge concern that if people have to start paying for access to info, it is going to leave a huge gap between people in advantaged and disadvantaged communities.” Others recognized that “producers have children who need to eat,” and a number of participants were sensitive to the function of copyright permissions as allowing authors to control their own creative work and profit from it.
San Francisco, CA: Balancing the Rights of Owners and Users
At a meeting of youth media and media literacy educators hosted by Just Think in San Francisco, participants worked to understand how to balance the rights and limitations of owners and users. As in New York and Boston, group members struggled with the limits of digital distribution and the emerging economic models of the media industry. Although most participants expressed distaste with the media industry’s attempts to charge educators for essential learning tools, one participant acknowledged: “It’s a double standard. I’m a filmmaker and I wouldn’t want teachers just ripping and burning my film and giving it away.”
Participants also debated the merits of licensing fees and whether it is reasonable to expect youth to ask copyright holders for permission—or even to cite the copyright holder in all circumstances. Because youth media and media literacy educators are such a diverse group, perspectives on fair use span a large spectrum. Many media educators, such as the San Francisco filmmaker, are also media producers and copyright holders—which adds another dimension to the discussion.
Although some points of interest are beginning to emerge from these meetings, media educators still have a way to go toward developing a shared consensus on fair use. In the meetings, which will occur in cities around the country over the next year, media literacy and youth media educators will offer their input on this valuable and timely issue.
Currently, many educators feel they can avoid this issue by freely using copyrighted materials in their own educational settings but refusing to share curriculum materials and student productions with wider audiences. However, it is in the long-term benefits of young people that educators adopt a consistent approach to teaching about and responding to fair use and copyright law.
Towards a Code of “Best Practices”
In fall 2008, the discussions of these meetings will help media literacy and youth media educators familiarize themselves with their rights under the fair use doctrine in a follow-up report. Youth media educators who work with documentary filmmaking already have an existing resource in terms of fair use: The Documentary Filmmakers’ Statement of Best Practices in Fair Use, which was created by Pat Aufderheide and Peter Jaszi, two of the authors of The Cost of Copyright Confusion for Media Literacy.
Many youth media educators struggle with the balance of letting youth experiment freely with copyrighted materials versus training them to treat copyrighted materials exactly as a professional media producer would: going through the process of asking permissions, or relying on royalty-free images and music.
When students become media producers, they often want to make new and creative uses of existing copyrighted works in their own productions. They will also likely desire copyright protection for their own work.
Fair use, to some degree, allows for both: it was intended to balance the rights of the copyright holder with the rights of the user. Youth media educators do not need to live in fear and confusion when it comes to copyright—they need to educate themselves about fair use and reclaim the rights that already exist under copyright law. The next phases of The Cost of Copyright Confusion project intend to do just that.
Katie Donnelly is a research associate at Temple University’s Media Education Lab. She lives, works, and blogs in Philadelphia, PA.