Code of Best Practices in Fair Use for Media Literacy Education

Reproduced in its entirety (with permission) from: http://centerforsocialmedia.org/fair-use/related-materials/codes/code-best-practices-fair-use-media-literacy-education

Code of Best Practices in Fair Use for
Media Literacy Education

GENERAL POINTS ABOUT PRINCIPLES

Through its five principles, this code of best practices identifies five sets of current practices in the use of copyrighted materials in media literacy education to which the doctrine of fair use clearly applies. These practices are associated with K–12 education, higher education, and in classes given by nonprofit organizations. When students or educators use copyrighted materials in their own creative work outside of an educational context, they can rely on fair use guidelines created by other creator groups, including documentary filmmakers and online video producers.

These principles apply to all forms of media. Depending on the instructional goal, educators may use materials designed for entertainment and for persuasive or advocacy purposes. They may use print, images, Web sites, moving-image media, and sound media—in both analog and digital forms. In all cases, a digital copy is the same as a hard copy in terms of fair use. Veteran teachers may keep clippings from newspapers in manila file folders to use for media literacy education; younger ones may store their materials as digital files. Functionally, their practices are identical.

The principles apply in institutional settings and to non-school-based programs. Media literacy education may occur in university classrooms, in elementary schools, in computer labs in community technology centers, or in after-school and summer camp programs run by religious groups or nonprofit organizations. In addition to their fair use rights, teachers in conventional schools enjoy the benefit of limited educational exemptions under Section 110(1) and (2) of the Copyright Act. Educators in community-based organizations may not be covered by these exemptions, but they still can claim the right to use copyrighted materials under the doctrine of fair use.

The principles concern the unlicensed fair use of copyrighted materials for education, not the way those materials were acquired. When a user’s copy was obtained illegally or in bad faith, that fact may affect fair use analysis. Otherwise, of course, where a use is fair, it is irrelevant whether the source of the content in question was a recorded over-the-air broadcast, a teacher’s personal copy of a newspaper or a DVD, or a rented or borrowed piece of media. Label5s on commercial media products proclaiming that they are “licensed for home [or private or educational or noncommercial] use only” do not affect in any way the educator’s ability to make fair use of the contents—in fact, such legends have no legal effect whatsoever. (If a teacher is using materials subject to a license agreement negotiated by the school or school system, however, she may be bound by the terms of that license.)

The principles are all subject to a “rule of proportionality.” Educators’ and students’ fair use rights extend to the portions of copyrighted works that they need to accomplish their educational goals—and sometimes even to small or short works in their entirety. By the same token, the fairness of a use depends, in part, on whether the user took more than was needed to accomplish his or her legitimate purpose. That said, there are no numerical rules of thumb that can be relied upon in making this determination.

PRINCIPLES

ONE: EMPLOYING COPYRIGHTED MATERIAL IN MEDIA LITERACY LESSONS

DESCRIPTION: Educators use television news, advertising, movies, still images, newspaper and magazine articles, Web sites, video games, and other copyrighted material to build critical-thinking and communication skills. Common instructional activities include comparison-contrast analysis, deconstruction (close analysis) of the form and content of a message, illustration of key points, and examination of the historical, economic, political, or social contexts in which a particular message was produced and is received.

PRINCIPLE: Under fair use, educators using the concepts and techniques of media literacy can choose illustrative material from the full range of copyrighted sources and make them available to learners, in class, in workshops, in informal mentoring and teaching settings, and on school-related Web sites.

LIMITATIONS: Educators should choose material that is germane to the project or topic, using only what is necessary for the educational goal or purpose for which it is being made. In some cases, this will mean using a clip or excerpt; in other cases, the whole work is needed. Whenever possible, educators should provide proper attribution and model citation practices that are appropriate to the form and context of use. Where illustrative material is made available in digital formats, educators should provide reasonable protection against third-party access and downloads.

TWO: EMPLOYING COPYRIGHTED MATERIAL IN PREPARING CURRICULUM MATERIALS

DESCRIPTION: Teachers use copyrighted materials in the creation of lesson plans, materials, tool kits, and curricula in order to apply the principles of media literacy education and use digital technologies effectively in an educational context. These materials often include clips, copies or examples of copyrighted work along with a description of instructional practices, assignments, and assessment criteria. These materials may include samples of contemporary mass media and popular culture as well as older media texts that provide historical or cultural context.

PRINCIPLE: Under fair use, educators using the concepts and techniques of media literacy can integrate copyrighted material into curriculum materials, including books, workbooks, podcasts, DVD compilations, videos, Web sites, and other materials designed for learning.

LIMITATIONS: Wherever possible, educators should provide attribution for quoted material, and of course they should use only what is necessary for the educational goal or purpose. The materials should meet professional standards for curriculum development, with clearly stated educational objectives, a description of instructional practices, assignments, and assessment criteria.

THREE: SHARING MEDIA LITERACY CURRICULUM MATERIALS

DESCRIPTION: Media literacy curriculum materials always include copyrighted content from mass media and popular culture. Informal sharing of these materials occurs at educational conferences and through professional development programs, as well by electronic means. Media literacy curriculum materials are also developed commercially in collaboration with publishers or nonprofit organizations.

PRINCIPLE: Educators using concepts and techniques of media literacy should be able to share effective examples of teaching about media and meaning with one another, including lessons and resource materials. If curriculum developers are making sound decisions on fair use when they create their materials, then their work should be able to be seen, used, and even purchased by anyone—since fair use applies to commercial materials as well as those produced outside the marketplace model.

LIMITATIONS: In materials they wish to share, curriculum developers should be especially careful to choose illustrations from copyrighted media that are necessary to meet the educational objectives of the lesson, using only what furthers the educational goal or purpose for which it is being made. Often this may mean using a small portion, clip or excerpt, rather than an entire work, although sometimes it may be permissible to use more—or even all. Curriculum developers should not rely on fair use when using copyrighted third-party images or texts to promote their materials. For promotional purposes, the permissions process is appropriate. In addition, if a teacher or a school has specifically agreed to a license, then (of course) its terms are likely to be binding—even if they impinge on what would otherwise be considered fair use. And, of course, illustrative material should be properly attributed wherever possible.

FOUR:STUDENT USE OF COPYRIGHTED MATERIALS IN THEIR OWN ACADEMIC AND CREATIVE WORK

DESCRIPTION: Students strengthen media literacy skills by creating messages and using such symbolic forms as language, images, sound, music, and digital media to express and share meaning. In learning to use video editing software and in creating remix videos, students learn how juxtaposition reshapes meaning. Students include excerpts from copyrighted material in their own creative work for many purposes, including for comment and criticism, for illustration, to stimulate public discussion, or in incidental or accidental ways (for example, when they make a video capturing a scene from everyday life where copyrighted music is playing).

PRINCIPLE: Because media literacy education cannot thrive unless learners themselves have the opportunity to learn about how media functions at the most practical level, educators using concepts and techniques of media literacy should be free to enable learners to incorporate, modify, and re-present existing media objects in their own classroom work. Media production can foster and deepen awareness of the constructed nature of all media, one of the key concepts of media literacy. The basis for fair use here is embedded in good pedagogy.

LIMITATIONS: Students’ use of copyrighted material should not be a substitute for creative effort. Students should be able to understand and demonstrate, in a manner appropriate to their developmental level, how their use of a copyrighted work repurposes or transforms the original. For example, students may use copyrighted music for a variety of purposes, but cannot rely on fair use when their goal is simply to establish a mood or convey an emotional tone, or when they employ popular songs simply to exploit their appeal and popularity. Again, material that is incorporated under fair use should be properly attributed wherever possible. Students should be encouraged to make their own careful assessments of fair use and should be reminded that attribution, in itself, does not convert an infringing use into a fair one.

FIVE: DEVELOPING AUDIENCES FOR STUDENT WORK

DESCRIPTION: Students who are expected to behave responsibly as media creators and who are encouraged to reach other people outside the classroom with their work learn most deeply. Although some student media productions are simply learning exercises designed to develop knowledge and skills, media literacy educators often design assignments so that students have the opportunity to distribute their work.

PRINCIPLE: Educators should work with learners to make a reasoned decision about distribution that reflects sound pedagogy and ethical values. In some cases, widespread distribution of students’ work (via the Internet, for example) is appropriate. If student work that incorporates, modifies, and re-presents existing media content meets the transformativeness standard, it can be distributed to wide audiences under the doctrine of fair use.

LIMITATIONS: Educators and learners in media literacy often make uses of copyrighted works outside the marketplace, for instance in the classroom, a conference, or within a school-wide or district-wide festival. When sharing is confined to a delimited network, such uses are more likely to receive special consideration under the fair use doctrine.

Especially in situations where students wish to share their work more broadly (by distributing it to the public, for example, or including it as part of a personal portfolio), educators should take the opportunity to model the real-world permissions process, with explicit emphasis not only on how that process works, but also on how it affects media making. In particular, educators should explore with students the distinction between material that should be licensed, material that is in the public domain or otherwise openly available, and copyrighted material that is subject to fair use. The ethical obligation to provide proper attribution also should be examined. And students should be encouraged to understand how their distribution of a work raises other ethical and social issues, including the privacy of the subjects involved in the media production.

CONCLUSION

Most “copyright education” that educators and learners have encountered has been shaped by the concerns of commercial copyright holders, whose understandable concern about large-scale copyright piracy has caused them to equate any unlicensed use of copyrighted material with stealing. The situation has been compounded by the—again understandable—risk-aversion of school system administrators and lawyers. So-called fair use guidelines that institutional stakeholders have negotiated with some copyright holders have had similar results, intensifying fear and creating confusion among educators. These approaches have not responded directly to the actual needs of educators and learners, nor have they fully expressed or recognized the legal rights that educators and learners have.

This code of best practices, by contrast, is shaped by educators for educators and the learners they serve, with the help of legal advisors. As an important first step in reclaiming their fair use rights, educators should employ this document to inform their own practices in the classroom and beyond. The next step is for educators to communicate their own learning about copyright and fair use to others, both through practice and through education. Learners mastering the concepts and techniques of media literacy need to learn about the important rights that all new creators, including themselves, have under copyright to use existing materials. Educators also need to share their knowledge and practice with critically important institutional allies and colleagues, such as librarians and school administrators.

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

COMMON MYTHS ABOUT FAIR USE

MYTH: FAIR USE IS TOO UNCLEAR AND COMPLICATED FOR ME; IT’S BETTER LEFT TO LAWYERS AND ADMINISTRATORS.

TRUTH: The fair use provision of the Copyright Act is written broadly—not narrowly—because it is designed to apply to a wide range of creative works and the people who use them. Fair use is a part of the law that belongs to everyone—especially to working educators. Educators know best what they need to use of existing copyrighted culture to construct their own lessons and materials. Only members of the actual community can decide what’s really needed. Once they know, they can tell their lawyers and administrators.

MYTH: EDUCATORS CAN RELY ON “RULES OF THUMB” FOR FAIR USE GUIDANCE.

TRUTH: Despite longstanding myths, there are no cut-and-dried rules (such as 10 percent of the work being quoted, or 400 words of text, or two bars of music, or 10 seconds of video). Fair use is situational, and context is critical. Because it is a tool to balance the rights of users with the rights of owners, educators need to apply reason to reach a decision. The principles and limitations above are designed to guide your reasoning and to help you guide the reasoning of others.

MYTH: SCHOOL SYSTEM RULES ARE THE LAST WORD OF FAIR USE BY EDUCATORS.

TRUTH: If your school system’s rules let you do everything you need to do, you certainly don’t need this code. But if you need to exercise your fair use rights to get your work done well, in ways that your system’s rules don’t foresee, that’s a different story. In that case, the code may help you to change the rules! Many school policies are based on so-called negotiated fair use guidelines, as discussed above. In their implementation of those guidelines, systems tend to confuse a limited “safe harbor” zone of absolute security with the entire range of possibility that fair use makes available.

MYTH: FAIR USE IS JUST FOR CRITIQUES, COMMENTARIES, OR PARODIES.

TRUTH: Transformativeness, a key value in fair use law, can involve modifying material or putting material in a new context, or both. Fair use applies to a wide variety of purposes, not just critical ones. Using an appropriate excerpt from copyrighted material to illustrate a key idea in the course of teaching is likely to be a fair use, for example. Indeed, the Copyright Act itself makes it clear that educational uses will often be considered fair because they add important pedagogical value to referenced media objects.

MYTH: IF I’M NOT MAKING ANY MONEY OFF IT, IT’S FAIR USE. (AND IF I AM MAKING MONEY OFF IT, IT’S NOT.)

TRUTH: “Noncommercial use” can be a plus in fair use analysis, but its scope is hard to define. If educators or learners want to share their work only with a class (or another defined, closed group) they are in a favorable position. However, some more public uses may be unfair even if no money is exchanged. So if work is going to be shared widely, it is good to be able to rely on transformativeness. As the cases show, a transformative new work can be highly commercial in intent and effect and qualify under the fair use doctrine.

MYTH: FAIR USE IS ONLY A DEFENSE, NOT A RIGHT.

TRUTH: In court, doctrines like self-defense or freedom of speech or fair use aren’t considered until after the plaintiff has proved that there may have been assault or defamation or copyright infringement. Procedurally, that makes these doctrines “affirmative defenses.” But in the real world, people are entitled to protect themselves from harm and to speak their minds; likewise, we acknowledge the right of fair use, which is specifically provided by law to people who make reasonable but unauthorized use of copyrighted works.

MYTH: EMPLOYING FAIR USE IS TOO MUCH TROUBLE; I DON’T WANT TO FILL OUT ANY FORMS.

TRUTH: Users who claim fair use simply use copyrighted works after making an assessment of the particular situation—there’s nothing formal or official to “do” to claim fair use. You do not have to ask permission or alert the copyright holder when considering a use of materials that is protected by fair use. But, if you choose, you may inquire about permissions and still claim fair use if your request is refused or ignored. In some cases, courts have found that asking permission and then being rejected has actually enhanced fair use claims.

MYTH: FAIR USE COULD GET ME SUED.

TRUTH: That’s very, very unlikely. 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. Before even considering a lawsuit, a copyright owner typically will take the cheap and easy step of sending a “cease and desist” letter, sometimes leading the recipient to think that she is being sued rather than just threatened. An aggressive tone does not necessarily mean that the claims are legitimate or that a lawsuit will be filed.

SIGNATORIES

Action Coalition for Media Education
A member-supported, independent, nonprofit educational coalition of educators, students, health professionals, journalists, media makers, parents, activists, and other citizens

Media Education Foundation
Produces and distributes films, study guides, and other teaching materials that examine the impact of media on society

National Association for Media Literacy Education
Formerly Alliance for a Media Literate America, a national membership organization dedicated to advancing the practice of media literacy education in the United States

National Council of Teachers of English
A 60,000-member international organization devoted to improving the teaching and learning of English and the language arts at all levels of education

Visual Communication Studies Division of the International Communication Association
A division examining visual representation in all its forms, within an academic association for scholars interested in the study of communication with more than 3,500 members in 65 countries

LEGAL ADVISORY BOARD

Jamie B. Bischoff
Ballard Spahr Andrews and Ingersoll LLP
Philadelphia, Pennsylvania

Robert W. Clarida
Cowan, Liebowitz, and Latman, P.C.
New York, New York

Kenneth D. Crews
Copyright Advisory Office
Columbia University
New York, New York

Michael J. Madison
University of Pittsburgh
School of Law
Pittsburgh, Pennsylvania

Jennifer Urban
Intellectual Property and Technology Law Clinic
University of Southern California
Los Angeles, CA

Funded by the John D. and Catherine T. MacArthur Foundation, with additional support from the Ford Foundation through the Future of Public Media Project.

Feel free to reproduce this work in its entirety. For excerpts and quotations, depend upon fair use.

FUNDER
The John D. and Catherine T. MacArthur Foundation

ADDITIONAL SUPPORT FROM
The Ford Foundation through the Future of Public
Media Project
centerforsocialmedia.org/medialiteracy

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