Fair Use and Education, A Fifth Grade Scenario

The scenario we were supposed to write about concerned a teacher who was using materials on Africa for her fifth grade social studies class. In a nutshell from the teacher’s perspective we were supposed to write a memo explaining why we felt we could use the materials or why we used some materials we shouldn’t have used. I couldn’t find a reason why the teacher did anything wrong. Below is the paper I wrote.

Re: Copyright Issues and Fair Use
Ms. Wright, 6 grade
Small Town Elementary, Ohio
October 10, 2011

A recent incident over the fair use of copyrighted material, highlights possible misunderstandings at Small Town Elementary School. This memorandum is submitted to help clarify the issue of fair use. There seems to be some question of copyright violations concerning some videos and photographs I have been using for my sixth grade history curriculum on Africa. I have used some videos of programs I copied from the Discovery Channel, PBS, and others. I showed a video I rented from the video store, and I copied some photographs from a National Geographic compact disk I personally own. The school librarian believes that I am violating copyright law. And although I am not a lawyer, I spent some time on the internet researching fair use. Retrieved from the government website, (http://www.copyright.gov/title17/92chap1.html) fair use is stated as follows:

107. Limitations on exclusive rights: Fair Use 40
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Also, from the government web site:
It is not necessary to obtain permission if you show the movie in the course of “face-to-face teaching activities” in a nonprofit educational institution, in a classroom or similar place devoted to instruction, if the copy of the movie being performed is a lawful copy. 17 U.S.C. § 110(1). This exemption encompasses instructional activities relating to a wide variety of subjects, but it does not include performances for recreation or entertainment purposes , even if there is cultural value or intellectual appeal. (http://www.copyright.gov/help/faq/faq-fairuse.html#movies)

Although I copied the documentaries with my VCR, I believe I did so legally under sections 106 and 106A. I showed The Ghost and the Darkness in it’s entirety, however, I provided the movie for instruction rather than entertainment. There appears to be no direct reference within the fair use law that specifies any time restrictions or limitations to how I may use a video for educational purposes. What I understand from my research is that in most cases, utilizing media in the classroom will not have copyright implications as the content in question is covered by exemptions for educators in Sections 110.1 and 110.2 of the Copyright Act.

The U.S. copyright laws concerning fair use are written to allow broad interpretation. Additional guidelines have been created by various institutions, but these informal agreements are guidelines and best practices and are not law. As I continued researching fair use I found guidance that excelled the quoted stature and have no apparent legal grounds. I found some fair use guidance on the University of Standford’s website. The web page, http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter7/7-b.html, list rules as to how long a broadcast video tape may be viewed etc. However, no references are given for these rules. (There is an ad for the book, however; click it to purchase.)

On the other hand, according to the website from the Center for Social Media at the American University, “The various negotiated agreements that have emerged since passage of the Copyright Act of 1976 have never had the force of law, and in fact, the guidelines bear little relationship to the actual doctrine of fair use.”  (http://centerforsocialmedia.org/) Although this quote specifically refers to media literacy education, it is reasonable to infer that using media, as is, also falls under this scope.

Those who try to limit fair use forget that the reason we have fair use in the first place is so that our students may have the benefit of the copyrighted material. There is an unwarranted fear and confusion about copyright and fair use laws which hinders the quality of teaching in this school. Misinformation about fair use squelches learning and limits the use of interesting learning tools. Other than close my classroom doors and hide what I fear is infringement, or comply with imagined fabricated rules that exceed the spirit and letter of the law, I would like to clear this misunderstanding up so that I do not limit the effectiveness of my teaching.

As there is so much confusion and misinformation concerning copyright law, many groups have developed best practices to follow concerning copyright. For example, documentary film makers have their own code. A group from the Center of Social Media at American University developed a code of best practices by educators with the help of legal advisors; the intent of the code is to guide educators concerning fair use in the classroom. The code was reviewed by a committee of legal scholars and lawyers expert in copyright and fair use. Although the code is not law, I believe that this code is congruent with the spirit of fair use and applies to my use of copyrighted materials.
According to the Code of Best Practices in Fair Use for Media Education,

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. Labels 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…..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.

The above statement, reviewed by a legal advisory board, makes it clear that the materials I am using in the classroom fall under fair use. I will, however, remain diligent to remain complaint with copyright laws.

If educators want to make a difference in our student’s learning, we need to incorporate hands-on active learning tools, rich with interesting content, applicable to today’s media saturated students. In order to get their attention, we must change how we teach, and if that means that we are bold with fair use laws, so be it.

Ms. Wright

To view the entire Code of Best Practices in Fair Use for Media Literacy Education please visit: http://centerforsocialmedia.org/fair-use/related-materials/codes/code-best-practices-fair-use-media-literacy-education

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