‘Fair use’ confusion threatens media literacy

In too many classrooms across the country, sweaty palms and the fears associated with a call to the principal’s office aren’t just student afflictions: Educators, especially those who teach media literacy, are experiencing a collective anxiety about what is legal and what is not when using digital images and recordings in their lessons, according to a new report.

Media-literacy instructors especially depend on the use of news broadcasts, advertising, reality TV shows, film snippets, and a host of other recordings to teach analytical skills to their students. Yet, the goals of media-literacy education–to cultivate critical thinking about media and its role in society, and to strengthen students’ creative communications skills–are compromised by unnecessary restrictions and a lack of understanding about copyright law, says the report, titled “The Cost of Copyright Confusion for Media Literacy.”

Researchers at Temple University’s Media Education Lab, American University Washington College of Law’s Program on Information Justice and Intellectual Property, and American University School of Communication’s Center for Social Media interviewed 63 educators, educational media producers, and leaders of media-literacy organizations. They found that nearly all were confused about “fair use” and their rights as educators to use media materials.

Teachers face conflicting information about their rights, and their students’ rights, to use copyrighted works, the report says. They also face complex and often overly constrictive copyright policies in their own institutions. As a result, they use less effective teaching techniques, teach and transmit false copyright information, and do not take advantage of new digital platforms for their instruction.

“This is not only unfortunate but unnecessary, since copyright law permits a wide range of uses of copyrighted material without permission or payment,” the report says. “Educational exemptions sit within a far broader landscape of ‘fair use.’ However, educators today have no shared understanding of what constitutes fair-use practices.”

In layman’s terms, fair use is “a statutory exemption to the rights of copyright owners,” says Kenneth Crews, a legal scholar at the Indiana University School of Law in Indianapolis. There are four key factors that help decide whether use of copyrighted material constitutes fair use, he said: (1) the purpose of your use, (2) the nature of the work, (3) the amount you’re using, and (4) the effect of your use on the market.

Yet, despite this relatively simple definition, educators fear being reprimanded for inappropriate usage, misinterpret fair use, or are unaware of its expansive nature, according to the report.

For example, one educator interviewed for the study said he worked with an administrator whose interpretation of fair use was dramatically different from his own; as a result, he had severe limits placed on what he could photocopy for classroom use. And a college professor who created a compilation of video clips for her course was not allowed to post it on the university’s course-management software so students could view the clips to do their homework assignments.

Cyndy Scheibe, another educator, described how she contacted Newsweek magazine to get permission to use cover images of the magazine in a curriculum entitled “Media Constructions of War.”

“In addition to demanding a hefty fee for each cover, they told us we needed to get permission from both the photographer and the subject of the photo–and we thought, ‘We need to get permission from Ho Chi Minh and Osama bin Laden?'” Scheibe said. After consulting with school attorneys about the matter, they decided it fell under fair use–and the administration supported this decision.

But, too often, schools and educators lean too far on the side of caution, researchers say.

According to the report, educators don’t have a clear definition of fair use because they have had no professional training regarding the issue, they’ve read varying definitions of fair use, or they’ve heard rumors and stories from other teachers. Some teachers oversimplify fair use, while most limit its scope more narrowly than do the courts that have interpreted it.

This confusion has led to what the report’s authors call “a copyright folklore.”

The report claims that fair-use confusion leads to a variety of coping strategies for teachers, including conscious ignorance (using copyrighted material without studying the law further, for fear that this knowledge would hinder their work even more), quiet defiance (ignoring copyright law entirely within the four walls of the classroom), and “hyper-compliance” (forgoing the use of legitimate teaching tools and techniques out of fear of violating copyright law).

“It’s funny,” says Peter Jaszi, director of the Program on Information Justice and Intellectual Property, “copyright began its history as a tool, rather than a chain … as fair use has grown in flexibility and strength over the years, teachers have grown away from their sense of freedom.”

Adding to the problem is a litany of fair-use guidelines that have become outdated with the introduction of new technologies. In some cases, the report says, these various sets of guidelines have become accepted practices among educators, even though they are more restrictive than the law allows.

For instance, the Consortium of College and University Media Centers (CCUMC) in the mid-90s produced a “highly restrictive” set of guidelines that were endorsed by the publishing, movie, and record industries. Although the CCUMC’s “Proposal for Fair Use Guidelines for Educational Multimedia” was soundly rejected by national library associations and a K-12 coalition led by the National School Boards Association, it is still featured on several web sites aimed at teachers, the report says.

“Educational fair use is at the heart of U.S. copyright doctrine,” it states. “Too often, however, fair-use guidelines are taken as exhausting the universe of possibilities, rather than describing a small bunker on a much larger landscape. In particular, the CCUMC guidelines enjoy credibility to which they are not entitled. Today, more than ever, educators need to know about the full range of reasonable fair uses available to them and their students.”

The real problem lies in the consequences of this confusion: With restricted teaching materials, students’ education is at stake.

For instance, Ryan Goble, a media-literacy teacher, says, “It’s difficult to find works that are complex enough, poetic enough, and interesting enough to satisfy the instructional needs of high school English teachers, while simultaneously appealing to teens.” Another educator interviewed for the study warned: “By overprotecting owners, we run the risk of stifling the creative flow of cultural information.”

By defining fair use too narrowly, teachers can’t share pertinent materials online, and students can’t review materials online. Another negative consequence is that, if their teachers don’t understand fair use, students probably won’t, either. This confusion will affect how students perceive and use copyrighted material themselves, the report says.

“By not [understanding] fair use, you’re doing a disservice to both students and yourself,” says Shay Taylor, a media teacher at Montgomery Blair High School in Maryland.

The report recommends a two-pronged solution to the problem: First, teachers should learn more about the “clear and unambiguous rights” they already enjoy under copyright law; and second, the education community should develop and disseminate a “code of practice” for the fair use of copyrighted materials by educators.

“It is time for media-literacy education to move beyond outworn ‘guidelines’ and dubious and even unhelpful ‘rules of thumb,'” the report says. “The imprimatur of leading professional associations on a new articulation of codes of practice would provide crucial legitimacy.”

The report cites the 2005 “Documentary Filmmakers’ Statement of Best Practices in Fair Use” as an example of what is needed in education. Pat Aufderheide, a professor at American University’s School of Communication and director of the school’s Center for Social Media, and law professor Peter Jaszi worked with five filmmakers’ organizations to draft the document, which asserts common agreed-upon principles for the application of fair use to documentary filmmaking.

According to Aufderheide, with the help of this statement, three films using copyrighted material made it to Sundance, and two filmmakers have had their films shown on television–one on HBO and one on PBS.

“Without the help of this statement on fair use, studios and insurers never would have touched these films for fear of copyright infringement. I hope it will serve teachers in an equally beneficial manner,” Aufderheide said.

The report’s authors hope a consensus on fair use in education can reshape school administrative policies, educate teachers nationwide, and discourage copyright owners from threatening or bringing lawsuits against educators.

“A consensus could provide a clear and reasonable path, so teachers don’t have to fear the copyright police,” says Karen Zill, a member of the board of directors for the Alliance for a Media Literate America.

Crews warns that such a consensus might take a while to create. In the meantime, he says, educators should “embrace uncertainty, not fear it …[and] make fair-use judgment calls on the four factors while waiting for a consensus.”

Dale Allender, associate executive director of the National Council for Teachers of English, suggests providing professional development as well.

“There is such a strong need for professional development” about educational fair use, Allender says. “This confusion reminds us that our digital age has brought us to a juncture where these points must be considered–the points of being able to create, copy, and disseminate. We must raise awareness.”


“The Cost of Copyright Confusion for Media Literacy”

Accompanying webcast

Meris Stansbury

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