Ten years ago, I used movie clips in my classroom teaching, but now that VHS has disappeared, I don’t use movies so much anymore.  In the classroom, DVDs are just plain cumbersome when it comes to effective use of film.  When you’re seeking to compare and contrast two versions of the balcony scene in different film adaptations of Romeo and Juliet, fast forwarding through trailers of Hellboy, American Gangster, and Baby Mama really spoils the mood.  And because of the time it takes to load a DVD, the process is so time consuming that by the time you get the second scene cued up the bell has rung and the period is over. So much for comparison-contrast.

What teachers want and need, if they are to use film properly in the classroom, is to be able to create a set of digital clips that feature just the parts of the movie they want to use.  But that can’t be done legally ever since 1998, when the Digital Millennium Copyright Act (DMCA) became law, making it illegal to bypass the CSS technology used in DVDs. The CSS technology makes it impossible to copy an excerpt.

However, it is legal for teachers to create and use film clip compilations.  The doctrine of fair use enables people to make legal, non-infringing use of copyrighted materials for educational purposes. That’s why I found myself testifying before the U.S. Copyright Office on May 6, on behalf of K-12 teachers and students, asking them to unlock the power of film for education.

Along with film professors, representatives of the American Library Association and other university library groups, we are asking the Copyright Office to issue a special exemption that would enable teachers and students to circumvent CSS technology to make clip compilations for educational use.

DMCA Law Erodes Educators’ Rights to Fair Use

When the 1998 DMCA law prevented educators from making fair use of copyrighted digital materials on DVDs, it also created a “safety valve” that empowered the Register of Copyright to authorize special exemptions for legal, fair uses of copyrighted materials.

Back in 2006, University of Pennsylvania film professor Peter DeCherney received a special exemption from the Copyright Office, one that enabled film professors to legally unlock the CSS technology on DVDs.  Now a variety of librarians, educators, and advocates are gathered to request that that exemption be extended to include other educators.  Teachers of science, history, medicine, law, and the humanities all find film to be a powerful tool for teaching and learning. K-12 teachers in English, social studies, and health want to use film clips to teach critical analysis and communication skills. Why should film professors be the only educators who can use film for educational purposes?

At the rulemaking hearing, I came to represent media literacy educators and their students, particularly those in K-12 settings and in non-school contexts.  Media literacy educators are everywhere: they are teachers at all levels who use instructional practices to build students’ critical thinking and communication skills in responding to mass media, popular culture, and digital media. In K-12 education, it’s generally not a freestanding subject–instead, media literacy education is integrated into English language arts, health, social studies, and the fine and performing arts.

Media literacy educators want our students to make videos that offer critical commentary on the stereotypes found in contemporary movies.  We want them to analyze how historical fact is shaped in fictional films about historical events. We want students to demonstrate their critical thinking skills through creative expression, manipulating, reworking, and remixing to develop an original idea.  Such work is not only legal, it is at the heart of what the copyright law is designed to protect: creative expression and the spread of knowledge.

And because powerful, easy-to-use digital technology sits in the homes of nearly all children in our schools, we want students to exercise these skills beginning in elementary school.

Based on evidence from national and regional conferences, state curriculum documents, and interviews with K-12 educators, we estimate that 85 percent of middle-school health educators include media literacy in their health curricula, often emphasizing the process of critically analyzing representations of alcohol or tobacco in movies.  Similarly, we estimate that about 20 percent of middle-school and high school English and social studies teachers use the educational practices of media literacy education.

Critical analysis of media and technology is one of the fundamental components of 21st century learning.  Some states have mandated media literacy as part of English education–for example, the state of Texas requires that students in high school English classes compose a multimedia documentary in grade 10. In states like Maryland, Massachusetts, and North Carolina, the growth of media literacy has been more organic, developing as a result of school-community partnerships and district-level initiatives.

Right now, educators who want to teach media literacy in both K-12 settings and higher education are struggling: the old technologies for capturing media material (like VHS) are gone and the new technologies are locked up.  At home, teachers threw out their VHS machines when they got their flat-screen TVs. In most schools, the VCRs have been replaced with DVD players. And in their classrooms, most teachers can’t access the video content that’s available through You Tube or other video sharing sites. 

It’s truly ironic that the digital technology shift, while making diverse content more available, has also made it harder for teachers to help students respond critically to mass media, popular culture  and digital media.

What’s Needed: Copyright Education

Now truth be told, educators are not well-educated about copyright law.  So we don’t offer meaningful learning experiences to students about copyright.  We either ignore the topic or we offer them industry propaganda.  Both of these approaches cannot continue. In Pennsylvania, we have begun this work teaching library media specialists and technology integration specialists about copyright and fair use, with support from the Classrooms for the Future program at the Pennsylvania Department of Education. When teachers find out the story is not all “no, no, no”, we’ve found that educators are very receptive to this work.  Teachers deeply respect the rights of copyright owners and want to be lawful.  But they want for themselves and their students the right to exercise their legal rights to use copyrighted materials under the doctrine of fair use.

The DMCA exemption we seek will provide the perfect “teachable moment” for exploring copyright with students. If people can lawfully copy excerpts of copyrighted DVD material, we can help students distinguish between pirating and fair use. Copyright law offers strong protection to both owners and users and an exemption will help educators and students strengthen their respect for their rights and responsibilities under copyright law.

Bizarre Alternatives

At the rulemaking, the media industry lawyers began their argument by saying that of course, educators are entitled to make fair use of DVD content.  But instead of enabling educators and students to bypass CSS for educational purposes, they propose bizarre alternatives to bypassing CSS, like screen capture–this means videotaping a TV set and then using those digital files.

At the Copyright Office rulemaking on May 6, the industry lawyers even showed an educational video on how to do this with a $900 videocamera, a lot of special cords, a flat screen TV, and a perfectly darkened room.  But I’ve tried it myself, and it’s not a practical strategy.  K-12 classroom teachers, who are in the classroom with students for 5 hours per day, generally don’t have time for such shenanigans. Many will also not have the money, time, or skill–these are real barriers, too.

Teachers and students need to be able to use digital film in just the same ways we now use and quote from digital news articles, books, web sites, and other resources, easily and fluidly, at the touch of a keystroke.  We live in a world where content comes to us seamlessly from our computers. Educators need to use this content effectively to build students’ critical thinking, analysis, communication, and problem-solving skills for life in the 21st century.

Teachers are law-abiding professionals–and we want our students to be law-abiding.  Right now, teachers are not bypassing CSS technology because it’s not lawful to do so. But right now, the DMCA law is having an adverse effect on the permitted fair use of copyrighted materials.

My fear is that, without this exemption, media literacy education will fail to thrive.  Another generation of young people will not get the opportunity to think critically about the messages Hollywood sends our students about history, the present time, and the future.  Students need to analyze how Hollywood films address real-world topics like elections, teen pregnancy, crime and law enforcement, violence, technology, and romantic love. To unlock the “reel” potential of film in education, we need this exemption.
Renee Hobbs is a Professor of Communication at Temple University in Philadelphia, where she founded the Media Education Lab (www.mediaeducationlab.com). She can be contacted via eMail at renee.hobbs@temple.edu.