Recently at ProfHacker, in his post about intellectual property, George Williams noted “it would be in our best interest as teachers and scholars to start being more assertive about the doctrine of our Fair Use rights.” I couldn’t agree more, but as anyone who isn’t a lawyer knows, Fair Use is a complex issue. Furthermore, it’s an issue relevant not only to teachers but also to scholars at any level—and that includes first-year students who might be using copyrighted material in essays or presentations. So how do we go about talking about Fair Use in the classroom, and when should we?
The answer to “when should we” obviously depends on the type of course you’re teaching, and the extent to which students might have occasion to use copyrighted materials as part of their work. I’ve taught courses in composition, professional & technical writing, literature, and the WSU Digital Technology and Culture program, and in every single one of those courses students have taken advantage of Fair Use to include images, videos, and other media as part of their own work. I’ve come to the conclusion that explaining Fair Use is difficult, not necessarily because of the legal language, but because of common misconceptions around copyright and fair use.
First, the legal language (this is from “US CODE: Title 17,107. Limitations on exclusive rights: Fair use”)
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Everybody clear? No, not really, I’m sure. Determining whether or not a use of copyrighted material actually is or is not Fair Use includes many factors, and those factors change per instance of use. In other words, what might be ruled Fair Use in one instance is not in others, so legal precedents may or may not even be entirely useful.
When explaining Fair Use to students, I’ve found the most troublesome factors to explain are the following:
- just because it seems like you should be able to use it doesn’t mean you can use it
- just because it doesn’t have a clear copyright notice doesn’t mean it’s up for grabs
- just because you acknowledge the source doesn’t mean you can use it (this one is especially troubling because we tell them to cite their sources in their scholarly work, but even if they cite their source in, say, a multimedia production that they then disseminate, the use of that source might not be Fair Use.)
There are others, of course, but focusing on these three can take up quite a bit of time in the classroom, which is definitely a consideration when working out the class calendar—can you devote an entire day to copyright issues? If you devote a day to general information literacy (sometimes known as “library day”), consider also a day on copyright and fair use. I often start at the Stanford Copyright & Fair Use Center for information and additional resources, but there are other clearinghouse sites that can help get you started.
You might also consider assigning for reading and discussion “Old + Old + Old = New: A Copyright Manifesto for the Digital World” from Kairos (for those of you unfamiliar with Kairos, it is “a refereed open-access online journal exploring the intersections of rhetoric, technology, and pedagogy” that has been around since 1996.) In “Old + Old + Old = New: A Copyright Manifesto for the Digital World,” the authors “provide a copyleftist manifesto that argues for a view of intellectual property that protects Fair Use, and that privileges free and open use over profits and persecution.” The piece attacks head-on the issues faced by scholars working with remix projects and other creative works that skirt the boundaries of Fair Use. From personal experience, this particular piece generates a lot of discussion and really gets students thinking about issues that they will have to consider even within the relative safety of the classroom.
But how about you? How do you address Copyright and Fair Use in the classroom?
[Image in post by Flickr user thomasscovell. Creative Commons licensed.]
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5 Responses to Talking About Fair Use in the Classroom
Renee Hobbs - December 17, 2009 at 11:20 pm
We’ve been teaching K-12 teachers about how fair use applies to those who use popular culture and mass media texts to support the development of critical thinking and communication skills. Step one involves sweeping away a misunderstanding of the educational use guidelines. Step two explores the purpose of copyright. And the concept of transformativeness is central to understanding the doctrine of fair use. We’ve placed our lesson plans, “Schoolhouse Rock” style music videos, and video case studies online at: http://mediaeducationlab.com
And look for Copyright Clarity: How Fair Use Support Digital Learning — my forthcoming book from Corwin Press. http://www.corwinpress.com/booksProdDesc.nav?prodId=Book234088&
Sarah Shreeves - December 14, 2009 at 5:02 pm
I find the checklist that Kenny Crews has put together (see http://copyright.columbia.edu/copyright/files/2009/10/fairusechecklist.pdf) to be a useful tool to guide students and faculty through thinking about whether use of an item is fair use. It’s not perfect for every case, but it helps in laying out the factors and what might argue for and against fair use.
KG - December 14, 2009 at 5:15 pm
Librarians are also a good resource for helping you teach your students about Copyright and Fair Use. ACRL’s Information Literacy Standard 5 states: “The information literate student understands many of the economic, legal, and social issues surrounding the use of information and accesses and uses information ethically and legally.” [http://bit.ly/6UMQ] Unfortunately due to the time constraints of the one-shot “library day” this aspect of information literacy cannot be addressed. But many instructional librarians would be happy to help you teach your students the why, how, so what about Fair Use.
Patrick Murray-John - December 14, 2009 at 11:22 am
I couldn’t agree more that we as scholars and educators need to get more aggressive about asserting Fair Use, especially in the face of spurious take-down notices. This is something that I’m hoping will start to happen not just in the classroom, but also at the administrative level of provosts and the like in official policies about how universities handle take-down notices. Universities should make clear that, as universities, we will not roll over to spurious claims and that we will use the DMCA provisions against spurious notices.
I haven’t had a chance to try this out in the classroom, but when I get the change to talk with faculty about Fair Use I try to emphasize how much criteria 1 and 3 have in common (unsurprisingly) with long-standing principles for effective quotations in papers, especially in the humanities. Here’s a couple traditional effective quoting principles, and how I relate them to fair use:
Quote Selectively — If you’re only discussing two sentences, don’t quote an entire paragraph. Keep what you quote very specific to what you will actually use and discuss.
This is related to the “amount” criterion. If you are quoting well, you’re not grabbing long extents of content. Whether in paper or in any new media, the same principle will lean toward a use being fair.
Don’t let the source speak for itself — always explain what’s significant in the quotation for your own thinking and analysis. Explain how the quotation advances your own thinking and argument.
This is related to the use criterion, often called the “transformative” test — did your use produce something new? Just as effective use of a quotation in a traditional paper produces new knowledge — i.e., it transforms the idea into something new in your own thinking — so too in any medium if your use of other content produces something fundamentally new (parodies are the most obvious example), it leans toward the use being fair.
I’m very curious to hear how others talk about this stuff, too — especially at the university policy level.
Thanks!
Liz - December 14, 2009 at 12:01 pm
The Society for Cinema and Media Studies has released a statement on best practices for fair use, which is fairly straightforward and somewhat agressive. In short, “Media scholars believe that uses of copyrighted works in multimedia scholarship are transformative, and so constitute fair use.”
The full statements for scholarship and teaching are here – http://www.cmstudies.org/index.php?option=com_content&task=view&id=8&Itemid=1.