A combination of "tool competence" and cognitive skills are needed.
Model School Copyright Policy for Using Copyrighted Materials in Digital Media Production
To help you decide when and how to use copyrighted materials in your creative or academic work, NAME OF SCHOOL DISTRICT recommends that students and teachers have a good understanding of copyright and fair use.
When creating digital media productions as part of academic or creative work, students or teachers may want to incorporate copyrighted materials, including photographs, music, film or video clips. They may want to use written excerpts, clips or even the whole work. They may want to use materials produced by media professionals (like the Associated Press, the New York Times, PBS News Hour, or ABC News) as well as media produced by amateurs (like quotes from bloggers, Flickr photos, or YouTube videos).
This policy applies to the work of students and teachers who use other people's copyrighted material as part of their own academic or creative work, and it embodies the core legal principles of the Copyright Act of 1976.
The purpose of copyright law is to promote creativity, innovation and the spread of knowledge. The law does this by balancing the rights of both authors (copyright holders) and users.
Authors' Rights. Any creative work, in fixed and tangible form, is copyrighted. Anything you create (writing, video, images, music, etc.) is automatically copyrighted at the moment you create it. As a creative individual, you are protected by copyright law, which gives you rights to control how your works are distributed. As the copyright holder, you are responsible for detecting infringement. When other people distribute your copyrighted work without your permission, this may be an infringement of your legal rights. Violating copyright can have severe financial consequences but it can be expensive and time-consuming to pursue legal action.
Users' Rights. Under some circumstances, users can use copyrighted works as part of their own creative work. The doctrine of fair use (Section 107 of the Copyright Act of 1976) states that people can use copyrighted works without payment or permission when the social benefit of the use outweighs the harms to the copyright holder. To make a fair use determination, users consider all the factors involved in the context and situation of their use of the copyrighted material. Fair use is especially helpful when people want to use small amounts of a copyrighted work for socially beneficial purposes, like news reporting, teaching, comment and criticism, research and scholarship. In the context of copyright law, the doctrine of fair use is one of the main guarantees of free expression. News reporters depend on fair use because of its obvious importance in disseminating information. Broadcasting professionals routinely claim fair use when they make use of short clips from popular films, classic TV programs, archival images, and popular songs without payment or permission.
Special Exemptions for Teachers and Librarians. Copyright law includes provisions that enable educators to use copyrighted material for teaching and learning. Section 110 allows educators to make performances and displays of all types of works in a classroom. Students and teachers can show videos, read plays, project slides or use copyrighted materials in other ways for educational purposes. When materials are used for online distribution, the law allows posting of materials to servers under some conditions. When teachers want to use materials for online learning, they may also rely on the doctrine of fair use or seek permission.
ATTRIBUTION AND GOOD FAITH
Some people mistakenly believe that they can use any copyrighted work in their own creative work as long as they "cite their sources" or use attribution to identify the author. Using attribution is sign of good faith in the fair use process, but it does not shield a user from copyright liability. That's why it's important to make a careful fair use determination using the process described below. NAME OF SCHOOL DISTRICT recommends that you make use of attribution whenever possible. But attribution is not required in order to claim fair use. Many broadcasters use short excerpts of copyrighted clips under fair use without attribution, for example. Students and teachers should review the various norms for attribution that exist across different media genres (non-fiction, scientific writing, art, poetry, websites, documentary film, etc).
MAKING A FAIR USE DETERMINATION
Critical thinking is required to make a fair use determination. Ask yourself two questions:
1. Transformativeness. Is my use of a copyrighted work transformative? Am I using the material for a different purpose than that of the original? Or am I just repeating the work for the same intent and value as the original?
2. Amount. Am I using only the amount I need to accomplish my purpose, considering the nature of the copyrighted work and my use of it?
The law empowers users to make a fair use determination for themselves. Thinking about the issue from the perspective of both the copyright holder and your own point of view is important.
NAME OF SCHOOL DISTRICT recommends that when using copyrighted material in your digital media production, you put your answers to these questions in writing, using reasoning to support your ideas. A supervising NAME OF SCHOOL DISTRICT teacher should collect these documents as part of the pre-production process.
REVIEW THE CODES OF BEST PRACTICE IN FAIR USE
A number of creative communities have developed documents to help people understand how to use fair use reasoning.
Review the Code of Best Practices for Media Literacy Education which identifies common situations where fair use clearly applies to the use of copyrighted materials for building students' critical thinking and communication skills. Educators can:
- Make copies of newspaper articles, TV shows, and other copyrighted materials and use them and keep them for educational use
- Create curriculum materials and scholarship that contain embedded copyrighted materials
- Share, sell and distribute curriculum materials that contain embedded copyrighted materials.
- Learners can use copyrighted works in creating new materials and distribute their work digitally if they meet the transformativeness standard.
Also review the Code of Best Practices for Online Video, which applies to the creation of new videos that are distributed online. People can use copyrighted material:
- To comment on or critique copyrighted material
- To use copyrighted material for illustration or example
- When capturing copyrighted material incidentally or accidentally
- When reproducing, re-posting, or quoting in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon
- For copying, re-posting and re-circulating a work or part of a work for purposes of launching a discussion
- When quoting in order to recombine elements to make a new work that depends for its meaning on the (often unlikely) relationships between the elements.
PERMISSIONS AND LICENSING
If you're using copyrighted material for the same purpose as the original or otherwise do not feel that your use of the work qualifies for a fair use exemption, NAME OF SCHOOL DISTRICT recommends that you ask permission from the copyright holder. For amateur creations (independent musicians, Flickr photos, YouTube videos), send the creator an email requesting to use their work. Request permission by stating your purpose and describe how you're using their work, along with your name and full contact information
When using commercial or professional work (AP photos, music) for non-transformative purposes that do not qualify for a fair use exemption, NAME OF SCHOOL DISTRICT recommends that you use the licensing process, which generally involves filling out a form or sending an email. When using copyrighted work under Creative Commons licenses, you can simply use the work.
FREQUENTLY ASKED QUESTIONS
Here are some examples of how fair use reasoning can be applied to specific situations.
1. Can I use facts, information or quotes from a research report, blog, news story or website? This depends on how you use it. Using small amounts of information, facts or quotes from copyrighted print materials is fair use. Identifying the source of the information shows good faith.
2. Can I use clips from YouTube or Hollywood movies in my academic or creative work? This depends on how you use it. Using movie clips in a news broadcast may be transformative since the clip in used a new context. If the clip's original purpose was to entertain, but you are using it to inform, that's very transformative. However, if the original purpose was informative, and you're using it for the same purpose, that's less transformative. Be sure to use just the amount you need to accomplish your specific purpose.
3. Can I use images or photos in my academic or creative work? This depends on how you use it. Consider the original purpose of the work in relation to your use of it. For example, the purpose of a news photo is to provide information about news and current events. If you use the photo for the same exact purpose, that's not very transformative. If you're using the photo as an example or illustration, you may claim fair use. When you're using an image or photo for a different purpose than it was originally intended, you may claim fair use. Otherwise, you should ask permission and use the licensing process.
4. Can I use clips from popular music in my academic or creative work? This depends on how you use it. The purpose of pop music is to entertain by creating a particular mood, feeling or emotion. If you're using the clip to accomplish this same goal, that's not very transformative. But if you're commenting or critiquing the music, that's a clear example of fair use. If you're using a short sample of a song as an illustration of a larger idea, you may claim fair use. But if you're merely exploiting the familiarity of the song to attract people's attention, then you should ask permission and seek a license.
5. Can I show my academic or creative work in the classroom or on the school closed-circuit network? If doing so is part of an educational experience, you can display your academic or creative work when it makes use of copyrighted materials.
6. Can I show my academic or creative work to the community on public access TV or at a public event? When your work is transformative under the fair use standard, your new work is protected by copyright, and you can choose to distribute it in any way you want. When you use copyrighted materials in non-transformative ways (exhibiting a entertainment film at a fundraiser, for example), you should ask permission and seek a license.
7. When my academic or creative work uses copyrighted materials, can I post it to YouTube or somewhere else online? When your work is transformative under the fair use standard, your new work is protected by copyright, and you can choose to distribute it in any way you want. If your academic or creative work is removed from YouTube or another Internet Service Provider by a mechanized takedown process, you can claim fair use and have it reinstated.
Learn More about Your Rights and Responsibilities Under the Law
NAME OF SCHOOL DISTRICT encourages students and faculty to understand their rights and responsibilities under copyright law. To learn more, we recommend:
Reclaiming Fair Use: How to Put Balance Back in Copyright by Patricia Aufderheide and Peter Jaszi
Copyright Clarity: How Fair Use Supports Digital Learning by Renee Hobbs
The Model Copyright Policy for Using Copyright Materials in Digital Media Production was developed by Renee Hobbs, Temple University, Media Education Lab
August 22, 2011