Ethical and legal issues surround the creation, processing, and use of information and entertainment in ways that vitally affect teaching and learning in the 21st century. Key among them is copyright law, an area in which teachers and students are often uncertain. This study guide responds to the need for relevant, useful information about how copyright and fair use apply to the work of teachers and students at all levels: graduate programs at universities, teacher education programs, undergraduate colleges and community colleges, K-12 schools, and non-school settings such as youth development and community-based programs.
In this guide, we focus on copyright and fair use as it relates to the use of copyrighted materials from mass media, popular culture and digital media for media literacy education. Media literacy education promotes heightened consciousness of media’s role in personal and social life, strengthens skills of critical analysis, and develops people’s ability to use language, print, sound, visual and digital media for self-expression, communication and citizenship.
Every student deserves to have a sound understanding of copyright and fair use as a fundamental part of our legal system since copyright law affects the way we gather, share, create and use the intellectual property that is constantly being generated in our culture. The Code of Best Practices in Fair Use for Media Literacy Education enhances educators’ confidence about how the law affects teaching and learning. The readings, lesson plans, activities and resources in this guide give educators tools to start rich conversations about the topic of copyright and fair use. These materials help educators and students understand the legal and ethical uses of copyrighted material for teaching and learning that are protected under the doctrine of fair use.
Context and Background
When most people think of the word, “copyright,” they think about the rights of owners to control access to their intellectual property. This is accurate, but it is not the whole story. As the U.S. Constitution says, the purpose of copyright is to promote the spread of knowledge and innovation. The intellectual property rights provision of the Constitution was included because the Founders believed -- correctly -- that encouraging the development of new ideas and information serves society as a whole.
The Internet and other digital technologies have made it easier than ever to share, use, copy, excerpt, quote from, modify, repurpose and distribute language, still and moving images, and sounds that are the property – the “intellectual property” -- of others. These same innovations have made intellectual property owners keenly aware of the economic value of media content. To protect that value, owners have lobbied for changes in copyright law in their favor and forcefully asserted their rights to restrict, limit, and/or charge high fees for the use of their works. Some even use scare tactics that critics claim may not be entirely legal themselves, misrepresenting users' rights under the law.
As The Cost of Copyright Confusion for Media Literacy reveals, these developments have increased confusion and anxiety among many educators. Many educators have incomplete knowledge about copyright law and the doctrine of fair use that is so critical to education. Some cope by simply avoiding the topic. Others choose to “close the door” of the classroom and do what they want, believing they may be breaking the law in the service of education. Yet others believe they have learned “rules” about copyright that they apply -- particularly to student-produced work-- in an overly rigid manner. All of these practices have a negative effect: they reduce the quality of teaching and learning, limit the spread of innovative instructional practices, and perpetuate misunderstandings about copyright among students.
Numerous “educational use guidelines” have contributed to the confusion about copyright. There are a number of these guidelines, including the Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions, the Fair Use Guidelines for Educational Multimedia, and the Guidelines for the Educational Use of Music. Many library/media specialists and educational technology professionals are familiar with these. These guidelines resulted from negotiated agreements between lawyers representing media companies and lawyers representing educational groups. Some of these guidelines specify precise examples of fair use, such as the “10% rule,” the “45-day rule” and other such specifics. While meant to clarify how fair use applies to the work of educators, these guidelines have done more harm than good. As legal scholar Kenneth Crews points out, the documents created by these negotiated agreements give them “the appearance of positive law. These qualities are merely illusory, and consequently the guidelines have had a seriously detrimental effect. They interfere with an actual understanding of the law and erode confidence in the law as created by Congress and the courts.”
In contrast to the approach used to generate the educational use guidelines, the Code of Best Practices for Fair Use in Media Literacy Education identifies five principles that represent the media literacy education community’s own current consensus about acceptable practices for the fair use of copyrighted materials. This code of best practices was created by convening 10 meetings with more than 150 members of leading educational associations and other educators across the United States. Participants discussed hypothetical scenarios involving the uses of copyrighted materials in media literacy education to identify the principles and limitations articulated in the code. The process was coordinated by Profs. Renee Hobbs (Media Education Lab, Temple University), Peter Jaszi (Program on Information Justice and Intellectual Property, Washington College of Law, American University) and Patricia Aufderheide (Center for Social Media, American University). The code was reviewed by a committee of legal scholars and lawyers expert in copyright and fair use.
Copyright law enables the owner to control access to the work created and provides strong penalties for infringement of owners’ rights. But the law also includes the doctrine of fair use, which exempts some uses of copyright material from the owners' control. This doctrine, part of the Copyright Act of 1976, states that people have a right to use copyrighted materials freely without payment or permission, for purposes such as “criticism, comment, news reporting, teaching, scholarship, and research.” In essence, fair use gives people a right to use copyrighted material when the cost to the copyright holder is less than the social benefit of the use of the copyrighted work.
Individuals must assess the specific context and situation of the use of a copyrighted work to determine if fair use applies. Hard-and-fast rules are inappropriate since fair use requires that people use reasoning and judgment. Courts realize that educators and students use copyrighted materials for scholarship, teaching and learning. In recent years, courts have recognized that when a user of copyrighted materials adds value to, or repurposes
materials for a use different from that for which it was originally intended, it will likely be considered fair use. Fair use embraces the modifying of existing media content, placing it in new context. Such transformative use is at the heart of media literacy education, where teachers and students use mass media, popular culture and digital media to develop critical thinking and communication skills.
Integrating Copyright and Fair Use into Instruction
Five lessons in this guide enable educators to incorporate the topic of copyright and fair use into existing instruction, following the media literacy learning spiral of ACCESS, ANALYZE, EVALUATE, CREATE and ACT. Each lesson uses the following structure to promote the development of students’ critical thinking and communication skills.
Activate prior knowledge. Each lesson begins with an opportunity to engage students by tapping into what they already know and think. In some lessons, a “Schoolhouse Rock style” educational song helps stimulates student interest and motivation.
Gain knowledge and analyze information. A reading, research or information gathering activity enables students to gain access to new knowledge. Specific instructional strategies are offered to help educators support learners with different levels of knowledge and skills and check for understanding. To strengthen analysis and evaluation skills, students engage in discussion that produces divergent thinking and critical analysis.
Compose, share and act. Each lesson includes an opportunity for students to produce material themselves, creating something new that allows them to reflect upon and demonstrate what they have learned. Some activities use social media or Web 2.0 resources, available free online, while others are based on more traditional literacy practices. Each lesson includes key learning outcomes that can help educators assess and evaluate student learning in situational context.