My second day at STN ended with a small focused workshop on Copyright Confusion, put on by the Center for Social Media. Like most teachers (and media types) I have a rudimentary (read minimal) knowledge of the Fair Use doctrine. Today I got myself educated…or at least learned enough to know how little I know.
The first thing I learned (courtesy of presenter Dr. Renee Hobbs) was that there is no case law involving educators sued for copyright infringement for using Fair Use. Never. It appears that the “cease and desist” letters sent out by corporate lawyers work and have created an atmosphere of fear. According to CFSM, educators cope with their desire to use current media in the classroom in one of three ways: See no evil aka what I don’t know can’t stop me from doing what I want; Close the door aka what YOU don’t see can’t stop me from doing what I want; Hyper-comply aka I will comply with such rigidity that I don’t care if my students learn. None of these are right, according to Hobbs:
“Most legal scholars argue the guidelines have done more harm than good…”
And the guidelines which most teachers abide by ARE NOT LAW. According to CSFM:
The confusion over the role of fair use guidelines began when, in the run-up to the 1976 revision of the Copyright Act, Congressman Robert Kastenmeier brought together representatives of publishers and educators to negotiate an “Agreement on Guidelines for Classroom Photocopying in Not-For-Profit Educational Institutions.” The guidelines that emerged (and are now widely available on library and college Web sites) were drafted primarily by the publishers and were included in the legislative history, despite letters of protest from representatives of the American Association of University Professors and of the Association of American Law Schools.”
Hmmmm….now there’s the rub: “…drafted primarily by the publishers…”
Hobbs and CFSM push for balanced knowledge of the law, which is “intended to balance the rights of users with the rights of owners, by encouraging the widespread and flexible use of cultural products.”
As I listened I realized how open this law really is…and how flexible. Fair Use has four elements:
1. What is the purpose of your use
2. What is the character of the work you are using
3. What is the amount of the work you are using
4. What is the impact of your use on the market
Apparently the key to Fair Use is transformation – how do you transform the original use of the work to a new use or to something new (and original). It is illegal to make copies of a popular song…and just as illegal to make copies of a music video. However, if you are teaching video it is Fair Use to take a popular song and use it to teach students a skill, such as production of a music video AS LONG AS IT DOES NOT LEAVE THE CLASSROOM. You’ve transformed the original use of the song from entertainment to an instructional tool. Be warned, this is murky water and, as mentioned at the beginning of this blog, there is no case law supporting educators. Hobbs did cite a Grateful Dead case (Bill Graham v. Dorling-Kimberly) in which a poster was used in a book about the history of the Grateful Dead. The poster was originally used to promote appearance of the band. The courts ruled that the use of the poster had been “transformed” to a new use.
Knowledge is power….but remember if you step outside the safety zone of the official agreement, you are an outlaw – outside of what many educational administrators feel comfortable with. So are you – an OUTlaw?