American University, Washington College of Law, The Cost of Copyright Confusion for Media Literacy (program sponsored by WCL’s Program on Information Justice and Intellectual Property, AU’s Center for Social Media, and the Media Education Lab at Temple University). Webcast here.
Renee Hobbs, Professor & founder, Temple Media Education Lab: When she first started teaching teachers, she used everything: books, magazine covers, commercials, movie clips, anything was an artifact she could use to discuss critical media thinking skills. Gradually, one question became more prominent. In the 1980s, only a few teachers would ask, but by 2000 it was almost their first question when they began media literacy studies: “Did you have to get permission to use that?” Or, “Can I get in trouble if I use those?” The climate is one of fear.
The study released today is based on interviews with 63 media literacy educators across the country, in high schools, universities, arts centers, elementary schools, libraries, and other places. They discussed how they use copyrighted materials in their work, how students use copyrighted materials in schoolwork, and how teachers use copyrighted works in teaching. Hobbs showed a beta version of a video outlining the findings. In brief: Teachers are afraid to share teaching materials; teachers are afraid to let students use the copyrighted works that mean so much to them in creating their own productions. But copyright law is more favorable than many think; Peter Jaszi says “Fair use is like a muscle. It needs to be exercised.”
Peter Jaszi, Washington College of Law: Teachers experience copyright as a burden on practice when it should be an engine for production and republican discourse. The challenge is to find our way back to the original understanding. The way back is substantially through the fair use doctrine. The interviews revealed an irony: as the fair use doctrine has grown in the courts in recent decades, teachers have grown more afraid to use it, as Hobbs described. The potential remains, aided by judicial sensitivity to the consensus of various practice and use communities on what uses are fair. So practice communities must reclaim fair use for themselves. Specifically, the media literacy education community should take charge of its own fair use doctrine, producing a consensus code of best practices. This would improve practices among teachers, discourage overreaching copyright claims, and help in any unlikely judicial test. This use of best practices isn’t just theoretical; documentary filmmakers have already used best practices to improve matters for themselves.
Pat Aufderheide, Professor & Director, Center for Social Media: Studies reveal that people have no idea how widespread their problem is – in the interviews, they thought they were just being bothered by a picky administrator, or that they were unsure but others knew. Their experiences were not idiosyncratic, but systemic. (Comment: Best practices as consciousness raising?)
Documentary filmmakers believed that their opinions wouldn’t make a difference – at the beginning of that project, filmmakers told Aufderheide to go talk to insurers and network broadcasters, because filmmakers didn’t have the power. But the filmmakers did have the power to change the risks (or risk perceptions) of those other groups by creating best practices. And right after the best practices report came out, insurers and broadcasters began to accept compliance with its recommendations instead of permissions.
Kenneth Crews, Indiana Law/IU School of Library & Information Science: His background is in fair use guidelines, and he wants to emphasize their troublesome aspects. The central clash is between the law of fair use and the guidelines as a surrogate or replacement of the actual law. Invariably, guidelines (photocopying, multimedia, etc.) are much more restrictive than fair use actually allows, and often much more complicated and difficult to apply than the law of fair use. We should take guidelines with a grain of salt, keeping an eye on who they’re from, fighting the climate of fear, and embracing uncertainty – which is another word for flexibility, one of fair use’s greatest virtues. Teachers and others should make judgment calls based on the four statutory factors.
Implications for Media Literacy Teachers
Shay Taylor, Montgomery Blair High School: Teaches media production and analysis to 10th graders, along with electronic newsgathering and production, and the school television program (like a super-school paper with engineers, PR people, internet division, etc.). When she began teaching, she had all sorts of great media example. Then she heard from a teacher that someone else had heard that someone had said that you could get in trouble for using media in the classroom. What if a student’s parents are lawyers and hear about what they’re doing in class? She was ready to give up and teach math, but decided that the cost of copyright confusion was much greater than dollars and cents. Even in a county where almost every high school has a media program, media teachers don’t get together and talk about these issues.
Karen Zill, Alliance for a Media Literate America: The problem is not just teaching media literacy but using media to teach any subject – there’s a reluctance among teachers to use up-to-date materials because of copyright fears. They need a comfort zone, and tools for complying with copyright law as well as for interpreting fair use.
Dale Allender, National Council of Teachers of English: There is a pressing need for teacher professional development. Creating a consensus statement on fair use is itself a professionalizing experience, and then applying it in an instructional context will further that development goal. Copyright concerns aren’t new; they tie in to efforts to deal with plagiarism, use of books challenged for content, and interactions with libraries. But our digital age makes copyright more salient – there are increased opportunities to create, to copy, and to disseminate works by teachers and students (the earlier film showed that student productions could easily be uploaded to YouTube, for example). Teachers are now working on best practices in 21st-century literacy, and use of media technology will be part of that. And that means more attention to fair use.
Question: In a society where people are afraid to let their kids play dodgeball, this seems like a real minefield. Also, what implications does this have for libraries maintaining a set of materials for any teacher to use?
Hobbs: Communities, school districts, and even individual schools have begun to create appropriate use policies, in order to get a handle on the explosion of uses and the environment of fear, uncertainty and doubt. But many of these policies are much more restrictive than the law – e.g., a college professor received an email from provost saying that no professor could use a DVD in class unless it had been purchased by the institution. That has no particular relationship to the law. Teachers have to learn to live with those policies or learn to ignore them, and it creates an extra layer of uncertainty.
Crews: Providing resources on copyright is definitely a role for libraries. Librarians often care more about information-age issues because they see them so often.
Q: Copyright holders are worried and mixed-up too. Couldn’t they be an ally? If schools teach fair use, that would also teach about stealing.
Hobbs: We’re beginning to explore how to engage with copyright holders, including educational publishers and mass media. There is a place of consensus to be found. Many publishers want educators to use their films (e.g., Chronicles of Narnia) for educational purposes. (Comment: given the religious background of the Chronicles, I’m not convinced this is a completely benign partnership. But that’s not so much a copyright issue.)
Jaszi: When copyright owner representatives are brought into these conversations in public or semipublic discussions, they tend to take extremely hard lines. Though in private they are more conciliatory, they feel pressure to be extreme in public. So the better idea is for the user community to take the lead and relieve copyright owner representatives of the very problematic burden of participating in a consensus-building exercise with a use community. If the practice community comes to a reasoned and reasonable position on fair use, it will then be possible for copyright owners to endorse either explicitly or implicitly. Inclusion at the early stages of consensus-building is harmful, though.
Aufderheide: It’s clear that copyright representatives will let hell freeze over (or the ice caps melt) before saying publicly that fair use exists. But they can live with other people saying it. Copyright owners want to use the filmmakers’ guidelines too, even though their participation would have killed the project before it got off the table; now that exists, they like the ability to say “this goes beyond the guidelines” when some entity threatens to use without permission and claim fair use unless it gets a lower license price. (This story, by the way, seems to strengthen Crews’s point.)
Q: What about the Hollywood guilds, which take a harder line than even copyright owners and would prefer to ban any unauthorized use of a television show in class?
Crews: At least with respect to the creative content, writers’ and others’ contributions are bundled into the copyright rights. The more complicated the creative structures get, the harder it is to get real permission, and thus the more important fair use becomes.
Q from documentary filmmaker: If you buy a film for your home use, can you take it into the classroom and show it?
Crews: If there were a valid license to which I agreed saying home use only, then no. But what if the box says “home use only”? That is not a contract and you can show it in class.
Hobbs: But this is an example of pervasive confusion. (And, I would add, encouraged by copyright owners with their overreaching claims on DVDs.) Media literacy educators understand that messages are interpreted, and it’s by interpretation that we learn and understand fair use.
Q from earlier filmmaker’s partner: Half of our income comes from educational sales. We experimented with home video, but teachers stole our product – it clearly said on the box, “educational use prohibited.” Would showing the entire hour of our show be fair use?
Crews: The question is “can a teacher show the whole thing in the classroom?” and the answer is “yes,” but not because of fair use. There is a specific section of copyright law apart from fair use that clearly says lawfully made copies of the video may be performed in face-to-face instruction. There is no amount limit. If you really want to split the market, a label on the box is not enough. It has to be a real part of the contract. As an educator, Crews urges creators not to do that.
Q: But this limits sales to the general public. We sell to libraries, schools, and colleges. But if we sell it as a home video, that destroys our market. We can’t afford to sell it to the general public if teachers are going to steal it.
Aufderheide: This is an important area of real disagreement, and the filmmakers are not fair use haters. The two-tier pricing model for documentaries is falling apart, and creating real problems for filmmakers.
Q: The DMCA now allows media educators to use film clips from DVDs. Will this exception continue to be focused on film professors?
Jaszi: We will be back for that exception next time. He expects that other use communities will try to make the same demonstration of need. Many other teachers have pedagogical needs for clips.
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