Recently a group of folks convened in an effort to consider the topic of fair use in education. The group generated a report and some have gone as far as to proclaim “Finally the end to copyright confusion has arrived”. The document generated by this group is available online (Best practices document – pdf) and various blogs have discussed the document and promoted the conclusions of the group (e.g., Speed of Creativity, Blue Skunk).
Here are some thoughts on this topic that are somewhat pessimistic on the conclusions of this group and concerned for how the the conclusions will be interpreted by the average teacher. I also think the case can be made that in many situations taking advantage of legitimate fair use may not be the best educational decision.
Here are some thoughts that are an attempt to establish a certain logic for these statements.
1) Copyright law is just that – “law”.
2) Copyright law is “ambiguous” – read it yourself and see if you don’t immediately think of specific situations for which the law does not explain what you should do.
3) EVERYONE has an opinion on what the ambiguous parts of the law may mean. There are experts with opinions and amateurs with opinions. Some folks are willing to share their opinions, but most are very careful to indicate the position(s) taken are only opinions. In the end, these opinions are tested in court and legitimacy of a given position is established.
4) Groups are sometimes convened to offer an interpretation of law – i.e., to offer opinions. CONFU1 and CONFU2 were convened to offer an opinion on copyright in the early days when it became clear that the digitization of content presented some unique challenges. The CONFU groups offered fairly conservative opinions and lacked specificity in areas that concerned educators (e.g., online fair use). The TEACH act offered a solution to some of these questions.
5) The CONFU groups appear to me to differ from the group responsible for the Best practices document in an important way. CONFU participants reflected the multiple stakeholders who had an interest in the interpretation of copyright and fair use. In other words, both content creators and content consumers (or users) were represented. The participants in the Best practices group appear on page 18 of the pdf. You will not find representatives from publishing companies, the film industry, etc. represented in this list. I would be more impressed by the findings of this group if the group were more representative of stakeholders.
6) Media literacy often involves the use of samples to demonstrate and illustrate topics in media literacy. Media literacy is a narrow topic and typically not the focus of much instructional/learning time.The issue I raise is not whether this topic should be considered more frequently, but to identify a concern that some may misinterpret comments concerning media literacy as relevant to what they teach.
7) The vast majority of those who violate copyright will never be prosecuted or even criticized. However, some still take a conservative approach. A group consisting of “experts” who identify best practices will likely encourage more liberal actions among those originally taking a conservative position. There will likely be no consequence for this shift despite the possibility that those with a legitimate stake in this discussion made no contribution to the suggested practices.
8 ) A more liberal position will result in less income for content creators.
9 ) There are multiple reasons for taking advantage of fair use opportunities (whether legitimate or not). For example, I may lack the opportunity or lack the funds to secure certain information sources on my own. I may also secure certain resources because the resources were generated in a more professional manner than I am capable of generating or simply because I do not wish to spend the time. As a learner, producing less polished, but constructed resources may result in a generative learning experience while borrowing more polished resources created by someone else may not. Best fair use practices are not necessarily best learning practices.
10) There are important ethical decisions involved in taking advantage of resources I encounter and can collect. Whatever decisions I make as an educator, I model the ethics associated with the decisions for my students.
