Fair use is one of those topics that drive me crazy. I understand that most educators have a vague understanding of the topic and this level of knowledge serves them well. Because I write about student authorship I feel a need to be able to answer those questions I raise for myself. Representing a position to others requires a higher standard. I read the law and interpretations. Laws are often like standards (reference likely to be understood by educators) – laws and standards give general guidelines, but often lack specifics. The legal system has a solution – take it to court. Case law is the solution to the desire for specifics. I would prefer there be something else.
What tends to set off my anxiety about this topic is a pronouncement by someone else. Two recent experiences got me going again. The first was a podcast offered by a prominent educational podcaster that was the recording of one of his conference presentations. In this presentation, the podcaster contended that under fair use students can use 30 seconds of music to back a video created for YouTube. The second experience came as I reviewed a graduate student instructional project focused on fair use.
The interpretation I offer educators is that the authorship of web publications requires a more conservative approach than say a student presentation in the classroom. I would not propose that teachers allow students to include commercial music in any video offered to the public.
I wish I could point to definitive statements on this matter, but I can locate a variety of perspectives online. My position is partly informed by a reading of the TEACH act. This act was intended to allow the same instructional opportunities online that are allowed in a face to face classroom. To apply, the TEACH act requires instructors meet certain expectations. These requirements involve provisions that limit access to online materials to those enrolled in an active course and limitations on the time material will be made available. If you read the resource linked to above, note the reference to limited portions as required for fair use. If the limited portion standard applied no matter what, why would the act require the limitations I have identified? The one specific example I can think of would involve the use of entire work – say an entire song in a music appreciation class. Some audio and video work is purchased specifically for educational use and public exposure would void the agreement of the purchase.
Online commentary does more directly support the position I take. For example, check #9 on this list of fair use guidelines for college students.
Teachers seek guidelines and remember specifics. The 30 seconds of audio/video is an example. However, if the issue is really more complex, I think “experts” should be more cautious in making complex issues simple.
