Tag: fair use

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.

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.

I came across a new online resource called SimplyBox. It is another entry within the category of tools that allows a user to collect and organize research resources (e.g., Evernote). I have heard this category described as “clippers”.

I think these are great tools for personal research. What I wonder about is the use of such tools for presentation/sharing (e.g., SimplyBox proposal for teachers). Two options are provided for sharing collected resources. One offers stored resources to non-SimplyBox users (anyone) and the second to a designated group of friends. To me, repurposing content AND sharing would require limiting access to an audience of students (e.g., TEACH act). The second option I mention (designate Friends) would fit this requirement. Combining content as part of a display would also seem to require the permission to create a derivative work. Again, I would interpret offering a collection of resources collected without author/creator permission to the general public to be against copyright. This seems like another of those situations in which we are provided powerful tools and it is up to us to decide what represents legal and ethical use.