Tag: fair use

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.

 

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What changes were just made to copyright law?

I seem to always find myself taking a conservative position on copyright issues and I find myself in much the same position today. The U.S. Copright Office just created some new policy regarding copyright and I have started to read speculation as to what this means for educators.  What the changes appear to address are the rights of anyone who purchases content to circumvent protection measures for the purpose of more flexible PERSONAL access. It does not appear to me that there has been any change in what represents fair use. So, for example, I can now use Handbrake to legally move a video I have purchased from a DVD to my desktop computer and then to move the movie to my iPod for viewing. I have circumvented the protection to offer myself a different viewing option.

Perhaps I could record the audio output from a Kindle if I would rather listen to a book than read it (or if I was unable to read it).

What is allowed certainly seems logical and simply allows practices that are already common. As described these allowances do not change revenue opportunities for providers, but allow access alternatives for consumers.

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Still confused – after all these years

How copyright and fair use apply in an online world have long been issues that have confounded me? I think I have found an explanation that seems logical to me, but then find some “expert” advocating a practice that I would regard as an infringement. I think I understand “fair use” as it applies in my face to face classroom or to materials I might provide students. I understood that fair use did not apply to materials I might offer others online. This made some sense to me based on my experience being associated with a commercial product – I knew that if I wanted to use an image in our book the responsible individuals had to provide permission. Online was “publishing” whether the product was paid for or not.

The 2002 TEACH act seemed consistent with this perspective. It authorized online behaviors similar to classroom behaviors as long as those with access were enrolled students and efforts were made to exclude others (e.g, a sign-in CMS). This seemed logical. In addition, the act itself seemed unnecessary if my interpretation of online fair use was wrong.

EDUCAUSE has recently released a “research report” on copyright and fair use in a web 2.0 world. I thought this would make it clear that my interpretation was overly strict which is what the report says educators tend to do. I even thought I found the page on which my answer existed (page 9).

Copryighted content can be displayed openly on the web so long as it meets appropriate exceptions under fair use, compliance with the TEACH act, OR is licensed. (OR caps for emphasis – meaning different issues are in play)

I interpreted this to mean my existing interpretation was overly cautious – I might use an occasional image or short segment of music as such would meet fair use guidelines in my classroom and it would seem I could do the same on a web page.

I read on (unfortunately).

In discussing making lectures available to any interested party as is being done by many institutions via iTunes U, the authors state:

“..students are increasingly demanding recorded lectures, which commonly include copyrighted materials, such as photos or diagrams from books…”
(top of page 10 now):
To comply with copyright law, permissions must be obtained for the copyrighted materials, the materials must be removed, or the materials must be recreated …

Am I wrong about fair use, I would regard using a scan of a single image from the textbook in a powerpoint slide as fair use. If this is true, the experts authoring this EDUCAUSE article appear to have contradicted themselves (perhaps reversed themselves) within the span of three paragraphs.

What are the options here? This still makes little sense to me.

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McCain in Trouble for Copyright Infringement

Perhaps it was the mention of disputed fair use that caught my attention.

Jackson Browne is not a conservative AND has a history of not allowing his music to be used in ads. Yet, part of “Running on Empty” evidently was matched to video in a McCain presidential ad.

Now, the lawyers are involved. Perhaps the participants failed to read the new treatise on copyright and fair use. Should politicians (and teachers) be models for the rest of us? It is interesting to read what lawyers have to say.

Wired account

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Quibbling About Copyright and Fair Use Is Off Target

The recent release of a “best practices” guide to copyright and fair use has generated the typical echo effect among educational bloggers. It is pretty obvious from my previous comments that there is something about more and more liberal interpretation of “fair use” that annoys me. The exact source of this annoyance is difficult to pin down. I think it has something to do with my typical reaction when I interpret behavior as based in assumptions of entitlement.

  • That is good stuff.
  • I deserve that good stuff whether I feel like compensating those responsible or not.

I really think a different approach should be promoted within the educational community. This approach would be based in principles of learning by doing/authoring and sharing. Creative commons, inexpensive online social applications and tools, and wider acceptance of authentic projects encourage the type of personal commitment I would like to support.

Why assume you have a right to the good stuff someone else expects to be compensated for creating? Have you made the effort to search for resources others offer you the rights to use? Have you made the effort to contribute to such a sharing community yourself? When are choices based in convenience and self-indulgence?

Why isn’t the online discussion focusing on questions such as these and promoting the work of those who take the sharing option?

Yes, I know projects like this exist. There are big and small efforts to share lessons and learning objects (e.g., Merlot).

My favorite “test case” for this approach might be the effort of Bernie Dodge to establish a repository and organizational system for web quests (Quest Garden). I wonder how this project is going. The site still exists. I tried “One Trick Pony” , Dr. Dodge’s blog, but he hasn’t posted since July of 2007. One issue is this. The “sharing” site requires a minimal fee to support the cost of server space, maintenance, etc. I wonder if use has grown. I wonder if the fee was too much and folks only respond to free. A second issue is simply the willingness of individuals to contribute webquests they have developed.

BTW – I do think it is important to back up your own position with actions. I do expect people to pay for some resources I create (our books). I also make the effort to share (my free book). I hope you take a look and I also hope you offer resources you create.

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Who Gets to Decide What is Fair?

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.

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When is this legal

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.

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