“All ideas are stolen,
modified to look like
They’re not stolen,
And shared among thieves.”
Maureen Pilgram
Many share the above view. However, familiarity with copyright law is more necessary than ever with increasing numbers of students and teachers who are creating multimedia applications, designing web pages, or using the internet as a resource for graphics and other media ( http://edtech.boisestate.edu/ ) Information literacy is defined as a set of abilities requiring individuals to “recognize when information is needed and have the ability to locate, evaluate, and use effectively the needed information” (Association of College and Research Libraries, 2010). http://www.umuc.edu/library/libhow/copyright.cfm Media literacy education is the capacity to access, analyze, evaluate, and communicate messages in a wide variety of forms. This expanded definition of literacy responds to the demands of cultural participation in the twenty-first century. Media literacy is applied to a wide variety of contexts, such as watching television or reading newspapers, or when posting commentary to a blog. And like literacy in general, media literacy can be taught and learned. Its’ content may vary from lessons designed to expose the mechanics of how language, images, sound, music, and graphic design operate as symbolic forms for transmitting meanings to exercises designed to reinforce these understandings through hands-on media making activities. Making media and sharing it with listeners, readers, and viewers is essential to the development of critical thinking and communication skills. http://mediaeducationlab.com/sites/mediaeducationlab.com/files/CodeofBestPracticesinFairUse_0.pdf
What is copyright? Simply put, “copyright is a legal device that provides the creator of a work of art or literature, or a work that conveys information or ideas, the right to control how the work is used” (Fishman, 2008). The intent of copyright is to advance the progress of knowledge by giving an author of a work an economic incentive to create new works (Loren, 2000).
What can be copyrighted? Tangible, original expressions can be copyrighted. There are three (3) fundamental requirements for something to be copyrighted, according to the United States Copyright Office.
1. Fixation: Fixation occurs if something is written on a piece of paper, posted online, or stored on a computer or phone, or on an audio or video device.
2. Originality: It is not necessary for the work to be completely original. Works may be combined, or transformed in new ways that would make them eligible for copyright protection.
3. Minimal creativity: The work must include something that is above and beyond the original. Creativity need only be extremely slight for the work to be eligible for protection. The law merely states this is “original works of authorship” (U.S. Copyright Office, 2008).
What is Fair Use? (Code of Best Practices in Fair Use for Media Literacy Education http://mediaeducationlab.com/sites/mediaeducationlab.com/files/CodeofBestPracticesinFairUse_0.pdf). Fair use is the most significant limitation on the copyright holder’s exclusive rights (U. S. Copyright Office, 2010). Deciding whether the use of a work is fair is not a science. There are no set guidelines that are universally accepted. Instead, the individual who wants to use a copyright work must weigh four factors: 1. The purpose and character of the use:
a. Is the use of the copyrighted work for nonprofit or educational purposes? If so, it is more likely to be considered fair use.
b. Does the new work offer something above and beyond the original? Does it transform the original work in some way?
2. The nature of the copyrighted work:
a. Is the copyrighted work a published or unpublished work? Unpublished works are less likely to be considered fair use.
b. Is the work factual or artistic? The more a work tends toward artistic expression, the less likely it will be considered fair use.
3. The amount and substantiality of the portion used:
a. The more you use, the less likely it will be considered fair use.
4. The effect of use on the potential market for the copyrighted work:
a. The more the new work differs from the original, the less likely it will be considered an infringement.
b. Does the new work contain anything original? If so, it is more likely considered to be fair use.
Copying by instructors must meet tests for brevity and spontaneity. Brevity refers to how much of the work you can copy. Spontaneity refers to how many times you can copy and how much planning it would take to otherwise seek and obtain permission from a copyright holder (U.S. Copyright Office, 2009).
According to the rule, the need to copy should occur closely in time to the need to use the copies. If you use something repeatedly, it is less likely to be considered fair use. The expectation is that you will obtain permission from the copyright holder as soon as it is feasible. Using something over a period of multiple semesters or years is not within the spirit of the fair use exception.
What should be avoided?
1. Making multiple copies of different works that could substitute for the purchase of books, publisher’s reprints, or periodicals.
2. Copying and using the same work, from semester to semester.
3. Copying and using the same material for several different courses at the same or different institutions.
4. Copying more than nine separate times in a single semester (U.S. Copyright Office, 2009).
Tips for using online information:
1. Always credit the source of the information.
2. Find out if the author of a work provides information on how to use their work. If so, follow the guidance.
3. Whenever possible, ask the copyright holder for permission. Keep a copy of your request for permission and the received permission.
Myth: Employing Fair Use is too much trouble; I don’t want to fill out any forms.
Truth: Users who claim fair use simply use copyrighted works after making an assessment of the particular situation. There is nothing formal or official to do to claim fair use. You do not have to ask permission or alert the copyright holder when considering a use of materials that is protected by fair use. But, if you choose, you may inquire about permissions and still claim fair use if your request is refused or ignored. In some cases, courts have found that asking permission and then being rejected has actually enhanced fair use claims.
Myth: Fair Use could get me sued.
Truth: That’s very, very unlikely. We don’t know of any lawsuit actually brought by an American Media company against an educator over the use of media in the educational process. Before even considering a lawsuit, a copyright owner typically will take the cheap and easy step of sending a “cease and desist” letter, sometimes leading the recipient to think that they are being sued rather than just threatened. An aggressive tone does not necessarily mean that the claims are legitimate or that a lawsuit will be filed. http://mediaeducationlab.com/sites/mediaeducationlab.com/files/CodeofBestPracticesinFairUse_0.pdf Fear of getting caught isn’t the only reason to obey the law. Schools have a special responsibility to set an example of obedience to law. And from a practical standpoint, schools are an important market for producers of documentaries and other educational works. If instead of buying copies of a program, schools simply taped a telecast and made as many copies as they chose, producers would lose money and be less likely to create new educational works. http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter0/0-e.html
Conclusion: Copyright law remains a gray area for most of us. Hopefully, by examining the issues surrounding this confusing topic you have a better understanding of the importance of copyright law and where you stand as an educator. The strategies that you have developed for following copyright law can now be shared with colleagues and students.
“Copyright and fair use issues are definitely issues that concern teachers. Many factors have contributed to the culture of fear and uncertainty -- but now there are resources available that enable educators to feel more confident in their use of copyrighted materials -- including websites, images, movies, news media, advertising, online resources and popular culture -- to build students' critical thinking and communication skills.
Renee Hobbs, professor at Temple's Media Education Lab and Peter Jaszi, a professor of Law at American University's Washington College of Law who specializes in copyright law used a "best practices" model to help the educational community articulate how fair use applies to their work. The project was started by Professor Pat Aufderheide at the Center for Social Media at American University in Washington, D.C. who worked with documentary filmmakers to create the Documentary Filmmakers' Statement of Best Practices in Fair Use. With support from the John D. and Catherine T. MacArthur Foundation, they spent two years working with more than 250 educators from across the country to create a statement to assist media educators in making better use of their fair use rights under copyright law. Renee Hobbs has published a new book, Copyright Clarity: How Fair Use Supports Digital Learning, which offers educators a clear, jargon-free explanation (with examples from K-12 education) explaining teachers' and students' rights to use copyrighted materials in teaching and learning.
The project has been written about in many newspapers, magazines and blogs, including The Chronicle of Higher Education,School Library Journal, and Youth Media Reporter. Based on the idea that copyright is designed not only to protect the rights of owners, but also to preserve the ability of users to promote creativity and innovation, a Statement of Best Practices in Fair use for Media Educators was released on November 11th at the National Constitution Center in Philadelphia and is being endorsed by National Association for Media Literacy Education (NAMLE), Action Coalition for Media Education, Visual Studies Division International Communication Association (ICA), the Association of College and Research Libraries (ACRL) and has been adopted by National Council of Teachers of English (NCTE) as their official policy on fair use. Materials
Appendices
Fishman, S. (2008). The copyright handbook: What every writer needs to know. Berkeley, CA: Nolo.
