Copyright Fair Use: Who Has the Last Word?

Myth: School system rules are the last word of fair use by educators.

The copyright law has been so broadly misinterpreted that not only are many educators afraid of using materials but many students are suffering from the inappropriate censorship others are imposing. As law professor Peter Jaszi from American University explains, the copyright law is no "charter for private censorship" and these "rigid, conservative, outmoded interpretations of the law [are] not the law itself"; in fact, they are "strangling educational practices rather than enabling it" (Intro Video). Media specialists with good intentions post guidelines over the copiers with rules of thumb like no more than 400 words of a print document or ten seconds of a video may be used even in an educational setting, but this practice is another myth. The fact remains that the law itself does not have definitive rules such as these, and fair use is purposefully broad. The intentions of the law acknowledge that creators rely on what has come before as they contribute to culture, so there must be a balance between protection for creators and their works to stimulate additional creation, and the opportunity for other creators to use established materials to create new cultural works. Essentially, we have to be able to use others' works to create new ones. Even Shakespeare drew from others' accounts as he wove his tales. While educational guidelines are made with good intentions "[they] have often hurt more than they have helped" (Code, 2008). With the widespread availability of creation software students have the incredible opportunity to make original works that draw from and transform published works, and teachers have incredible resources at their fingertips to help students develop these higher level thinking skills. Why would we let anyone stop us from the fair use to which we are entitled?

Well, most of us need our jobs, so let's say one of those handy rule sheets is actually a part of the school system's rules. While this might prove a dilemma for one's employment, it would also be a violation of the federal law, which school districts (last I checked) do not have the authority to supersede. So what's an educator to do? Stay informed. Arm oneself with an understanding of the law and what it allows, and be a leader. Try to change a district's misguided attempts to define that which is very intentionally undefined. (This could also apply to their efforts to quantify and define good teaching with arbitrary numbers, but I digress . . . ) Fair use is flexible for the benefit of the user, so be able to justify your use of materials. Guidelines such as the Code of Best Practices in Fair Use for Media Literacy Education can help. This document reminds us of the "Four Factors" by which one judges fair use: nature of the use, nature of the work used, extent of the use, and economic effect. Educators have a lot of latitude here, and generally speaking, we are not significantly inhibiting a creator's economic gain by using their work in an educational setting. When I use Wayne's World to teach absurdity, I'm probably boosting their profits by introducing another generation to that slice of ridiculousness. However, it's easy to be intimidated by district policies, but the "concerns of commercial copyright holders" as well as the "risk-aversion of school system administrators and lawyers" have spread stifling restrictions on educators that have significant consequences for students. Educators are not facing copyright law-suits; there are not precedent cases piling up. In all likelihood, the worst that could happen to an educator acting in good faith would be to receive a "cease and desist" letter from a copyright owner, but even that might be violating the educator's right to fair use.

Fortunately, my district maintains a broad stance on copyright in their administrative rules:

Copyright Laws: a. Adherence to fair use guidelines and other relevant copyright stipulations shall be assured. In no instance shall library media materials and/or equipment be used in such a manner as to violate Board Policy, District Administrative Rules or state and federal law. b. The library media specialist shall be responsible for ensuring the availability of copyright information, dealing with copyright and clearance questions (Administrative Rule GBT-R [Professional Publishing] and Administrative Rule IFBG-R [Internet Acceptable Use]). Provisions for copyright clearance are outlined on Form IFBG-2 (Permission to Use a Third Party Work Copyright Permission Request).

Nevertheless, searching the district's website brings up a number of local school media centers who have published strict guidelines that reflect the conservative and misguided attempt to define the law.

The commercial world is grappling with increased difficulty in the copyright arena, but the educational world has even more need to fairly use materials to teach media literacy, "and like literacy in general, media literacy can be taught and learned" (Code, 2008). Teachers need to be able to model creating material, providing attribution and citations, and they need to allow students to create, using others' works with appropriate attribution and citations. Students need to learn to be more responsible consumers and producers of media within the safety of the protection afforded under fair use and the educational setting and without unnecessary restrictions.