Copyright Clarity

How Fair Use Supports Digital Learning

Renee Hobbs

• Publisher: Corwin
• Year: 2010
• ISBN:
  9781452271538
• Edition: 1
• Topic: Education
• Subtopic: Education General

This jargon-free guide clarifies principles for applying copyright law to 21st-century education, discusses what is permissible in the classroom, and explores the fair use of digital materials.

In the 21st century, teachers and students are using mass media, popular culture, and digital technologies to support the learning process.

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1

Copyright Matters for 21st-Century Learning

Ibegan teaching teachers about media literacy back in the 1980s, when VHS tapes were the latest technology—it was the age of dinosaurs, it now seems. I would bring in a handful of tapes, which I had cued up, including excerpts from TV news, advertising, movies and popular television programming to demonstrate a variety of instructional techniques for developing critical analysis skills in responding to mass media and popular culture and show how creative media production activities support literacy and learning in English language arts, social studies, and health education.¹ Today, because media literacy is mandated in nearly all of the state curriculum frameworks, I cross the country offering teacher workshops. To develop learning activities for media literacy, I now use my digital video recorder to record television programs, manipulating and storing clips on my laptop.

Today, educators are discovering that 21st-century learners benefit from approaches that build creativity, critical thinking, and problem solving skills in the context of civic literacy and global awareness.² Students now make active use of multimedia texts, tools, and technologies. They are engaged in collaborative, hands-on work as both readers and writers of messages in print, visual, electronic, and digital forms.

But with every group of teachers I work with, there’s a question that always comes up with an increasing spirit of trepidation: “Is it legal to use copyrighted material like this?”

“Of course,” I say. Like many media literacy educators, I use copyrighted materials under the doctrine of fair use, Section 107 of the Copyright Law of 1976. Users have the right to use copyrighted materials without payment or permission, depending on the specific context and situation of the use.

It is ironic that, at a time when online digital technologies are enabling educators to create and share an ever-widening array of texts, sounds, still and moving images, music, and graphic art, we are seeing a dramatic increase in the climate of fear among educators concerning the use of these resources for teaching and learning. And since fear reduces innovation, those of us who promote the use of digital media as tools for teaching and learning need to sit up and take notice.

Educators and Students Use Copyrighted Materials

With the rise of the Internet, it is becoming easier and easier to find and use documents, primary sources, and other materials including articles, documents, images, videos, games, and music. Nearly everything online is copyrighted.

And even the simple act of reading may trigger copyright issues. For example, when you read something online, you must make a digital copy of it to access it. So, copying is deeply implicated in the very act of using a computer.

Children and young people have a vast array of choices for information and entertainment. In this mediated childhood, they are simultaneously consuming and creating large quantities of media messages.³ According to a recent encyclopedia on children, adolescents, and the media,⁴ here’s some of what’s happening.

• Parents buy Baby Einstein videos for their infants in the mistaken belief that they build cognitive or perceptual skills.
• Preschoolers are watching the Sprout cable channel, a 24-hour channel just for them. They are lap-surfing with their moms, and practicing their social networking skills playing Club Penguin when they are six.
• By the time children are eight years old, they will generally be spending eight hours daily in some form of media-consumption experience, whether that be watching television or movies, playing videogames, sharing text messages, or listening to music.
• Children enjoy online games and post to social networking Web sites or talk with friends online.
• By high school, some teens are uploading photos, writing snappy captions, and putting their own poetry, art, and writing online.
• Student-produced videos, created over the weekend by friends just for fun—or for an assignment in Latin, biology, or history—are uploaded to YouTube, where they can be seen by millions.

As a result, parents, educators, and civic leaders are all beginning to recognize the need for a new set of competencies that are essential for engagement and cultural participation in 21st-century society. These include the four components of the definition of media literacy, which was developed at a convening at the Aspen Institute in 1993: “the ability to access, analyze, evaluate and communicate messages in a wide variety of forms.”⁵ As British media scholar Sonia Livingstone has explained,

Each component supports the others as part of a nonlinear, dynamic learning process. Learning to create content helps one to analyze that produced professionally by others; skills in analysis and evaluation open the doors to new uses of the Internet, expanding access, and so forth.⁶

Media literacy learning occurs at the college and university level, in high schools and elementary schools, with parents, and in environments like adult education, youth media, and public-access centers. Media literacy education vitally depends on the ability of educators to be able to use and manipulate copyrighted materials from digital media, mass media, and popular culture.

While they come from many different disciplines and types of educational backgrounds, educators who make use of media literacy concepts share a focus on critical inquiry.⁷ They often use the instructional method of close analysis or deconstruction, as well as formal and informal media production activities. Viewing and discussion activities are also common.

But today’s media literacy teachers operate in an environment where practically every object of interest is protected by copyright. Typically, they teach analytic skills with examples of photojournalism, news, documentary, advertising, reality shows, comedies, sports programs, music videos, videogames, Web sites, and even home-shopping shows. A growing number of educators make active educational use of downloaded videos from user-generated content sites such as YouTube. Some access music or spoken-word files from purchases at iTunes or Audible. They often teach production skills along with critical thinking by encouraging students to produce new work that in part comments on or draws from existing work, capitalizing on students’ appetite for popular-culture consumption and creative activities.

Here are some teachers who make use of media literacy educational practices:

Sarah Wing, a second-grade teacher at the Russell Byers Charter School in Philadelphia, explores the topic of media violence with her students. She invites students to talk about movies they have seen that might have scared them. They discuss the difference between realistic violence and fantasy violence and learn about using the film ratings to make decisions about what kinds of shows are appropriate and inappropriate for them.

Heidi Whitus, a teacher at the Communication Arts High School in San Antonio, Texas, videotapes off-air from television shows using a VCR. Heidi digitizes parts of the television programs and movies that she wants to use in the classroom and converts them to QuickTime files so she can use them in the classroom or reproduce them so her students can use them. She uses these clips to discuss and analyze the form and structure of visual media, exploring how issues of authorship, representation, technology, and culture are expressed in each work.

Cyndy Scheibe, a psychology professor and director of Project Look Sharp, a media literacy initiative at Ithaca College, uses comic strips from newspapers to involve students in a critique and commentary of the values messages have embedded in them. Her team at Project Look Sharp has created online curriculum materials about the media’s representation of the Middle East that features clips from the Disney film, Aladdin. Another curriculum on the representation of war makes use of Newsweek magazine covers depicting the Vietnam War, the Gulf War, and the conflict in Afghanistan.

Caleb Smith, who teaches film and video at the Capital Area School for the Arts in Harrisburg, Pennsylvania, uses a “falsification” assignment, where he gives students dubbed and digitized copies of television programs and teaches editing by asking students to reedit a particular scene differently to communicate a different meaning than the original episode. In viewing the completed projects, students discover that meaning can be created through juxtaposition and sequencing.

Kristin Hokanson, a technology integration specialist at Upper Merion High School, helps teachers use digital media for teaching and learning. In one situation, she helped the biology teacher develop an assignment where students created a “virtual zoo,” developing Web pages to share their knowledge about specific animal species.

Why Do Educators Care About Copyright and Fair Use?

Educators have a set of shared beliefs and attitudes regarding the use of intellectual property as a tool for teaching and learning.⁸ We believe:

Cultural criticism is essential to democracy. Educators value cultural criticism as an essential tool for self-actualization and democracy. “A literate citizenship cannot be created if the people who control images don’t allow them to be used,” Cyndy Scheibe explained in an interview. “It’s important that users of media participate in it and don’t just receive it.”⁹ In contemporary culture, students are trained to be consumers of media—that is why it’s important to go beyond this role to become authors and creators themselves.

Mass and digital media are an important part of the cultural environment. Teachers know that mass media and popular culture are part of the cultural landscape, deeply connected to students’ sense of personal and social identity. “Copyrighted materials are like our cultural landscape—you need to be able to use and analyze media,”¹⁰ said one teacher whom we interviewed. Sharing our interpretations and understandings of the diverse works of expression and communication around us is an important part of learning to make sense of the world. Media are a part of our lives in a way that it wasn’t 20 or 30 years, ago, said media educator and video artist Diane Nerwen: “We should have access to our culture and be able to talk about it and comment on the world around us. If we don’t comment on it, then it feels like information is being controlled.”¹¹

The effective use of copyrighted materials enhances the teaching and learning process. A college professor who teaches preservice teachers talked about the importance of using copyrighted works in educational settings because they provide more current examples than offered in most textbooks. Contemporary mass media materials hook attention and interest, and they help teachers connect new ideas to students’ existing base of knowledge. “Teaching is just better when we can pull from a lot of different sources,” said Frank Baker, a media literacy advocate and teacher educator in Columbia, South Carolina. “Imitation is a way to learn,” he explained in an interview. “If students can’t take and use the most highly developed messages that society creates, it’s a handicap for them and the whole society.”¹²

Appropriation of cultural materials promotes creativity and learning. There is significant educational value to the process of juxtaposition and recombination of existing copyrighted materials. Young people are creating remixes and mashups, where existing copyrighted works are juxtaposed and recombined with original materials to create new works. Teachers are exploring this technique, too. For example, an art teacher asks students to select a famous painting of the 17th or 18th century and use image manipulation software to “put themselves into the image.” The assignment connects learning about art to learning about technology as a way to promote reflection on personal and social identity. But there are limits to appropriation, as Faith Rogow, former president of the National Association for Media Literacy Education has pointed out. “It shouldn’t be a free-for-all, but instead a thoughtful process”¹³ in which students take material in which they can recontextualize, to make it their own. But appropriation is a powerful instructional tool for student learning. As Rogow explained, “Mashups are an opportunity for students to really look at the media they consume—to take it and give it their own spin. It helps show kids how they can present their own point of view.”¹⁴

Copyright owners and users of copyrighted materials both deserve respect. Educators respect the rights of copyright owners and deeply value the creative work of authors. Many educators have themselves created curriculum materials; others have written articles, books, or created videos and multimedia products. Many educators see themselves as copyright owners as well as users. As a result, most media literacy educators articulate a strong sense of appreciation for the need to protect the rights of creative people through copyright. Media literacy educators share certain values about the use of copyrighted material, including news, advertising, movies, musi...