The Routledge Companion to Media Education, Copyright, and Fair Use

Renee Hobbs, Renee Hobbs

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781317268345
• Edition: 1
• Topic: Droit
• Subtopic: Loi sur les droits d'auteur

Media literacy educators rely on the ability to make use of copyrighted materials from mass media, digital media and popular culture for both analysis and production activities. Whether they work in higher education, elementary and secondary schools, or in informal learning settings in libraries, community and non-profit organizations, educators know that the practice of media literacy depends on a robust interpretation of copyright and fair use. With chapters written by leading scholars and practitioners from the fields of media studies, education, writing and rhetoric, law and society, library and information studies, and the digital humanities, this companion provides a scholarly and professional context for understanding the ways in which new conceptualizations of copyright and fair use are shaping the pedagogical practices of media literacy.

Part I

Foundational Issues

1

Media Education, Copyright, and Fair Use

Renee Hobbs

When my longtime colleague and friend Elizabeth Thoman, founder and director of the Center for Media Literacy in Los Angeles was developing a curriculum to help educators explore the pervasiveness of violence in the media, she did not worry about whether teachers and communities would engage with the topic. From the volume of phone calls and letters she was receiving back in the early 1990s, she knew that parents, educators, and community leaders were clamoring for resources to help them teach about media violence as a social issue. Thoman had designed the comprehensive Beyond Blame: Challenging Violence in the Media curriculum to promote dialogue, discussion, and critical thinking among children, young people, and adults of all ages who were being bombarded with violent images from the media and popular culture.

For example, for middle school students, lessons include activities that invite students to become more aware of what they are watching on television and to consider why television violence attracts attention. Students analyze TV and film narratives to study how aggressive behavior is presented as a “solution” to social problems and how heroes engage in violence that is often depicted as justified and noble. They explore how media violence may affect behaviors, increase fear, and contribute to desensitization. They consider the various responsibilities of the media industry, government, and viewers in relation to media violence.

Of course, Thoman wanted to reduce children’s exposure to media violence, knowing that exposure to too much media violence can be harmful. She also wanted to change the impact of violent images by enabling youth to deconstruct different genres, including news, cartoons, drama, sports, and music. She also wanted people to consider the complex parameters of media violence as a social and political issue, including First Amendment concerns, the consequences of Reagan-era deregulation of the media industry, and the role of violence as part of the American mythology of independence. All in all, Thoman believed that media literacy education could be a necessary component of violence prevention.

Although the Center for Media Literacy was located in Los Angeles, only minutes away from major television and film companies, Thoman was certainly not worried about the topic of media violence being “too controversial.” But she did worry about the legality of her intention to use copyrighted materials as part of the curriculum. She intended to package the lesson plans and curriculum materials along with a VHS tape with clips from a variety of movies and television shows that featured violence in all its many forms. She did not want her small nonprofit organization to face a lawsuit.

Ever since the early 1980s, educators had been using home videotape recording to capture television programs, advertising, and news using short clips for educational purposes in the classroom. Media educators make active use of copyrighted works in the practice of teaching and learning, using artifacts of popular culture, mass media, digital media, or other artifacts that are not traditionally defined as educational media. But the question of whether curriculum materials could be created and sold with clips from commercial copyrighted media content, including materials produced by major television networks, was an open one and a source of concern.

After consultation with a copyright lawyer, Elizabeth Thoman decided to move forward using a clip compilation reel as part of the curriculum. She placed a label on the packaging, asserting her fair use rights to use copyrighted content without payment or permission, citing Section 107 of the 1976 Copyright Act, which states:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The Beyond Blame curriculum became one of the best-selling curriculum products at the Center for Media Literacy, reaching thousands and thousands of students, teachers, and community members. When Thoman (2003: 609) reflected on her work in an article published in the Federal Communications Law Journal, she noted that the conceptualization of the public interest was becoming a “vast wasteland.” The problem? In part, she acknowledged:

[the] morass of contradictions in the intellectual property, copyright, and Fair Use regulations (and their interpretations) which threaten to stifle and even shut down the process of critical inquiry—of comment and criticism that is so fundamental for an educated citizenry in a democratic society in this or any century.

(Thoman (2003: 609)

In the article, Thoman described the typical questions that she had experienced in teaching teachers:

• “Can I show that movie clip in the classroom?”
• “Can I make thirty copies of this ad so every student can read the fine print?”
• “Can my students bring in taped examples from TV that demonstrate different persuasion techniques?”

She recognized that the climate of fear was impacting teachers’ confidence in using media literacy pedagogies, noting that teachers felt their jobs could be at risk if they or their students bring unauthorized material into their classrooms. She described how librarians had been forced into the role of copyright police and how school district lawyers, lacking expertise in copyright law, often too strictly interpreted the doctrine of fair use. Even more troubling, she noted, was the position of educational producers and textbook publishers, who were quite often a division of some larger media conglomerate. Their reluctance to incorporate contemporary media as “texts” for analysis into curriculum materials was strangling the development of media literacy education in the United States.

In many senses, the volume you are holding in your hands is the product of Thoman’s own legacy because she was among the first to urge media literacy educators to address the problem of copyright confusion. Aware that this volume will be read by those from across a wide disciplinary spectrum, in this chapter, I orient the reader to this complex and multifaceted field. First, I provide some definitions of media education that reflect its diverse interdisciplinary formulations in relation to the dialectic of protection and empowerment, which helps to explain why there are so many different perspectives on issues of copyright and fair use in the context of education initiatives. Then I preview the contributions of the authors in this volume, whose chapters collectively provide a state-of-the-art examination of the intersections between media education, copyright, and fair use.

Matters of Definition

Of course, the terms “media education” and “media literacy” are just some of many now in circulation to describe the competencies people need to thrive in relation to mass media, popular culture, digital media, and contemporary culture. Scholars and academics have been debating “what to call it” for more than fifty years as they aim to describe the dynamic and multifaceted competencies needed for thriving in a world full of media. In the 1970s, the term “critical viewing skills” became popular (Brown 1991). During the 1980s, academic conferences in communication featured raging debates about the use of terms like “media literacy” and “media education,” as scholars sought to distinguish between teaching with and teaching about media. Tyner (1998) considered media education to be a transitional concept in recognition of the sensitivity around definitions and terms associated with expanding the concept of literacy. In the 1990s, the need to distinguish between focusing on educational processes and learning outcomes emerged. For example, the term “youth media” emerged as the preferred term to describe a particular set of pedagogical practices whereby students analyze and create media outside of educational institutions (Goodman 2003). More recently, definitions and terminology have emerged that acknowledge the differences between teaching in higher education settings and working with younger learners, both in and out of school (Aspen Institute Task Force on Learning and the Internet 2014).

Among the international community of media literacy scholars, the term “media literacy” can be a source of continuing debate because some languages lack a term that equates to literacy. The emergence of terms like “media competence,” “media fluency,” and “transliteracy” reflects the global growth of the field (Grafe & Breitner 2014). With the support of the European Union, media literacy education researchers have developed, implemented, and assessed how media literacy may help address the challenges of discrimination in contemporary societies (Ranieri 2016), and scholars have even begun to examine youth media programs in developing nations (Asthana 2012). Approaches to media literacy education in urban schools assume distinct forms that connect to students’ lived experience and identification with popular culture (Morrell et al. 2013). Overall, the field is replete with diverse theoretical and methodological frames and practical initiatives designed to influence support the work of parents, teachers, and children and young people in particular community contexts.

Definitional issues continue to be a challenge partially because of the exceedingly rapid changes in technology and the rise of digital authorship. A constantly changing media ecosystem has encouraged a forward-looking orientation toward the practice of learning how to create and compose with media formats, genres, and tools. Digital media technologies have changed dramatically over a relatively short period of time. Thinking back to my own authorship experiences with making media, I made my first film on Super 8 film while an undergraduate in the late 1970s; about then I also got to make my first video using a Sony Portapak video camera, with videotape reel-to-reel recording. I typed my dissertation on a DEC Pro 350 computer in the 1980s, with a very primitive word processor; I started using CompuServe in 1989 to use a new technology called e-mail. Through this, I was also able to host lively discussion board dialogues between my college students at Babson College and students enrolled at Ohio State University. In the 1990s, I made my first documentary film using a high-end video camera, working with a professional editor using a nonlinear editing system. I worked with a team of web developers and programmers to create an interactive digital learning game for girls ages 9–14. By the time I created the Media Education Lab website using Drupal and created my own WordPress blog, web technologies had already become relatively simple for nonspecialists to use.

Today, I assign my students the job of creating podcasts, infographics, vlogs, screencasts, and even memes. So it’s no wonder that the definitions are in flux. As a variety of disciplines and subdisciplines have contributed to the field, they all engage learners in analyzing and creating media. The dynamic quality of the terms used reflects the changing nature of media systems and enrolls a wide variety of stakeholders well beyond those in the scholarly and academic community.

Today, activists, librarians, business leaders, government officials, and creative media professionals are part of the media education community, even if they use terms like “new literacies,” “critical literacy,” “connected learning,” “digital media and learning,” “digital citizenship,” or other terms. As we will see in this chapter, media education is aligned in relation to a dialectic of empowerment and protection, reflecting the public’s complex love–hate relationship with mass media, popular culture, and digital media. Each of these perspectives offers insight on how copyright and fair use are conceptualized as a dimension of learning and teaching.

Dialectic of Empowerment and Protection

Paradigms of empowerment and protection affect how media literacy educators conceptualize their goals and shape their pedagogical strategies, which is why digital and media literacy education may differ from place to place, depending on the particular values and motivations of educators (Hobbs & Tuzel 2017). Protectionist perspectives have been part of U.S. cultural discourses about media since the introduction of film at the turn of the 20th century (Polan 2007). Concerns about media violence increased during the 1960s and 1970s as Marshall McLuhan’s engaging thesis about the interplay between form and content (“the medium is the message”) and the return of tribalism (“the global village”) influenced a generation of educators, who were observing shifts in the attention spans, interests, and values of students who were growing up with commercial television.

Research on media effects has examined the differential processes by which media may have influence on attitudes and behaviors (Valkenberg & Peter 2013). George Gerbner first helped to explore the relationship between media usage and children’s aggressive behavior and built alliances with those concerned about advertising, materialism and exposure to gender, racial, and ethnic stereotypes, with the goal of “trying to awaken television viewers from their stupefaction” (Stossel 1997: 1). When the birth of cable television brought into American living rooms a 500-channel universe, one that was largely free from the regulatory demands placed on broadcasting, medical professionals and child development specialists grew concerned about the impact of media on children’s attention span (Villani, Olson, & Jellinek 2005). Reflecting the perspective that media literacy education could counter the negative effects of media, Elizabeth Thoman developed Media&Values, a magazine that ran for fifty-nine issues from 1977 to 1999, growing to a distribution of over 10,000 copies, with media literacy lesson plan kits to encourage educators to bring lessons to life in the classroom (Robb Grieco 2014).

Media literacy educators and scholars have been battling to secure their legal rights to use popular culture for critical analysis and learning for nearly thirty years. That’s because, in order to critique media and popular culture, it is necessary to make use of examples from Hollywood, Madison Avenue, and Silicon Valley. In the early 1990s, in his efforts to advance media literacy among university students, Sut Jhally at the University of Massachusetts–Amherst developed educational videos demonstrating the deconstruction and analysis of commercial mass media. Jhally made a video for his class using 165 clips from music videos he had taped at home using a VHS video recorder. In the video titled Dreamworlds: Desire/Sex/Power in Rock Video, Jhally’s narration replaces the music “as clips of scantily clad women, some chained and bound, appear on the screen” (Professor’s Class Video 1991). After MTV sent Jhally a cease and desist letter, he took his case to The New York Times to defend his right to make fair use of the clips under the Copyright Act of 1976. Today, Jhally’s nonprofit organization, the Media Education Foundation, employs a staff of ten and makes a variety of films about the commercialization of childhood, pornography, pop-cultural misogyny and sexism, co...