Copyright Clarity: How Fair Use Supports Digital Learning

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Renee Hobbs

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    Foreword

    Copyright Clarity: How Fair Use Supports Digital Learning is a book that will make a significant difference in how I design my college courses for K–12 classroom teachers, media specialists, and school librarians from this point forward. In fact, I cannot imagine writing another syllabus without Renee Hobbs's book close at hand. It is that essential.

    For too long a time, copyright “law” had eluded me, and like many other colleagues who were equally unsure about their rights and responsibilities as users, I simply avoided numerous forms of copyrighted materials that undoubtedly would have enhanced both my instruction and my students' learning. Although I was vaguely aware of the doctrine of fair use, I had assumed wrongly that, in principle, it was a concept meant to work against me. I now know differently, thanks to Renee Hobbs, who has written an immensely readable text on why fair use is actually an ally of teachers and students immersed in 21st-century literacies.

    All of this was brought home to me when a student in one of my methods classes this semester used the term “copyfright” to signal her concern that a project she was planning on fan fiction for a high school English class might be in violation of certain copyright guidelines as she understood them. I realized then that Copyright Clarity could not go to press soon enough. I wanted to give this student a copy of the book, but since that was impossible, we talked through some of the issues Hobbs lays out in a chapter that explains a process K–12 educators and teacher educators can employ to determine the rights and responsibilities of fair use. Going through that process provided the self-confidence I needed to address questions from other students who had similar concerns about using copyrighted materials for their final projects.

    Copyright Clarity is more than a simple eye opener on fair use, however. It deftly teaches, as well. Real-world examples abound, and there are several opportunities for the reader to engage in an inquiry process while turning the pages. In fact, I found myself dog earring numerous pages as I read, promising myself that no longer would I let certain assumptions (even myths) about seeking permissions deter me from incorporating copyrighted materials that I needed to make learning both meaningful and memorable in my students' eyes.

    Finally, a book on topics as sensitive as copyright and fair use must provide documentation that is above reproach. Here, Renee Hobbs' scholarship and experience as a media literacy educator instilled the credibility that I was seeking. In a nutshell, Copyright Clarity is easily the most important book I have read this year.

    Donna E.AlvermannUniversity of Georgia

    Preface

    Perhaps you're wondering why you should even pick up this book. What do educators really need to know about copyright?

    Well, it turns out that we're in the middle of a great civic and cultural awakening about the topic of copyright and fair use, one that's increasing in visibility and importance as a result of the Internet and communications technology. Educators have a vital role to play in this process.

    The doctrine of fair use is central to the enterprise of education—and this book shows why educational leaders and classroom teachers must join scholars, librarians, and others to understand their responsibilities and to advocate for their rights under copyright law.

    I was motivated to write this book when I found myself sitting in the audience at a major educational technology conference, in a room filled with 150 people, listening to a presenter who was scaring teachers to death with distorted and inaccurate misinformation about copyright. People left the room more unsure and more fearful than when they arrived. This book provides a genuine alternative to the doom-and-gloom message you might be familiar with, the one that tells you, “Just don't do it.”

    I promise: This book will forever change the way you think about copyright.

    After reading this book, you'll have a confident understanding in the role that copyright and fair use play in promoting the development of students' literacy and learning. You and your students will be able to be truly responsible in using copyrighted materials and be able to take advantage of your rights under the doctrine of fair use. Most importantly, you'll have the knowledge you need to share these ideas with friends, family, colleagues, and others who care about the future of 21st-century literacy and learning.

    Acknowledgments

    Like many teachers, my computer laptop and office files are full of copyrighted materials: newspaper articles, book chapters, lesson plans, photos, films and videos, and computer programs. I'm lucky to have learned a lot about copyright and fair use over the years. But there won't be any legal jargon in this book because I'm not a legal expert, and this isn't the kind of book you can use to get free legal advice.

    Before I began this project, I was pretty confused about copyright myself. I thought that only lawyers had the right to answer copyright questions. That's one of the myths of copyright that needs to be corrected. It seems that, when it comes to copyright, there's so much anxiety and insecurity about the topic that everyone—even lawyers—adopt a deferential tone, hypercautious in their interpretation of the law.

    However, it turns out that, according to the law itself, citizens themselves must interpret and apply the doctrine of fair use according to the specifics of each context and situation.

    How do educators gain the confidence to do this? Inspiring leadership has come from people like Carrie Russell at the Office for Information Technology Policy of the American Library Association (ALA), who has worked to make copyright law accessible to librarians and citizens nationwide. She reminds us that people must make a fair use determination based on sound judgment and the careful consideration of the situation at hand. She writes, “Those who prefer a ‘yes’ or ‘no’ answer may be troubled by the ambiguous nature of fair use, but fair use cannot be reduced to a checklist. Fair use requires that people think.”1 This book is motivated by the desire to promote the kind of critical thinking that Carrie Russell recognizes as essential for both teachers and learners alike.

    I'm particularly grateful to Patricia Aufderheide of the Center for Social Media at American University, who launched me on this journey by sharing her passion, helping me to understand that copyright and fair use is a free-speech issue. Pat's approach to scholarship-in-action is a model of inspiration to me. When Pat introduced me to Peter Jaszi, a distinguished legal scholar at American University Washington College of Law, I was in for a treat. Day by day, my understanding of copyright grew until I felt confident enough to share my knowledge with students and colleagues.

    Pat, Peter, and I were truly honored to receive financial support from the John D. and Catherine T. MacArthur Foundation to create The Code of Best Practices in Media Literacy Education. My research assistant, Katie Donnelly, provided valued support for this project. Kristin Hokanson, David Cooper Moore, and Michael RobbGrieco all developed creative resources that helped this project to thrive. Thanks also go to the more than 200 educators from across the nation who helped us clarify how copyright applies to their work in a series of interviews and focus-group meetings. Kenneth Crews of Columbia University provided valuable insight on this project by sharing his expertise on copyright in education. Most of all, I would like to thank Professor Peter Jaszi, on whose brilliance, kindness, and expertise I have relied. The most important concepts presented in this book are those I have learned from him.

    Corwin wishes to acknowledge the following peer reviewers for their editorial insight and guidance.

    Gerard A. Dery, Principal

    Nessacus Regional Middle School

    Dalton, Massachusetts

    Inez Liftig, Eighth Grade Science Teacher

    Fairfield Woods Middle School

    Fairfield, Connecticut

    Cheryl Steele Oakes, Collaborative Content Coach for Technology

    Wells Ogunquit Community School District

    Wells, Maine

    Jason Thompson, Assistant Principal

    Schalmont Central School District

    Schenectady, New York

    Mary Tipton, Director, Technology and Distance Education

    Kent State University

    Kent, Ohio

    About the Author

    Renee Hobbs is one of the nation's leading authorities on media literacy education. She spearheaded the development of the Journal of Media Literacy Education to support the work of media literacy educators and scholars. She has created numerous award-winning videos, Web sites, and multimedia curriculum materials for K–12 educators and offers professional development programs to educators in school districts across the United States. Her research examines the impact of media literacy education on academic achievement and has been published in more than 50 scholarly and professional books and journals. She is a professor at the School of Communications and Theater at Temple University in Philadelphia and holds a joint appointment at the College of Education. She received an EdD from the Harvard Graduate School of Education, an MAin communication from the University of Michigan, and a BA with a double major in English literature and film video studies from the University of Michigan.

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

  • Resource A: Leading a Staff-Development Workshop on Copyright and Fair Use

    After reading this book, you can use this outline to offer a staff-development program on the topic of copyright and fair use in education, with a particular focus on the use of digital media technologies. The outline below is appropriate for a 90-minute session. This program uses a combination of lecture, activity, viewing and discussion, and small-group work. Downloadable presentation slides and videos are available at http://www.mediaeducationlab.com/copyright-clarity

    Outline
    I. Introduction to Copyright Matters for Digital Learning
    • Literacy is expanding as a result of changes in communications technology. Review the four components of 21st-century skills: tool competence; creativity and expression; teamwork and collaboration; and analysis, critical thinking, and ethical judgment. All teachers are responsible for supporting the development of these skills. One component of digital citizenship is understanding copyright and fair use.
    • How confident are you about copyright and fair use?

      Ask participants to reflect on their level of confidence in their knowledge about copyright and fair use as it applies to teaching and learning, using a five-point scale. Are they very confident, somewhat confident, in the middle, not confident, or not at all confident? Invite participants to self-assess and identify their levels of confidence by asking folks to raise their hands or put fingers in the air.

    • The explosion of new communication technologies makes it easy for people to share, use, copy, modify, distribute, and excerpt or quote from preexisting sources. But owners are forcefully asserting their own rights to restrict, limit, charge high fees, discourage use, and they sometimes use scare tactics. Many educators are familiar with the warning labels on DVDs that say “For Home Use Only” and the signs posted in front of copy machines.
    • Activity: What is the purpose of copyright?
      • Pair-share: Participants discuss their answers to this question with a partner. Allow four minutes for discussion.
      • Presenter invites a summary of responses: How many included reference to “owners' rights,” “making money,” or “profit”? Most will raise their hands. How many included references to creativity or the spread of knowledge? Few or none will raise hands.
      • What's the purpose of copyright? To promote creativity, innovation, and the spread of knowledge. Source: Article 1, Section 8 of the U.S. Constitution, written in 1787.
      • Question for reflection: Why is our understanding of copyright so distorted? (If time permits, partners can discuss.)
    • Copyright confusion is common not only among educators but also across all sectors of society. Research has shown that there are three types of attitudes common among educators. They include “see no evil”—those who choose to remain ignorant about the law; “close the door”—those who do what they want inside their classrooms but do not share or inform others; and “hypercompliant”—those who follow the “rules” religiously, sometimes applying the rules more vigorously to their colleagues or students than to themselves.
      • Do educators recognize any or all of these three common attitudes in themselves?
      • What are the consequences of holding these attitudes? Innovation and creativity in using digital media is reduced; the sharing and spread of innovative practices is limited.
    • Educational-use guidelines contribute to increased, not decreased, copyright confusion among educators.
      • Charts and graphs that claim you can use 10% of this or 1,000 words of that—educational-use guidelines—are not the law. These come from documents like the Agreement on Guidelines for Classroom Copyright in Not-for-Profit Institutions, Fair Use Guidelines for Educational Multimedia, and the Guidelines for the Educational Use of Music1—all of these are negotiated agreements between lawyers representing publishing companies and lawyers representing educational groups. They are not the law.
      • Quote from Kenneth Crews, director of the Copyright Office at Columbia University:

        The documents created by these negotiated agreements give them the appearance of positive law. These qualities are merely illusory; consequently, the guidelines have had a seriously detrimental effect. They interfere with an actual understanding of the law and erode confidence in the law as created by Congress and the courts.1

    II. Understanding Copyright and Fair use
    • In order to ensure that copyright law did not become a form of private censorship, the Copyright Law of 1976 includes Section 107, the doctrine of fair use. Fair use is an exemption—a type of “user right” that limits the rights of the copyright holder, allowing users to make copies without permission or payment under certain conditions. According to Carrie Russell, author of Complete Copyright,

      It not only allows but encourages socially beneficial uses of copyrighted works such as teaching, learning, and scholarship. Without fair use, those beneficial uses—quoting from copyrighted works, providing multiple copies to students in class, creating new knowledge based on previously published knowledge—would be infringements. Fair use if the means for assuring a robust and vigorous exchange of copyrighted information.1

    • Video Viewing and Discussion: To clarify how fair use applies to media literacy educators, the Code of Best Practices in Fair Usefor Media Literacy Education1 was created. A video is available online. After viewing, discuss these questions:
      • Why is copyright important to those who promote media literacy?
      • How is fair use defined in the video?
      • What are the benefits to having a code of best practices?
    • Pass out copies of the Code of Best Practices for Fair Use in Media Literacy Education. Review the five principles of the Code (pp. 10–13). Educators can:

      • make copies of newspaper articles, TV shows, and other copyrighted works and use them and keep them for educational use;
      • create curriculum materials and scholarship with copyrighted materials embedded; and
      • share, sell, and distribute curriculum materials with copyrighted materials embedded.

      Students can:

      • use copyrighted works in creating new material; and
      • distribute their works digitally if they meet the transformativeness standard.
    • Note that each of these principles comes with a description, rationale, and limitations. That's because users need to make fair-use determinations based on the unique features of the specific context and situation. The five principles reflect the consensus of the educational community who created it—but the Code does not replace the need for critical thinking and reasoned judgment. By providing a deep context for understanding copyright and fair use, the Code of Best Practices increases educators' understanding of the law.
    • Discuss the concept of transformativeness, which occurs when people add value or repurpose copyrighted material to create something new.
      • Review facts of the case Bill Graham Archives v. Dorling Kindersley Ltd. on pages 44–47ofthis book to show why the courts considered the publisher's for-profit use of the poster images to bea fair use.
      • Video Viewing and Discussion: Play the Schoolhouse Rock–style music video, “Users' Rights, Section 107.” The video is available online (http://www.mediaeducationlab.com/2-user-rights-section-107-music-video), and the song lyrics are shown on page 79. Discuss: How is transformativeness defined in this video? Why is context and situation so important in making a determination of fair use?
    • The Code of Best Practices is now the official fair-use policy of the National Council of Teachers of English, the national association of more than 60,000 English teachers. Here's why the Code of Best Practices helps.
      • It helps educates educators themselves understand how fair use applies to own work.
      • It persuades gatekeepers, including school leaders, librarians, and technology specialists, to accept well-founded assertions of fair use.
      • It promotes revisions to school policies regarding the use of copyrighted materials in education.
      • It may discourage copyright owners from threatening or bringing lawsuits.
      • In the unlikely event that such suits were brought, it may provide the defendant with a basis to show that his or her uses were both objectively reasonable and undertaken in good faith.

        The Code of Best Practices can help increase teachers' confidence in making a fair-use determination about the use of copyrighted materials to build students' critical thinking and communication skills.

    III. Making a Determination of Fair use
    • Fair use requires reasoning and critical thinking. No rules or guidelines can simplify the decision-making process because a fair-use determination rests on the specific context and situation of the use. Rather than defer to lawyers who may not have a full understanding of the educational goals, context, and situation, it is important for educators themselves to make fair-use determinations.
    • The “reasonableness standard' increases educators' confidence in making a determination of fair use. The copyright law includes a special provision that can eliminate statutory damages for librarians and educators who “reasonably believed and had reasonable grounds for believing” that his or her use was a fair use.
    • Video: Watch the elementary school case study, available online (http://www.mediaeducationlab.com/case-study-video-elementary), and discuss these questions:
      • The teacher in the video claims that the use of images and music in these PSAs was a transformative use. Do you agree? Does the students' work add value and repurpose? Why or why not?
      • Why do you think these students chose to use copyrighted works in their videos? Why do you think they chose a picture of a Cadillac instead of a generic car image with no logo? How was the use of copyrighted material relevant to the project's learning outcomes?
      • Which of the five principles of the Code of Best Practices are relevant in this case?
    • Jigsaw discussion activity: Participants first break into groups of five to eight, receive a hypothetical case, find others who have the same case, and discuss. Then, they return to their original group and share their reasoning with others. Hypothetical cases can be found online at http://www.copyrightconfusion.wikispaces.com. For large groups, it is effective to use color coding to identify the different scenarios. Participants first find others who have the same hypothetical scenario and discuss whether the specific case is a fair use of copyrighted materials. Participants may discover that they need more information about context and situation to analyze the case. Encourage them to invent facts to fill in the missing details. This helps participants recognize that there are often situational nuances to consider in making a fair-use determination.
    • Explain that, for educators who make active use of copyrighted materials in their work, it may be useful to document the fair-use reasoning process. If you have access to online technology, you can demonstrate the use of the Google Docs form (available at: http://www.copyrightconfusion.wikispaces.com/reasoning-tool).
    • Students can document their fair-use reasoning skills using the form on page 104. This form helps students reflect on their decision-making process about the use of copyrighted materials as part of their own creative and academic work.
    IV. Educators Need to be Leaders, Not Followers
    • Teaching materials for exploring copyright and fair use with students are available at http://mediaeducationlab.com/code-best-practices-fair-use-media-literacy-education.
    • This presentation is based on a powerful legal theory—when it comes to interpreting how fair use applies to a particular set of practices within a community, the norms and values of people within that community are important. That's why we believe that exercising your fair-use rights makes them stronger.
    • Since educators are both “authors” and “users” of intellectual property, we understand how important it is for educators themselves to advocate for teaching digital citizenship. Copyright and fair use are fundamental components of this work: Respecting the rights of both authors and users is an essential life skill for participatory culture.
    V. Time for Questions and Answers
    • Educators will ask questions that begin, “Is it OK for me or my students to …?” and describe a specific situation. Resist the tendency to answer with your own determination of fair use. When you offer the “answer,” it doesn't promote critical thinking on the part of the educator. Encourage the questioner to answer his or her own question by using reasoning and judgment to make a fair-use determination, answering the two critical questions:
      • Did the use of copyrighted material “transform” the material by using it for a different purpose than that of the original, or did it just repeat the work with the same intent and value as the original?
      • Was the material taken appropriate in kind and in amount, considering the nature of the copyrighted work and the use?

    Remind teachers that, as they practice, they will gain confidence in using their “fair use” muscles as a part of the critical-thinking process.

    Document the Fair-use Reasoning Process

    Student Name:

    Project Title:

    What is the purpose of your project?

    Who is the target audience?

    What techniques are you using to attract and hold attention?

    Your use of Copyrighted Material

    I am using (description of resource used)

    because (provide a reason here)

    Provide a full citation of the resource:

    Did your use of the work “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original? Explain why your work does not just repeat the intent and value of the original source material.

    Did you use only the amount you needed to accomplish your purpose? Explain why made your selection.

    Complete these questions for each of the copyrighted resource materials you use in your project.

    Resource B: Excerpts from Copyright Law

    Copyright in the Constitution

    Government can establish a copyright system to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

    —Section 1, Article 8, U.S. Constitution, 1787
    The Copyright Act of 1976, Section 107

    The fair use of a copyrighted work is not an infringement of copyright. This includes reproduction in copies for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include

    • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    • The nature of the copyrighted work;
    • The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    • The effect of the use upon the potential market for or value of the copyrighted work.
    Digital Millennium Copyright Act of 1998, Section 1201

    The Digital Millennium Copyright Act (DMCA) makes it illegal to produce technology, devices, or services that circumvent access to copyrighted works. It also criminalizes the act of circumventing content, whether or not there is actual infringement of copyright itself. Section 1201 gives the Register of Copyrights the power to grant three-year exemptions for some forms of circumvention.

    Circumvention of Copyright-Protection Systems

    (A)Noperson shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter.

    (B) The prohibition contained in subparagraph (A) shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title, as determined under subparagraph (C).

    (C) During the 2-year period described in subparagraph (A), and during each succeeding 3-year period, the Librarian of Congress, upon the recommendation of the Register of Copyrights, who shall consult with the Assistant Secretary for Communications and Information of the Department of Commerce and report and comment on his or her views in making such recommendation, shall make the determination in a rulemaking proceeding for purposes of subparagraph (B) of whether persons who are users of a copyrighted work are, or are likely to be in the succeeding 3-year period, adversely affected by the prohibition under subparagraph (A) in their ability to make noninfringing uses under this title of a particular class of copyrighted works. In conducting such rulemaking, the Librarian shall examine—

    • The availability for use of copyrighted works;
    • The availability for use of works for nonprofit archival, preservation, and educational purposes;
    • The impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research;
    • The effect of circumvention of technological measures on the market for or value of copyrighted works; and
    • Such other factors as the Librarian considers appropriate.
    2002 Teach Act, Section 110

    Section 110(1) offers educators a special exemption for displaying or using copyrighted materials for face-to-face learning, while Section 110(2) (“The Teach Act”) enables educators to share materials on digital networks for distance learning. These exemptions should not be confused with the fair use provision, which offers as an independent basis for exemption from copyright infringement liability.

    Exemptions for Certain Performances and Displays

    Notwithstanding the provisions of section 106, the following are not infringements of copyright:

    Section 110(1): performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;

    Section 110(2): except with respect to a work produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks, or a performance or display that is given by means of a copy or phonorecord that is not lawfully made and acquired under this title, and the transmitting government body or accredited nonprofit educational institution knew or had reason to believe was not lawfully made and acquired, the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission, if—

    (A) the performance or display is made by, at the direction of, or under the actual supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of a governmental body or an accredited nonprofit educational institution; (B) the performance or display is directly related and of material assistance to the teaching content of the transmission; (C) the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to students officially enrolled in the course for which the transmission is made.…

    And in the case of digital transmissions—applies technological measures that reasonably prevent retention of the work in accessible form by recipients of the transmission from the transmitting body or institution for longer than the class session; and unauthorized further dissemination of the work in accessible form by such recipients to others; and does not engage in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination;

    .… In paragraph (2), the term “mediated instructional activities” with respect to the performance or display of a work by digital transmission under this section refers to activities that use such work as an integral part of the class experience, controlled by or under the actual supervision of the instructor and analogous to the type of performance or display that would take place in a live classroom setting. The term does not refer to activities that use, in 1 or more class sessions of a single course, such works as textbooks, course packs, or other material in any media, copies or phonorecords of which are typically purchased or acquired by the students in higher education for their independent use and retention or are typically purchased or acquired for elementary and secondary students for their possession and independent use.…

    For purposes of paragraph (2), accreditation (A) with respect to an institution providing post-secondary education, shall be as determined by a regional or national accrediting agency recognized by the Council on Higher Education Accreditation or the United States Department of Education; and (B) with respect to an institution providing elementary or secondary education, shall be as recognized by the applicable state certification or licensing procedures.

    For purposes of paragraph (2), no governmental body or accredited nonprofit educational institution shall be liable for infringement by reason of the transient or temporary storage of material carried out through the automatic technical process of a digital transmission of the performance or display of that material as authorized under paragraph (2). No such material stored on the system or network controlled or operated by the transmitting body or institution under this paragraph shall be maintained on such system or network in a manner ordinarily accessible to anyone other than anticipated recipients. No such copy shall be maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary to facilitate the transmissions for which it was made.…

    Resources for Learning More about Copyright and Fair use

    Complete Copyright: An Everyday Guide for Librarians by Carrie Russell (2004)

    This comprehensive guide addresses copyright issues, including fair use, the TEACH Act, the Digital Millennium Copyright Act, Internet-related issues, and advocacy in an accessible yet comprehensive format. Available at http://www.alastore.ala.org.

    Copyright Law for Librarians and Educators by Kenneth Crews (2006)

    This reference book provides an introduction to the fundamentals of current copyright law, helping educators and librarians keep abreast of changes in copyright law and fair use. Available at http://www.alastore.ala.org.

    The Wealth of Networks: How Social Production Transforms Markets and Freedom by Yochai Benkler (2006)

    Benkler reviews the changing nature of knowledge production in contemporary society and argues that communications networks are reshaping our understanding of the concepts of intellectual property and the economics of information. More information available at http://www.benkler.org.

    Freedom of Expression: Resistance and Repression in the Age of Intellectual Property by Kembrew McLeod (2007)

    This engaging documentary explores how intellectual property laws are used as tools of censorship, restricting the public's access to information. Available at http://www.mediaed.org.

    Copyright and Fair use Podcasts

    These free podcasts feature Professor Kenneth Crews explaining fair-use principles in detail in an engaging way. Available at http://www.lifeofalawstudent.com/category/podcasters/prof-kenneth-crews.

    Center for Social Media

    The Center for Social Media at American University showcases and analyzes strategies to use media as creative tools for public knowledge and action. They have conducted extensive work on fair use for creative communities. Available at http://www.centerforsocialmedia.org.

    Creative Commons

    Creative Commons is a nonprofit organization that has developed a new licensing model that allows creators to specify which rights they wish to reserve in order to promote sharing of creative work. More information available at http://creativecommons.org.

    Media Education Lab

    Music videos, video case studies, and lesson plans developed by the author of this book help students learn about copyright and fair use in ways that strengthen reading, critical thinking, and communications skills. Available at http://www.mediaeducationlab.com.

    Electronic Frontier Foundation

    A non-profit organization that defends free speech, privacy, innovation, and consumer rights in the digital environment. “Teaching Copyright” offers lesson plans for exploring piracy, file sharing, and fair use. Available at: http://teachingcopyright.org.

    Endnotes

    Acknowledgments
    • Russell, C. (2004). Complete copyright: An everyday guide for librarians. Washington, DC: American Library Association, Office for Information Technology Policy. (p. 19).

    1. Hobbs, R. (2005). Media literacy and the K–12 content areas. In G. Schwarz & P. U. Brown (Eds.), Media literacy: Transforming curriculum and teaching (pp. 74–99). National Society for the Study of Education, Yearbook 104. Malden, MA: Blackwell.

    2. Hobbs, R. (2007). Reading the media: Media literacy in high school English. New York: Teachers College Press.

    3. Arnett, J. J. (Ed.). (2007). Encyclopedia of children, adolescents and the media. Thousand Oaks, CA: Sage.

    4. Ibid.

    5. Aufderheide, P., & Firestone, C. (1993). Media literacy: National leadership conference. Washington, DC: Aspen Institute. (p. 6).

    6. Livingstone, S. (2004). Media literacy and the challenge of new information and communication technologies. The Communication Review 7, 3–14. (p. 5).

    7. Hobbs, R. (2004). Areview of school-based initiatives in media literacy. American Behavioral Scientist, 48(1), 48–59.

    8. Hobbs, R., Jaszi, P., & Aufderheide, P. (2007). The cost of copyright confusion for media literacy. Washington, DC: Center for Social Media, American University.

    9. Scheibe, C. (2008, May 7). Personal interview.

    10. Hobbs, R., Jaszi, P., & Aufderheide, P. (2007). The cost of copyright confusion for media literacy. Washington, DC: Center for Social Media, American University. (p. 4).

    11. Ibid. (p. 4).

    12. Baker, F. (2008, February 1). Personal interview.

    13. Rogow, F. (2008, May 7). Personal interview.

    14. Hobbs, R., Jaszi, P., & Aufderheide, P. (2007). The cost of copyright confusion for media literacy. Washington, DC: Center for Social Media, American University. (p. 5).

    15. Crews, K. (1993). Copyright, fair use, and the challenge for universities: Promoting the progress of higher education. Chicago: University of Chicago Press.

    16. Valenza, J. (2008, April 1). Fair use and transformativness: It may shake your world. School Library Journal. Retrieved December 24, 2009, from http://www.schoollibraryjournal.com/blog/1340000334/post/1420024142.html?q=transformativeness

    17. Ibid. (para. 22).

    18. American University Center for Social Media, Media Education Lab at Temple University, and Washington College of Law, Program on Intellectual Property and the Public Interest. (2008). Code of best practices in fair use for media literacy education. Washington, DC: Center for Social Media, American University. Retrieved January 2, 2009, from http://www.centerforsocialmedia.org/resources/publications/code_for_media_literacy_education

    1. Copyright law of the United States. Title 17 of the U.S. Code. Retrieved December 24, 2009, from http://www.copyright.gov/title17

    2. Joyce, C., Leaffer, M., Jaszi, P., & Ochoa, T. (2003). Copyright law (6th ed.). Newark, NJ: Lexis Nexis. (p. 54).

    3. Hoskinson, J. (Director). (2009). Episode #05004: Lawrence Lessig [Television series episode]. In S. Colbert & A. Silverman (Executive producers), The Colbert Report. New York, NY: Comedy Central. Retrieved January 8, 2010, from http://www.colbertnation.com/the-colbert-report-videos/215454/january-08-2009/lawrence-lessig

    4. Columbia World of Quotations. (1996). New York: Columbia University Press. Available from http://www.bartleby.com

    5. Russell, C. (2004). Complete copyright: An everyday guide for librarians. Washington, DC: American Library Association, Office for Information Technology Policy. (p. 1).

    6. Jaszi, P. (1996). Caught in the net of copyright. Symposium: Innovation and the information environment. Oregon Law Review, 75, 299–308.

    7. Hobbs, R., Jaszi, P., & Aufderheide, P. (1998). Introducing the code of best practices for fair use in media literacy education [Video recording]. Washington, DC: Center for Social Media, American University.

    8. Lessig, L. (2004). Free culture: How big media uses technology and the law to lock down culture and control creativity. New York: Penguin.

    9. Hobbs, R., Jaszi, P., & Aufderheide, P. (2007). The cost of copyright confusion for media literacy. Washington, DC: Center for Social Media, American University. Retrieved January 2, 2009, from http://www.centerforsocialmedia.org/resources/publications/the_cost_of_copyright_confusion_for_media_literacy

    We conducted open-ended, long-form interviews approximately 45 minutes or longer, usually by phone, with 63 educators who were identified as participating in programs that help children, young people, and adults develop critical thinking and communication skills. We sampled to include a balance of educators working in K–12, college and university faculty in media studies/communication, college and university faculty in departments of education, individuals working in nonprofit youth-service organizations, and those involved in media production and distribution, or leaders of membership organizations. We interviewed both seasoned veterans of more than twenty years of media-literacy teaching and educators with three or more years of experience. Interview subjects were recruited through national membership organizations, including the Alliance for a Media Literate America, the Action Coalition for Media Education, the Student Television Network, and the National Council of Teachers of English, and organizations such as National Alliance for Media Arts and Culture and Youth Media Reporter.

    The interview consisted of open-ended questions organized into three broad categories: (1) how teachers use copyrighted materials in the classroom or other educational settings for educational purposes; (2) how their students use copyrighted materials in their own creative work; and (3) how teachers use copyrighted materials in their curriculum development, materials production, or other creative work. Interviewers were trained by first listening to another researcher conduct an interview and then participating in a detailed debriefing session. Detailed descriptions of responses were written after each interview was completed; they were then analyzed to discover the most common patterns and themes.

    10. Hobbs, R., Jaszi, P., & Aufderheide, P. (2008). Introducing the code of best practices for fair use in media literacy education [Video recording]. Washington, DC: Center for Social Media, American University.

    11. Hobbs, R., Jaszi, P., & Aufderheide, P. (2007). The cost of copyright confusion for media literacy. Washington, DC: Center for Social Media, American University. Retrieved January 2, 2009, from http://www.centerforsocialmedia.org/resources/publications/the_cost_of_copyright_confusion_for_media_literacy (p. 11)

    12. Ibid. (p. 12).

    13. Ibid. (p. 14).

    14. Ibid. (p. 14).

    15. Ibid. (p. 20).

    16. Ibid. (p. 14).

    17. Ibid. (p. 15).

    18. Comment made at a focus group interview. (2008, April 25).

    19. Hobbs, R., Jaszi, P., & Aufderheide, P. (2007). The cost of copyright confusion for media literacy. Washington, DC: Center for Social Media, American University. Retrieved January 2, 2009, from http://www.centerforsocialmedia.org/resources/publications/the_cost_of_copyright_confusion_for_media_literacy (p. 19).

    20. Ibid. (p. 9).

    21. Ibid. (p. 9).

    22. Comment made at a focus group. (2007, November 18).

    23. Russell, C. (2004). Complete copyright: An everyday guide for librarians. Washington, DC: American Library Association, Office for Information Technology Policy.

    24. Crews, K. (2001). The law of fair use and the illusion of fair-use guidelines. The Ohio State Law Journal, 62, 601–664. (p. 601).

    25. Russell, C. (2004). Complete copyright: An everyday guide for librarians. Washington, DC: American Library Association, Office for Information Technology Policy. (p. 27).

    26. Davidson, H. (2001). Copyright chart. Retrieved December 24, 2009, from http://www.halldavidson.net/copyright_chart.pdf

    27. Levering, M. (1999). What's right about fair-use guidelines for the academic community? Journal of the American Society for Information Science, 50(14), 1313–1319. (p. 1316).

    28. Frazier, K. (1999). What's wrong with fair-use guidelines for the academic community? Journal of the American Society for Information Science 50(14), 1320–1323. (p. 1321).

    29. Ibid. (p. 1321).

    30. Teach Act of 2002, 17 U.S.C. 110. Retrieved January 8, 2010 from http://www.copyright.gov/title17/92chap1.html#110

    31. Crews, K. (2002). New copyright law for distance education: The meaning and importance of the TEACH Act. Chicago: American Library Association. Available from http://www.ala.org/ala/aboutala/offices/wo/woissues/copyrightb/federallegislation/distanceed/distanceeducation.cfm#requirements (para. 34).

    32. Ibid. (para. 34).

    33. Ibid. (para. 10).

    34. Fisher, W., Palfrey, J., McGeveran, W., Harlow, J. Gassser, U., & Jaszi, P. (2006). The digital learning challenge: Obstacles to educational uses of copyrighted material in the digital age. Cambridge, MA: The Berkman Center for Internet & Society Research Publication. Retrieved December 24, 2009, from http://cyber.law.harvard.edu/publications/2006/The_Digital_Learning_Challenge

    35. Wilk, J. (2008, February 26). Mybytes teaches a little something about copyright, but what? Yalsa Blog. American Library Association. Retrieved December 24, 2009, from http://yalsa.ala.org/blog/2008/02/26/mybytes-teaches-teens-a-little-something-about-copyright-but-what (para. 2).

    36. Gillespie, T. (2009). Characterizing copyright in the classroom: The cultural work of anti-piracy campaigns. Communication, Culture, & Critique 2(3), 274–318.

    37. Copyright Clearance Center. (2009). Copyright basics: The video. Available from http://216.183.190.29

    38. Triplett, W. (2008, March 3). MPAA canines to dog movie pirates: Malaysian authorities help track counterfeiters. Variety. Retrieved December 24, 2009, from http://www.variety.com/article/VR1117981782.html?categoryid=20&cs=1&nid=2562 (para. 10).

    1. Allison, P. (2009, January 31). Opening up to fair use. Teachers teaching teachers. [Podcast]. Retrieved December 24, 2009, from http://teachersteachingteachers.org/?cat=388

    2. Ibid.

    3. Tushnet, R. (2004). Copy this essay: How fair use doctrine harms free speech and how copying serves it. Yale Law Journal, 114, 535–590.

    4. Duncum, P. (1988). To copy or not to copy: A review. Studies in Art Education 29(4), 203–210. (p. 209).

    5. Jaszi, P. (1991). Toward a theory of copyright: the metamorphosis of “authorship.” Duke Law Journal, 2, 455–502.

    6. Horan, E. (1996). To market: The Dickinson copyright wars. The Emily Dickinson Journal, 5(1), 88–120.

    7. DK Adult. (2003). Grateful Dead: The illustrated trip. New York: Author.

    8. Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2006). (614–615).

    9. Leval, P. N. (1990). Toward a fair use standard, 103. Harvard Law Review, 1105–1136. (p. 1111).

    10. Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2006). (614–615).

    11. Heymann, L. (2008). Everything is transformative: Fair use and reader response. Columbia Journal of Law and the Arts, 31. Retrieved December 24, 2009, from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1148379

    12. Ibid.

    13. Band, J. (2008, September 29). How fair use prevailed in the Harry Potter case. Association of Research Libraries. Retrieved January 7, 2009, from http://www.arl.org/bm~doc/harrypotterrev2.pdf (para. 1).

    14. Warner Bros. Entertainment Inc. and J. K. Rowling v. RDR Books et al., F. Supp.2d 2008 WL 4126736, S.D.N.Y., NO. 07 CIV. 9667 (RPP) (September 8, 2008).

    15. Rife, M. (2007). The fair use doctrine: History, application, and implications for (new media) writing teachers. Computers and Composition 24, 154–178. (p. 173).

    16. Ibid.

    17. Russell, C. (2004). Complete copyright. Washington, DC: American Library Association. (p. 19).

    18. U.S. Copyright Office. (2007). Copyright law of the United States. Title 17 of the U.S. Code. Retrieved December 24, 2009, from http://www.copyright.gov/title17

    19. Von Loehmann, F. (2009, Febuary 3). YouTube's January fair use massacre. Electronic Frontier Foundation. Retrieved December 24, 2009, from http://www.eff.org/deeplinks/2009/01/youtubes-january-fair-use-massacre

    20. Kennedy, R. (2009, February 10). Artist sues the AP over the Obama image. New York Times, p. C1.

    21. Madison, M. (2009, January 21). Fairey, Obama and fair use. http://Madisonian.net. Retrieved December 24, 2009, from http://madisonian.net/2009/01/21/fairey-obama-and-fair-use

    1. American University Center for Social Media, Media Education Lab at Temple University, and Washington College of Law, Program on Intellectual Property and the Public Interest. (2008). Code of best practices in fair use for media literacy education. Washington, DC: Center for Social Media, American University. Retrieved January 2, 2009, from http://www.centerforsocialmedia.org/resources/publications/code_for_media_literacy_education

    2. Madison, M. (2006). Fair use and social practices. In P. Yu (Ed.), Intellectual property and information wealth (pp. 177–198). Westport, CT: Greenwood.

    3. Hampton, H. (Producer). (1986). Eyes on the prize: America's civil rights years [DVD]. WGBH Boston: Blackside Films.

    4. Brauneis, R. (2009). Copyright and the world's most popular song. GWU Legal Studies Research Paper No. 1111624. Retrieved December 29, 2009, from http://ssrn.com/abstract=1111624

    5. Dames, K. M. (2006, June). Copyright conundrum: Documentaries and rights clearance. Information Today, 23(6), 24–26.

    6. Aufderheide, P. (2007). How documentary filmmakers overcame their fear of quoting and learned to employ fair use: A tale of scholarship in action. International Journal of Communication, 1, 26–36. Retrieved December 24, 2009, from http://www.centerforsocialmedia.org/files/pdf/ijoc_article_pat.pdf

    Aufderheide, P., & Jaszi, P. (2004). Untold stories: Creative consequences of the rights clearance culture for documentary filmmakers. Washington, DC: Center for Social Media, School of Communication, American University. Retrieved February 1, 2009, from http://www.centerforsocialmedia.org/rock/backgrounddocs/printable_rightsreport.pdf

    7. American University Center for Social Media, Association of Independent Video and Filmmakers, & Washington College of Law, Program on Intellectual Property and the Public Interest. (2005). Documentary filmmakers' statement of best practices in fair use. Available from http://www.centerforsocialmedia.org/resources/publications/statement_of_best_practices_in_fair_use

    8. Hurt, B. (2006). Beyond beats and rhymes [DVD]. Northampton, MA: Media Education Foundation.

    9. American University Center for Social Media, Media Education Lab at Temple University, and Washington College of Law, Program on Intellectual Property and the Public Interest. (2008). Code of best practices in fair use for media literacy education. Washington, DC: Center for Social Media, American University. Retrieved January 2, 2009, from http://www.centerforsocialmedia.org/resources/publications/code_for_media_literacy_education

    10. American University Center for Social Media, Association of Independent Video and Filmmakers, & Washington College of Law, Program on Intellectual Property and the Public Interest. (2005). Documentary filmmakers' statement of best practices in fair use. Available from http://www.centerforsocialmedia.org/resources/publications/statement_of_best_practices_in_fair_use

    11. Hobbs, R. (Producer), RobbGrieco, M. (Composer), & Beatty, G. (Animator). (2008). What's Copyright? [Video recording]. Philadelphia: Media Education Lab, Temple University. Available from http://mediaeducationlab.com/1-whats-copyright-music-video

    12. Lee, E. (2008). Warming up to user-generated content. University of Illinois Law Review, 5, 1459–1548.

    13. Hobbs, R. (Producer), RobbGrieco, M. (Composer), & Beatty, G. (Animator). (2008). Users' rights, section 107 [Video recording]. Philadelphia: Media Education Lab, Temple University. Available from http://mediaeducationlab.com/2-user-rights-section-107-music-video

    14. Media Education Foundation (2010). Available from http://www.mediaed.org

    15. Grant, D. (2009, January 29). Color this area of the law gray. Wall Street Journal, p. D7.

    16. This illustration by David Klein appeared in Grant, D. (2009, January 29). Color this area of law gray. Wall Street Journal. Retrieved January 8, 2010, from http://online.wsj.com/article/SB123319795753727521.html

    17. Lee, E. (2008). Warming up to user-generated content. University of Illinois Law Review, 5, 1459–1548.

    1. Hobbs, R. (2009). Request for copyright exemption. Submitted to the U.S. Copyright Office (Docket No. RM-200–8). Retrieved December 24, 2009, from http://www.copyright.gov/1201/2008/index.html

    2. Electronic Frontier Foundation. (n.d.). Digital rights management. Available from http://www.eff.org/issues/drm (para. 4).

    3. Herman, B., & Gandy, O. (2006). Catch 1201: A legislative history and content analysis of DMCA exemption proceedings. Cardoza Arts and Entertainment Law Journal, 24, 121–190.

    4. DeCherney, P. (2007). From fair use to exemption. Cinema Journal 46(2), 120–127.

    5. Costanzo, W. (2007). The writer's eye: Composition in the multimedia age. New York: McGraw Hill.

    6. Costanzo, W. (2008). Request for copyright exemption, supporting comments for a DMCA exemption for media literacy education. Submitted to the U.S. Copyright Office on behalf of Professor Renee Hobbs (Docket No. RM 200–8).

    7. Copyright Advisory Network. (2008). Creative Commons and open licenses. Retrieved June 17, 2009, from http://www.librarycopyright.net/wiki/index.php?title=Creative_Commons_and_Open_Licenses (para. 1).

    8. Lessig, L. (2004). Free culture: How big media uses technology and the law to lock down culture and control creativity. New York: Penguin. Retrieved January 1, 2010 from http://www.free-culture.cc/freecontent (p. 10).

    9. Aufderheide, P. (2007). How documentary filmmakers overcame their fear of quoting and learned to employ fair use: A tale of scholarship in action. International Journal of Communication 1, 26–36. Retrieved December 24, 2009, from http://www.centerforsocialmedia.org/files/pdf/ijoc_article_pat.pdf (p. 27).

    10. Benkler, Y. (2006). The wealth of networks. New Haven, CT: Yale University Press. (p. 274).

    11. Ibid. (p. 393).

    12. Ibid. (p. 417).

    13. Ibid. (p. 38).

    Resource A

    1. U.S. Copyright Office. (n.d.). Reproductions of copyrighted works by educators and librarians. Circular 21. Retrieved August 27, 2009 from http://www.copyright.gov/circs/circ21.pdf

    2. Crews, K. (2001). The law of fair use and the illusion of fair-use guidelines. The Ohio State Law Journal, 62, 602–664.

    3. Russell, C. (2004). Complete copyright. Washington, DC: American Library Association. (p. 27).

    4. American University Center for Social Media, Media Education Lab at Temple University, and Washington College of Law, Program on Intellectual Property and the Public Interest. (2008). Code of best practices in fair use for media literacy education. Washington, DC: Center for Social Media, American University. Retrieved January 2, 2009, from http://www.centerforsocialmedia.org/resources/publications/code_for_media_literacy_education

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