The Code of Best Practices in Fair Use for Media Literacy Education
PRINCIPLES
ONE:EMPLOYING COPYRIGHTED MATERIAL IN LESSONS
DESCRIPTION:Educators
use television news, advertising, movies, still images, newspaper and
magazine articles, Web sites, video games, and other copyrighted
material to build critical-thinking and communication skills. Common
instructional activities include comparison-contrast analysis,
deconstruction (close analysis) of the form and content of a message,
illustration of key points, and examination of the historical, economic,
political, or social contexts in which a particular message was
produced and is received.
PRINCIPLE:Under
fair use, educators using the concepts and techniques of media literacy
can choose illustrative material from the full range of copyrighted
sources and make them available to learners, in class, in workshops, in
informal mentoring and teaching settings, and on school-related Web
sites.
LIMITATIONS:Educators
should choose material that is germane to the project or topic, using
only what is necessary for the educational goal or purpose for which it
is being made. In some cases, this will mean using a clip or excerpt; in
other cases, the whole work is needed. Whenever possible, educators
should provide proper attribution and model citation practices that are
appropriate to the form and context of use. Where illustrative material
is made available in digital formats, educators should provide
reasonable protection against third-party access and downloads.
TWO:EMPLOYING COPYRIGHTED MATERIAL IN PREPARING CURRICULUM MATERIALS
DESCRIPTION:Teachers
use copyrighted materials in the creation of lesson plans, materials,
tool kits, and curricula in order to apply the principles of media
literacy education and use digital technologies effectively in an
educational context. These materials often include clips, copies or
examples of copyrighted work along with a description of instructional
practices, assignments, and assessment criteria. These materials may
include samples of contemporary mass media and popular culture as well
as older media texts that provide historical or cultural context.
PRINCIPLE:Under
fair use, educators using the concepts and techniques of media literacy
can integrate copyrighted material into curriculum materials, including
books, workbooks, podcasts, DVD compilations, videos, Web sites, and
other materials designed for learning.
LIMITATIONS:Wherever
possible, educators should provide attribution for quoted material, and
of course they should use only what is necessary for the educational
goal or purpose. The materials should meet professional standards for
curriculum development, with clearly stated educational objectives, a
description of instructional practices, assignments, and assessment
criteria.
THREE:SHARING MEDIA LITERACY CURRICULUM MATERIALS
DESCRIPTION:Media
literacy curriculum materials always include copyrighted content from
mass media and popular culture. Informal sharing of these materials
occurs at educational conferences and through professional development
programs, as well by electronic means. Media literacy curriculum
materials are also developed commercially in collaboration with
publishers or nonprofit organizations.
PRINCIPLE:Educators
using concepts and techniques of media literacy should be able to share
effective examples of teaching about media and meaning with one
another, including lessons and resource materials. If curriculum
developers are making sound decisions on fair use when they create their
materials, then their work should be able to be seen, used, and even
purchased by anyone—since fair use applies to commercial materials as
well as those produced outside the marketplace model.
LIMITATIONS:In
materials they wish to share, curriculum developers should be
especially careful to choose illustrations from copyrighted media that
are necessary to meet the educational objectives of the lesson, using
only what furthers the educational goal or purpose for which it is being
made. Often this may mean using a small portion, clip or excerpt,
rather than an entire work, although sometimes it may be permissible to
use more—or even all. Curriculum developers should not rely on fair use
when using copyrighted third-party images or texts to promote their
materials. For promotional purposes, the permissions process is
appropriate. In addition, if a teacher or a school has specifically
agreed to a license, then (of course) its terms are likely to be
binding—even if they impinge on what would otherwise be considered fair
use. And, of course, illustrative material should be properly attributed
wherever possible.
FOUR:STUDENT USE OF COPYRIGHTED MATERIALS IN THEIR OWN ACADEMIC AND CREATIVE WORK
DESCRIPTION:Students
strengthen media literacy skills by creating messages and using such
symbolic forms as language, images, sound, music, and digital media to
express and share meaning. In learning to use video editing software and
in creating remix videos, students learn how juxtaposition reshapes
meaning. Students include excerpts from copyrighted material in their
own creative work for many purposes, including for comment and
criticism, for illustration, to stimulate public discussion, or in
incidental or accidental ways (for example, when they make a video
capturing a scene from everyday life where copyrighted music is
playing).
PRINCIPLE:Because
media literacy education cannot thrive unless learners themselves have
the opportunity to learn about how media functions at the most practical
level, educators using concepts and techniques of media literacy should
be free to enable learners to incorporate, modify, and re-present
existing media objects in their own classroom work. Media production can
foster and deepen awareness of the constructed nature of all media, one
of the key concepts of media literacy. The basis for fair use here is
embedded in good pedagogy.
LIMITATIONS:Students’
use of copyrighted material should not be a substitute for creative
effort. Students should be able to understand and demonstrate, in a
manner appropriate to their developmental level, how their use of a
copyrighted work repurposes or transforms the original. For example,
students may use copyrighted music for a variety of purposes, but cannot
rely on fair use when their goal is simply to establish a mood or
convey an emotional tone, or when they employ popular songs simply to
exploit their appeal and popularity. Again, material that is
incorporated under fair use should be properly attributed wherever
possible. Students should be encouraged to make their own careful
assessments of fair use and should be reminded that attribution, in
itself, does not convert an infringing use into a fair one.
FIVE:DEVELOPING AUDIENCES FOR STUDENT WORK
DESCRIPTION: Students
who are expected to behave responsibly as media creators and who are
encouraged to reach other people outside the classroom with their work
learn most deeply. Although some student media productions are simply
learning exercises designed to develop knowledge and skills, media
literacy educators often design assignments so that students have the
opportunity to distribute their work.
PRINCIPLE:Educators
should work with learners to make a reasoned decision about
distribution that reflects sound pedagogy and ethical values. In some
cases, widespread distribution of students’ work (via the Internet, for
example) is appropriate. If student work that incorporates, modifies,
and re-presents existing media content meets the transformativeness
standard, it can be distributed to wide audiences under the doctrine of
fair use.
LIMITATIONS:Educators
and learners in media literacy often make uses of copyrighted works
outside the marketplace, for instance in the classroom, a conference, or
within a school-wide or district-wide festival. When sharing is
confined to a delimited network, such uses are more likely to receive
special consideration under the fair use doctrine.
Especially
in situations where students wish to share their work more broadly (by
distributing it to the public, for example, or including it as part of a
personal portfolio), educators should take the opportunity to model the
real-world permissions process, with explicit emphasis not only on how
that process works, but also on how it affects media making. In
particular, educators should explore with students the distinction
between material that should be licensed, material that is in the public
domain or otherwise openly available, and copyrighted material that is
subject to fair use. The ethical obligation to provide proper
attribution also should be examined. And students should be encouraged
to understand how their distribution of a work raises other ethical and
social issues, including the privacy of the subjects involved in the
media production.
CONCLUSION
Most
“copyright education” that educators and learners have encountered has
been shaped by the concerns of commercial copyright holders, whose
understandable concern about large-scale copyright piracy has caused
them to equate any unlicensed use of copyrighted material with stealing.
The situation has been compounded by the—again
understandable—risk-aversion of school system administrators and
lawyers. So-called fair use guidelines that institutional stakeholders
have negotiated with some copyright holders have had similar results,
intensifying fear and creating confusion among educators. These
approaches have not responded directly to the actual needs of educators
and learners, nor have they fully expressed or recognized the legal
rights that educators and learners have.
This
code of best practices, by contrast, is shaped by educators for
educators and the learners they serve, with the help of legal advisors.
As an important first step in reclaiming their fair use rights,
educators should employ this document to inform their own practices in
the classroom and beyond. The next step is for educators to communicate
their own learning about copyright and fair use to others, both through
practice and through education. Learners mastering the concepts and
techniques of media literacy need to learn about the important rights
that all new creators, including themselves, have under copyright to use
existing materials. Educators also need to share their knowledge and
practice with critically important institutional allies and colleagues,
such as librarians and school administrators.