Fair Use Education Running head: Fair Use Education

The Importance of Fair Use Education Nicholas Graves Western Oregon University

Fair Use Education As the use of digital technologies spreads throughout the world, the contentious and complicated debate surrounding copyright laws is becoming more prevalent in public discourse. Fair use exists to provide some evenhandedness between copyright holders and the consumers looking to use copyrighted materials to create other projects. Both Lawrence Lessig in Remix:

Making Art and Commerce Thrive in the Hybrid Economy (2008) and James Boyle in The Public Domain: Enclosing the Commons of the Mind (2008) discuss the generational importance of students becoming informed about copyright law and making knowledge of fair use concrete. These authors add urgency to the situation by illuminating the restrictive nature of copyright laws and their negative impact on the creativity of future generations. While Lessig and Boyle work diligently to increase educators understanding of their rights as consumers and creators, Aufderheide and Jaszis work, Reclaiming Fair Use: How to Put Balance Back in Copyright (2011), lays a solid foundation for taking action to stand for the rights that every citizen has been Constitutionally granted. Despite the existence of these helpful resources, many educators are still unsure about how copyright and fair use interact with the educational system, and the resources available to increase teacher/student knowledge about these issues are not incorporated on a sufficient scale. What educators and teachers actually need is something thats designed with them in mind first. The best system for educating a generation about fair use should: be simple and concise, provide appropriate professional development and implementation strategies, and be accompanied with follow-up and evaluation tools to perpetuate and further the knowledge that is gained.

Fair Use Education Increasing teachers and students understanding of the rights and regulations that guide their creative processes will not only allow them to make their innovations within a legal context, but

it will also give them the power to begin having the conversations that will potentially transform our existing, dated copyright laws into useful tools that are applicable to our 21st Century creative culture. Copyright and Fair Use The U.S. Copyright Office (2000) says, Copyright is a form of protection provided by the laws of the United States (Title 17, U.S. Code) to the authors of original works of authorship, including literary, dramatic, musical, artistic, and certain other intellection works (Kindle Loc. 17). In the United States, copyright has been with us since the Constitution. Specifically, the Constitution gives Congress the power 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 Under these protective laws. (Article 1, Section 8, Clause 8) More simply, this clause states that laws could be enacted to protect individual creators from other people using their work for a specific amount of time. Copyright supplies an umbrella to

protect individuals creations, thereby giving them the security necessary for them to concoct some of the worlds most innovative, cultural creations. While there is little argument about whether individuals should have the right to create and distribute their intellectual property however they best see fit, there is a lot of debate about how far-reaching these laws should be. These concerns have become paramount as rapid advances in technology and the Internet continually remodel the ways we share, create, and modify our cultures. Aufderheide and Jaszi (2011) put it best: These days, it sometimes seems

Fair Use Education as if our whole culture is copyrighted (Kindle Loc. 282). For example, as many authors have referenced, the Happy Birthday Song is still trolled by its copyright holders vehemently, and technically, anyone who sings it at a birthday party is running the risk of litigation. These

authors are not alone in their argument that copyright laws have reached far beyond their original intention of protecting creators and are diving deeply into the realm of insuring monopolies and limiting creativity (Aufderheide and Jaszi, 2011). Because so many people have come to believe that copyright is actually infringing upon our ability to create and share our innovations, many also believe it is time to revise copyright laws or develop a completely new system. Within the restrictive grip of copyright law, there exists a specific section, fair use, which has become somewhat of the anti-copyright. Fair use is the caveat within copyright law that allows individuals to use copyrighted material as long as it falls under certain criteria. According to section 107 of U.S. Copyright Law (2011), there our four considerations when determining fair use: 1. whether the use of the copyrighted material is for commercial or educational (nonprofit) purposes, 2. the nature of the copyrighted work, 3. the amount of copyrighted work utilized in context to the original size of the copyrighted work, and 4. the potential effects that the new work could have on copyrighted works value (U.S. Copyright Office Website, 2012). Aufderheide and Jaszi (2011) sum up the purpose of fair use when they say that the doctrine says that under some circumstances (broadly, when social benefit is larger than individual owners loss), people can quote copyrighted work without permission or payment (Kindle Loc.

Fair Use Education 238). In theory, because educators and students would be using copyrighted materials for

education purposes on a small scale, the existence of fair use should make it possible for them to utilize some copyrighted materials to learn and create. However, this is not quite the case. Educational Impacts According to Hobbs (2010), increased use of digital technology and the Internet in the educational setting allows teachers and students alike to quickly locate more media and resources for use on homework, projects, lessons, lesson planning, and curricula design. Because the fair use section specifically mentions education as an allowable use for copyrighted materials, one might think that copyright law would protect the students and teachers rights to use these resources. But that assumption is far from accurate. Because the laws are overcomplicated and overbearing, it is difficult to teach students how to properly follow them which then has negative implications for their futures. Enough consideration isnt given to the majority of creators and users when the laws are developed/interpreted, as Lessig points out in the introduction of Remix (2008): The critical point that I want this book to make is that one factor we should consider when deciding that is whether the way we select makes our kids criminals. Thats not the only factor. But it is one that has plainly been missing from Congresss consideration about how best to deal with the impact of digital technologies upon traditional copyright industries. (Kindle Loc. 176) This is the point at which copyright law and fair use should really matter to educators and students. Clearly, it is essential for students and teachers to understand these laws if they are going to legally yet fully participate in our digital culture; however, if teachers are not properly

Fair Use Education informed about what the laws and their rights are under the existing copyright laws, we cannot expect our students to know their rights and follow the laws either. It would be easy to make the assumption that educators would prioritize media literacy

laws in their classrooms across the content areas because the wide-spread sharing of information dominates so much of our culture today. Unfortunately, this is often not true. Aufderheide and Jaszi (2011) articulate the different types of teacher attitudes toward teaching media literacy laws well: Teachers had three responses: See no evil (refuse to learn the law for fear there might be bad news in it); Close the door (do whatever you want within the classroom); or Hypercomply (follow every rule) (Kindle Loc. 2399). Teachers that choose to see no evil are intentionally allowing students to remain ignorant of the rules. Teachers that close the door are instilling a disregard for locating and following the rules thereby showing students that its okay to be willfully ignorant. And teachers that choose to hypercomply are supplying their students with unnecessary fear about which pieces of media they can utilize while learning to be creative within different content areas. No matter which attitude a classroom teacher has, the repercussions from the three types could be detrimental to students. It is imperative that teachers attain the knowledge and resources needed to successfully teach their students about existing copyright laws and their rights within these laws. Their increased knowledge will also allow teachers to successfully include these rich copyrighted materials in their instruction to enhance their students educational experiences. Existing Resources and Why They Do Not Work According to Hobbs (2010), educational tools and resources for teaching students about copyright law and fair use have existed for a number of years, but the validity and usefulness of these tools and resources are debatable. Several educational groups are working with publishing

Fair Use Education companies to establish concrete guidelines regarding fair use for educators and students. Despite these efforts, much of the information distributed to teachers today still shows bias

towards the publishing groups because of their stronger litigative powers. Publishing companies see that they have an opportunity to mislead the educational community by being involved in the development of fair use guidelines (Hobbs, 2010). Regardless of their intent while developing these materials, guides such as the Center for Social Medias Code of Best Practices and systems such as the Creative Commons are essentially a step in the right direction, but can run the risk of being two steps back if there are not adequate means in place to distribute and implement said information. The Center for Social Medias Code of Best Practices in Fair Use for Media Literacy Education (http://www.centerforsocialmedia.org/fair-use/related-materials/codes/code-bestpractices-fair-use-media-literacy-education) is one set of guidelines about fair use thats created for teachers. It lays out the five principles of best practices in twenty-two pages. The five principles that the code is based on are as follows: 1. Employing copyrighted material in media literacy lessons; 2. Employing copyrighted material in preparing curriculum materials; 3. Sharing media literacy curriculum materials; 4. Student use of copyrighted materials in their own academic and creative work; 5. Developing audiences for student work. The leaders of this charge to develop these best practices were some familiar names: Professors Renee Hobbs, Peter Jaszi, and Patricia Aufderheide. While the three organizers of this code are certainly leaders in media literacy and fair use (as they are heavily cited in this paper), their code of best practices is too convoluted for the average K-12 teacher who does not often have the

Fair Use Education

extra time to peruse the 22 page PDF or who may not be tech savvy enough to fully comprehend the material. For fair use to truly be implemented into the educational lives of all students, it needs to seem accessible and important enough for teachers to dedicate their valuable time to. The other problem with this code of best practices is that it lacks input from teachers (its intended audience) who may also find it too complicated. The section of the Center for Social Medias website titled How This Document Was Created states, This code of best practices was created by convening ten meetings with more than 150 members of leading educational associations, including signatories to this document, and other educators across the United States (http://www.centerforsocialmedia.org/fair-use/related-materials/codes/code-bestpractices-fair-use-media-literacy-education). While seeking input from 150 members of leading educational associations is a step in the right direction, one has to wonder how many K12 classroom teachers were involved in the making of this document. The successful implementation of any program intended for classroom use must have significant teacher input in order for it to properly transpose from the in-service to the classroom. The second existing program is the Creative Commons, which was developed by Lawrence Lessig, Hal Abelson, and Eric Eldred. James Boyle speaks fondly of this project in Chapter 8 of The Public Domain: Enclosing the Commons of the Mind (2008). According to

Boyle, Creative Commons is not so much a program, but a system of free copyright licenses that indicate to other users what the creator of the work allows them to do with their product. Creative Commons utilizes a symbol system to relay allowances for copying, making alterations, complete freedom for non-commercial use, or in some cases, complete freedom to do as you wish with the work. Boyle (2008) argues that this system has been successful in giving creators more opportunities to easily move away from the default setting of copyright, which does not

Fair Use Education allow others to use a work without permission. Below are the symbols that comprise the Creative Commons Licensing system:

Image retrieved from http://creativecommons.org/licenses/

While this system is being utilized by an increasing number of adult netizens, this system (or at least this system of symbols) is not necessarily designed for successful implementation in K-12 educational settings. Its aesthetics and vocabulary make it difficult for younger students to understand. It may also increase students confusion when explained alongside of copyright and fair use. Another concern is the lack of oversight without the affiliation of a governing body. Why couldnt a student take some copyrighted material off the web and slap a CC BY label on it? The final concern with incorporating the CC system into K-12 education has to do with its usefulness; why is there a need for it when educational purposes are already allowed by fair use? By abandoning our fair use rights and looking for CC licensed media and resources, arent we then allowing the copyright law to finally put an end to fair use?

Fair Use Education 10 The Code of Best Practices in Fair Use for Media Literacy Education and Creative Commons are two solid systems of information with individual flaws. While both are well developed, creative, and important for their intended purpose, they lack the ability to achieve teacher buy-in, thereby making them unlikely to be used consistently in our educational system. Who Wants to FUEL Up? Teacher buy-in is a major consideration that both systems fail to address and mention. Both have educational resources and supplements, but neither addresses how to make teachers believe it is important and imperative that they inform their students about copyright law and fair use. Teacher buy-in is essential during the initial launch of any major educational movement, particularly one that requires that every teacher provide instruction about a topic that seemingly strays from the traditional content that they teach. In Remix, Lawrence Lessig (2008) speaks strongly about how the changing culture will transform the economy and enable the future. This vision of the future will provide teachers with the sense of empowerment needed to want to pass this essential information on to students. This power that the next generation will have will stem from the formation of the hybrid economy that blends Read Only (RO) and Read Write (RW) cultures (Lessig, 2008). Where some will choose to consume rather than create, others will create, consume, and recreate, all because they can. The prominence of digital technologies allows the students of today to create, share, and impact our culture in ways that were not possible even in the recent past (Lessig, 2008). Where the sky was the limit for past generations, the Martian sky is now the limit for this generation. With these always-evolving abilities, students are going to have the opportunity to utilize cultural exchange to have an incredibly positive impact on the world (Lessig, 2008). This feeling of power and capability that accompanies the major shifts in culture can be reached if students feel that they can create

Fair Use Education 11 with the most freedom thats allowed to them. Teachers need sufficient buy-in in order to successfully educate their students about these issues. Fair use has been made complicated by the various entities with vested interests and a new revival of individual fair use rights must be taught in our classrooms. Our educational system needs a program that will both educate educators about their rights as creators under fair use, while giving them the tools they need to educate their students on these same rights. For argumentative purposes, this hypothetical program will be called the FUEL Program. The Fair Use for Education and Life Program (FUEL) is focused on instilling a strong, whole-hearted belief in students learning about, harnessing, and utilizing their individual fair use rights throughout their educational careers and into their lives beyond the classroom. It starts with every teacher in the classroom, not with the technology liaison that drops by for his/her monthly lesson or the superintendent at the district office who thinks that FUEL sounds like a hip idea. This program consists of four components: simple information, strong teacher buy-in, effective professional development and sufficient follow-up. First, FUEL will give teachers resources about copyright laws and fair use that are simple and explicit. Teachers need to feel that they are experts in order to feel comfortable imparting the knowledge on others, and simplicity can make this easier (Sparks, 2002). Fair use does not have to be a complicated issue; it is just made out to be by moneyed interests who want it to seem foreign and difficult, as Aufderhaide and Jaszi (2011) express when they say, many school systems depended on unhelpful guidelines about fair use, guidelines distorted by powerful industry interests (Kindle Loc. 2353-2354). Teachers need to know that educational use is specifically mentioned in Section 107 of the Copyright Law, and they also need to insure that their students are aware of fair uses allowances regarding the use of an image or idea when the

Fair Use Education 12 social benefit of its use is greater than the copyright holders loss. These simple ideas of fair use will be extrapolated on over the course of the programs implementation (for the teachers and the students), but it needs to start simple and build up. Even with excellent resources developed with K-12 teachers needs in mind, a program like FUEL needs to have sufficient teacher buy-in in order to be successful. K-12 teachers need to know that they are the filters that students will use when determining fair use of materials, and that is a powerful duty. While educating students about their rights under existing copyright laws can seem like a heavy burden, FUEL will clearly define the teachers and students freedoms through fair use. Giving teachers the necessary resources to harness and master these laws will help them enhance their craft. Teachers will feel empowered by FUEL because they will finally have the resources needed to inform students of the changing culture, their individual fair use rights as creators, and how they need to utilize and defend their rights to avoid the risk of said rights being absolved. This will give educators the sufficient buy-in they need to fully implement FUEL. In order to secure teacher buy-in, it is essential that FUEL include a strong professional development (PD) component: High-quality professional development is a central component in nearly every modern proposal for improving education (Guskey, 2002). While it is true that PD is a facet of almost every educational agenda, not all professional development is created equal. PD conducted through FUEL will be more effective because it will give teachers the opportunity to create products for their classes using media claimed through fair use rights. It will also give them ample opportunities for discussion to ensure that they have firmly grasped all of the content and ideas discussed before they are sent to implement them in their classrooms.

Fair Use Education 13 Engaging teachers in this kind of practical learning in a safe environment will guarantee that they are prepared to share this information with their students in a meaningful way. The last component of FUEL is consistent follow-up and evaluation for teachers and students to assure that the program is being fully implemented. As Guskey (2002) states: If a new program or innovation is to be implemented well, it must become a natural part of a teachers repertoire of teaching skills. Especially for program continuation and expansion, teachers must come to use the new practices almost out of habit. If this is to occur, continued follow-up and support are essential. No matter how engaged a teacher is during the course of their professional development, it is easy for them to forget about the content learned when faced with the reality of planning for each day and managing a classroom. Consistent follow-up will confirm that teachers have not only implemented FUEL but that they have also done so in an effective way. For teachers, this component will come in the form of a coach who will be able to give meaningful feedback to teachers as they share information about fair use with their students. This will be a more meaningful kind of follow-up, because it will give teachers a venue to address their questions and concerns about the program within the context of their own classrooms. They will be able to immediately tweak their lesson plans and strategies to address their coachs suggestions. Ultimately, the most important evaluation of the success of the FUEL program, however, will be whether students can not only state what their rights are through fair use but that they are also actively using those rights within authentic contexts. This mastery will become apparent through the content they share online on their Current Events classs Edmodo forum, when they present on The Adventures of Huckleberry Finn in their English class, and even in the arguments they make on copyright thread within a forum. If students and teachers are actively using

Fair Use Education 14 copyrighted content within the boundaries set by existing copyright laws, then the FUEL program will have been a success. Follow-up on the part of dedicated administrators and coaches will ensure that this is a reality in every classroom. Conclusion It is imperative that students be knowledgeable about their limits and rights as defined by copyright and fair use, especially when one considers that digital media is becoming more accessible and prevalent every day. Students are going to need this knowledge in order to be active, creative, cognizant members of society. Classrooms are not only the best environments to learn about these regulations, but they are also safe places where students can practice using this knowledge in a creative context to further their learning. By better educating students about the existing copyright and fair use laws, we are generating more informed citizens, and informed citizens are more likely to enact changes when societal issues arise that are unjust or oppressive to a majority of the populous. Knowledge is power, and if the general public can attain a better understanding about these dire and culturally altering issues, it increases the likelihood that they will prioritize a push for change and revision to any existing, inequitable copyright laws.

Fair Use Education 15 References Aufderheide, P., & Jaszi, P. (2011). Reclaiming fair use: How to put balance back in copyright. Chicago: University of Chicago Press. Boyle, J. (2008). The public domain: Enclosing the commons of the mind. Yale University Press. Center For Social Media (2013). The code of best practices in fair use for media literacy education. Retrieved from http://www.centerforsocialmedia.org/fair-use/bestpractices/code-best-practices-fair-use-media-literacy-education. Creative Commons (2002). Creative commons: About the licenses. Retrieved from http://creativecommons.org/licenses/. Guskey, T. R. (2002). Professional development and teacher change. Teachers and Teaching: theory and practice, 8(3), 381-391. Hobbs, R. (2010). Copyright clarity: How fair use supports digital learning. Corwin. Lessig, L. (2008). Remix: Making art and commerce thrive in the hybrid economy. Penguin Pr. Sparks, D. (2002). Designing powerful professional development for teachers and principals. U. S. Const. Art. I, sec. 8, clause 8. Retrieved from http://en.wikipedia.org/wiki/Copyright_Clause. U. S. Copyright Office Library of Congress (2000). Copyright basics. U.S. Copyright Office U. S. Copyright Office Library of Congress (2012). Fair use. Retrieved from http://www.copyright.gov/fls/fl102.html.