Copyright and Fair Use are perhaps the most challenging and controversial topics in our 7th grade Digital Literacy course.  Copyright law is complex, Fair Use guidelines are fluid, and what educators deem “fair” varies widely throughout the profession.  Commercial copyright holders and the organizations that represent them are litigiously protective of their work.  Conversely, attorneys such as Larry Lessig contend that creativity is being strangled by the law.  Diverse opinions notwithstanding, as content consumers and creators, it’s important that we have a working knowledge of how creative works can and cannot be applied to education.

A Quick Overview: Copyright and Fair Use

As defined by the U.S. Copyright Office, “Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.  Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.”

Two common misconceptions among students (and teachers) are (1) online resources that don’t display a copyright symbol are not protected by copyright and (2) any copyrighted resource may be used for any purpose provided the work is cited.  Under current law, copyright protection is automatic when intellectual property is created, and portions of copyrighted works can be used for educational purposes under the terms of Fair Use.

Copyright is a law and objective; Fair Use is a guideline and subjective.  At a basic level, however, four factors determine if the use of copyrighted material is fair:

• The purpose and character of the use.
• The nature of the copyrighted work.
• The amount of the portion used.
• The effect of the use upon its value.

The Center for Social Media, in reviewing the history of Fair Use litigation, finds that judges return again and again to two key questions:

• Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?
• Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

If the answers to these two questions are “yes,” a court is likely to find a use fair.  While the likelihood of a student  being prosecuted is minute, we should encourage good practice and apply these  criteria when evaluating the use of media in teaching and learning.

A Quick Overview: Public Domain and Creative Commons

Resources in the public domain are not protected by copyright and may be used without the owner’s permission or consideration of the Fair Use guidelines.  The point at which intellectual property enters the public domain varies considerably, but as a general rule, anything published prior to 1923 is public.  Beyond that date, conditions and copyright terms largely depend upon when, where, and how the work was published.

Between the “all rights reserved” of copyright and the “no rights reserved” of the public domain is a relatively new option for licensing intellectual property: Creative Commons.  A free service, Creative Commons allows content creators to license their work with “some rights reserved.”

Resources for the Classroom

While students will always have need for using copyrighted material, they should be encouraged to utilize public domain and Creative Commons media when possible.  Locating less restrictive resources requires moving away from traditional search engines like Google or Bing and employing other tools and techniques.

In addition to e-texts, there are an impressive number of images, audio files, and video clips available in the public domain:

• Bartleby.com Public domain texts online
• Books on the Internet E-texts from UT Austin
• Great Books Ancient classics to 20^th century masterpieces.
• Images Listing of public domain images
• Internet Public Library Library for the Internet community
• Moving Image Archive Movies, films, and videos
• Online Books Listing over 30,000 free books on the Web
• Project Gutenberg More than 25,000 free e-books

Creative Commons media abounds and is accessible from a number of sites:

• Creative Commons Search is not a search engine but rather offers convenient access to search services provided by other independent organizations.
• Google Advanced Image Search has an option for locating images by usage rights.
• Flickr CC allows users to browse or search through content under each type of Creative Commons license.
• FlickrStorm works by looking for more than what you enter to find related and more relevant images.
• ccMixter is a community music site featuring remixes licensed under Creative Commons where you can listen to, sample, mash-up, or interact with music in whatever way you want.

Although the two aforementioned key questions can serve as a rough guide for determining the fair use of resources,  educators should develop a deeper understanding of the issue.  In her book Copyright For Schools, Carol Simpson provides a clear explanation of copyright compliance and an extensive list of resources for additional information.  Last fall, the Center for Social Media released The Code of Best Practices in Fair Use for Media Literacy Education.  This guide includes five principles that represent the media literacy education community’s current consensus about acceptable practices for the fair use of copyrighted materials.

Compliance Requires Persistance

It is not practical to expect that every teacher and student will have complete familarity with the inner workings of copyright, Fair Use, the public domain, and Creative Commons.  It is reasonable, however, to ask that each of us make a concerted effort to abide by the laws and guidelines currently in place.  As adults, we can begin by modeling proper behavior and require our students to do the same when using someone else’s media.  With persistance and continued education, we can set the standard for thoughtful compliance, and that’s a goal worth achieving.

Posted: 10|29|09 at 8:55 am. Filed under: Digital Literacy.
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