What does fair-use really mean?

Since the passage of the Digital Millennium Copyright Act (DMCA), the confusion over "fair-use" of copyrighted materials in schools has hindered some educators, driven others underground in their use of materials for legitimate educational purposes, and created an excuse for innumerable students who claim "fair-use" as an excuse for sharing music and videos. It's time to revisit what "fair-use" really means.

Marc Wagner
Prior to passage of the Digital Millennium Copyright Act (or just DMCA, for short), the fair-use rules were pretty clear.  Quoting from the U.S. Code (TITLE 17, CHAPTER 1, SECTION 107, "Limitations on exclusive rights: Fair Use"): 

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

  2. the nature of the copyrighted work;

  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

  4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Sounds pretty straightforward, doesn't it?  Well, now that we have the DMCA many educators are confused about what they can and cannot do.   

The November/December 2007 issue of eSchool News discusses the matter in some detail.  (See "Fair-use rules baffle schools" in the print version -- apparently nothing newer than the October edition is, as yet, available on-line.)  In a related story by eSchool News Assistant editor, Meris Stansbury, she states:

Media-literacy instructors especially depend on the use of news broadcasts, advertising, reality TV shows, film snippets, and a host of other recordings to teach analytical skills to their students. Yet, the goals of media-literacy education--to cultivate critical thinking about media and its role in society, and to strengthen students' creative communications skills--are compromised by unnecessary restrictions and a lack of understanding about copyright law.

A report from Temple University's Media Education Lab, American University Washington College of Law's Program on Information Justice and Intellectual Property, and American University School of Communication's Center for Social Media found:

... that nearly all were confused about "fair use" and their rights as educators to use media materials.

Teachers face conflicting information about their rights, and their students' rights, to use copyrighted works, the report says. They also face complex and often overly constrictive copyright policies in their own institutions. As a result, they use less effective teaching techniques, teach and transmit false copyright information, and do not take advantage of new digital platforms for their instruction.

"This is not only unfortunate but unnecessary, since copyright law permits a wide range of uses of copyrighted material without permission or payment," the report says. "Educational exemptions sit within a far broader landscape of 'fair use.' However, educators today have no shared understanding of what constitutes fair-use practices."

It's no wonder that universities like my own have teams of lawyers to advise faculty about what constitutes fair-use by an educational institution.  But what about smaller institutions and local school districts?  The report goes on to say:

The report claims that fair-use confusion leads to a variety of coping strategies for teachers, including conscious ignorance (using copyrighted material without studying the law further, for fear that this knowledge would hinder their work even more), quiet defiance (ignoring copyright law entirely within the four walls of the classroom), and "hyper-compliance" (forgoing the use of legitimate teaching tools and techniques out of fear of violating copyright law).

Absence an on-site legal staff, Education IT has an opportunity to clarify for our educators (and our administrators) that they have broad latitude in the classroom when it comes to the "fair-use" of copyrighted materials. 

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