Educators need to consider the concept of fair use as they prepare lessons and assignments that draw on outside materials—audio, visual, or print—that are likely to be copyright protected. At the same time, they must guide their students’ fair use of such materials within the context of twenty-first century participatory culture. One organization that tries to provide guidance to educators as they confront fair use issues is the Center for Social Media, an institute sponsored by the School of Communication at American University. Among the resources the Center provides is a web page with links to codes of best practices developed by professional and scholarly associations whose members are especially likely to confront fair use issues. One link on this web page takes the reader to a document entitled The Code of Best Practices in Fair Use for Media Literacy Education. In this month’s report, I summarize this distillation of the principles governing fair use in the classroom.
The NCTE has endorsed this Code, as has the Action Coalition for Media Education, the Media Education Foundation, the National Association for Media Literacy Education, and the Visual Communication Studies Division of the International Communication Association.
The Code defines fair use as “the right to use copyrighted material without permission or payment under some circumstances—especially when the cultural or social benefits of the use are predominant.” The cultural or social benefit the Code addresses is media literacy education. The goal of such education is to help students develop the ability to analyze and evaluate and create messages transmitted via various media and embedded within diverse contexts. As such, media literacy education represents an expanded concept of literacy that “responds to the demands of cultural participation in the twenty-first century.”
At the core of the document are five principles of fair use specifically framed to address the objective of comprehensive media literacy. The first of these principles addresses the fact that educators will necessarily use copyrighted material in order to help their students develop as communicators and critical thinkers. In response to this reality, the Code’s authors state that fair use permits educators to select “illustrative material from the full range of copyrighted sources” and that this illustrative material may be furnished to students in a number of settings, both formal and informal, physical and virtual. Attached to this principle are certain caveats: Material should be relevant to the lesson or assignment; the length of the material should not exceed that which is necessary to accomplish the assignment’s goals; attribution to the material should be provided; and access should be limited to the students completing the lesson or assignment. These caveats or similar ones apply to the remaining four principles.
Analogous to the first principle, the second states that fair use permits teachers to use copyrighted materials in the course of creating lesson plans and other curricular materials, such as workbooks, podcasts, and compilations of video clips. The third principle follows from this second one: fair use permits educators to share these curricular materials with other educators, whether at conferences or at professional development programs or through electronic dissemination. If the use is genuinely fair use—relevant illustrative material of an appropriate length—the material may even be distributed commercially.
The fourth principle addresses the use that students may make of copyrighted materials. Students will analyze and evaluate messages and will create messages not only out of words but also out of images, sounds, and music, whether in traditional or digital forms. In furtherance of these goals, fair use allows students to “incorporate, modify, and re-present existing media objects in their own classroom work.” Like their teachers, however, students may not make unrestricted use of copyrighted materials. Such material must be repurposed or transformed so that it is being used creatively in order to accomplish a valid educational objective.
The fifth principle addresses the circumstances under which students may disseminate their creations via a medium such as the internet. As in the case of the fourth principle, key to the question of fair use is the degree of creativity demonstrated by the student: “student work that incorporates, modifies, and re-presents existing media content” may be considered transformative; if so, fair use allows its distribution to an audience beyond the classroom.
In addition to developing and illustrating the above principles, the Code addresses some common myths that may cause educators to shy away both from making fair use of copyrighted material and from encouraging their students to do likewise. In sum, the Code pulls together information that educators may find useful as they attempt to navigate the law of copyright and the needs of their students.
Other Fair Use Codes accessible via the website of the Center for Social Media:
Best Practices in Fair Use of Dance-related Materials, a code created by the Dance Heritage Coalition.
Code of Best Practices in Fair Use for Online Video, developed by the Center for Social Media’s Future of Public Media Project.
Code of Best Practices in Fair Use for Scholarly Research in Communication, a document developed by the International Communication Association.
Documentary Filmmakers’ Statement of Best Practices in Fair Use, a guide that has the imprimatur of the Association of Independent Video and Filmmakers, the Independent Feature Project, the International Documentary Association, the National Alliance for Media Arts and Culture, and the Washington, D.C., chapter of Women in Film & Video.
Statement of Fair Use Best Practices for Media Studies Publishing and Statement of Best Practices in Fair Use in Teaching for Film and Media Educators, codes developed by the Society for Cinema and Media Studies.
Later this fall, please watch for another report on the Code of Best Practices in Fair Use for Scholarly Research in Communication.
Kim D. Gainer
Department of English