Opening Gates: On Celebrating Creative Commons and Flexing the Fair Use Muscle

The landscape surrounding the use of intellectual property has shifted dramatically over the past couple of years. Teacher librarians, responsible for guiding learners of all ages toward practicing digital citizenship, should be aware of the new rules for playing, living, and working in a new intellectual property sandbox.

In the past, librarians have often had to act as gatekeepers regarding use of intellectual property. Today, that gate is nearly impossible to keep closed. YouTube, Google Videos, Flickr, Facebook, and a zillion other media sharing sites are filled with media efforts that do and do not respect intellectual property.

In school and out of school, learners have an array of free, powerful, and highly available new digital tools to tell their stories; tools with which they can create, share, and publish their communications. Students are not merely content consumers. Many are ardent and talented content creators. And their audience is global.

The news is good news. While teaching digital citizenship and respect for intellectual property librarians can act as cheerleaders rather than gatekeepers. In many more cases, we can say “yes” to creativity by using media in teaching and learning.

The news regarding intellectual property in a remix, mash-up world fits into two major buckets:

• Creative Commons (http://creativecommons.org) and other facets of emerging “copyleft” or copyright-friendly and open source movements; movements where content creators opt to share their creations more liberally
• New codes of best practice now present professionals’ interpretations and understandings of the freedoms and boundaries of fair use for their fields, in an emerging digital culture

FAIR USE CODES OF PRACTICE

Despite the excitement surrounding the copyright-friendly movement and the rich and growing portals of Creative Commons materials, students are going to want to use copyrighted media in their works. They can. And they don’t have to ask permission if they use the copyrighted materials under the conditions of fair use.

Fair use is “the right, in some circumstances, to quote copyrighted material without asking permission or paying for it. It is a crucial feature of copyright law and what keeps copyright from being censorship. You can invoke fair use when the value to the public of what you are saying outweighs the cost to the private owner of the copyright” (American University Center for Social Media).

WHY APPLY FAIR USE WHEN CREATIVE COMMONS MATERIALS ARE AVAILABLE?

Teachers want to and ought to use copyrighted materials to deliver instruction in media literacy, current events, and analysis of culture. This includes activities like critical evaluation of campaign ads, presenting examples of dramatic elements or unusual plot structures in feature films, and examination of constructed media messages in commercials, music videos, news stories or documentaries.

When students create communication products, they often want and need to use copyrighted media. They need to quote other media works to create new media works.

In their creative works, learners may, for instance, want to review books, movies, and art, produce satire using familiar cartoon characters, and comment on culture with music video parodies. Imagine a student exploration of how Native Americans have been portrayed in popular movies and television shows without the use of copyrighted materials. Of course, they should seek to use film clips from Disney’s Pocahontas, John Wayne films, the Lone Ranger, Bonanza, Dances with Wolves, and Little Big Man. But seeking permissions is usually a big flop. And we haven’t always encouraged them to flex their fair use muscle.

In November of 2008, the “Code of Best Practices in Fair Use for Media Literacy Education” was released to clarify teachers’ and librarians’ “copyright confusion” (www.centerforsocialmedia.org/fair-use/related-materials/codes/code-best-practices-fair-use-media-literacy-education). The document outlines how students and teachers may legally and ethically use copyrighted materials in an academic setting without asking permission or paying for it. This code is one of a suite of fair use codes—recently agreed upon rules, norms, boundaries, and guidelines—for other fields of practice, including documentary filmmakers, online educators, media studies publishing and teaching, scholarly researchers, and creators of open courseware (www.centerforsocialmedia.org/fair-use).

The “Code of Best Practices in Fair Use for Media Literacy Education” outlines five principles, each of which comes with limitations, and each of which is explained in far greater length in the document.

Educators can, under some circumstances:

1. Make copies of newspaper articles, TV shows, and other copyrighted works, and use them and keep them for educational use.
2. Create curriculum materials and scholarship with copyrighted materials embedded.
3. Share, sell, and distribute curriculum materials with copyrighted materials embedded.

Learners can, under some circumstances:

1. Use copyrighted works in creating new material.
2. Distribute their works digitally if they meet the transformativeness standard.

Fair use is a right, but it is not a blank check. Of course, all use should be attributed. And, before they use copyrighted material in their own projects, learners should consider two questions:

1. 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? Examples of such uses may include:

• Satire and parody
• Negative or critical commentary
• Positive commentary
• Quoting in order to start a discussion
• Illustration or example
• Incidental use
• Personal reportage/diaries
• Archiving of vulnerable or revealing materials
• Pastiche or collage

(See American University’s Center for Social Media Recut, Reframe, Recycle, www.centerforsocialmedia.org//fair-use/related-materials/documents/recut-reframe-recycle, for examples of each type of use. Not all of these examples are K-12 classroom-appropriate. These examples of fair use relate to documentary filmmaking: http://centerforsocialmedia.org/fair-use/related-materials/teach ing-materials/examples-successful-fair-use-documentary-film)

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

The key element to consider in educational re-use of media is transformative use. When a user of copyrighted materials adds value to, or repurposes materials for a use different from that for which it was originally intended, it will likely be considered transformative use; it will also likely be considered fair use. Fair use embraces the modifying of existing media content and placing it in new context.

Examples of transformativeness might include: using campaign video in a lesson exploring media strategies or rhetoric; using music videos to explore such themes as urban violence; using commercial advertisements to explore messages relating to body image or the various different ways beer makers sell beer; or remixing a popular song to create a new artistic expression.

One important teaching tool for considering whether a student’s use of a piece of media content is fair use is Document the Fair-Use Reasoning Process (www.mediaeducationlab.com/document-fair-use-reasoning-process). We use it continually as a teaching and a thinking tool.

Emphasizing the new understandings of use of licensed content, in July 2010 the U.S. Copyright Office ruled that it is NOT a violation of the Digital Millennium Copyright Act (DMCA) for remixers to use copyrighted video excerpts from DVDs for the purpose of criticism or comment (“Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works,” http://www.copyright.gov/1201/).

SO, WHAT’S NEXT?

As librarians, or “gatekeepers,” or perhaps cheerleaders, of student creativity, we need to get the word out that a few more gates are a bit more open.

We need to spread the gospel of Creative Commons, as a tool for student and teacher remixing and creation and as a licensing option for students’ original creations.

We need to understand and share the Code with the teaching community, the preservice education community, and our own library community. We need to discuss the five principles at our conferences and our faculty meetings, and we need to develop instruction. Our instruction needs to be based on local and realistic examples of what we see as fair use and what is clearly not fair use.

The success of this document will depend largely on how we spread the word and how well we roll out its interpretation; on how well we use it as an instructional tool and on how well we are able to define transformativeness for our own communities.

And the success of our practice will depend on our ability to nimbly manage emerging information landscapes and play in new sandboxes with new rules for respecting and creatively reusing intellectual property.