Fair Use, Media and Education in the Digital Age

Following on the release of their 2005 “Documentary Filmmakers’ Statement of Best Practices in Fair Use,” the Center for Social Media and the Washington College of Law at American University teamed up with Temple University’s Media Education Lab to present a new report this fall on “The Cost of Copyright Confusion for Media Literacy.” The report hopes to bring together media literacy educators at the national level “to develop a code of practices” to articulate how fair use applies to their work (from the press release).

The study included interviews with “63 educators from K-12, university and college professors, and youth media professionals.” The project’s Co-Principal Investigators, Renee Hobbs, Peter Jaszi, and Pat Aufderheide reveal many different responses from educators about what they believe they can and can’t do under copyright law. Among other things, they found

“Teachers use less effective teaching techniques, teach and transmit erroneous copyright information, fail to share innovative instructional approaches, and do not take advantage of new digital platforms.”

Furthermore, the report shows that conservative statements on copyright policy created by academic institutions have created a culture of fear among educators that have made it difficult to use copyrighted material in the classroom. There are a number of cases in the report that exemplify this fear, including one that from a university professor who stopped “putting video clips of copyrighted material online,” even behind closed-walled (password-protected) course management systems because of “concerns about copyright violation.”

The Cost of Copyright Confusion reveals that the “pedagogical costs of studied ignorance, quiet transgression, and hyper-compliance are many.” In its conclusions and recommendations, the report states that media literacy educators need to take the first step and educate themselves “about the clear and unambiguous use rights” that copyright law provides. Second, the report shows

“There is an urgent need to develop and disseminate a code of practice for fair use of copyrighted material by media literacy educators, based on collective discussions about the ways in which educators actually do and reasonably could use such materials, consistent with the law.”

On October 26, I was fortunate to have had the opportunity to attend a meeting in Boston with Renee Hobbs and Peter Jaszi, along with a small group of media educators, media producers, librarians and others in this effort towards building a “code of practice.” I look forward to following the progress of their work. When released, this statement of best practices should be an invaluable contribution to media literacy education in the digital age.

Admittedly, through my employment at Berkman Center for Internet & Society, I’ve learned a great deal from the people and projects concerned with many of the complex challenges facing teachers and students in the digital age. However, I did not think that I would have the opportunity, one year later, to focus on these issues for this study. In preparing for this week’s assignment, I found it incredibly useful to not only review the Berkman Center’s Digital Learning Challenge White Paper, but also the two podcasts that I had the incredible opportunity to produce with Amanda Michel. This is a full disclosure of my interest in this study. However, over the past two months, I’ve learned a great deal here which has given me new insights into the issues involved. For this post, I will attempt to highlight a few examples from the Digital Learning Challenge that contribute significantly to this study. In particular, I wanted to focus on the last section, which introduces some possibilities for reform within this practice.

First, some background. The Digital Learning Challenge, written by William Fisher and former Berkman Fellow, William McGeveran and completed in 2006 was funded by a grant from the Andrew W. Mellon Foundation. Through its four case studies, and drawing from “comments made by a cross-section of scholars, lawyers, librarians, educators” the paper explains the following as “the most significant copyright-related obstacles to educational uses of copyrighted material”:

• Unclear or inadequate copyright law relating to crucial provisions such as fair use and educational use;
• Extensive adoption of “digital rights management” technology to lock up content;
• Practical difficulties obtaining rights to use content when licenses are necessary;
• Undue caution by gatekeepers such as publishers or educational administrators

In its comments on the Teach Act and classroom boundaries in the digital age (as I wrote in my last post), the paper reiterates that “its coverage may represent no more than a modest update of the ‘face-to-face teaching’ standard under the classroom use exception.” The paper goes on to say that DRM presents further boundaries to sharing copyrighted material within and across educational online spaces. And as seen in the cases of New World Records and WGBH, burdens of copyright clearance process can create serious financial and other obstacles to those interested in sharing educational resources in the digital age.

In the final section of the Digital Learning Challenge, the paper presents what it sees as “Potential Paths Towards Reform.” And as Bill McGeveran states in the Berkman Center podcast, these paths are not intended to be “solutions,” but rather guidelines in thinking about “what are the best ways to move forward.” Furthermore, as the paper reminds its readers

It is important to restate here a recurring theme running throughout the white paper: the regime governing educational use of content, like all of copyright, requires balance . . . Copyright exists to ensure content providers are rewarded for their efforts. And the special incentives for creation of academic content do not apply to material aimed at a more traditionally commercial market thata is nonetheless important for educators to use . . . Solutions, therefore, must maintain — or perhaps more accurately, restore — the appropriate balance.

That said, the paper explains that legal reforms; greater reliance on technology to ease the clearance process; agreements among educators and others on standards and best practices; and encouraging open licensing models, such as Creative Commons, for copyright holders are among the four key paths moving forward.

One of the most interesting reminders from the paper, is that practitioners in this area often look first to the courts to provide them with guidelines for acceptable practice among academic and other educational institutions. However, the challenge is that there is little precedence to use in determining these guidelines. Therefore, as educational policy-makers work towards developing frameworks for educational sharing of copyrighted material in the digital age, more often than not, they will arrive at extremely conservative positions, in fear of “potential” legal backlash.

In response, the paper explains that changes in practice among copyright holders, within educational institutions and our legal system, will help to increase opportunities for technological innovation and further opportunities for sharing access to educational resources in the digital age.