How Fair Use Enables Media Literacy to Thrive

When educational publishers hear the term fair use, they often brace themselves for the argument that teachers should be able to copy, post, and reuse the material without permission as long as it’s for educational use. However, when Renee Hobbs of Temple University’s Media Education Lab and Peter Jaszi of the Washington College of Law, American University, spoke at the 2009 AEP Summit they explained that while the principle of Fair Use is important in education and educational materials, it does not trump a publisher’s copyright. In fact, in their breakout session, “How Fair Use Enables Media Literacy to Thrive,” they presented a compelling case for how Fair Use can actually help publishers enhance their own products and resources.

Over the last 25-30 years copyright has become a dynamic field. Copyright lasts longer, covers more material, and the penalties are much higher. The courts–including the Supreme Court–have said, though, that what keeps copyright from impinging on free speech and the First Amendment is fair use.
Fair use is a legal doctrine that allows for the unlicensed, unauthorized, and uncompensated use of copyrighted material when the social and cultural benefits exceed the costs imposed by private parties. While there are four parts to fair use–nature of use, type of use, amount used, and the economic effect–Jaszi said that the courts really look for two critical standards when applying the concept.

1. Is the use transformative? In other words, is the material used in a way that addresses or serves a goal that is outside the original purpose and adds value to the work?
2. How much of the material used? Is the amount appropriate or is it too much to outweigh the transformative use?

Transformative markets are beyond the copyright holder’s original entitlement and can involve recontextualization, modification, addressing a different market, and the addition of value. An entity using material under fair use is not required to ask the copyright holder for permission–nor is a claim of fair use diminished if the copyright holder refuses and the asker users the material anyway. However, it is important to note that if you sign a rights contract with any firm, that contract trumps fair use.

What’s important for publishers to realize is that an educator photocopying or posting material online for others to use is not a transformative use. The original goal of the material is to teach a lesson in a specific manner, and that goal has not changed, even if the teacher redistributes or uses the material in another media. Jaszi also pointed out that there is a lot of urban folklore about fair use, e.g, one paragraph is okay but not a chapter, you can use 3 bars of music but not four. None of these are valid. There are no fixed rules for fair use.

More important, though, is how educational publishers can apply fair use to their own businesses. Building upon Jaszi’s explanation, Renee Hobbs showed how the example of media literacy teachers could be translated to our industry.

For media literacy education, the ability to use video clips, sound recordings, websites, and other copyrighted publications in lesson plans is vital. However, Hobbs said that teachers, confused about copyright, were displaying three typical attitudes that hurt their use of media.

1. They thought they could do anything they wanted as long as they remain ignorant of copyright law.
2. They thought they could use anything they wanted in the classroom as long as they didn’t tell anyone.
3. The hyper-compliant refused to use anything.

The teachers’ fear and ignorance of fair use were getting in their way of their legal rights; they were teaching their lessons without models of what they were covering. What they discovered, though, is that they could use pieces from any media in their lessons because of fair use. They were transforming the material from its original purpose, e.g., entertainment, into educational instruments and had the right to incorporate copyrighted materials. And students could use clips in their homework too as long as they applied fair use.

Jaszi said this means that if proper measures were taken and an industry-wide consensus were reached, educational publishers could possibly use copyrighted materials in their works and save money on rights and license fees if they learned to apply fair use. Right now, educational publishing is permissions-based even though it doesn’t need to be, and courts will often point to this as the normal standard for the industry. Jaszi and Hobbs agreed that if publishers got together as an industry, like media literacy educators did, and created a code of best practices, then publishers, courts, and lawyers could use this as a guidepost. If we reclaim our fair use rights it will only help enrich our instructional materials. Finally, anyone who has questions about using copyrighted material under the Fair Use Doctrine should consult a copyright and intellectual property specialist who is keeping up to date with this dynamic field.

For more information on fair use, go to the Media Education Lab and the Center for Social Media.

This is a general guide in understanding basic legal issues without reference to specific state laws and is based only upon the facts provided. Neither the accuracy nor completeness of the advice is guaranteed; nor does it constitute the advice or comment, nor reflect the view of the AEP. This does not constitute specific legal advice and there is no attorney-client relationship between the author and any individual asking a question.

More blog posts from the AEP Summit.