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Law & Courts Commentary

Copyright Confusion Is Shortchanging Our Students

By Renee Hobbs — March 11, 2008 4 min read

When teachers in a suburban-Philadelphia school district heard about the music industry’s legal victory requiring a single mother from Minnesota to pay more than $220,000 for sharing 24 songs online, the news seemed to confirm their worst suspicion: It isn’t safe to use digital media as a teaching tool. The changing legal climate around what is considered “fair use” for such resources is intensifying a culture of fear among teachers and students. “I’ve got a stash of videotapes with copyrighted excerpts of TV shows, movies, advertising, news, and music videos that I use all the time in my teaching,” one teacher told me after learning about the court decision. “I wonder if they’re going to come after me someday.”

It is ironic that, at a time when online digital technologies are enabling users to create and share an ever-widening array of multimedia texts, this kind of educational fear is also on the rise. Teachers are afraid of being harassed by media companies, and this is stifling innovation in the use of digital media as instructional tools.

When my colleagues and I interviewed 63 educators—from college and university professors to high school teachers and youth-media professionals—for our report “The Cost of Copyright Confusion for Media Literacy,” we discovered that media-literacy teachers are afraid to share their innovative practices with other educators, or to post materials online or distribute samples of their students’ work. Because of misinformation and fear, many teachers deny their students the right to quote from creative expressions that are now a central part of contemporary culture when completing classroom projects and assignments. As a result, students do not learn a fundamental truth: Copyright is designed not only to protect the rights of owners, but also to preserve the ability of users to promote creativity and innovation.

Fear and misinformation also limit teachers’ use of the Internet and related digital technologies. Many instructors want to use YouTube as a classroom teaching tool, for example, but often find they can’t because it’s blocked by school filters. Some circumvent the blocks to screen videos, but remain uncertain about whether this is legal. Others warn their students not to post their video-production assignments online. As a consequence, the innovative instructional practices of media literacy—practices that combine critical analysis of media “texts” with creative media-production activities—are not being widely shared.

Copyright is designed not only to protect the rights of owners, but also to preserve the ability of users to promote creativity and innovation.

Teachers receive misinformation from a variety of gatekeepers, including colleagues, supervisors, and media institutions. In some educational settings, we have found, school policies are far more restrictive than the law mandates.

Likewise, media-literacy teachers trying to get their curriculum materials published have found publishers unreceptive because their lessons generally quote from films, television shows, advertising, popular culture, and online media. When Ithaca College professor Cynthia Scheibe, for example, contacted Newsweek magazine about using cover images in a curriculum entitled “Media Constructions of War,” she was told she needed a whole series of permissions—including one from Osama bin Laden. Instead of capitulating, Scheibe worked with her institution’s lawyers and eventually realized she could claim fair use, which does not require payment or permission. Her curriculum materials are now freely available online. But not all teachers are blessed with school leaders who are as active in searching out their rights.

Fair use is the venerable copyright doctrine that permits reasonable quotation of copyrighted works without permission or payment when the benefit to society outweighs the harm to the copyright holder. It is a legal doctrine that is far more available to teachers than is currently understood or practiced.

The creative consequences of such lack of knowledge are both immediate and long-term, according to Peter Jaszi, a co-investigator for our study and a legal scholar at American University’s Washington College of Law. Teachers tend both to limit their own analytical and creative efforts and pass on to their students a culture of fear about copyright.

Educators don’t have to live with the self-imposed strictures of copyright confusion, however. They can begin standing up for their rights as users of copyrighted material, in the same way other creative communities have. Documentary filmmakers established what they considered to be a reasonable standard of fair use in 2005. That has made a tremendous difference to work in the field, and without crimping the marketplace, according to Patricia Aufderheide, also a co-investigator for the study and the director of the Center for Social Media at American University. It is the example teachers should follow, now that the cost to learning of their own copyright problems is becoming clear.

Supported by a grant from the John D. and Catherine T. MacArthur Foundation, media-literacy educators are beginning the process of developing a code of practices that will articulate how fair use applies to our work. Over the next year, we will be creating lesson plans and multimedia curriculum materials to help teachers introduce the concepts of copyright and fair use in their classrooms. By doing this, teachers across America may soon be able to replace copyright confusion with copyright clarity.

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A version of this article appeared in the March 12, 2008 edition of Education Week as Copyright Confusion Is Shortchanging Our Students


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