An excellent question was posed at the beginning of our
DTC 375 class regarding the limits and application of "fair use" of copyrighted material. This is an important question with no simple answer and, as you transition from the role of student to the potential role of professional digital content creator, it will be important to continue to develop your understanding of the concept and limits of fair use, since the rules are not black-and-white.
What is Fair Use?The Center for Social Media (www.centerforsocialmedia.org) explains Fair Use this way:
"The fair use doctrine... only refers in general to four considerations ("factors") that people should weigh in deciding whether their use will add more to the culture than it will cost the
rightsholder: the nature of the copyrighted material, the nature of the use, the amount, and the market effect."
"In practice, since 1990 judges have boiled those concerns down to two: Is your use
transformative? (In other words, did you add real value and did you employ this material for a different purpose from the one that the owner created it for?) Is the amount appropriate to satisfy that new purpose? If the answer to these questions is yes, the market effect concern takes a back seat. And judges look closely at community practice. That’s why codes of best practices in fair use have been so valuable in establish what is acceptable and normal to do in any professional community."
Read: Film-makers code for Fair Use (PDF)How is Academic Fair Use different?Educators and learners in media literacy often make uses of copyrighted materials that stand far outside the marketplace, for instance, in the classroom, at a conference, or within a school-wide or district-wide festival. Such uses, especially when they occur within a restricted-access network, do enjoy certain copyright advantages. As a practical matter, they may be less likely to be challenged by rights holders. More important, however, if challenged they would be more likely to receive special consideration under the fair use doctrine—because they occur within an educational setting.
Here is the full document on
Fair Use guide for Media Literacy EducationAnd here is the most relevant section of that document for our class purposes:
STUDENT USE OF COPYRIGHTED MATERIALS IN THEIR OWN ACADEMIC AND CREATIVE WORK
DESCRIPTION: Students strengthen media literacy skills by creating messages and using such symbolic forms as language, images, sound, music, and digital media to express and share meaning. In learning to use video editing software and in creating remix videos, students learn how juxtaposition reshapes meaning. Students include excerpts from copyrighted material in their own creative work for many purposes, including for comment and criticism, for illustration, to stimulate public discussion, or in incidental or accidental ways (for example, when they make a video capturing a scene from everyday life where copyrighted music is playing).
PRINCIPLE: Because media literacy education cannot thrive unless learners themselves have the opportunity to learn about how media functions at the most practical level, educators using concepts and techniques of media literacy should be free to enable learners to incorporate, modify, and re-present existing media objects in their own classroom work. Media production can foster and deepen awareness of the constructed nature of all media, one of the key concepts of media literacy. The basis for fair use here is embedded in good pedagogy.
LIMITATIONS: Students’ use of copyrighted material should not be a substitute for creative effort. Students should be able to understand and demonstrate, in a manner appropriate to their developmental level, how their use of a copyrighted work repurposes or transforms the original. For example, students may use copyrighted music for a variety of purposes, but cannot rely on fair use when their goal is simply to establish a mood or convey an emotional tone, or when they employ popular songs simply to exploit their appeal and popularity. Again, material that is incorporated under fair use should be properly attributed wherever possible. Students should be encouraged to make their own careful assessments of fair use and should be reminded that attribution, in itself, does not convert an infringing use into a fair one.
SummaryThe simple answer is: There is no simple answer or black-and-white to Fair Use. Academic uses enjoy greater freedom, compared to commercial uses. But academic use is not a 'free pass.' The most justified Fair Use meets the requirements above for "
transformative" and "proportional."
The other lesson in the area of Fair Use is to access, whenever possible,
public domain / Creative Commons content that is intentionally free to use - so that you only use copyrighted material when it is essential to the content and can meet the requirements above.
