Fair Use: Notes on the report "The Code of Best Practices in Fair Use for Media Literacy Education"

These are notes from the Session 7 reading on interpreting the doctrine of "fair use". The main point seems to be that the broadness and flexibility of the fair use doctrine are good things that work to the advantage of educators, and that should give educators a lot of confidence in being permitted to use materials for educational purposes.

The article includes five main principles:

(1) It's fine to use copyrighted materials to teach the techniques of media literacy (such as analyzing the form and content of different genres, looking at historical context and effects, etc.). Use only as much of the work as necessary, whether that means an excerpt or the whole thing. Give the source. Try to keep uninvolved third parties from downloading it.

(2) I don't quite understand this one, but basically they seem to be saying that it's OK to use copyrighted materials in lesson plan materials, much as above. Include educational goals, etc.

(3) Again, this is kind of confusing, but it seems to be saying that some sharing of illustrative materials at conferences, etc. is OK, but if you're trying to "promote" (Do they mean market?) your curriculum work, you should get all the proper permissions for anything you wish to include. Also, any license agreed to by a school district will be binding, even if it impinges upon the usual fair use guidelines.

(4) This is the one that I have been wondering most about: When is it OK for students to use excerpts of copyrighted materials in their own creative work. The answer is easier to understand than for #2 and #3, but it's more complicated and requires more situation-by-situation analysis than I had hoped. The report says that it's fine for students to use parts of copyrighted works in order to comment upon them, analyze them, etc., but NOT just to "create a mood", add interest to something they are creating, etc. This seems very "fuzzy" to me, as a guideline. . . The report also says that just giving proper attribution does not automatically make a use OK. . . . I think part of my concern is that I teach relatively young students. They're just starting to be metacognitive about WHY they choose particular resources. If my students can label the mood they want to create and find something to help them do that, I think that's a great first step. I'm not sure how much further I'd expect them to go, in analyzing how they're using the material. . . . One thing I like, here, is that the article says that incorporating bits of copyrighted material should not substitute for students' own creative work.

(5) If students are distributing their creative works more publicly than just within a classroom or school -- for example, if they're posting the projects on the Internet -- then fair use will be less of a protection. It is good to model for students the process of deciding which sorts of materials need which sorts of permissions.


The article also tries to debunk certain "myths" about fair use. For example, it says that the fair use doctrine is purposefully broad, and this "vagueness" shouldn't scare people off. However, "rules of thumb" such as "It's OK to use 10 seconds of a video clip" are not really true; fair use has to evaluated on a case-by-case basis, for the educational merits of the use.

"Transformativeness" is a key value in fair use law. However, this does not have to mean writing critiques or parodies; it just means using the material in a new way in a new context -- for example, to make an instructional point. Transformativeness is actually MORE important than non-commercialness, which is neither always necessary nor automatically sufficient to qualify for fair use protection.

A bunch of legal experts were advisors on this report.