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Transforming Our Understanding of Copyright and Fair Use

In November 2008, educators were introduced to the “Code of Best Practices in Fair Use for Media Literacy Education,” and our concept of how to deal with copyright issues in the classroom has, literally, been transformed. As the official policy of NCTE related to fair use in the teaching of English, it is a document worth our attention as students learn to comprehend and compose texts utilizing a variety of forms of media.

“Copyright law and fair use are designed for all of us,” explains Renee Hobbs, Founder of Temple University's Media Education Lab, and one of the co-authors of the code of best practices. In an interview with me at the 2009 NCTE Convention in Philadelphia, PA, Hobbs suggests that “It will actually interfere with your rights if you don’t learn how to apply fair use to your work.”

While many of us assume that copyright is designed to protect the rights of owners, Hobbs explains that it is also meant to protect the rights of users in order to promote creativity, innovation, and the spread of knowledge. Many educators may not realize that our own reasoning and critical judgment are core components of fair use and, according to the Code of Best Practices, “Copyright law does not exactly specify how to apply fair use, and that gives the fair use doctrine a flexibility that works to the advantage of users” (p. 7).

Most of us have heard about fair use “guidelines.” We may rely on charts that describe how we can use 10% of this kind of work or use 30 seconds of another type, but the unfortunate outcome of these documents is that they actually restrict our use of copyrighted materials in ways that the law never intended. In fact, quite the opposite is true; Hobbs argues that the guideline charts that educators reply on are unduly restrictive. How we apply our rights for fair use depends not on how much of a piece of copyrighted work that we use, but instead on the ways in which we use it.

Hobbs believes that the change in our thinking about copyright that must occur can be stated quite simply: “For many educators, the big ‘aha’ is that, “oh, those guidelines aren’t the law?’” Indeed, the guidelines were constructed mainly through the work of the media companies themselves, and do not accurately reflect all the rights that users have when transforming copyrighted materials.

Thus, Hobbs, along with Peter Jaszi, from The Program on Information Justice and Intellectual Property, and Patricia Aufderheide, from The Center for Social Media, created the code of best practices. Copyright law, as many of these previous guideline documents tend to suggest, is not static with certain limits on the kind or amount of material used. Instead, fair use requires judgment.

Moreover, as educators, can we leave discussions of copyright only in the norms of academia; even though we ask students to cite their sources as a means of attribution, a common expectation among academics. The code of best practices instead outlines five principles of fair use, one having particular implications for teachers and students that will be outlined below, and invite educators to think about copyright and fair use through a new lens: transformative use.

What is Transformative Use?

The key to applying fair use is understanding the concept of “transformative” use, and Hobbs argues that this is central to the fair use provision of United States Copyright Law. Educators are probably familiar with the “four factors” of fair use, which, according to Wikipedia’s article on Fair Use, include:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work. (Wikipedia, n.d.)

These are the factors that have guided the construction of many of the copyright guides noted above. But, there is more to fair use than just determining whether the use of a work aligns with these four principles.

For Hobbs, wrapping our heads around the concept of transformative use is essential if we are to truly understand when and how to apply fair use in our own work and, more importantly, if our students are to apply it to their own work. In order for us to use copyrighted materials, we need to apply a set of reasoned questions about how and why we are using the work.

In short, to use copyrighted materials under fair use provisions, the benefit to society needs to outweigh the costs to the copyright holder. If a copyrighted work is simply retransmitted, then it is a violation of copyright law. But, if the user “transforms” the material in some way, repurposing it in a new media composition, for instance, then fair use likely applies. Again, to quote from the Code of Best Practices, there are two central questions to ask about transformative use:

  • Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?
  • Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use? (p. 7 in PDF)

If we as educators can invite our students to think critically about their use of copyrighted materials in the process of creating their own digital compositions, and help them understand what it means to build on the work of another in a transformative way, then we can open up thought-provoking discussions about how we compose in the 21st century. One particular principle from the Code of Best Practices, and a tool developed by Hobbs and her colleagues, invites us to do just that.

Inviting Students to Compose Multimedia with Fair Use in Mind

Five principles are outlined in the Code of Best Practices, including discussions of how to create curricular materials and distribute students' work. One of particular importance to teachers who are asking students to compose multimedia texts is Principle Four: “Student Use of Copyrighted Materials in Their Own Academic and Creative Work.” It states:

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. (p. 13 in PDF)

This principle encourages teachers and students to think about how they can repurpose existing media for their own compositions. However, it is not an excuse for simply copying and pasting the work of others, or taking it whole without changing it in any way from the original. Both are a violation of the law as well as the norms of academic honesty. In fact, the principle goes on to state that “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” (p. 14 in PDF).

The key to transformative use is thinking critically about how the original material is employed in the new work, and Hobbs argues that getting to deeper questions about how and why to use copyrighted work is where teachers can help their students most. “Most teachers know how to deepen a conversation through asking the ‘why’ question,” she states, and she invites teachers to listen, probe, pair up critical friends, and teach students to support and challenge each other as they think about using copyrighted work. Hobbs and her colleagues and the Media Education Lab have created a thinking guide for reasoning fair use, and encourage students to think about each media element that they repurpose and how it aligns with fair use guidelines. 

This process of critical engagement is important in developing a strong classroom community, and in creating media-savvy students. “Teachers give students the power to bring their lived experience with mass media, popular culture, and digital media into the room and students feel valued,” believes Hobbs. Because contemporary media culture does not typically show a respect for civil dialogue, she continues, we have to really practice how to create a respectful learning environment. “Students can learn to reflect on each other’s work when they are invited to offer feedback and when we teach about how to offer feedback to help them develop those skills where we can model disagreeing respectfully.” One strategy she employs, for instance, is to have students take guided notes as they listen and respond to each other's projects.

Thus, Hobbs suggests that teachers design projects that connect school skills -- such as critical thinking, participating, questioning, composing -- to something personally meaningful in students' lives from outside of school. Rarely do they get to compare and contrast the lived experience of popular culture with academic culture, and teaching them to create their own media, and examine copyright implications in the process, allows them to do so. This process can be “really powerful because of the way it taps into students’ own expertise and knowledge,” she concludes.

Given that students are creating products, this inevitably leads to questions about assessment. Hobbs believes that English teaches are well suited to the task, as we are always asking about audience, purpose, and whether a writer's use of rhetorical devices helps him or her reach a goal. She strongly believes that we need to measure more than the superficial qualities of form and dig deeper into understanding how and why students are repurposing and creating content in new ways. “There is a form/content dynamic. If all we assess is the form, then we are doing students a disservice. We can’t just assess the prettiness of the work, we need to assess the content of the work.” In short, don't just count words, slides, or images used, but engage your students in broader discussions about the purpose, audience, and effectiveness of their work.

Continuing to Transform: Next Steps for Teachers

Hobbs and her colleagues have created a variety of resources for teachers to use related to fair use. First, the Media Education Lab has a variety of multimedia materials and lesson plans for teachers to explore and use with their students. Filled with lesson plans, informational videos, and other multimedia curriculum resources, this website is the first stop for teachers who are considering how to incorporate copyrighted material into their own work, as well as for students who may use copyrighted work in their own new media compositions. One particular video, User’s Rights, Section 107 by Michael Robb Grieco, highlights the ways in which transformative use works, all to the tune of an upbeat alternative rock song.

Other resources include two wikis. A consistently updated wiki, The End of Copyright Confusion, shares resources related to presentations about Code of Best Practices. Also, award-winning librarian and edublogger Joyce Valenza has a set of resources for copyright friendly works available on her Copyright Friendly wiki. Hobbs and Valenza both encourage teachers to learn more about the Creative Commons license and how students can build on the work of others -- as well as share their own -- in ways that extend the rights of owners and users of copyrighted work. Understanding the difference between works that are copyrighted, public domain, copyright friendly, and Creative Commons licensed can help students make good choices about how to find and integrate the materials of others into their own work, as well as make choices about how they want to license their own materials.

Finally, in addition to the Media Education Lab website and the wikis, one other web-based resource can provide teachers with an introduction to these concepts. By listening to the Teachers Teaching Teachers episode, “Opening Up to Fair Use,” with an interview from Peter Jaszi, teachers can become familiar with the idea of fair use and gain insights with Jaszi's brief overview of the Code of Best Practices.

As we invite students to create new media compositions, and use existing copyrighted materials to do so, we need approach their work with the critical lens that fair use allows. Through discussions of fair use and the transformative nature of their own work, we ask them to be critical and creative thinkers, engaging them in discussions with one another about the ways in which they remix the work of others. Also, we need to reiterate that fair use does not mean unlicensed distribution of copyrighted materials. Teaching our students how to repurpose copyrighted materials in a transformative manner is the essence of applying fair use guidelines, and is an imperative skill when teaching them how to compose with new media.

The concept of fair use has the power to transform our teaching in a digital age, and both we and our students will be better readers, writers, and thinkers when we adopt a fair use approach in our classrooms.

Author Information
Troy Hicks
CCCC-IP K-12 Representative
Assistant Professor of English
Director, Chippewa River Writing Project
Central Michigan University

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