Adopted by the NCTE Executive Committee, November 2008
By: National Association for Media Literacy Education (NAMLE), Student Television Network (STN), Media Commission of the National Council of Teachers of English (NCTE), Action Coalition for Media Education (ACME), and Visual Communication Division of the International Communication Association (ICA)
WHAT THIS IS
This document is a code of best practices that helps educators using media literacy concepts and techniques to interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances – especially when the cultural or social benefits of the use are predominant. It is a general right that applies even in situations where the law provides no specific authorization for the use in question – as it does for certain narrowly defined classroom activities.
This guide identifies five principles that represent the media literacy education community’s current consensus about acceptable practices for the fair use of copyrighted materials, wherever and however it occurs: in K-12 education, in higher education, in non-profit organizations that offer programs for children and youth, and in adult education.
WHAT THIS ISN’T
This code of best practices does not tell you the limits of fair use rights. Instead, it describes how those rights should apply in certain recurrent situations. Educators’ and students’ fair use rights may, of course, extend to other situations as well.
It’s not a guide to using material that people give the public permission to use, such as works covered by Creative Commons licenses. Anyone can use those works the way their owners authorize – although other uses also may also be permitted under the fair use doctrine. Likewise, it is not a guide to the use of material that has been specifically licensed (by a school, for example), which may be subject to contractual limitations.
It’s not a guide to material that is already free to use without considering copyright (copyright.cornell.edu/public_domain/). For instance, all federal government works are in the public domain, as are many older works. For more information on "free use," consult the document "Yes, You Can!" (centerforsocialmedia.org/files/pdf/free_use.pdf).
It’s not a guide to using material that someone wants to license but cannot trace back to an owner—the so-called "orphan works" problem. However, orphan works are also eligible for fair use consideration, according to the principles detailed below.
And it does not address the problems created by the 1998 Digital Millennium Copyright Act, which creates barriers to otherwise lawful fair uses of copyrighted materials that are available only in formats that incorporate technological protections measures (such as encryption).
HOW THIS DOCUMENT WAS CREATED
This code of best practices was created by convening ten intensive half-day meetings with more than 150 members of leading educational associations and other educators in cities across the United States. The process was coordinated by Profs. Renee Hobbs (Media Education Lab, Temple University), Peter Jaszi (Program on Information Justice and Intellectual Property, Washington College of Law, American University) and Patricia Aufderheide (Center for Social Media, American University). The code of best practices was reviewed by a committee of legal scholars and lawyers expert in copyright and fair use. (Consult page XX for a complete list.)
MEDIA LITERACY EDUCATION
Media literacy is the capacity to access, analyze, evaluate, and communicate messages in a wide variety of forms. This expanded conceptualization of literacy responds to the demands of cultural participation in the 21st century. Like literacy in general, media literacy includes both receptive and productive dimensions, encompassing critical analysis and communication skills, particularly in relationship to mass media, popular culture, and digital media. Like literacy in general, media literacy is applied in a wide variety of contexts – when watching television or reading newspapers, for example, or when posting commentary to a blog. Indeed, media literacy is implicated everywhere one encounters information and entertainment content. And like literacy in general, media literacy can be taught and learned.
Media literacy education may occur as a separate program or course but often it is embedded within other subject areas, including literature, history, anthropology, sociology, public health, journalism, communication, and education. It can occur in formal educational settings in both K-12 education and at the university level, as well as in non-profit community-based programs. Its content may vary as well – from lessons designed to expose the mechanics of how language, images, sound, music, and
graphic design operate as symbolic forms for transmitting meanings to exercises designed to reinforce these understandings through hands-on media-making.
Media literacy education distinctively features the analytical attitude that teachers and learners, working together, adopt toward the media objects they study. The foundation of effective media analysis is the recognition that:
- All media messages are constructed.
- Each medium has different characteristics, strengths, and a unique language of construction.
- Media messages are produced for particular purposes.
- All media messages contain embedded values and points of view.
- People use their individual skills, beliefs and experiences to construct their own meanings from media messages.
- Media and media messages can influence beliefs, attitudes, values, behaviors, and the democratic process.
Making media and sharing it with listeners, readers, and viewers is essential to the development of critical thinking and communication skills. Feedback deepens reflection on one’s own editorial and creative choices, and helps students grasp the power of communication.
USE OF MEDIA IN EDUCATION vs. MEDIA LITERACY EDUCATION
Teachers have always used texts, now including audiovisual and digital material, to convey facts and information. From time to time, the school is also a venue for entertainment, as when a film is screened to reward the class. These activities, however, are not media literacy education. Rather than transforming the media material in question, they use that content for essentially the same purposes for which it originally was intended – to instruct or to entertain. In many or even most cases, of course, these uses of media will not have significant copyright implications, either because the content in question has been licensed or because it is covered by one of the specific exemptions for teachers in Sections 110(1) and (2) of the Copyright Act (for "face-to-face" in the classroom and equivalent distance practices in distance education). Teachers involved in media literacy education may, of course, sometimes make use of licensed materials or take advantage of the provisions of Section 110. But this guide addresses another set of issues: the transformative uses of copyright materials in media literacy education that can flourish only with a robust understanding of fair use.
COPYRIGHT: A CONTENTIOUS CLIMATE
New norms of information sharing—file sharing, downloading, podcasting--are emerging at the very moment when copyright owners are attempting to capture new revenue streams from various sources including the "educational market." As documented in the report, "The Cost of Copyright Confusion for Media Literacy," (centerforsocialmedia.org/medialit) educators involved in media literacy feel uncertain in this new environment of heightened commodification. On the one hand, they sense that copyrighted material should be available for their activities and those of their learners, and that such availability has great social and cultural utility. But on the other, they are aware of the increased vigilance with which copyright owners are enforcing their rights. And their actual understanding of the subject is incomplete or even distorted. As a result, there is an increased climate of fear and confusion about copyright, which detracts from the quality of teaching. Lack of clarity reduces learning and limits the ability to use digital tools. Some educators close their classroom doors and hide what they fear is infringement; others hyper-comply with imagined rules that are far stricter than the law requires, limiting the effectiveness of their teaching and their students’ learning.
FAIR USE AND EDUCATION
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 delimited 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.
From the beginnings of fair use in the courts, judges have drawn the connection between this special doctrine of copyright law and the central importance of education in the American republic. The word "education" appears prominently in the preamble to Section 107 of the current Copyright Act, where the doctrine is codified. However, there have been no important court decisions – in fact, very few decisions of any kind – that actually interpret and apply the doctrine in an educational context. This means that educators who want to claim the benefits of fair use have a rare opportunity to be open and public about asserting the appropriateness of their practices and the justifications for them. This code is intended to support such assertions. It also means that educators seeking to arrive at a reasonable and balanced understanding of the doctrine, like the authors of this code, need to reason from first principles.
Law provides copyright protection to creative works in order to foster the creation of culture. Its best known feature is protection of owners’ rights. But copying, quoting and generally re-using existing cultural material can be, under some circumstances, a critically important part of generating new culture. In fact, the cultural value of copying is so well established that it is written into the social bargain at the heart of copyright law. The bargain is this: we as a society give limited property rights to creators to encourage them to produce culture; at the same time, we give other creators the chance to use that same copyrighted material, without permission or payment, in some circumstances. Without the second half of the bargain, we could all lose important new cultural work.
Copyright law has several features that permit quotations from copyrighted works without permission or payment, under certain conditions. Fair use is the most important of these features. It has been an important part of copyright law for more than 170 years. Where it applies, fair use is a user’s right. In fact, as the Supreme Court has pointed out, fair use keeps copyright from violating the First Amendment. New creation inevitably incorporates existing material. As copyright protects more works for longer periods than ever before, creators face new challenges: licenses to incorporate copyrighted sources become more expensive and more difficulty to obtain – and sometimes are simply unavailable. As a result, fair use is more important today than ever before.
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. Creative needs and practices differ with the field, with technology, and with time. Rather than following a specific formula, lawyers and judges decide whether an unlicensed use of copyrighted material is "fair" according to a "rule of reason." This means taking all the facts and circumstances into account to decide if an unlicensed use of copyrighted material generates social or cultural benefits that are greater than the costs it imposes on the copyright owner.
Fair use is flexible; it is not unreliable. In fact, for any particular field of critical or creative activity, lawyers and judges consider expectations and practice in assessing what is "fair" within that field. In weighing the balance at the heart of fair use analysis, judges refer to four types of considerations mentioned in the law: the nature of the use, the nature of the work used, the extent of the use, and its economic effect (the so-called "four factors"). This still leaves much room for interpretation, especially since the law is clear that these are not the only permissible considerations. So how have judges interpreted fair use? In reviewing the history of fair use litigation, we find that judges return again and again to two key questions:
- 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?
If the answers to these two questions are "yes," a court is likely to find a use fair. Because that is true, such a use is unlikely to be challenged in the first place.
Both key questions touch on, among other things, the question of whether the use will cause excessive economic harm to the copyright owner. Courts have told us that copyright owners aren’t entitled to an absolute monopoly over transformative uses of their works. By the same token, however, when a use supplants a copyright owner’s core market, it is unlikely to be fair. Thus, for example, a textbook author cannot quote large parts of a competitor’s book merely to avoid the trouble of writing her own exposition.
Another consideration underlies and influences the way in which these questions are analyzed: whether the user acted reasonably and in good faith, in light of general practice in his or her particular field. Media literacy educators’ ability to rely on fair use will be enhanced by this code of best practices, which will serve as evidence of commonly held understandings drawn from the experience of educators themselves and supported by legal analysis. Thus, the code helps to demonstrate the reasonableness of uses that fall within its principles.
Fair use is in wide and vigorous use today in many professional communities. For example, historians regularly quote both other historians’ writings and textual sources; filmmakers and visual artists use, reinterpret and critique copyright material, while scholars illustrate cultural commentary with textual, visual, and musical examples. Equally important is the example of commercial news media. Fair use is healthy and vigorous in daily broadcast television news, where references to popular films, classic TV programs, archival images, and popular songs are constant and routinely unlicensed.
In some cases professional communities have set forth their understandings in consensus documents, which may be useful to educators and learners if they are involved with these creative practices. For instance, documentary filmmakers have established their own code (centerforsocialmedia.org/fairuse); so have film scholars, who routinely use popular films in their teaching (dii4.com/documents/SCMSBestPracticesforFairUseinTeaching-Final.pdf); and now a code of best practices has been established for online video creators as well
(centerforsocialmedia.org/remix). Although professional groups create such codes, no one needs to be a member of a professional group to benefit from their interpretations. For instance, any one who does media literacy education, in any circumstances, can usefully employ this code’s principles.
Signatories: International Visual Literacy Association (IVLA), American Association of School Librarians (AASL), National Communication Association (NCA)