Last Friday, I was honored to represent TMS at a small group discussion between 18 educators and media literacy consultants to discuss fair use in media education at The Academy for Educational Development in Manhattan.
The event was a follow up to the release of The Cost of Copyright Confusion for Media Literacy (PDF), the first report of The Center for Social Media’s (CSM) attempt to develop a national “code of practices” to allow media literacy educators to develop curricula without fear of legal action, which I was interviewed for last spring. The discussion has me feeling pretty confident moving forward about how TMS deals with copyrighted material in our collaborative production work.
Co-hosts Peter Jaszi and Renee Hobbs explained how copyright law is
generally education friendly through its exemptions for educational use
of copyrighted material stated in Section 110.
What their study has revealed, however, is significant confusion over
how educational uses that are not exempt by §110 can be justified
through the “fair use doctrine“. They found that this confusion gets in the way of teaching critical thinking and media literacy, and through this study, they aim to provide some clarity for educators who use copyrighted materials for educational purposes. To those ends, they encouraged our panel to put aside what we knew about the law and simply consider whether a few hypothetical uses of copyrighted materials in the classroom were “fair”. As we weighed in on these carefully constructed scenarios, I couldn’t help but compare each of them to TMS and begin thinking through the defense of our practices.
Is TMS “fair” to the copyright owners of materials our producers use?
Over the years, we have allowed our students to incorporate copyrighted materials in our collaborative productions — usually soundtrack music, or digital images from the Internet within a video or blog post. Since many of our productions are posted to the TMS production archive, we’ve always been a little worried about the possibility of a copyright owner coming after us. However, we’ve justified this use to ourselves, without certainty, as educational and in no significant way affecting the commercial value of the works our kids use.
TMS productions are not dependent on one particular piece of media or another — their value is in the transformative learning opportunities we focus on during the production process.
However willing we’ve been to risk using copyrighted material in our productions, we have not been confident advising other educators to take this potential risk — and with all of the educational blogging we’ve been supporting, it’s becoming more of an issue. After Friday’s discussion, I’m confident that what we’re doing falls under both §110, and the fair use doctrine through the “transformative” nature of the TMS production process. Determining whether an educator repurposes, or transforms the initial purpose of a copyrighted work is the legal master test for claiming fair use according to Jaszi. By teaching what effect the presence (or absence) of any piece of media might have on an audience during the construction of a message, our use of copyrighted materials within our production process transforms their purpose from commercial to educational.
If the artist Madlib, of Stones Throw Records,* threatened to sue us for copyright infringement for exhibiting a 12 year old’s video using his music, it would not take away from the valuable critical perspective on media that our students gained through the production process. In fact, the replacement of the Madlib track would provide another opportunity to demonstrate the effect of music on video productions.
Once posted to our website, student productions are accompanied by support resources and offered to the educational community. If an educator out there uses our resources to teach critical thinking skills informed by our shared production experience, and they decide that a Madlib track is right for their piece, they’ll have to go buy one.
As we await the release of CSM’s best practices guide, with all due respect to copyright owners, I plan to continue using copyrighted material fairly when it supports the teaching of media literacy.
* Madlib is a DJ that creates music from a diverse range of sampled sources that often conjures up a lot of imagery — it’s great stuff for video editors to play with, and I’m thankful for it!