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  • 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.
  • 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
  • This code of best practices does not tell you the limits of fair use rights.
  • ...51 more annotations...
  • 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 twenty-first century.
  • Media literacy education helps people of all ages to be critical thinkers, effective communicators, and active citizens.
  • 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.
  • 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 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
  • 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.
  • 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.
  • 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.
  • 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
  • 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?
  • 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.
  • 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.
  • many publications for educators reproduce the guidelines uncritically, presenting them as standards that must be adhered to in order to act lawfully.
  • Experts (often non-lawyers) give conference workshops for K–12 teachers, technology coordinators, and library or media specialists where these guidelines and similar sets of purported rules are presented with rigid, official-looking tables and charts.
  • this is an area in which educators themselves should be leaders rather than followers. Often, they can assert their own rights under fair use to make these decisions on their own, without approval.
  • ducators should share their knowledge of fair use rights with library and media specialists, technology specialists, and other school leaders to assure that their fair use rights are put into institutional practice.
  • Through its five principles, this code of best practices identifies five sets of current practices in the use of copyrighted materials in media literacy education to which the doctrine of fair use clearly applies.
  • When students or educators use copyrighted materials in their own creative work outside of an educational context, they can rely on fair use guidelines created by other creator groups, including documentary filmmakers and online video producers.
  • In all cases, a digital copy is the same as a hard copy in terms of fair use
  • When a user’s copy was obtained illegally or in bad faith, that fact may affect fair use analysis.
  • Otherwise, of course, where a use is fair, it is irrelevant whether the source of the content in question was a recorded over-the-air broadcast, a teacher’s personal copy of a newspaper or a DVD, or a rented or borrowed piece of media.
  • The principles are all subject to a "rule of proportionality." Educators’ and students’ fair use rights extend to the portions of copyrighted works that they need to accomplish their educational goals
  • Educators use television news, advertising, movies, still images, newspaper and magazine articles, Web sites, video games, and other copyrighted material to build critical-thinking and communication skills.
  • nder fair use, educators using the concepts and techniques of media literacy can choose illustrative material from the full range of copyrighted sources and make them available to learners, in class, in workshops, in informal mentoring and teaching settings, and on school-related Web sites.
  • Whenever possible, educators should provide proper attribution and model citation practices that are appropriate to the form and context of use.
  • Where illustrative material is made available in digital formats, educators should provide reasonable protection against third-party access and downloads.
  • Teachers use copyrighted materials in the creation of lesson plans, materials, tool kits, and curricula in order to apply the principles of media literacy education and use digital technologies effectively in an educational context
  • Wherever possible, educators should provide attribution for quoted material, and of course they should use only what is necessary for the educational goal or purpose.
  • Educators using concepts and techniques of media literacy should be able to share effective examples of teaching about media and meaning with one another, including lessons and resource materials.
  • fair use applies to commercial materials as well as those produced outside the marketplace model.
  • curriculum developers should be especially careful to choose illustrations from copyrighted media that are necessary to meet the educational objectives of the lesson, using only what furthers the educational goal or purpose for which it is being made.
  • Curriculum developers should not rely on fair use when using copyrighted third-party images or texts to promote their materials
  • 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
  • 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.
  • Students’ use of copyrighted material should not be a substitute for creative effort
  • how their use of a copyrighted work repurposes or transforms the original
  • 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.
  • 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.
  • Students who are expected to behave responsibly as media creators and who are encouraged to reach other people outside the classroom with their work learn most deeply.
  • . In some cases, widespread distribution of students’ work (via the Internet, for example) is appropriate. If student work that incorporates, modifies, and re-presents existing media content meets the transformativeness standard, it can be distributed to wide audiences under the doctrine of fair use.
  • educators should take the opportunity to model the real-world permissions process, with explicit emphasis not only on how that process works, but also on how it affects media making.
  • educators should explore with students the distinction between material that should be licensed, material that is in the public domain or otherwise openly available, and copyrighted material that is subject to fair use.
  • ethical obligation to provide proper attribution also should be examined
  • Most "copyright education" that educators and learners have encountered has been shaped by the concerns of commercial copyright holders, whose understandable concern about large-scale copyright piracy has caused them to equate any unlicensed use of copyrighted material with stealing
  • This code of best practices, by contrast, is shaped by educators for educators and the learners they serve, with the help of legal advisors. As an important first step in reclaiming their fair use rights, educators should employ this document to inform their own practices in the classroom and beyond.
  • Many school policies are based on so-called negotiated fair use guidelines, as discussed above. In their implementation of those guidelines, systems tend to confuse a limited "safe harbor" zone of absolute security with the entire range of possibility that fair use makes available.
  • Using an appropriate excerpt from copyrighted material to illustrate a key idea in the course of teaching is likely to be a fair use, for example.
  • Indeed, the Copyright Act itself makes it clear that educational uses will often be considered fair because they add important pedagogical value to referenced media objects
  • So if work is going to be shared widely, it is good to be able to rely on transformativeness.
  • We don’t know of any lawsuit actually brought by an American media company against an educator over the use of media in the educational process.
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