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Permission is not necessary to satisfy fair use.

Fair use is a doctrine within copyright law that allows use of copyrighted material for educational purposes without permission from the the owners or creators. It is designed to balance rights of users with the rights of owners by encouraging widespread and flexible use of cultural products for the purposes of education and the advancement of knowledge.

My new understanding: I learned on Friday night that the critical test for fairness in terms of educational use of media is transformative use. When a user of copyrighted materials adds value to, or repurposes materials for a use different from that for which it was originally intended, it will likely be considered transformative use; it will also likely be considered fair use. Fair use embraces the modifying of existing media content, placing it in new context.  Examples of transformativeness might include: using campaign video in a lesson exploring media strategies or rhetoric, using music videos to explore such themes as urban violence, using commercial advertisements to explore messages relating to body image or the various different ways beer makers sell beer, remixing a popular song to create a new artistic expression.

Long ago, I learned that educational use of media had to pass four tests to be appropriate and fair according to U.S. Code Title 17 107: the purpose and character of the use, including whether the use is commercial or nonprofit the nature of the use the amount of the use the effect of the use on the potential market for the copyrighted work.

--A Conversation about Media Literacy, Copyright and Fair Use--stirred up more cognitive disonance than I've experienced in years

the discussion was one of several to be held around the country designed to clear up widespread confusion and to: develop a shared understanding of how copyright and fair use applies to the creative media work that our students create and our own use of copyrighted materials as educators, practitioners, advocates and curriculum developers.

national code of practice

Jaszi points to Bill Graham Archives vs.Dorling Kindersley (2006) as a clear example of how courts liberally interpret fair use even with a commercial publisher.

The publisher added value in its use of the posters. And such use was transformative.

Here's what I think I learned on Friday about fair use: The Multimedia Fair Use Guidelines describe minimum rules for fair use, but were never intended as specific rules or designed to exhaust the universe of educational practice.  They were meant as a dynamic, rather than static doctrine, supposed to expand with time, technology, changes in practice.  Arbitrary rules regarding proportion or time periods of use (for instance, 30-second or 45-day rules) have no legal status.  The fact that permission has been sought but not granted is irrelevant.  Permission is not necessary to satisfy fair use. Fair use is fair use without regard to program or platform. What is fair, because it is transformative, is fair regardless of place of use. If a student has repurposed and added value to copyrighted material, she should be able to use it beyond the classroom (on YouTube, for instance) as well as within it.  Not every student use of media is fair, but many uses are. One use not likely to be fair, is the use of a music soundtrack merely as an aesthetic addition to a student video project. Students need to somehow recreate to add value.  Is the music used simply a nice aesthetic addition or does the new use give the piece different meaning? Are students adding value, engaging the music, reflecting, somehow commenting on.the music? Not everything that is rationalized as educationally beneficial is necessarily fair use.  For instance, photocopying a text book because it is not affordable is still not fair use.

Copyright law is friendlier to good teaching than many teachers now realize. Fair use is like a muscle that needs to be exercised.  People can't exercise it in a climate of fear and uncertainty

Cognitive tools actively engage learners in creation of knowledge that reflects their comprehension and conception of the information rather than focusing on the presentation of objective knowledge.

Constructivist models of instruction strive to create environments where learners actively participate in the environment in ways that are intended to help them construct their own knowledge, rather than having the teacher interpret the world and insure that students understand the world as they have told them.

Computers support reflective thinking, Norman contends, when they enable users to compose new knowledge by adding new representations, modifying old ones, and comparing the two. Those are the purposes of cognitive tools.

In other words, when students work WITH computer technology, instead of being controlled by it, they enhance the capabilities of the computer, and the computer enhances their thinking and learning. The results of an intellectual partnership with the computer is that the whole of learning becomes greater than the sum of its parts.

Learners should be responsible for recognizing and judging patterns of information and then organizing it, while the computer system should perform calculations, store, and retrieve information.

what to do with all of the instructional designers...

1. List the key concepts you are trying to convey in the 60-minute lecture. That series of phrases will form the core of your microlecture. 2. Write a 15 to 30-second introduction and conclusion. They will provide context for your key concepts. 3. Record these three elements using a microphone and Web camera. (The college information-technology department can provide advice and facilities.) If you want to produce an audio-only lecture, no Webcam is necessary. The finished product should be 60 seconds to three minutes long. 4. Design an assignment to follow the lecture that will direct students to readings or activities that allow them to explore the key concepts. Combined with a written assignment, that should allow students to learn the material. 5. Upload the video and assignment to your course-management software.

the microlecture format similarly requires teachers to get the key elements across in a very short amount of time. Most importantly, it forces educators to think in a new way.

Because nowhere in that talk

"If we just change it all up, the kids will all suddenly just start learning like crazy" when that misses several points -- 1) we still have an insanely anti-intellectual culture that is so much more powerful than schools. 2) Deep learning is still hard, and our culture is moving away from valuing things that are hard to do. 3) We still need teachers to teach kids thoughtfulness, wisdom, care, compassion, and there's an anti-teacher rhetoric that, to me, undermines that video's message.

We cannot pretend these ideas "save" our schools, they create different schools -- better ones, I believe -- but very, very different ones, and that's the piece I see missing.