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.
Jeff Johnson on 01 Apr 09Although the First Amendment may appear unconditional on its face, the right to speak and write freely has never been absolute. Intellectual property rights often prevail over an author's "creative license." The main benefit of copyright, for example, is the right to exclude others from making copies of a work (or any part of it) without permission. By protecting an author's expression, copyright guarantees that authors and other creators, derive financial benefits from their work. If you intend to use someone's copyrighted work, unless the use is considered a "fair use" (which is technically a defense to copyright infringement), you must obtain that person's written permission. Under federal law, only the copyright owner or someone acting with the owner's authority, such as a publisher, can grant that permission. Without written permission, you expose yourself to legal risks. While not every unauthorized use of a copyrighted work is an infringement, whenever you include another person's words, illustrations, photographs, charts or graphs in a work you publish, you must be sensitive to the risk of infringing someone's copyright. What follows are some common copyright permission myths.
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