Can My Students Use Copyrighted Materials in

their Writing?

Renee HobbsMedia Education LabTemple University, Philadelphia PANational Writing Project Conference, November 18, 2010

PEER-TO-PEER FILE SHARING

Why creative people value copyright law

When you and your students can use copyrighted materials without payment or permission under some circumstances

When you and your students should ask permission or pay a license fee to use copyrighted materials

How the law adapts to changes in society and changes in technology

Supported with a grant from the John D. and Catherine T.

MacArthur Foundation

Critical Thinking, Reflection & Ethics

Using Technology Tools Well

Self-Expression & Creativity

Teamwork & Collaboration

Digital and Media Literacy

---- ACCESS ----- ANALYZE ----- CREATE ---- REFLEC T----- ACT

http://youthvoices.net

ILLUSTRATION

1. Develop a piece of writing2. Create or select a relevant image to accompany it3. Use principles of graphic design to create a pleasing composition

that includes a headline, text and image4. Share with others and get feedback5. Revise and publish

ILLUSTRATION

1. Develop a piece of writing2. Create or select a relevant image to accompany it3. Use principles of graphic design to create a pleasing composition

that includes a headline, text and image4. Share with others and get feedback5. Revise and publish

What makes this an effective learning experience for students

DIGITAL STORYTELLING

1. Develop a story, often in a collaborative process where feedback is provided2. Compose a script. 3. Make an audio recording if desired.3. Create or select images and sequence them in relation to the story4. Use editing to assemble audio, text and images, adding music or transitions5. Share final project with an authentic audience

CRITICAL ANALYSIS

1. Select a media text and actively interpret it, often within a small group experience where diverse interpretations are valued

2. Use the writing process to develop an argument3. Gather information from a variety of sources to develop ideas4. Combine text and images5. Present or publish

STUDENTS USE COPYRIGHTED MATERIALS IN COMPOSITION

IllustrationDigital StorytellingCritical Analysis

What is the purpose of

To promote creativity, innovation and the spread of knowledge

Article 1 Section 8U.S. Constitution

EVERYTHING IS COPYRIGHTED

Creative ControlThe Copyright Act grants five rights to a copyright owner:

1. the right to reproduce the copyrighted work;

2. the right to prepare derivative works based upon the work;

3. the right to distribute copies of the work to the public;

4. the right to perform the copyrighted work publicly; and

5. the right to display the copyrighted work publicly.

LOVE HATE

Copyright law enables people to profit from their creativity

LOVE HATE

Violating Copyright Can Be ExpensiveThe Copyright holder may receive statutory damages for all infringements involved in the action… not less than $750 or more than $30,000 as the court considers just. [...] When infringement was committed willfully, the court in its discretion may increase

the award of statutory damages to a sum of not more than $150,000."

Copyright law enables people to profit from their creativity

LOVE HATE

EVERYTHING IS COPYRIGHTED

…but there are exceptions

--Section 107Copyright Act of 1976

The Doctrine of Fair Use

For purposes such as criticism, comment,

news reporting, teaching (including multiple copies for classroom use),

scholarship or research

The Doctrine of Fair Use“It not only allows but encourages socially beneficial uses of copyrighted works such as teaching, learning, and scholarship. Without fair use, those beneficial uses— quoting from copyrighted works, providing multiple copies to students in class, creating new knowledge based on previously published knowledge—would be infringements. Fair use is the means for assuring a robust and vigorous exchange of copyrighted information.”

--Carrie Russell, American Library Association

Copyright Law Adapts to Changes in Technology and Society

Why do students use images in their writing?

PERSONAL USE

PROMOTIONAL USE

EDUCATIONAL USE

PUBLIC USE

Why do students use images in their writing?Which uses are protected by fair use?

PERSONAL USE

PROMOTIONAL USE

EDUCATIONAL USE

COMMERCIAL USE

Students need to ask permission & pay a license fee to use copyrighted material when using copyrighted materials for promotional or advertising purposes

Bill Graham Archives vs. Dorling Kindersley, Ltd. (2006)

An Example of Transformative Use

The purpose of the original: To generate publicity for a concert.

The purpose of the new work: To document and illustrate the concert events in historical context.

Educators Can Rely on Fair Use

National Council of Teachers of English (NCTE) has adopted the “Code of Best Practices in Fair Use for Media Literacy Education” as its official policy on fair use

http://www.ncte.org/positions/statements/fairusemedialiteracy

Educators can:

1. make copies of newspaper articles, TV shows, and other copyrighted works and use them and keep them for educational use

2. create curriculum materials and scholarship with copyrighted materials embedded

3. share, sell and distribute curriculum materials with copyrighted materials embedded

Learners can:

4. use copyrighted works in creating new material

5. distribute their works digitally if they meet the transformativeness standard

Five Principles Code of Best Practices in Fair Use

Using Copyrighted Materials in Creative Work

. CASE 1. A student uses an image of John Lennon in a class assignment where he discusses how musicians share their political beliefs with their fans.

CASE 2. Students use an image of John Lennon on the cover of their high school literary magazine, entitled “Peace Out.”

Is Your Use of Copyrighted Materials a Fair Use?

1. 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?

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

PRINCIPLE 4: STUDENTS CAN USE COPYRIGHTED MATERIAL IN THEIR OWN CREATIVE WORKBecause media literacy education cannot thrive unless learners themselves have the opportunity to learn about how media functions at the most practical level, 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.LIMITATIONS: Students’ use of copyrighted material should not be a substitute for creative effort. Students should be able to understand and demonstrate, in a manner appropriate to their developmental level, how their use of a copyrighted work repurposes or transforms the original. For example, students may use copyrighted music for a variety of purposes, but 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. Again, material that is incorporated under fair use should be properly attributed wherever possible. 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.

Sharing Creative Work Online

.

CASE 1. A student uses “Little Mermaid” image in her personal blog writing about her childhood memories.

CASE 2. A student uses a “Little Mermaid” image in her online fan fiction about the sexual adventures of Ariel.

Is Your Use of Copyrighted Materials a Fair Use?

1. 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?

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

PRINCIPLE 5: DEVELOPING AUDIENCES FOR STUDENT WORK. Educators should work with learners to make a reasoned decision about distribution that reflects sound pedagogy and ethical values. 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.

LIMITATIONS: Educators and learners in media literacy often make uses of copyrighted works outside the marketplace, for instance in the classroom, a conference, or within a school-wide or district-wide festival. When sharing is confined to a delimited network, such uses are more likely to receive special consideration under the fair use doctrine.

Especially in situations where students wish to share their work more broadly (by distributing it to the public, for example, or including it as part of a personal portfolio), 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. In particular, 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. The ethical obligation to provide proper attribution also should be examined. And students should be encouraged to understand how their distribution of a work raises other ethical and social issues, including the privacy of the subjects involved in the media production.

Exercising Your Fair Use ReasoningInvolves Critical Thinking

MAKING A FAIR USE DETERMINATION USING THE WRITING & DISCUSSION PROCESS

1. View a sample of student-produced media texts2. Respond in writing to one text using reasoning to make a fair use determination3. Discuss and share ideas in a small group

Communities of Practice Assert Their Fair Use Rights

1. RIPPING. Criminalizes the use of technology, devices, or services intended to circumvent digital rights management (DRM) software that controls access to copyrighted works.

2. ONLINE TAKEDOWNS. Protects Internet Service Providers against copyright liability if they promptly block access to allegedly infringing material (or remove such material from their systems) if notified by copyright holder; offers a counternotification provision if use is exempted under fair use

Digital Millennium Copyright Act of 1998

The Results of our Advocacy

Users may unlock DVDs protected by the Content Scrambling System when circumvention is for the purpose of criticism or comment using short sections, for educational, documentary or non-profit use.

PEER-TO-PEER FILE SHARING

Why creative people value copyright law

When you and your students can use copyrighted materials without payment or permission under some circumstances

When you and your students should ask permission or pay a license fee to use copyrighted materials

How the law adapts to changes in society and changes in technology

http://mediaeducationlab.com

Wikispaces Online Community

http://copyrightconfusion.wikispaces.com

http://mediaeducationlab.com/copyright

Contact:

Renee HobbsTemple UniversityMedia Education LabPhiladelphia PA

Email: renee.hobbs@temple.eduPhone: (215) 204-3255Twitter: reneehobbsWeb: http://mediaeducationlab.com