Fair Use, Media and Education in the Digital Age

I was just watching a video at MIT World, titled “Copyright, Fair Use, and the Cultural Commons,” from MIT 5 earlier this year. After watching, “Documentary Filmmakers’ Statement of Best Practices in Fair Use,” played during the panel, I thought how powerful it would be to build a code of practice among educators with a particular focus on increasing access to teaching and learning materials in the digital age, similar to the current Copyright Confusion effort.

What’s so important about the Center for Social Media’s example is how it is moving outwards and being applied in sort of a step-wise fashion to other disciplines. This is a topic we discussed earlier this year at Berkman Center meeting in considering different concerns in a multi-disciplinary fashion. During our meeting, we also discussed how educators might join together to develop a similar statement in building an cross-institutional repository for open access educational material. There’s lots to learn from ongoing efforts in this area, including MIT’s OpenCourseWare, Connexions, Sakai, OER and many others.

I’m beginning my paper for this course and will be including a literature review on this topic. The paper builds on ideas found on this site and draws from resources on copyright, fair use, and open access in the digital age.

Following on the release of their 2005 “Documentary Filmmakers’ Statement of Best Practices in Fair Use,” the Center for Social Media and the Washington College of Law at American University teamed up with Temple University’s Media Education Lab to present a new report this fall on “The Cost of Copyright Confusion for Media Literacy.” The report hopes to bring together media literacy educators at the national level “to develop a code of practices” to articulate how fair use applies to their work (from the press release).

The study included interviews with “63 educators from K-12, university and college professors, and youth media professionals.” The project’s Co-Principal Investigators, Renee Hobbs, Peter Jaszi, and Pat Aufderheide reveal many different responses from educators about what they believe they can and can’t do under copyright law. Among other things, they found

“Teachers use less effective teaching techniques, teach and transmit erroneous copyright information, fail to share innovative instructional approaches, and do not take advantage of new digital platforms.”

Furthermore, the report shows that conservative statements on copyright policy created by academic institutions have created a culture of fear among educators that have made it difficult to use copyrighted material in the classroom. There are a number of cases in the report that exemplify this fear, including one that from a university professor who stopped “putting video clips of copyrighted material online,” even behind closed-walled (password-protected) course management systems because of “concerns about copyright violation.”

The Cost of Copyright Confusion reveals that the “pedagogical costs of studied ignorance, quiet transgression, and hyper-compliance are many.” In its conclusions and recommendations, the report states that media literacy educators need to take the first step and educate themselves “about the clear and unambiguous use rights” that copyright law provides. Second, the report shows

“There is an urgent need to develop and disseminate a code of practice for fair use of copyrighted material by media literacy educators, based on collective discussions about the ways in which educators actually do and reasonably could use such materials, consistent with the law.”

On October 26, I was fortunate to have had the opportunity to attend a meeting in Boston with Renee Hobbs and Peter Jaszi, along with a small group of media educators, media producers, librarians and others in this effort towards building a “code of practice.” I look forward to following the progress of their work. When released, this statement of best practices should be an invaluable contribution to media literacy education in the digital age.

Admittedly, through my employment at Berkman Center for Internet & Society, I’ve learned a great deal from the people and projects concerned with many of the complex challenges facing teachers and students in the digital age. However, I did not think that I would have the opportunity, one year later, to focus on these issues for this study. In preparing for this week’s assignment, I found it incredibly useful to not only review the Berkman Center’s Digital Learning Challenge White Paper, but also the two podcasts that I had the incredible opportunity to produce with Amanda Michel. This is a full disclosure of my interest in this study. However, over the past two months, I’ve learned a great deal here which has given me new insights into the issues involved. For this post, I will attempt to highlight a few examples from the Digital Learning Challenge that contribute significantly to this study. In particular, I wanted to focus on the last section, which introduces some possibilities for reform within this practice.

First, some background. The Digital Learning Challenge, written by William Fisher and former Berkman Fellow, William McGeveran and completed in 2006 was funded by a grant from the Andrew W. Mellon Foundation. Through its four case studies, and drawing from “comments made by a cross-section of scholars, lawyers, librarians, educators” the paper explains the following as “the most significant copyright-related obstacles to educational uses of copyrighted material”:

• Unclear or inadequate copyright law relating to crucial provisions such as fair use and educational use;
• Extensive adoption of “digital rights management” technology to lock up content;
• Practical difficulties obtaining rights to use content when licenses are necessary;
• Undue caution by gatekeepers such as publishers or educational administrators

In its comments on the Teach Act and classroom boundaries in the digital age (as I wrote in my last post), the paper reiterates that “its coverage may represent no more than a modest update of the ‘face-to-face teaching’ standard under the classroom use exception.” The paper goes on to say that DRM presents further boundaries to sharing copyrighted material within and across educational online spaces. And as seen in the cases of New World Records and WGBH, burdens of copyright clearance process can create serious financial and other obstacles to those interested in sharing educational resources in the digital age.

In the final section of the Digital Learning Challenge, the paper presents what it sees as “Potential Paths Towards Reform.” And as Bill McGeveran states in the Berkman Center podcast, these paths are not intended to be “solutions,” but rather guidelines in thinking about “what are the best ways to move forward.” Furthermore, as the paper reminds its readers

It is important to restate here a recurring theme running throughout the white paper: the regime governing educational use of content, like all of copyright, requires balance . . . Copyright exists to ensure content providers are rewarded for their efforts. And the special incentives for creation of academic content do not apply to material aimed at a more traditionally commercial market thata is nonetheless important for educators to use . . . Solutions, therefore, must maintain — or perhaps more accurately, restore — the appropriate balance.

That said, the paper explains that legal reforms; greater reliance on technology to ease the clearance process; agreements among educators and others on standards and best practices; and encouraging open licensing models, such as Creative Commons, for copyright holders are among the four key paths moving forward.

One of the most interesting reminders from the paper, is that practitioners in this area often look first to the courts to provide them with guidelines for acceptable practice among academic and other educational institutions. However, the challenge is that there is little precedence to use in determining these guidelines. Therefore, as educational policy-makers work towards developing frameworks for educational sharing of copyrighted material in the digital age, more often than not, they will arrive at extremely conservative positions, in fear of “potential” legal backlash.

In response, the paper explains that changes in practice among copyright holders, within educational institutions and our legal system, will help to increase opportunities for technological innovation and further opportunities for sharing access to educational resources in the digital age.

This week, I reviewed two articles on the TEACH Act: “New Copyright Law for Distance Education: The Meaning and Importance of the TEACH Act” (PDF) by Kenneth D. Crews and a background paper prepared by the Berkman Center for Internet & Society, titled “The TEACH Act: The Impact of Copyright and Compromise on Digital Distance Education.”

Building on my previous studies in fair use, copyright law and its relationship to educational use of copyrighted materials, these two readings were helpful towards understanding how copyright law contributes towards determining the boundaries of the classroom in the digital age. A key focus in this study.

The Berkman Center’s background paper provides a concise history and background on the TEACH Act, including how concerns of copyright holders and those of “universities, libraries and online learning institutions” helped shape the legislation that was signed into law by the President on November 2, 2002. Crews’ article explains that

The new law offers many improvements over the previous version of Section 110(2), but in order to enjoy its advantages, colleges, universities, and other qualified educational institutions will need to meet the law’s rigorous requirements.

Among these requirements, Crews’ later mentions that the law only applies to “a government body or an accredited nonprofit educational institution” and not to “many private entities–such as for-profit subsidiaries of nonprofit institutions.” That said, there are many other requirements that institutional policymakers, information technology officials and instructors need to follow in order to comply with the law. These requirements help shed light on the boundaries of the classroom in the digital age with regard to use of copyrighted materials.

Crews’ writes that among the “duties of information technology officials” it is important that copyrighted works are only to be made available under the following requirements:

• Limited access to enrolled students
• Technological controls on storage and dissemination
• (No) Interference with technological measures (meaning that an institution may not interfere with digital rights management codes embedded in digitally transmitted works, etc.)
• Limited temporary retention of copies
• Limited long-term retention of copies

Here we can begin to see that the classroom boundaries defined by the TEACH Act begin to look very similar to the boundaries of the physical classroom, except that they are extending into closed virtual spaces and for limited periods. For example, an additional requirement includes that any displays of copyrighted work must be, as Crews writes, “in an amount comparable to that which is typically displayed in the course of a live classroom.” While this does appear to balance concerns of copyright holders and educators, it uses language similar to the restricted physical space of classroom.

In the concluding section of Berkman Center’s paper, it explains

Yet whether the TEACH Act ultimately will achieve its goals–maintaining a balance between interests of copyright holders and educators, encouraging the expansion of digital distance learning while maintaining adequate provisions for the markets of copyrighted materials–has yet to be functionally assessed.

Crews’ paper concludes with a short list of alternative routes that might also be considered in striking a balance between interests of copyright holders and educators. Among those are

• Employing alternative methods for delivering materials to students, including the expansion of diverse library services, as noted above
• Securing permission from the copyright owners for the use of materials beyond the limits of the law
• Applying the law of fair use, which may allow uses beyond those detailed in the TEACH Act

This week, I reviewed Kenneth D. Crews’ “Fair-Use: Overview and Meaning for Higher Education” (last update: 2000) and a Q&A with Peter Lyman published in Educom Review, titled “Copyright and Fair Use in the Digital Age” (1995). These articles were helpful to me in moving this study closer towards the domain in which it’s ultimately concerned. That is understanding when, how and why networked technologies create tension between copyright holders and those interested in using the intellectual property of others for teaching and learning in the digital age.

Crews reiterates the fact that “the law provides no clear and direct answers about the scope of fair use and its meaning in specific situations.” The Four Factors are instead meant as guidelines for determining whether or not a use is considered to be fair use (as mentioned earlier). He goes on to say that it’s important to “keep in mind that fair use requires weighing and balancing all four factors before reaching a conclusion,” which he breaks down as the purpose, nature, amount, and effect of the use in its analysis.

As I was reading this article, I began to consider these factors within the context of participatory platforms. More specifically, I thought about the meaning of “transformative” use and what happens when a copyrighted work is re-published on the web in a space where it’s being responded to, and ideas are added to it, by a wider audience. Does the use of the platform, and its potential value added by contributors, make the use of the original work transformative? Do we need a new framework for measuring fair use perhaps based on the degree to which people add knowledge to a copyrighted work through commons-based peer production?

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This past week, I read a number of articles on copyright and fair use from the U.S. Copyright Office, Stanford University Libraries, Reference & User Services Quarterly and the University of Texas. The purpose of this section is to provide an overview of fair use guidelines in order to move closer towards developing a framework for understanding fairness within the context of this study.

The U.S. Copyright Office states that Section 107 of the Copyright Act of 1976 “contains a list of the various purposes for which the reproduction of a particular work may be considered ‘fair,’ such as criticism, comment, news reporting, teaching, scholarship, and research.”

Stanford University Libraries writes that “Comment & Criticism” and “Parody” are the two main categories within which a fair use analysis of copyrighted works can be applied. In the first example, “The underlying rationale of this rule is that the public benefits from your review, which is enhanced by including some of the copyrighted material.” In this case, fair use allows you to “reproduce some of the work” without obtaining permission. A parody, on the other hand, allows for a “fairly extensive use of the original work.” However, the website makes clear that “there are no hard-and-fast rules” for applying a fair use analysis of copyrighted materials.

Section 107 provides guidelines, known as the “Four Factors,” upon which fair use of copyrighted materials are considered. The University of Texas explains these fair use factors in the following

1. What is the character of the use?
2. What is the nature of the work to be used?
3. How much of the work will you use?
4. What effect would this use have on the market for the original or for permissions if the use were widespread?

Stanford University Libraries, in their chapter on “Measuring Fair Use: The Four Factors” adds, “At issue is whether the material has been used to help create something new, or merely copied verbatim into another work.” Here, it is important that the use of copyrighted material is used with a “transformative” purpose. But as the website explains, “the only way to get a definitive answer on whether use is a fair use is to have it resolved in federal court.”

Here, yet again, the “presence of conflicting claims” plays an essential role in ultimately determining what is considered fair use and how we can understand fairness within the context of fair use and copyright law.

Moving away from my philosophical inquiry into the meaning of fairness, I am now turning my attention to 20th century communications law and policymaking. I’m beginning to take a look at what the Federal Communications Commission, our three branches of government, broadcasters, legal scholars, and activists (for and against the issue) each determined was fair, and unfair, about the Fairness Doctrine.

In reviewing this piece of communications legal history, I read the Fairness Doctrine: Controversial Issue in Broadcasting Policy (2004) by Steve Kang and The Fairness Doctrine: Benefits and Costs (1969) by Donald P. Mullally. There were two significant parts of the doctrine that applied to broadcasters, which Mullally succinctly describes in the following passage

The general fairness doctrine is the simple requirement that contrasting views be presented. The personal attack rules are those rules adopted in 1967, requiring notice, presentation of of a script or tape, and the offer of reply time to specific persons or groups.

Dating back to 1928, the Federal Radio Commission (now the FCC) stated that it was “a station licensee’s duty to present diverse views on public issues” (Kang, 563). Based on frequency spectrum scarcity upon which licenses were designated during this time, the FCC determined that the fairness doctrine was required for broadcasters to act in the public interest.

So what did fairness really mean in the fairness doctrine? As I explored in my last post, the “presence of conflicting claims” between the Mayflower Broadcasting Corp. and the FCC (1940) played a major role in determining what fairness meant in this case. The FCC determined that it was unfair for broadcasters to editorialize, eventually leading to the adoption of the fairness doctrine.

As Kang describes, the Supreme Court continued “to support the fairness doctrine’s constitutionality in its 1969 landmark decision in Red Lion Broadcasting v. FCC.” It determined that

“As long as demand for stations exceeded supply (the high sale price of stations was one such indicator), scarcity of spectrum remained, and thus allowed such FCC policies.” (564)

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In this space, I hope to extract some key concepts from John Rawls’ “Justice as Fairness” (snapshot above from JSTOR) that might later be applied towards reaching a definition, and measurement, of fairness in the digital age.

Rawls approaches a definition of justice by first looking at what equality means and separates it from its connection to justice. After determining the relationship between equality and justice, he then works towards a definition of fairness, through stating what constitutes a just practice and by describing what he means by fair play. It is at this point, that we can then begin to consider Rawls’ definition of fairness “as applied to practice” as I will discuss in greater detail by highlighting the following passages below.

Rawls explores the difference between justice and equality and the roles of each in the design and practice of social institutions. He explores the two by separating out what “sort of inequalities are permissible” (165) in this context.

An inequality is allowed only if there is reason to believe that the practice with the inequality, or resulting in it, will work for the advantage of every party engaging in it. Here it is important to stress that every party must gain from the inequality.” (167)

The key here is that each person, whether equal or not, must be equally involved and included in the deliberative process about a particular practice in order to best determine the rules from which each person involved will ultimately benefit. This statement builds upon my previous study of fairness in Plato’s Republic, when I wrote that “fairness is measured by the fact that all parties involved see the invitation as legitimate.” However, Rawls adds that the presence of “conflicting claims” is another key ingredient in determining the principles of justice in the design of practices.

Questions of justice arise when conflicting claims are made upon the design of a practice and where it is taken for granted that each person will insist, as far as possible, on what he considers his rights. It is typical of cases of justice to involve persons who are pressing one another their claims, between which a fair balance or equilibrium must be found.” (172)

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Up until now, I’ve been a bit confused about how best to approach the meaning of fairness in a thoughtful enough way to help inform this project. Again, this study is a further investigation into copyright law and its impact on the ability of teachers and students to share access to teaching and learning materials in the digital age. But after reading John Rawls’ “Justice as Fairness“, I believe I now have a much more solid foundation upon which to move ahead with this inquiry.

While I initially thought the jump from the Greeks to 20th century political philosophy was going to be great (while it still may be), Rawls’ essay was incredibly helpful to me in breaking down a number of important concepts that I had not yet sorted out; these being the differentiation between notions of Justice, Equality and Fairness. This reading not only helped me to gain a better understanding of these words, their meanings, and how they’ve been used, but it guided me closer towards finding a definition of fairness in the digital age.

I also want to point out that the wiki for this project was a very helpful tool for gathering quotes and parsing key concepts in the essay. This process allowed me to manipulate text and arrange my ideas in a much more configurable way than simply paper and pen would have allowed. This observation of educational uses of networked tools is also a key focus of this project (and my graduate program more broadly) in understanding their use and how others perceive and ultimately decide to use them or not as effective methods of online communication.

In my next post, I will present my analysis of “Justice as Fairness” and how certain concepts found within may help to provide a useful framework for approaching this study.

In Book IX of The Republic, Socrates deliberates with Glaucon on the virtues of man and State. After both agree that the rule of the king is “the very best” and the rule of the tyrant is “the very worst,” Socrates adds

“There can be no mistake, I said, as to which is which, and therefore I will at once enquire whether you would arrive at a similar decision about their relative happiness and misery. And here we must not allow ourselves to be panic-stricken at the apparition of the tyrant, who is only a unit and may perhaps have a few retainers about him; but let us go as we ought into every corner of the city and look all about, and then we will give our opinion.”

Glaucon responds

“A fair invitation, he replied; and I see, as every one must, that a tyranny is the wretchedest form of government, and the rule of a king the happiest.”

In this passage, fairness is measured by the degree to which both reach agreement. Which, in this case, is absolute. The virtue of a city is considered here within the context of extremes: tyranny = wretchedness and rule of king = happiness. Perhaps had there been a third person present who saw things another way, the invitation may not have been considered equally as fair. But, this is not the case. Therefore, fairness is measured by the fact that all parties involved see the invitation as legitimate.

Socrates continues

“And in estimating the men too, may I not fairly make a like request, that I should have a judge whose mind can enter into and see through human nature? He must not be like a child who looks at the outside and is dazzled at the pompous aspect which the tyrannical nature assumes to the beholder, but let him be one who has a clear insight. May I suppose that the judgment is given in the hearing of us all by one who is able to judge, and has dwelt in the same place with him, and been present at his dally life and known him in his family relations, where he may be seen stripped of his tragedy attire, and again in the hour of public danger –he shall tell us about the happiness and misery of the tyrant when compared with other men?”

Glaucon

“That again, he said, is a very fair proposal.”

Why does Glaucon believe that Socrates’ proposal is fair? At the very basic level, we know it’s fair because Glaucon says it is. He agrees with Socrates and does not offer any further response. What would make Glaucon believe that Socrates’ proposal was unfair? Perhaps, (1) Socrates might have presented his narrative another way, (2) Glaucon might have seen things differently, or (3) other people may have been present during the conversation offering an alternative, leading to further debate before reaching agreement on the fairness of Socrates’ proposal.

Therefore, we can understand the meaning of fairness, in this passage of The Republic, by the extent to which Socrates and Glaucon - all parties involved - reach agreement on the legitimacy of the issues discussed above.