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New Fair Use Code of Practice: A Call to Action

This post is an announcement.  It is also an important call to action.

Yesterday, I was honored to be included on one of the panels celebrating the release of the Code of Best Practices in Fair Use for Media Literacy Education at the National Constitution Center.  (You may remember my post on the process last spring.)

A little background.
Yesterday’s announcement represents the culmination of a year’s work, a coordinated effort by the media literacy community facilitated by Peter Jaszi and Patricia Aufderheide of American University and Renee Hobbs of Temple University. Other partners included: the National Association for Media Literacy Education, the Action Coalition for Media Education, the National Council of Teachers of English, the Visual Communication Studies Division of the International Communication Association, and the Media Education Foundation. The project was funded by the John D. and Catherine T. MacArthur Foundation, with additional funding from the Ford Foundation.

Fair use is:

the right, in some circumstances, to quote copyrighted material without asking permission or paying for it. It is a crucial feature of copyright law and what keeps copyright from being censorship. You can invoke fair use when the value to the public of what you are saying outweighs the cost to the private owner of the copyright. (American University Center for Social Media)

From the press release:

Fair use, a long-standing doctrine that was specifically written into Sec. 107 of the Copyright Act of 1976, allows the use of copyrighted material without permission or payment when the benefit to society outweighs the cost to the copyright owner.

Why is this important?
My teachers want to use copyrighted materials in instruction–to analyze campaign ads, to present examples of dramatic elements or unusual plot structures in feature films, to examine carefully constructed media messages.

My students want to use copyrighted materials in the communication products they develop–to create satire using familiar cartoon characters; to develop song parodies; to analyze the way groups of people, for instance Native Americans, have been portrayed in popular media.

They now have an ever-multiplying array of digital tools with which they can create and share these communications.

It is important that they develop an understanding copyright and fair use.  But we must develop that understanding first.

The new Code is designed to simplify the legalities of using copyrighted materials in an academic setting:  This document follows the 2005 document, Documentary Filmmakers’ Statement of Best Practices in Fair Use, which essentially liberated the filmmaking community from what had been an excessive, expensive, paralyzing process of permissions, often resulting in self-censorship.

Like many of the documents we love, the code is meant to be flexible:

This code of best practices does not tell you the limits of fair use rights. Instead, it describes how those rights should apply in certain recurrent situations. Educators’ and students’ fair use rights may, of course, extend to other situations as well.

Many of us hope that the new document will untie the hands of creative educators and learners who want to thoughtfully live and play and learn in a media-rich world.

According to Pat Aufderheide, director of American University’s Center for Social Media:

The best practices approach has worked superbly for other creative communities, such as documentary filmmakers. The code will empower educators to work as creatively as they want to, with a much better understanding of their rights under the law.

Just like being there:
I am sharing a bit of video from the first panel of the morning, Renee Hobbs introducing the new code.

Here is the full UStream video, although the sound is bit rough at points: Live Videos by Ustream

Most important is the official video that explains the five principles that should guide educators and students in determining what constitutes fair use.

The five principles:
Just in case you missed them in the video, the new code outlines five principles, each of which comes with limitations, each of which is explained in far greater length in the document.

Educators can, under some circumstances:

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, under some circumstances:

4. Use copyrighted works in creating new material.
5. Distribute their works digitally if they meet the transformativeness standard.

What’s next?
As librarians, or gatekeepers, we need to get the word out that a few more gates are a bit more open.

We need to share the Code with the teaching community, the preservice education community, as well as our own library community.  We need to discuss the five principles at our conferences and our faculty meetings and we need to develop instruction.  Our instruction needs to be based on local and realistic examples of what we see as fair use and what is clearly not fair use.

The success of this document will depend largely on how we spread the word and how well we roll out its interpretation, on how well we use it as an instructional tool, on how well we are able to define transformativeness for our own communities.

The website includes a number of useful curricular materials including:

Please also consider contributing your instructional ideas, as well as your comments, to Kristin Hokanson’s Copyright Confusion Wiki.

My little talk:
A few people asked me to share my remarks from yesterday.  Here are my paper notes (the stuff I meant to say) which may sound or look very different from the actual recorded UStream version:

One role I never expected when I signed up for this work more than 30 years ago—was the role of cruel and crazy copyright gatekeeper, the one who says no to creativity.  I found myself looking at the floor, rather than the ceiling of fair use. 

I never wanted to be a gatekeeper.  I would rather be a cheerleader. 

In the past two years, what was already muddy ground got even boggier.

In the past two years the gate has been nearly impossible to keep closed.  People regularly jump it.  YouTube, and Google Video, and Flickr, and a zillion other media sharing sites are filled with media efforts that both
do and do not respect intellectual property.

In school and out of school, my students are not only content consumers, they are ardent content
creators.  They have new tools with which to create and share their communications, tools I could not have even imaged three years ago.  Tools like iMovie, Windows Movie Maker, Voicethread, Animoto and more.

My teachers, with their wikis and blogs and moodles and Nings, now post most of their instruction online for easy student access, for sharing media they want students to analyze across our community. 

Our school program is based on inquiry and my learners want to do transformative work as part of their research explorations.

Students and teachers want to share their instruction and knowledge products with the world.  I want to help them share.  I want to open gates, not close them. 

But there is a major disconnect between what my students feel they can put up on youtube and facebook and what we will put up as a school-connected project. 

I teach students to respect intellectual property. When they produce for online dissemination they generally use content with liberal creative commons license.  They are aware of the amazing portals for sharing media. They know how to document, to carefully attribute.

Using Creative Commons content, however rich and wonderful and generous, doesn’t always cut it.

There is a world of media out there that students and teachers need to use, to thoughtfully remix.  This media is not necessarily granted liberal Creative Commons license.

For instance:

Aaron’s flash animation on Darfur, with the members of the UN presented as South Park characters was an example of satire at its best.  It was clearly transformative.   It helped his whole class get a political situation that allows genocide to be a semantic issue.  This seemed to me to be the poster child for Fair Use, but I was reluctant to post it on the school server.

Steve is currently creating a paper dealing with the effectiveness of negative political advertising on the 2008 campaign.  He embedded a number of ads in a private wiki to present to focus groups. I would love to see him be able to publish his results in a bigger way.  Before today, I don’t think I felt comfortable publishing them with the media essential to make sense of his research.

Each student in our German 4 class selects a German artist and builds an exhibit for a class Museum of German art. Acting as docents, they comment on and critique works that they have carefully selected and organized.  They practice and record their well-edited scripts in the German language, with their new vocabulary of the world of art.

Using a digital storytelling tool, they privately post their museum exhibits.  We’d love to invite German learners or German-speaking students to visit our museum instead of hiding it.  We’d love to make this activity far richer, to post it widely, to invite comments, and further art criticism.

When a student wants to examine the portrayal of Native Americans through the study of how they are represented in feature films and television, perhaps the worst way to do this is in a traditional term paper.  Of course, they should seek to use film clips from Disney’s Pocohantas, John Wayne films, from the Lone Ranger, from Bonanza, Dances with Wolves, Little Big Man.
But seeking permissions is usually a big flop.  Students’ earnest requests are ignored or denied.

This type of media analysis, based on careful examination and comparison is
transformative.  It should be fair use. 

I want to be able to endorse and share those projects and many, many other thoughtful student and teacher efforts.

Learners should be able to share their analysis and their constructed knowledge using the many tools now available to them.  

I have high hopes that the five principles will guide me in opening the gate far more often.  I have hopes that fair use will be more fair.

The way I see it is that we have a lot of work to do when we return to our classrooms and libraries. We need to teach new things and those things include nailing down the meaning of transformative.  What is transformative and what is merely derivative, decorative, aesthetic? 

The release of the new Code is just a beginning.  We have a lot of work to do to spread the word, to make this document work for us as a community.




Joyce Valenza About Joyce Valenza

Joyce is an Assistant Professor of Teaching at Rutgers University School of Information and Communication, a technology writer, speaker, blogger and learner. Follow her on Twitter: @joycevalenza


  1. teacherninja says

    All I have to say is: YES!

  2. Doug Johnson says

    Hiya Joycie,

    You did a great job yesterday. You tied this back to fair use’s importance to kids and that was the best!

    Your biggest fan,


  3. Kristin Hokanson says

    Doug is correct Joyce…
    We need to remember it is all about the kids and what we teach the TEACHERS about fair use is so important in ensuring that our kids’ rights under fair use are protected..we sure have our work cut out for us 🙂

  4. Cathi Fuhrman says


    Great job on Tuesday! We need to work hard to make sure all school librarians hear about and understand these Best Practices and hopefully get on board with it! This is not only an instructional change – but a major cultural change for our profession in relationship to copyright. Cultural change can be hard – but it is exciting too! I am so energized after being at the announcement on Tuesday.

    Since I moved to multimedia copyright as my dissertation topic about 4 months ago, I’ve been formulating things in my mind and my “folder” of research. But now – I am almost beside myself about how exciting my work will be in the next year or so. Instead of developing a plan of how to teach students K-12 of what NOT to do – I can really concentrate on teaching students to THINK about what they CAN do. Instead of having them stay within the constraints of a Guidelines chart – they will need to REASON, JUDGE and EVALUATE WHY they can use multimedia.

    I have taken off my Copyright Police Hat – and exchanged it for my Roller Coaster Hat. Keep your hands and feet inside the car – tighten your seat belt – Let’s Go!

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