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learning.now: at the crossroads of Internet culture & education with host Andy Carvin

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February272007

Achieving a Consensus on Fair Use and Media Literacy

As more teachers began teaching students how to produce video and other multimedia content, the specter of copyright looms large. That’s why the Center for Social Media is trying to spread the gospel on fair use - and help develop a consensus among educators regarding what it actually means.

I spent the last week in Boston, attending conferences centered around broadcasting and Web 2.0. My trip wrapped up with a visit to the second annual Beyond Broadcast conference, hosted jointly by MIT’s comparative media studies program and Harvard’s Berkman Center. While the first half of the daylong conference was made up of the usual keynotes and panels, we spent the afternoon breaking up into working groups, each tackling a different topic related to the changing media landscape.

Thankfully, I participated in a session called Media Literacy and the Law, co-hosted by Pat Aufderheide of the Center for Social Media and Henry Jenkins of MIT. I didn’t have any specific expectations for the discussion, since “media literacy and the law” could be interpreted in a variety of ways. Pat began the discussion by talking about her work on fair use in documentary making. Independent documentary makers are often overwhelmed by what they perceive to be the uphill battle of how to incorporate incidental use of other people’s media in their work. For example, if you shoot some video as you document the life of a family, and someone begins to sing “Happy Birthday to You,” many filmmakers immediately begin to sweat about whether or not they need to pay the owners of the song thousands of dollars in licensing fees. The same thing goes with documentary makers who focus on pop culture or media criticism - what do you do when the only way to critique a piece of media is to show that media, and the folks who own that media refuse to license it?

So Pat and her team began interviewing documentary makers to develop a consensus as to what they believe to be fair use. Achieving a consensus is important, because fair use law is vague enough that judges will take into consideration what a community of users believes to be the meaning of “fair.” The result of this consensus-building is a best practices document. The document has been endorsed by numerous groups representing the independent documentary community, and has already led to several major documentaries being produced that might have not been before. The document serves as a framework for what constitutes fair use to that particular community, and is making it easier for everyone involved in documentary making, from filmmakers to their lawyers and insurance companies, to embrace fair use with confidence. They even made - what else - a documentary about fair use, so they could practice what they preach.

I know some of you must be nodding your heads and wondering when I’m going to mention media literacy. I was wondering the same thing until Henry Jenkins spoke. The first thing Henry said was that he’s refusing to participate in MIT’s Open Courseware initiative, which publishes MIT curricular materials online for free use by the public. At first I was surprised - Henry, of all people, seems like he would embrace the initiative. It turns out he would love to be involved in open courseware, but the problem is he teaches media literacy to MIT students, and his work requires that he show a lot of video clips to them - news clips, TV clips, movie clips, you name it. And MIT’s lawyers won’t let him post any of them, because there isn’t a consensus in the education community about what constitutes fair use when it comes to teaching media literacy. Without the clips, Henry’s lesson plans are but a hollow shell, so posting them online would be useless.

We spent the next two hours debating fair use and media literacy. When it comes to teaching young people how to make their own content or think critically about other people’s content, it’s difficult, if not impossible, to do this without showing them stuff. In the classroom, of course, you can show video clips, but posting them online for distance learning, or incorporating them into student work that may get posted online, remains a problem. Today’s students, who have grown up surrounded by mashup culture, don’t think twice about incorporating other people’s content into their work, but teachers and administrators get very nervous. Even when educators are enthusiastic about pushing the envelope of fair use, district lawyers often get in the way. As Pat noted that day, it’s the job of lawyers to reduce the risk of their clients to zero, but zero risk means you’re not taking any chances. Next thing you know, your hands are tied.

Pat and Henry are now working on their next consensus document - one that creates consensus among media literacy educators as to what is and isn’t fair us. As you may have surmised already, they are defining fair use rather broadly, overlapping what might be referred to within K-12 circles at technology literacy. To me, this is key, because if you look at the No Child Left Behind requirements for technology literacy, they’re intentionally vague:

To assist every student in crossing the digital divide by ensuring that every student is technologically literate by the time the student finishes the eighth grade, regardless of the student’s race, ethnicity, gender, family income, geographic location, or disability.

This vagueness is sometimes a hindrance, but here it’s an opportunity. It’s incumbent upon educators to figure out how media literacy fits into this equation, and this requires a consensus about fair use. By coming up with an open standard as to what constitutes fair use in media literacy education, Pat and Henry will do a tremendous service to every educator struggling with how to teach their students how to produce media and think critically about it. -andy

Filed under : Media Literacy, Video, Youth Media

Responses

This is wonderful news. The Best Practices in Fair Use statement for/from documentary filmmakers is a tremendously helpful document - for teachers of video and filmmaking and for student filmmakers as well.

Can we hope that a Best Practices in Fair Use document in support of K-12 Media Literacy will be available in time for the 2007-2008 school year?

thanks for writing about these important issues in a concise and accessible way. as media educators, we’re constantly grappling with copyright and have always relied on our own interpretation of “fair use”. i haven’t reviewed the Best Practices document yet, but it’s exciting to see the community proactively develop their/our own concept of what these terms mean, and keep working on the consensus you mention.

Thank you Andy! It was so great to be able to participate. We think that the media literacy community may be able to shape a document by 2008. Right now we’re researching just what people think the problems are, and we’re looking for interviewees! Want to talk to us about media literacy and copyright? Contact Renee Hobbs, the media literacy guru who’s doing the first-stage research and is a co-principal investigator of the whole project, at reneeh@temple.edu.

Andy -

Thanks for your timely article on fair use and media literacy.
Just to let you and your readers know -
Pat Aufderheide and Renee Hobbs will be presenting a related workshop on this important topic on March 30 at the 5th annual Northeast Media Literacy Conference at UConn.
Our web site is http://medialiteracy.education.uconn.edu
Their topic is “What’s Fair about Fair Use? How Copyright and Fair Use Relate to Media Literacy Education”
Best wishes.
Tom Goodkind
Dr. Thomas B. Goodkind, Coordinator
Northeast Media Literacy Conference 2007
University of Connecticut, Storrs, Ct.
t.goodkind@uconn.edu
860-486-0290

Andy,
Thank you for bringing up this issue. I work with elementary school teachers and students to design and integrate multimedia projects into their curricula. Our students use digital images from the internet as in blog posts and video productions, and often use copyrighted digital music to accompany their videos.

We address the copyright issues quickly, and send them to Creative Commons, etc. for images, but haven’t come up with a way to teach them about issues related to copyright in an age-appropriate way.

To me the opportunity to engage students in this type of production, within the time constraints of the public school day and curriculum, using the wealth of digital media available on the web outweighs concerns about crediting authors — especially when we are using them for this purpose. I do believe we should try to contact authors & artists whenever possible, but that becomes less realistic when it is left to classroom teachers with limited time.

Something I’m interested in discussing more, is creating simple guidelines for kids to follow when creating “mash-ups”, or including media available on the Internet.

And thanks, Thomas — I’ll be at the conference at UConn.

yes it is a mashup culture…people dont see and dont understand that there are ramifications to reposting, possibly building on media they find readily available everywhere on the net. There is a whole middle generation that just doesnt see why there are such rules - to them it is so old school to even think of containing a thing that is so big and crosses so many platforms and countries… so wondering even if you give the legal system a way to judged based on a certain group’s beliefs and documentation, does every group have to then set their standards and who or what justifies a legitimate group - and what if their fair use is vastly different than anothers…

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