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