For a long time now I’ve struggled with how to interpret the fair use provision when it comes to Copyright law. It’s a vexed issue for we educators, and particularly those of us who work in school libraries. I’ve been having my students create Digital Stories for awhile now and have tried to impress on them the best way of accessing music and images from the web is via sites that put their content out there under Creative Commons licencing. They find this difficult however, particularly when it comes to music. Very often they know just the right song that fits the message they are trying to convey. Here in Australia, there is a clause related to use of music and sound recordings in student work;
“There is no general provision that allows people to copy for personal or private use. However, the Copyright Act does contain provisions which students may sometimes be able to rely on, including when they want to use music and sound recordings in films and videos they make as part of a course of study. In particular, a student may be able to deal with copyright material for research or study, provided the use is fair. An example of fair dealing for research or study may be using music in a film which is to be submitted for a school or university project, but which you do not intend to show outside the classroom or distribute further.” (Australian Copyright Council p.3)
Tonight I was following the discussion on Twitter when Kristin Hokanson alerted me to her post about copyright confusion. This in turn led to Joyce Valenza’s post for the School Library Journal entitled, ‘Fair use and transformativeness: It may shake your world’. After reading it, I can say my world has been shaken. Joyce attended a meeting at which Renee Hobbs and Peter Jazsi outlined an interpretation of fair use that she had not considered. Her understanding at the end of the session was this;
“I learned on Friday night that the critical test for fairness in terms of educational use of media is transformative use. When a user of copyrighted materials adds value to, or repurposes materials for a use different from that for which it was originally intended, it will likely be considered transformative use; it will also likely be considered fair use. Fair use embraces the modifying of existing media content, placing it in new context.”
The word transformative is key here. The suggestion is (I think!) that if a student uses an image or piece of music and adds value to it by maker it richer as a result of its association with what they have produced then the use is fair. I can relate this to the digital stories my students have produced .Often they will use a commercial piece of music but its connection with the images and intention of the students’ work is transformative to that music selection – it means something else other than what its lyrics may have been originally intended for. I may have this completely wrong and please correct me if I have, but that is my understanding of what transformative means.
Joyce summed up her article by condensing her understanding to these points;
The Multimedia Fair Use Guidelines describe minimum rules for fair use, but were never intended as specific rules or designed to exhaust the universe of educational practice. They were meant as a dynamic, rather than static doctrine, supposed to expand with time, technology, changes in practice. Arbitrary rules regarding proportion or time periods of use (for instance, 30-second or 45-day rules) have no legal status.
The fact that permission has been sought but not granted is irrelevant. Permission is not necessary to satisfy fair use.
Fair use is fair use without regard to program or platform. What is fair, because it is transformative, is fair regardless of place of use. If a student has repurposed and added value to copyrighted material, she should be able to use it beyond the classroom (on YouTube, for instance) as well as within it.
Not every student use of media is fair, but many uses are. One use not likely to be fair, is the use of a music soundtrack merely as an aesthetic addition to a student video project. Students need to somehow recreate to add value. Is the music used simply a nice aesthetic addition or does the new use give the piece different meaning? Are students adding value, engaging the music, reflecting, somehow commenting on.the music?
Not everything that is rationalized as educationally beneficial is necessarily fair use. For instance, photocopying a text book because it is not affordable is still not fair use.
Joyce is speaking from an American perspective but I think there is much to be learned from her article. We are living in transformative times and our students are active creators now that there are accessible tools making creation relatively easy – if only copyright law could follow suit and provide us with clear (read easy to understand) guidelines that will benefit the learning taking place in our classrooms today.
(sorry about formatting problems in this post – it’s late here, I’m tired and haven’t got the energy to sort them out!!)