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 Understanding
the principle of fair use and how it applies to multimedia
by Rabbi Yitzchak Baruch Fishel
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Though
there seems to be a consensus among educators that the use
of contemporary media materials helps them to connect new
ideas to their students' existing knowledge base, many are
confused as to just how to do it. "Teaching is just
better when we can pull from a lot of different sources,"
is how one interviewee put it. Yet the question remains
as to just how to pull it off.
Teachers who would like to incorporate mass media and multimedia
techniques into their teaching program often ask: “Can
I screen a movie clip at a public event or do I first need
to get permission?" or "Can I include a video
of an eagle flying to help explain what the Mishna in Avos
(5:21) means when it says kal kenesher (light as an eagle)?"
Similarly, someone might ask if he can use pictures as a
background images for a sign he is making for a shul lecture,
given that the picture in question is not the chief design
element. And the most common question of all: "Can
students use copyrighted music as background music?"
Though this brief essay cannot pretend to be a comprehensive
guidebook to the complexities of international copyright
law, Torah Live does hope to present the reader with some
idea of where to begin.
All too often, the accepted way of dealing with the whole
problem is to turn a blind eye — better not know,
better not ask.
There is one documented incident in which a group of students
wanted to use a 15-second clip from a speech by President
George W. Bush, Jr. When they turned to the media outlet
for permission, they were told that they would have to pay
$500 for the use of the tiny clip. Their teachers made an
effort to intercede, causing the network to reply that they
could, just this once, use it for free. But it came with
a warning "never to ask us again."
On the other hand, many teachers have begun to rely on the
principal of fair use when dealing with what are essentially
classroom materials. Court analysis of fair use often centers
on whether the application of the copyrighted material has
been transformative, meaning that it has been employed for
a use other than what was originally intended, i.e. educational
rather than commercial.
We can take it for granted that media messages are produced
for particular purposes and therefore contain embedded values
and points of view. Given the above, the audience uses individual
skills, beliefs and experience to reconstruct a personal
meaning from each message. Thus taking material out of its
original context such that it now has a comic, or critical
effect is not stealing because it no longer functions as
it did in the original.
Interestingly enough, for many centuries borrowing material
from other artists was accepted practice in the plastic
and performing arts. In painting, using a figure that someone
else had developed was called a quotation, and musicians
commonly developed entire compositions on melodies that
someone else had invented. No one took offense, as this
kind of reuse was even considered a form of homage. What's
more, it is even imbedded in the heart of modern copyright
law as a way of furthering and progressing culture and knowledge.
But now that originality has become the most important aspect
of art, advertising and thinking, we have become frightened
to use something that is already around. As a result, arbitrary
rules of thumb have been introduced into the discussion:
better to use three 10-second clips than one 30-second clip,
or it's OK to use four sentences of print text, 60 seconds
of video but no more than 10% of a film or a song.
There is really no need for all of this. Fair use of copyrighted
material is actually a way of extending the shelf life of
intellectual property and the law actually tries to encourage
it.
When dealing with what is considered fair, judges often
consider:
•
the nature of use
•
nature of the work used
•
extent of use
•
economic factors
Yet since all of the above are open to interpretation, courts
often fall back on two basic questions:
• Has the material been transformed by using it within
a context different from that of the copyrighted original
such that it does not simply copy the original for the exact
same purpose that it was created?
• Was the amount and kind of material borrowed from
the original appropriate?
Given that the answer to both questions is in the affirmative,
any court is likely to consider this fair use.
But surely the reader is looking for something far more
concrete. As there is a tendency for the educational community
to overstate the likelihood of being sued, everyone would
like to know exactly what are the do's and do not's. Yet
the contrary is also true — many feel that educators
should be leaders in asserting their rights to further their
students' knowledge by putting fair use into practice.
As such a Code of Best Practices in Fair Use has been formed
and endorsed by many U.S. educators. Based on five principles,
the code identifies current practices to which the term
fair use clearly applies. Note that these apply to all forms
of media, in both institutional as well as non-institutional
settings, and address the unlicensed fair use of copyrighted
materials for educational purposes without relating to how
those materials were obtained.
But most important, all of the principles are relative to
the second question mentioned above: Did the student or
teacher really take only what was necessary from the copyrighted
material or are we still dealing with forms of outright
plagiarism?
• Principle No. 1 states that educators may use copyrighted
materials to build critical thinking and communication skills.
The limitation here is that the material must really be
essential to the education purpose. This same rule of thumb
applies to the amount taken and does not exempt the teacher
from proper annotation and accreditation of material used.
• Principle No. 2 allows teachers to include copyrighted
material in lesson plans and the like, given the limitations
stated above.
• Principle No. 3 introduces the possibility of sharing
copyrighted material that has been incorporated into curriculum
material, particularly informal sharing at educational conferences
and profession development programs. This also applies to
curriculum materials that have been developed commercially
with publishers and nonprofit organizations. However, copyrighted
images or texts may not be used to promote the above mentioned
materials.
• Principle No. 4 addresses student use of images,
sound, music and digital media to strengthen media skills.
Because juxtaposition reshapes meaning, students may reuse
parts of copyrighted materials and should be free to incorporate
and modify existing media objects in classroom work. But
they cannot use them when merely establishing a mood. Thus
popular music cannot be exploited just for its appeal and
popularity. Moreover, students should be encouraged to assess
their own use and taught to give proper attribution to sources.
• Principle No. 5 correctly suggests that distribution
is an important part of media creation and that educators
much teach their students how to make decisions as to how
what they have made will reach their audience. Though in
most cases student work will not reach the general marketplace,
underscoring the guiding principle of transformation —having
reused the media content in a way different than that for
which it was originally intended — must be part of
the teaching process.
In conclusion, copyright piracy concerns have to date unnecessarily
limited educators' use of mass media materials. A first
step out of the limitations of unwarranted fear would be
for teachers to reclaim the right of fair use and communicate
what they have learned to others. Becoming aware that existing
copyright law entitles the correct use of existing materials
will open the classroom to new images, sounds and visual
effects, thereby allowing us to perfect our students' understanding
of the matter at hand.
Be assured, fair use is not likely to get you sued. There
are no documented instances of lawsuits brought against
educators for employing media in the educational process.
Typically, if there is any kind of issue, a copyright owner
will opt for the inexpensive option of sending a "cease
and desist" letter, but that too can be misleading.
An aggressive tone does not mean that the sender has legitimate
claims nor that he will ever take legal action.
The Cost of Copyright Confusion for Media Literacy, American
University Center for Social Media, Sept. 2007, p. 4.
ibid, p. 7.
ibid, p. 5.
Code of Best Practices in Fair Use for Media Literacy Education,
p.3.
ibid, p. 5.
op. cit., p. 8.
ibid, p. 6.
ibid, p. 8.
ibid, p. 10.
ibid, p. 17.
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