Copy(right) and Copy(wrong): Defending Fair Use, Protecting Ourselves and Our Students
As Janice Walker notes in Copy-rights and Copy-wrong, itâs so easy to save information and media files nowadays that we forget that whatâs easily obtained wasnât always meant to be publicly available. There are those, like Lawrence Lessig, who would argue that âinformation wants to be freeâ, and that we shouldnât set up a legal system to criminalize things we know people will do anyway and that, ultimately, arenât harming anyone. But, as much as I might be tempted to agree (so long as we make a distinction between huge conglomerates arbitrarily extending copyright every fifty years and individual artists, creators, and small businesses trying to make a living), Iâm more immediately concerned with how I can teach students to protect themselves when using media for class or otherwise. The most common tool given to help prevent students from running afoul of copyright is these four principles for determining fair use:
What is the purpose of the use? Educational, nonprofit, and personal use are more likely to be considered fair than is commercial use.
What is the nature of the work being used? In most cases, imaginative and unpublished materials can be used only if you have the permission of the copyright holder.
How much of the copyrighted work is being used? If a writer uses a small portion of a text for academic purposes, this use is more likely to be considered fair than if he or she uses a whole work for commercial purposes.
What effect would the use have on the market for the original? The use of a work is usually considered unfair if it would hurt sales of the original.
(Maimon et al qtd. Westbrook 167)
Of course, these four principles are only a heuristic, and people can and do face copyright strikes for use that follows all four of these principles when they use material in a way the copyright holder doesnât like. For that reason, Steve Westbrook argues, we shouldnât take our concern with copyright to extremes.
By asking for permission to use copyrighted material even when we are reasonably confident it falls under fair use, we forfeit an opportunity to âdeny ultimate power to holders of derivative rights, to recover a sense of agency and authority for the writer who relies on appropriative practices, and to counter abuses of copyright law (Westbrook 166).â
Janice Walker offers a few additional, more specific considerations for using copyrighted material in online spaces that can help students build multimedia projects with confidence (Walker 214):
1. Follow guidelines already established for published (i.e., print) sources, if possible. In other words, if youâre using textual materials (i.e. book excerpts or articles) where this would make sense.
2. Point to (i.e., link to) images, audio, and video files rather than downloading them, if possible. While I admire the intent behind this recommendation, to preserve as much context and âpaper trailâ as possible, I do wonder if it could create accessibility concerns for disabled visitors/viewers/readers/participants, especially those using screenreaders.
3. Always cite sources carefully, giving as much information as possible to allow the user to relocate the source.
4. If in doubt, ask. In doing so, be sure to explain exactly what and how much you intend to use and what you intend to use it for.
She also argues that, as composition teachers, we have a particular obligation to use media mindfully and to educate other teachers and scholars about copyright. In the spirit of taking up that challenge, I reproduce here an account of the rules laid out in order for something to be considered fair classroom use under the TEACH act (Reyman qtd. Walker 209-210):
Use is limited to works that are performed (such as reading a play or showing a video) or displayed (such as a digital version of a map or a painting) during class activities. The TEACH Act does not apply to materials for studentsâ independent use and retention, such as textbooks or articles from journals.
The materials to be used cannot include those primarily marketed for the purposes of distance education (i.e., an electronic textbook or a multimedia tutorial).
Use of materials must occur âunder the actual supervision of an instructorâ.
Materials must be used âas an integral part of a class session.â
Use must occur as a âregular part of the systematic mediated instructional activities.â
Students must be informed that the materials they access are protected by copyright.
Further, it remains incumbent on faculty and/or administrators to ensure that the following restrictions are adhered to:
limiting access to material to only those students enrolled in the class;
ensuring that digital versions are created from analog works only if a digital version of the work is not already available;
employing technological measures to âreasonably preventâ retention of the work âfor longer than the class sessionâ;
developing copyright policies on the educational use of materials; and
providing informational resources for faculty, students, and staff that âaccurately describe, and promote compliance with, the laws of the United States relating to copyright.â
Reading these guidelines in full motivates me to talk to my department head and seek out more detailed explanations from the federal government, because per these guidelines Iâm pretty sure uploading a chapter of a copyrighted text for students to read for homework, which I and every teacher I know do all the time, wouldnât be fair use because itâs not âunder the actual supervision of an instructorâ.
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As a blind college student, I know firsthand what it's like to go to class and not have the accessible materials needed to learn. Each day blind college students are dropping out of classes, abandoning long-held dream career plans, and failing to graduate - not because of lack of abilities, intellect or work ethic - but because of the lack of commitment by institutions of higher education to abide by the law. Congress must pass legislation that creates accessibility guidelines for electronic instructional materials used in postsecondary education.Â
