Notes from ‘The Future of Fair Use’

Here are my notes from an online workshop I attended last week, EDUCAUSE Live!: The Future of Fair Use.  For more details see the presenter’s slides and the presentation chat archive.

Presenter:  Steve Anderson, University of Southern California
USC Institute for Multimedia Literacy
VECTORS Journal of Culture and Technology in a Dynamic Vernacular
USC Media Arts & Practice Program

How are educational institutions currently acknowledging fair use practices and guidelines?  In many cases, not well or not at all.

Examples:
USC placed the responsibility of fair use justification on the faculty member and did not take any kind of proactive or supportive information/policy to advocate for educational use (i.e. advocating for the kind of fair use environment we would like to see.)  What happens when people do not understand their rights?  Gatekeeping, not using media at all due to fear and mis-information.

Question from the audience:  Colleagues have said that the last place for the faculty to go for support is the IT office. Do you agree?  Are university IT offices too risk-averse?
Steve: If we’re going to make any progress, faculty and IT have to work together regarding policies of fair use.

Risk Management (prioritizes uses of media vis a vis needs of faculty and students)
vs.
Rick Avoidance (zero tolerance for any kind of service that might be challenged)

Helpful Resources are our own networks, colleagues, “horizontal collaboration”, best practices for the education community, partnerships (other schools, advocacy groups, EDUCAUSE and other associations)

3 Fronts on which we need to advocate for Fair Use:
Legal (best practices)
Technical (open standards)
Cultural (scholarly use/remix)

Networks, Partners, Resources:
Electronic Frontier Foundation

Universities have their own fair-use or legal advocacy clinics; usually low-cost or free:

Open Video Alliance – free and open-source codecs and file types

Organization for Transformative Works – testified at DMCA exemption hearings in US Congress

Best Practices Guides from the Center for Social Media at American University

Creative Commons – alternative copyright model use for publishing and consumption/remix of works

The old-school way of thinking about fair use – the 4 factors…  (it is the law)

  1. Purpose and character of the use
  2. Nature of the work
  3. Amount of the portion used
  4. Effect of the use upon the potential market or value of the work

However, this is a very cut-and-dry reading of the law.  There are some interpretations/applications that are more broad.  The ‘4 factors’ litmus test vs. ‘best practices’: what is working well for educators?

4-factors Pipe Test vs.  Best Practices
“take a test” vs. “look at the community use” (this may be a broader, stronger and more defensible position)

DMCA exemptions – previously allowed for use by faculty in media studies fields; now includes faculty across disciplines, non-commercial videomakers (fan and remix videos) and film and media students; safe-harbor for service providers, hence YouTube and CriticalCommons.org

Common Misconceptions about Fair Use:

  1. “You have to be a lawyer to understand fair use” – Consult best practices
  2. “Ripping DVDs is always illegal” – See DMCA exceptions
  3. “Exercising fair use rights is a sure way to get sued” – According to the Center for Social Media, lawsuits for educational fair use are virtually unheard of (though threatening letters have been sent)

Educators should inform students about both copyright and fair use and challenge them to make intelligent, ethical decisions.

Question from the audience:  What about rules regarding face-to-face vs. online instruction and the Teach Act (more restrictive about viewing of media for educational purposes)?
Steve’s Answer: Teach Act is the impetus for the open courseware best practices from Center for Social Media, and the creation of Critical Commons (see below).  Blackboard and other enterprise courseware systems may prohibit certain types of content per their own terms-of-service regardless of what the law and fair-use guidelines say.

Fair Use Case StudyCritical Commons

Goal of the project is to move course content onto the open internet (out of the university domain and enterprise courseware environment).

The system is built on Plone; has a mobile version of the site; all built on a free and open-source platform.

Critical Commons is a searchable, downloadable, user-generated clip library.  Faculty can create lectures and playlists – embed them into a lecture with your own notes etc.

CC is a showcase for multimedia scholarship (similar to items that have been published in Vectors journal).

Read the Terms of Service

See slides for some good examples of faculty archives/lectures etc.

Critical Commons is for the faculty member who doesn’t want to or is not permitted to put video clips on the course management system, or who don’t have access to their own server space.

There were several questions from the audience about the legality of open clip libraries of materials under copyright.
Steve’s Answer:  Courts don’t like negligence and indifference. Following Best Practices shows that you have taken the time to research, make careful decisions in line with the spirit of fair-use, and have shown concern for the rights of copyright holders.

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