One of the 5th grade teachers in my building does a great project every year where her students make book trailers. This year, I stumbled upon an opportunity for her students to enter a "Digital Book Report" contest, hosted by the PAIU. It sounded like a perfect opportunity for her students!
I was surprised to see the Copyright Information on the page said "Fair Use does not apply."
I have attended numerous Copyright workshops and have read a lot on the subject, and my first reaction was that the website must be incorrect. So I did some investigating.
The first thing I did was send an email on the Pennsylvania School Librarians Association and the PA School Librarians Listservs. I received about ten responses and unfortunately, they were all different. See some responses below:
"Fair use applies in the case of “face to face instruction” which would not be the case in creating a video book report."
"Hi Heather, While not an actual part of the fair use doctrine, interpretation of fair use has been determined to mean classroom use of copyrighted materials. When students use copyrighted materials under the fair use doctrine, those project cannot then be removed from the classroom and used in contests or posted on a web site while claiming fair use. That exemption really does stop at the classroom (or any area used as a classroom) door when it comes to sharing the student work with any area outside the classroom. I believe you will find that most contests cannot and do not include projects that contain copyrighted works. In our area that includes regional computer fairs, art contests (highway public awareness billboards for example), and graphic design contests. And there have been court cases on this as well.
Understanding copyright is very complicated, and the best publication I’ve found for educators is Copyright Condensed, which is a product of Heartland Area Education Agency. The URL is http://www.heartlandaea.org/media/cms/CopyrightCondensed2010_F45F4638D4762.pdf We were given permission to remove the section detailing permissions for the online databases their member schools license, and we’ve just started using it with our high school teachers.
Some professional references that discuss this include Complete Copyright by Carrie Russell ©2004 on page 47, books by Kenneth Crews and Carol Simpson. I have new editions for Simpson and Russell on order and haven’t received them yet. I hope this helps!"
"I agree with you, Heather. It’s up to the user to interpret Fair Use. Being in or out of the classroom doesn’t necessarily make use “fair” or not, as you say. The students should evaluate their use of copyrighted material based on transformativeness, effect on the market for the owner’s product, benefit to society, etc."
"I think it would have been better worded that Educational Fair Use does not apply. Although this term isn't official - it has become known to mean Fair Use under the umbrella of teaching, education. I think they are CYA to make sure that even though it is an educational contest, that you can't apply the same conditions as you would in the classroom. When our students enter the Comm Tech contests at MU I think it's the same deal. "
Wow - now I was really confused. And I could tell so were my colleagues. Thankfully, we had a bit of a snow/ice squall which trapped me inside. I used this precious time to read every copyright/fair use article, report, and study I could find.
My conclusion: The website is wrong.
I have included the links to various websites and included various excerpts that support my decision:
1. Code of Best Practices in Fair Use for Online Video
In reviewing the history of fair use litigation, we find that judges return again and again to two key questions:
• Did the unlicensed use "transform" the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?
• Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?
Both questions touch on, among other things, the question of whether the use will cause excessive economic harm to the copyright owner.
If the answers to these two questions are "yes," a court is likely to find a use fair. Because that is true, such a use is unlikely to be challenged in the first place.
2. Documentary Filmmakers Statement of Best Practices in Fair Use
Fair Use need not be exclusively high-minded or "educational" in nature. Although nonprofit or academic uses often have good claims to be considered "fair", they are not the only ones. A new work can be "commercial" - even highly commercial - in intent and effect and still invoke fair use. Most of the cases in which courts have found unlicensed uses of copyrighted works to be fair have involved projects designed to make money, including some that actually have.
3. Model School Copyright Policy for Using Copyright Materials in Digital Media Production
Can I use clips from popular music in my academic or creative work?
This depends on how you use it. The purpose of pop music is to entertain by creating a particular mood, feeling or emotion. If you're using the clip to accomplish this same goal, that's not very transformative. But if you're commenting or critiquing the music, that's a clear example of fair use. If you're using a short sample of a song as an illustration of a larger idea, you may claim fair use. But if you're merely exploiting the familiarity of the song to attract people's attention, then you should ask permission and seek a license.
When my academic or creative work uses copyrighted materials, can I post it to YouTube or somewhere else online?
When your work is transformative under the fair use standard, your new work is protected by copyright, and you can choose to distribute it in any way you want. If your academic or creative work is removed from YouTube or another Internet Service Provider by a mechanized takedown process, you can claim fair use and have it reinstated.
4. Recut, Reframe, Recycle Overview and the Full Report
(Be sure to check out both). This website includes the researchers Top 5 examples in various categories that represent Fair Use. I bet you've seen a lot of them. I love the Evolution of Dance!
5. The actual LAW
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—6. Renee Hobbs. I'm not going to provide a link. Google her. She's amazing.
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
@LibrarianLister yes, this contest is inaccurately interpreting #copyright law - fair use applies widely beyond educ use
— Renee Hobbs (@reneehobbs) December 8, 2013
While I'm glad I took the time to do this research, I'm also very sad. I'm sad because due to this widespread confusion of copyright and fair use, our students are losing out. In a world of remixes, mashups, and a Day of Coding, how can our students not use copyrighted material? And I don't mean just while they're students, but as citizens. I find it sad that educators have sought so desperately for some clarity on copyright and fair use terms, only to be taken further and further away from the actual law. Remember those "Educational Use Guidelines" that had those cursed "10%" or "30 seconds" stuff? Well while the aims were noble at making Fair Use a bit more clear for educators, it actually was detrimental. Fair Use was never meant to be black and white. It is a flexible document that was meant to encourage responsible creativity. And by us librarians not having a grasp on that, our students and teachers are losing out. We need to change that.
Now before you start jumping at me I feel the need to point out that I always encourage the use of "Copyright-Friendly" materials as well as those licensed with Creative Commons licensing. I show my students a plethora of resources and no matter what, we give credit.
One more thing you should read: The Cost of Copyright Confusion
