Fair Use for Educators – and The Chronicle’s continuing poor coverage

11Nov08

Today the Center for Social Media officially released its latest in its series of excellent fair use guides, The Code of Best Practices for Fair Use in Media Literacy Education. It’s must reading for anyone involved in media pedagogy or policy.

However, in what has become a trend, I must protest the way the Chronicle of Higher Education covers the story. The first half of the article introduces the report and highlights its usefulness. But the second half turns over the mic to Patrick Ross, mouthpiece for the content industries through the Copyright Alliance, who proceeds to completely misread the report. Essentially Ross says that in cases where it’s not cut-and-dried fair use (which he paints as rare), educators should ask for permission to allow the owners to determine if it’s fair use or grant permissions – and it’s up to us to come up with a more efficient way to bundle permission requests to accommodate content industries in these troubled economic times.

The Chronicle doesn’t call him on this ridiculous spin, so let me take a turn: if you believe a use of copyrighted material falls under fair use, following the CSM guide or other guides like the SCMS statement, you do not have to ask for permission! To quote the CSM guide:

Users who claim fair use simply use copyrighted works after making an assessment of the particular situation—there’s nothing formal or official to “do” to claim fair use. You do not have to ask permission or alert the copyright holder when considering a use of materials that is protected by fair use. But, if you choose, you may inquire about permissions and still claim fair use if your request is refused or ignored.

Nor is it the responsibility of requestors to create a streamlined system to make permissions easier for media companies. Nor is fair use as rare and murky as Ross makes it out to be – there are many well-established precedents for fair use claims that educators can make without fear of being sued, and such lawsuits simply never happen. As the guide says:

We don’t know of any lawsuit actually brought by an American media company against an educator over the use of media in the educational process. Before even considering a lawsuit, a copyright owner typically will take the cheap and easy step of sending a “cease and desist” letter, sometimes leading the recipient to think that she is being sued rather than just threatened. An aggressive tone does not necessarily mean that the claims are legitimate or that a lawsuit will be filed.

Finally, one bold claim in the CSM guide that needs repeating:

MYTH: FAIR USE IS ONLY A DEFENSE, NOT A RIGHT.
TRUTH: In court, doctrines like self-defense or freedom of speech or fair use aren’t considered until after the plaintiff has proved that there may have been assault or defamation or copyright infringement. Procedurally, that makes these doctrines “affirmative defenses.” But in the real world, people are entitled to protect themselves from harm and to speak their minds; likewise, we acknowledge the right of fair use, which is specifically provided by law to people who make reasonable but unauthorized use of copyrighted works.

Amen. Now if only the Chronicle would get the memo.



4 Responses to “Fair Use for Educators – and The Chronicle’s continuing poor coverage”

  1. if you believe a use of copyrighted material falls under fair use, following the CSM guide or other guides like the SCMS statement, you do not have to ask for permission!

    I’d actually go further than this: it’s not just that you don’t have to ask permission; asking for permission unnecessarily may have the future effect of further restricting fair use and increasing copyright holders’ control over uses that should not properly be under their control. Susan Bielstein points out in her book Permissions, A Survival Guide that asking for permissions unnecessarily (1) grants the organization or individual in question the right to say “no,” even when they don’t actually control the use of the image or text in question, and (2) can serve as a kind of de facto “proof” that the organization or individual can later use to demonstrate retroactively that such uses should be governed by permissions rather than fair use.

    The culture of permissions is in fact completely antithetical to fair use, and linking them in the way that Ross does is a not-so-veiled attempt to further subsume fair use to copyright holders’ control.

  2. Kathleen – thanks for your comments, and I agree that Ross’s intent is to envelop fair use into a permissions culture. But interestingly, the line after my first quote from the guide is: “In some cases, courts have found that asking permission and then being rejected has actually enhanced fair use claims.” While I wouldn’t take this to mean that we should ask & get rejected to strengthen our case, it does contradict the claims you cite from Bielstein (and that I’d previously believed in as well).

    I’d instinctively say that it’s better to assume fair use if it’s in the gray area rather than asking to avoid granting too much power to permissions, but if you ask & are told no, it’s not the end of the story.

  3. Jason, thank you so much for this enlightening discourse! I am so delighted that you were able to highlight features that I think are critical. Lawsuits are vanishingly rare; decisions are truly in the hands of the creator, not the lawyer; Patrick Ross is paid to be be the person he is, and that may be as much punishment as he needs; and indeed, asking permission may be a royal road to fair use.

  4. An interesting piece. I’d first note, Professor Aufderheide, that I don’t completely understand your comment as I have been writing and discussing these issues long before heading up this organization, and you must know by now how passionate I am about the rights of creators. If being able to make a modest living pursuing my passion is punishment, please give me more. I’ll add we were very grateful last year when you spoke at our academic symposium on copyright and the university.

    I must correct one thing in the post above — as was made clear in the article, I had not in fact read the report. It was leaked to the reporter but not to me. Thus, I instead spoke of a presentation that I gave last month at Ball State University and will be going up on our website shortly. In it I made it clear that fair use is found more in an academic setting than just about any other environment, and that there are many very explicit uses of material permitted in the classroom without permission necessary.

    However, as Professor Aufderheide may recall from our symposium, many professors complain to us that when they do need to seek permission, it can take weeks or months to get a response. My point to the reporter was that copyright owners are in the business to make money from their work, not create a streamlined permissions system for academics. I wish it were otherwise, but it is not so.

    Thus, to reduce complaints about bureaucratic delays on permissions, I proposed a way that I feel the wait could be reduced and permissions could be obtained far more simply. The connection to fair use, in my mind, is that if you have a quick and efficient permissions system, this puts less stress on the idea of expanding fair use in an academic environment. If an educator repeatedly has difficulty obtaining permission, it is entirely reasonable to expect him or her to move forward anyway, whether or not that would be considered by an objective outside observer to be fair use. I don’t want the educator in that position.

    This proposal, which I’ve been pitching in various forms for about a year, is not a way to force fair use to become permission-seeking, it is about reducing transaction costs in clear-cut permission-seeking. Perhaps the reporter should have included it in a separate story, I’ll concede that, but he was doing what responsible reporters do, looking for a differing point of view. The problem was the authors hadn’t given the report to anyone who could react, it seems.

    If anyone would like to discuss my thoughts on this streamlined permissions system further, please feel free to contact me. And Jason, I’m always available for discussion; no need to try to infer my intent without reaching out to me first. Feel free to call me a mouthpiece if that makes you feel good; a mouthpiece can talk, and that means we can talk with each other.


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