Fair Use for Educators – and The Chronicle’s continuing poor coverage
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.
Filed under: Academia, Copyright, Fair Use, Media Studies, Teaching | 4 Comments