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Copyright, Fair Use, and Creative Commons

So do you feel pretty confident about copyright and fair use?  Watch this “teachable moment” to see if you find any surprises.

Well-known teacher and blogger Bill Ferriter shared the embarrassing story of how he himself had learned a painful lesson about copyright on the Web. Digital technology is evolving so rapidly that it’s difficult for copyright laws to keep up and for us to understand and keep current with the latest thinking. If we believe that creativity is basically combinatorial, then making decisions about what’s fair to combine — to copy and remix — can be tricky. Law professor and copyright scholar Larry Lessig presents a brilliant argument the “remix culture” in this presentation.

This is a form of recreating — of using digital technology to say things differently — Larry Lessig

“. . . to say things differently” is another way of saying transformational. Section 107 of the Copyright Law of the United States presents the four factors to use in deciding what Judge Leval later coined as “transformativeness.”

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
(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.

It is a terribly slippery concept but Brandon Butler shares real insight here with this definition of transformativeness stratight from Judge Leval:

I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. [FN29] A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story’s words, it would merely “supersede the objects” of the original. [FN30] If, on the other hand, the secondary use adds value to the original–if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings– this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. [FN31] — Butler on Digital-Copyright Forum

A simple mantra for determining transformative use in this class will be:
1. Is it a new context?
2. Is there a new meaning, a new message?
3. Does this creation offer any competition to the original or can it be substituted for the original?

We’ll use the Code of Best Practices in Fair Use for Media Literacy Education as our “bible” in making decisions about copyright and fair use. This resource has been developed by experts representing over 150 professional organizations and vetted by a team of legal scholars and experts. Of particular import is Principle 4:


DESCRIPTION: Students strengthen media literacy skills by creating messages and using such symbolic forms as language, images, sound, music, and digital media to express and share meaning. In learning to use video editing software and in creating remix videos, students learn how juxtaposition reshapes meaning. Students include excerpts from copyrighted material in their own creative work for many purposes, including for comment and criticism, for illustration, to stimulate public discussion, or in incidental or accidental ways (for example, when they make a video capturing a scene from everyday life where copyrighted music is playing). — Code of Best Practices in Media Literacy for Education

A critical pedagogical concern in teaching about transformativeness is that students understand that they remix to create a new message, to “say something differently,” and not to save themselves work. The Code of Best Practices explains this well:

LIMITATIONS: Students’ use of copyrighted material should not be a substitute for creative effort. Students should be able to understand and demonstrate, in a manner appropriate to their developmental level, how their use of a copyrighted work repurposes or transforms the original. For example, students may use copyrighted music for a variety of purposes, but cannot rely on fair use when their goal is simply to establish a mood or convey an emotional tone, or when they employ popular songs simply to exploit their appeal and popularity. Again, material that is incorporated under fair use should be properly attributed wherever possible. Students should be encouraged to make their own careful assessments of fair use and should be reminded that attribution, in itself, does not convert an infringing use into a fair one — Code of Best Practices in Media Literacy for Education

For more on the Power and Responsibility of Using Intellectual Property, including Patrick McKay’s video rebuttal of YouTube’s “Copyright School” video . . .
And for additional copyright and fair use information for teaching — Copyright Remix . . .

Finally, Larry Lessig gives a micro-second plug for Creative Commons in his TED presentation and encourages that . . .

artists and creators embrace the idea, choose that their work be accessible freely.

As artists and creators in this class, I’d encourage you to learn about Creative Commons and consider carefully and generously as you choose licenses for your own work. Here’s a video that explains the different Creative Commons licenses simply with clear examples and lauds the benefits of sharing freely.

For more on Creative Commons, see David Hopkins’s thoughtful post which also includes a very handy infographic you won’t want to miss. And, as you consider Creative Commons licensing, it may be helpful to read teacher Karen Fasimpaur’s story of her own experience in licensing her work and how her thinking has evolved.

For sources of Creative Commons or other free-to-use materials, see Guide to Royalty-Free Materials and Free Tools . . .

© 2013 Creative Inquiry

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