STRUGGLING WITH COPYRIGHT

Struggling With Copyright: How Copyright Law has Effected Teachers Creativity in the Classroom Lauren Nixon Western Oregon University

STRUGGLING WITH COPYRIGHT

The Internet and digital technologies have changed the way we do many things. Children born into this Internet age are used to having information at their figure tips. One aspect that has taken its time to change has been education, but many teachers have recognized the importance of using new technologies and digital media in order to give their students relevant and engaging twenty-first century learning experiences. While the internet allows easy access to media and tools, copyright law has put strain on teachers and their creativity. The complex and ambiguous law has made it difficult for teachers to know if media they wish to use in lessons is actually legal to do so. Research has shown that affective instruction ingrains culturally relevant material, but access to this material is held by gatekeepers (Schmeichel, 2012). Teachers need to have free and creative access to this material; hence copyright law must change to allow teachers the legal opportunity to give enriched learning experiences for their students. Copyright law must allow teachers to use relevant media for classroom use, allow educators to share lesson plans and other learning materials online, and allow teachers to profit from their produced works even if those works have remixed elements. Media has a way to help many of the challenges our schools face today including budget problems, low test scores, and effective instruction for English language learners (ELLs). These specific problems could benefit from digital media available online because it is inexpensive, even free, connects learning to concrete examples such as images, video, audio, and simulations to help different learning styles and cognitive levels, as well as language translations and specific programs for ELLs. But for these to be effective, educators must search and shift through all that is available in order to integrate media into their lessons. In addition to shifting through all that is offered, teachers must struggle with another aspect: copyright law. One of the main problems

STRUGGLING WITH COPYRIGHT with our current copyright law is that it is extensive and confusing, Renee Hobbs (2009) states sadly, much of the language about sharing and stealing found in the mainstream media has left educators, confused and fearful. Because of this, teachers often have to choose between spending more time and effort to find free media or not use it at all. Creative commons has been one way that teachers who wish to integrate media into their lessons and still model digital citizenship can do so. Creative commons is an open source movement that allows content creators to decide the limitations of use for their works, leaving more liberal use of content (Valenza, 2011, p.30). Creative commons is a great resource for educators to find free materials

to use but at this time, since creative commons is still relatively new there is a limited amount of material that can be found. Another consideration that has to be taken in is that there are times when copyrighted materials are needed for activities like evaluating messages of media commercials or campaign adds (Valenza, 2011, p.30). But incorporating copyrighted materials, even if for classroom use, still leaves many teachers apprehensive to use them in case of copyright infringement issues. Hobbs (2009) makes an important observation about the current state of media use in school, It is ironic that at it time when online digital technologies are enabling educators to create and share all ever-widening array of texts, sounds, still and moving images, music, and graphic art, we are seeing a dramatic increase in the climate of fear among educators concerning the use of copyrighted materials as tools for teaching.

A consequence of the ill written copyright law is that it leads to confusion, John Maddox (1995) points out that one of the least understood laws that affects or potentially affects 90% of the school teachers in the country is the copyright act. Because of this confusion teachers and

STRUGGLING WITH COPYRIGHT school districts have found themselves in civil litigation for copyright violations. In the case Marcus vs. Rowley two teachers from San Diego borrowed copyrighted work from one another and included them in their teaching materials for class (Maddox, 1995). In this case the court ruled that borrowing and using the copyrighted materials was not protected by fair use. The fair

use doctrine only provides for a limited use of copyrighted work, but it does not grant generous license simply because the copying is for an educational purpose (Maddox, 1995). While Fair Use is not a free for all, it does give teachers the expanded legal opportunity to use copyrighted materials in their classroom. In their book, Reclaiming Fair Use, Patricia Aufderheide and Peter Jaszi (2011) discuss the importance of asserting and defending fair-use rights (p.14) as a means to foster creativity, learning, and expression, as well as having realistic copyright policy. Aufderheide and Jaszi advocate for educators to employ their legal use of copyrighted materials in their lessons under the fair use doctrine. An issue with the writing of the fair use doctrine is that it is written very broadly with four principles. Aufderheide and Jaszi note that those not wanting fair use to be used, large content holders, often endorse guidelines which tell teachers what they cannot do (Aufderheide & Jaszi, p.112). This has understandably made it even more confusing and scary for teachers to apply their fair use right. To combat this problem, teachers came together and created their own code of best practices, called Code of Best Practices in Fair Use for Media Literacy Education (p.115). This code targets k-12 and higher education and allows teachers to use it as a tool in order to make informed decisions on whether or not the use of copyrighted material, is in that situation they wish to use it in, fair use. Under the fair use doctrine teachers are given several exceptions in the copyright policy. The Code of Best Practices in Fair Use for Media Literacy Education gives five principles for the use of copyright material in the classroom: teachers may use copyright materials that: are

STRUGGLING WITH COPYRIGHT specifically relevant to the topic and only use what is necessary, can integrate copyright materials into curriculum that is designed for learning, can share and even sell lessons and

resource materials that incorporate copyright materials, create assignments in which students are allowed to incorporate copyrighted materials in to their academic and creative work, if a students media production meets the transformativeness standard, then it can be distributed( Code of Best Practices, 2008). While these principles are helpful for teachers, they, like the fair use doctrine its self, can be open to interpretation and have limitations which are stated within the principles. Though people should continue to flex their fair use muscle in order for teachers, students, and other creators to truly have the room to create and share, which the internet has allowed for, there needs to be a change in copyright law (Aufderheide & Jaszi, 2011, p.14). Lawrence Lessig is one of the leading advocates for our remix culture and advocates for a change in copyright policy to allow for creativity and culture to continue to grow. In his book, Remix, Lessig suggests five shifts that need to occur in copyright law, three of these shifts could directly improve the availability and use of copyright materials for teachers. These shifts are: a change in copyright law that leaves room for amateur creativity free of regulation, a maintenance obligation for copyright owners, and a copyright law that is simple to understand (Lessig, 2008, p. 254-265). When Lessig talks about amateur creativity he is talking about when someone creates something new by reusing something another person has created, whether it is remixing music with new lyrics, or embedding another persons image into your presentation (Lessig, p.254). Currently, copyright law does not allow for this, by fair use does protect some material under certain circumstances to be used for education. What teachers are running into is knowing in

STRUGGLING WITH COPYRIGHT what circumstances they can use copyrighted materials. Codes of best practices have helped but they cannot change the law and therefore restrictions are still limiting. When it comes to

materials used for education there should not be a limitation on what teachers use as long as what they are using has educational value. While Lessig advocates for a shift that would allow amateur creativity without regulation as long as it is for nonprofit, I believe that in the case for education in which copyrighted materials are used in a transformative way, meaning for a different purpose then the original intension, then teachers should be able to use whatever amount is needed of the copyrighted material (Lessig, p. 254). In addition, if the educational material is transformative then teachers should be able to share and even sell those transformative works. Leary and Parker (2001) explain transformative use as when someone creates something new by adding expression and meaning, utilizing the copyrighted work without permission (p.17). When a teacher used images and video clips from the 1962 movie, To Kill a Mockingbird, in order to show important events in the book their class is reading, they are transforming the use of the work from entertainment to education. Instead of students watching the movie for entertainment, teachers are selecting clips in which students are asked to use high cognitive skills to compare and contrast their image of the events to how the director portrays them in the movie. In this case, the work has been transformed from its original intention, as long as the clip is given credit to the movie creator; this lesson should be free for teachers to share. One way that teachers are sharing is with personal blogs, targeting other educators, or classroom blogs. Personal teaching blogs are a great way for teachers to show effective ways to use technology in the classroom and share with other teachers. Teachers use classroom blogs to post lessons for student to review or even preview them. Often teachers embed videos or

STRUGGLING WITH COPYRIGHT worksheets, but due to copyright law, if these materials are protected teachers could find themselves in trouble. By changing our copyright law to allow for amateur creativity and

transformative works teachers would be able to create lessons, assignments, and blogs that would give students twenty-first century learning experiences. Another shift that Lessig advocates for is a copyright law that requires copyright holders to maintain their copyright law after a certain amount of time. At one time the United States copyright did require this maintenance obligation. In his book, Public Domain, James Boyle (2008) addresses the number of orphaned works or works that are commercially unavailable and have not identifiable copyright holder in our libraries today (p.9). When our copyright had a maintenance obligation which required a renewal after twenty-eight years around 85 percent of copyright holders did not renew (Boyle, 2008, p.9). As Boyle points out, now that our copyright length can extend for well over a century, most of the twentieth century culture is still under copyright copyrighted but unavailable (Boyle, p.9). What this means is that books, images, and film are held out of reach, and not available to use and breathe new life into for a new generation to learn from; Boyle describes this perfectly as much of this, in other words, is lost culture (Boyle, p.9). With a change in our copyright law this culture would no longer be lost but utilized and learned from. The change is a simple one, after a certain amount of time, between fourteen and twenty years, a copyright holder would have to register their work if they wish to continue to protect it (Lessig, 2008, p.263). If the work is not registered then it falls in to public domain were anyone can use that work (Lessig, p.264). What would this mean for educators? It would mean that their access to materials would increase substantially. Almost 95% of books at the Library of Congress are orphan works, film and images that are orphan works are high too, but with this change in copyright these works

STRUGGLING WITH COPYRIGHT would be free for both noncommercial and commercial use (Boyle, p.10). These materials could be used to create digital storytelling projects, classroom materials, and much more. Teachers could also feel comfortable using these materials in lessons and assigning projects that require students to use mixed media. Not only would these works no longer be lost because of this change in copyright but it would give teachers, students, and other creators an abundance of materials to use and peace of mind.

Lastly, but still an important shift that needs to be made in our current copyright law is to develop one that is easy to read and understand. Lessig (2008) states, there is a special obligation to make sure this regulation is clear. And that obligation is even stronger when, as here, the regulation is a regulation of speech (p.265). Our current copyright regulation is not clear; instead it is complex and vague. By creating a copyright law that is simplified it can allow teachers and other creators to clearly understand their rights and limitations. By having a simplified copyright law, creators will have less apprehension to use media. This can also allow teachers to better instruct their students on copyright law. In a report from the Center for Social Media at American University, researchers found that few teachers understood copyright law (Anderson, 2007). This lack of understanding showed to result in teachers applying far more strict use of materials as well as giving the most conservative advice on copyright to students (Anderson, 2007). Having a copyright law that is written simply will help teachers, who already have a limited amount of time, a copyright law that they do not have to research and dissect in order to understand. With a better understanding of copyright teachers can then be more confident about teaching copyright, which applies to media, and better inform their students. It is important that students are informed about copyright because more and more often students are creating with mixed media and sharing creations with

STRUGGLING WITH COPYRIGHT others. Lessig (2008) explains that with the current state of our copyright law we have a

system of technology that invites our kids to be creative. Yet a system of law prevents them from creating legally (p. 266). Changing our copyright law is important but students still need to be aware of the rights and limitations they have when using others work. With clearer instruction and a copyright law that students can understand, students can then create and be able to evaluate their own work under the copyright law. A teacher chooses their career for many reasons, but most often it is to make a difference, to change a life, to help open doors, and help their students reach their full potential. It is a career chosen out of a love and passion. When one chooses correctly they find the career rewarding, but also challenging. Challenges allow teachers to grow as educators, but some challenges can just cost time and even restrict creativity and ability to reach all students. Copyright is one of these challenges. Our students today have technology engrained in their lives, but too often this is not reflected in our schools. Teachers working to make twenty-first century learning experiences for their students often come face-to-face with copyright restrictions. These restrictions have limited teachers materials even though the Internet has allowed for them to grow. Copyright has made teachers fearful to use media when that media could have made a significant difference in student learning. By shifting the copyright law in order to leave room for amateur creativity, include a maintenance obligation, and develop a simpler written copyright law; copyright could become one less challenge for teachers, and open up the possibilities for student understanding with twenty-first learning experiences that are relevant and engaging.

STRUGGLING WITH COPYRIGHT 10 References: Anderson, N. (2007). Teachers Lack of fair use education hinders learning, sets bad example. ARSTechnica. Received from: http://arstechnica.com/uncategorized/2007/10/teacherslack-of-fair-use-education-hinders-learning-sets-bad-example/ Auderheide, P., & Jaszi, P. (2011). Reclaiming fair use: how to put balance back in copyright. Chicago and London: The University of Chicago Press. Boyle, J. (2008). The Public Domain. New Haven & London: Yale University Press. Code of Best Practices in Fair Use for Media Literacy Education. School of Communication American University. Received from: http://mediaeducationlab.com/sites/mediaeducationlab.com/files/CodeofBestPracticesinF airUse_0.pdf Hobbs, R. (2009). THE POWER OF FAIR USE FOR MEDIA LITERACY EDUCATION. Afterimage, 37(2), 15-18 Lessig, Lawrence. Remix: Making Art and Commerce Thrive in the Hybrid Economy. New York: Penguin, 2008. Print. Maddox, J. m. (1995). Copyright violation and personal liability in education: A current look at `fair use'. Brigham Young University Education & Law Journal, (1), 97. Schmeichel, M. (2012). Good Teaching? An examination of culturally relevant pedagogy as an equity practice. Journal Of Curriculum Studies, 44(2), 211-231. doi:10.1080/00220272.2011.591434 Valenza, J. (2011). Opening Gates: On Celebrating Creative Commons and Flexing the Fair Use Muscle. Library Media Connection, 29(4), 30-32.

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