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Teachers and learners have always used bits of copyrighted materials in the process of learning and teaching. Many teachers collect, compile, use, and save media texts that work well in the classroom to address particular types of learning objectives, whether that be to better teach principles of multiplication, cell mitosis or the history of the French revolution. Research with European elementary and secondary teachers finds that the most commonly valued resources include publishers’ open educational materials, educational materials created by colleagues, news and current events, scientific reports and visual materials -- pictures, videos, images, drawings and illustrations (Halme & Somervuori, 2012), and it is likely that American teachers have similar priorities. The use of resources including movie DVDs, digital media and the Internet is now normative current practice in education from K-12 to higher education. But does their acquisition and use qualify as legal practice under copyright law?
It is ironic that at a time when online digital technologies are enabling educators to create and share an ever-widening array of texts, sounds, still and moving images, music, and graphic art, there has been a rise in the climate of confusion and fear among educators concerning the use of copyrighted materials as tools for teaching. Sadly, much of the language about “sharing” and “stealing” found in mainstream media has left educators, artists, school librarians, technology specialists, youth media leaders and others confused and fearful (Hobbs, Jaszi & Aufderheide, 2009). And because fear tends to stifle innovation, those who promote the use of digital media as tools for teaching and learning take notice of these developments and aim to address them.
Some educators want to do more than use copyrighted material as a vehicle for transmitting content. They may want students to critique or comment on excerpted media texts as a literacy practice; to memorialize their personal encounters with media texts, or use film clips as a stimulus for charged discussions about how technology and media affect cultural participation, identity development, social power, and political or economic agency. To create and share ideas with colleagues, some educators want to create curriculum materials that employ excerpts from copyrighted works. To promote professional development, others want to distribute samples of student work to inspire and motivate educators and show what students can do in various types of learning environments (Hobbs, 2011).
In the United States, citizens have substantial legal rights as both creators and as users of copyrighted materials for teaching and learning. Under the law, creators are entitled to the full force of copyright law as soon as the original works of authors are produced in fixed and tangible form. Although some educators have signed contracts to work in institutions where their creative work has been declared a work-for-hire arrangement, most educators are legally entitled to claim copyright of their own creative work—lesson plans, activities, etc. (Russell, 2012). And as users of the copyrighted works of others, the fair use doctrine, enshrined in Section 107 of the Copyright Law of 1976, permits people to use copyrighted materials without payment or permission under some circumstances, depending on the specific context and situation of the use. Determinations as to whether the copying or reproduction of the original works of others is a violation of copyright begins with the act's broad exemption that “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research is not an infringement of copyright” (Copyright Act, § 107). While the doctrine of fair use allows for the use of copyright protected material for a wide range of purposes, courts generally consider four fair use factors: the purpose and character of the use, including whether it is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used; and the effect of the use upon the potential market for or value of the copyrighted work. (Copyright Act, § 102).