Best Practices in Fair Use for Media Literacy Education

Another Best Practices in Fair Use report has been released.  This time, the focus is media literacy education and educators.  The report and recommendations are online at www.centerforsocialmedia.org/medialiteracy. From the introduction:

This document is a code of best practices that helps educators using media literacy concepts and techniques to interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances “especially when the cultural or social benefits of the use are predominant. It is a general right that applies even in situations where the law provides no specific authorization for the use in question” as it does for certain narrowly defined classroom activities.

This guide identifies five principles that represent the media literacy education community’s current consensus about acceptable practices for the fair use of copyrighted materials, wherever and however it occurs: in K-12 education, in higher education, in nonprofit organizations that offer programs for children and youth, and in adult education.

The full report is here.  The report is yet another in the continuing series of Best Practices Statements produced by or in partnership with the Center for Social Media at American University, with Pat Aufderheide and Peter Jaszi (at AU’s Washington College of Law) in the lead.  The series began with the statement for Documentary Filmmakers and the more recent statement for producers of Online Video.  (The Media Literacy statement was produced with substantial contributions by a host of additional scholars, notably Renee Hobbs at the Media Education Lab at Temple University.)  I have had the privilege of serving on the Legal Advisory Board for all three projects.

These statements are fascinating to work on, and they are equally fascinating to watch in action.  Their reception in various communities confirms that they or something like them are desperately needed.  All lawyers know that copyrighted material is ubiquitous and unavoidable.  Fair use is an essential part of copyright law; it permits a wide variety of uses of copyrighted material without rights being cleared.  The conventional wisdom, however, holds that fair use is radically unpredictable and uncertain.  One response to that conventional wisdom has been the construction of elaborate schemes for clearing rights, even in domains such as education that traditionally were understood to fall largely within fair use.  “Best practices” statements offer a different response, one that is grounded in the affirmative value of using copyright works, in context, without the permission of copyright owners, rather than in what is essentially a negative vision of fair use, as a transactions-cost problem.