Copyright Law and Fair Use: A History in Content and Context

      As Gunther Kress argues in Literacy in the New Media Age, the screen and the image have now replaced the book and written word as the dominant means of communication. Throughout the book, he explores how these changes will affect the future of literacy. Kress explains:

 It is no longer possible to think about literacy in isolation from a vast array of social, technological, and economic              factors. Two distinct yet related factors deserve to be particularly highlighted. These are, on the one hand, the broad   move from the now centuries-long dominance of writing to the new dominance of the image, on the other hand, the move from the dominance of the medium of the book to the dominance of the medium of the screen. These two together are producing a revolution in the uses and effects of literacy and of associated means for representing and communicating at every level and at every domain (1).

For those who agree with Kress, as I do, that we have entered the age of the screen, then we must acknowledge that there exists the opportunity in the composition classroom for student projects that blend word with image. Technology makes the boundaries for such projects almost limitless in scope. Students can produce slide shows, movies, digital scrapbooks or collages, commercials, music videos, and numerous other compositions, all of which combine a variety of modes including: audio, image, and text. Bringing these multimodal projects into the classroom allows students to examine the relationship between multiple modes and utilize the available media of the twenty-first century, which they will be forced to deal with when they leave the university, to communicate with their intended audience. 
     In her article Expressions of disciplinary and individuality in a multimodal genre, Christine Tardy examines students’ design and identity choices in multimedia composing. Through evolving technologies writers are able to have more power over their compositions and the choices they make in constructing them. Tardy writes:

With this increased control comes a new range of choices with which writers must contend, including the juggling of verbal and visual modes of expression. Through each of these modes- word and image- writers not only communicate knowledge but also display their multiple disciplinary and individual identities. (319)

As with any revolutionary concept, dealing with multimodal compositions does bring out a new set of concerns and questions that we have not previously faced in the academy.
     A primary concern of multimodal composition is the role fair use and copyright law plays in students composing . In the article The Fair Use Doctrine: History, application, and implications for (new media) writing teachers, Martine Courant Rife opens with a discussion about how teachers have never previously thought much about the role of copyright within their classrooms. Rife states, “For the most part, teachers did not consider whether their use of chalkboards, overheads, or paper syllabi distributed to students and contained within the classroom’s four walls might be infringing on someone else’s copyrights” (154). Now these issues are brought more to the forefront as technology transforms the types of projects assigned in composition classrooms. As a result, the space these assignments exist in has changed as students are able to self publish via the web. Rife explains, “Networked writing environments, digital technologies, along with the advent of new media student-created texts, have made ‘classroom’ writing more visible to the outside world that it ever has been” (156). Since students’ writing lives outside of the physical brick and mortar classroom, students must be aware of the legal responsibilities that come with this expansion.
     In the academy instructors are used to teaching students the importance of documenting sources and avoiding plagiarism. They speak of the necessity to give credit where credit is due to others and tell students to increase their own credibility by being knowledgeable of other research in their field. Instructors spend their time explaining the Modern Language Association (MLA) and the American Psychological Association(APA) documentation style system of in-text citations and works cited pages. However, in multimodal compositions, where students may utilize others images, audio, and, videos, the challenge of instructing students on copyright law and fair use becomes important.
     The United States Copyright Act, title 17 of U.S. Code, was passed in 1976. The Copyright Act protects the intellectual property of those who create an original work. According to the U.S. Copyright Office:

Copyright is a form of protection provided by the laws of the United States (Title 17, U.S. Code) to the authors of ‘original works,’ including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.

An author’s work is copyright protected if it is an original work that is in a tangible or readable format. Authors must grant permission for their copyrighted works to be used by others. Copyright law serves to protect the products, thoughts, and ideas of those who rightfully deserve the credit for creating them. In addition, it helps authors share intellectual property and spread knowledge. However, there are exceptions to the basic copyright law such as public domain and fair use.
     Works in the public domain can be used by anyone free of charge and without needing the consent of the copyright owner.  According to a statement of best practices from the Society for Cinema and Media Studies:

  In general, public domain works include works for which:
1. The term of copyright for the work has expired
2. The author of a work published before 1978 failed to satisfy statutory formalities to perfect the copyright
3. The copyright owner has dedicated the copyright term to the public
4. The U.S. Government was the source. (162)

Works are copyright protected for the life of the author plus 70 years. If the copyright protection expires then the work falls into public domain as stated in point number one above. According to copyright law, any work that was created prior to 1978 that was not published or registered with the copyright office by January 1, 1978 falls into public domain after the life of the author plus 50 years which is reflected in point number two. Criteria number three states works are in the public domain if the author says they want to donate the work to the public and criteria four defines all government authored works as property of the public domain. If a work falls into any of these categories it can be utilized without worry of copyright law or fair use.  Unfortunately, there is a minimal amount of works that are in the public domain. In this case, scholars, teachers, researchers, and students have to look to fair use to see is they are able to use copyrighted material.
     In their article Academe, Technology, Society, and the Market: Four Frames of Reference for Copyright and Fair Use, Amy Metcalfe, Veronica Diaz, and Richard Wagoner state:

Throughout the language of copyright law and related court cases, one assumption is unchallenged and pervasive: education, and by extension academic research, is a public good. The foundation of this assumption is the U.S. Constitution, where copyright was first addressed in the legal record of the newly found United States. Article 1, section 8, clause 8 states that [The Congress shall have power]… ‘to promote the progress of science and useful arts, by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries,’ thereby placing a high value on invention and creativity and positioning congress as the branch of government concerned with the oversight and regulation of intellectual property. (192)
Since society views, as stated above, education and research as a public good, the U.S. Copyright law provides the fair use doctrine. Fair use doctrine allows copyrighted works to be used for specific purposes such as education, research, and review with out the author’s permission. Fair use was developed “through a substantial amount of court decisions over the years. This doctrine has been codified in section 107 of the copyright law” (U.S. Copyright Office). Fair use is determined by a set of four factors. These four factors are to be used by those wishing to use a piece of copyrighted material to determine if they are lawfully able to. According to section 107 of title 17 of U.S. Code the four fair use factors to consider are:

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.       Amount and substantiality of the portion used in relation to the copyrighted works as a whole; and
4.       The effect of the use upon the potential market for or value of the copyrighted work.

In essence, when we, as scholars, teachers, and researchers, want to use a piece of copyrighted material we have to assess what we can use and how much based on the criteria of these four factors. This also means that students, when composing, must do the same.  That leaves instructors responsible for teaching students about fair use and copyright law.

     Based on my own experience, as both a student and a composition instructor, I understand the difficulty that comes with applying these four factors and explaining them to students.  Although the factors may seem clearly outlined in the law they are, in fact, rather ambiguous.  Students struggle with how much material they are in fact allowed to use since there is no one percentage or amount specified in the law. I have seen my students struggle over decisions of how much of an audio clip to use in a movie and watched them splice songs together that didn’t work well for the over all purpose of the composition just to abide by fair use. In addition, I have seen students choose to modify their projects to avoid an abundance of issues with fair use.
     The problems that can arise with instructing students on fair use and copyright law come in the fact that the law is very flexible. In his article Do I Need Permission? Fair Use Rules Under the Federal Copyright Law Steven Schragis notes, “Courts have noted that the doctrine is entirely equitable, and is so flexible as virtually to defy definition” (52). In this case, it can be difficult for students to understand how to assess whether something is “fair use” without concrete limitations. The U.S. Copyright Office states, “the distinction between ‘fair use’ and infringement may be unclear and not easily defined. There Is no specific number of words, lines, or notes hat may safely be taken without permission.” (title 17, U.S. Code).  This section of the code is significant for the fact that it explains the very flexibility of fair use and the lack of specific strict limitations. It would, most likely, be easier to tell students that they are limited to use only 10% of a song or movie clip but that just is not how fair use works. Shragis states, “fifty words from a 100 word copyright protected poem constitutes half of the protected work, and that may simply be too much for fair use. The same 50 words from a 5,000 word poem constitutes a mere 1 percent use- and may be allowed” (56). However, there are no exact rules to delineate these amounts.  The Society for Cinema and Media Studies states, “It is important to note that neither the educational exceptions nor the statute’s definition of fair use delineate specific permissible uses. As a result, it is somewhat unclear exactly which uses they protect and every use is subject to individual analysis” (157). Fair use operates on a case by case basis where a user must utilize his or her own judgment. Shragis notes, “Unfortunately, it would be wholly misleading to say that even a thorough understanding of the four fair use factors will provide any more than very helpful guidance. Absolute concrete guidelines simply do not exist” (52).  With no clear and definitive guidelines to instruct students on, fair use becomes nothing more than a doctrine containing shades of meaning that students must apply as they deem appropriate.  This mean that the students must understand fair use completely to be able to apply it.
               Rife focuses on students’ misunderstanding of fair use. She provides an example from a research study where, “unbeknown to her teacher, one student purchased every image she used when creating new media class assignments. Fearful of copyright infringement liability, another student took almost every picture used on her web site with her own camera” (156). Rife argues that it is imperative students understand fair use to avoid situations such as this as well as legal infringements. Students will be increasingly asked to understand and apply the four factors of fair use to their projects as technology and new media continues to expand. Rife identifies a particular situation:

A common new media class assignment requires students to visually and/or digitally reinterpret a poem. If a student prepares and publishes to her own web space a five-minute movie where she incorporates a poem written in 1982, numerous images from the web, and several song clips she edits together (assuming all materials are copyrighted to others and none are available through licensing), the student, if wishing to act legally, would make multiple fair use determinations. (160)

One area Rife identifies as a need of focus is the distinction between fair use and plagiarism. Rife states, “while copyright/fair use and plagiarism are separate concepts, some of the concerns of plagiarism intersect with issues and concerns of copyright protection/fair use” (159). However, despite what Rife identifies here, it is crucial to understand that copyright/fair use and plagiarism are two different things. Rife points to this by identifying that, “even if attribution is given, copy right infringement can still occur unless the use is ‘fair’ (159). It would seem crucial that in order to successfully instruct students in understanding fair use/copyright  versus plagiarism and applying the fours factors, instructors must first identify how students interpret fair use and be aware of the effect it has on their projects.


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