Steve Anderson and Holly Willis, faculty at the University of Southern California?s School of Cinematic Arts, believe that educators who work with digital media and film should be able to teach without worrying about being sued. But the copyright industry?s obsession with lawsuits has made most educators wary of teaching with any digital content they do not own or license. In response to this culture of fear, Anderson and Willis founded CriticalCommons.org, a knowledge network designed to help educators learn about their rights and responsibilities under fair use, and a sharing tool for teaching.
In October of 2008, representatives from the Motion Picture Association of America held a major summit in Los Angeles to discuss how to combat piracy on campus. ?They didn?t mention fair use once,? says Anderson, underscoring how tightly those in the content community guard copyright. ?If fair use comes up at all, it is in the context of libraries being able to make backup copies of their DVDs, not for classroom use and certainly not for any kind of media-rich electronic publication.?
An example: Part of the ritual of renting a movie is sitting through the FBI anti-piracy warning, a message so sacrosanct to film makers that it is defies fast-forwarding. And while most of us have read the warning label, few realize that the first sentence is not completely true.
?The unauthorized reproduction or distribution of this copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to five years in federal prison and a fine of $250,000.?
Filmmakers are not alone when it comes to copyright misinformation. Other media warn us to get ?the express written permission? of copyright holders for any kind of use. The truth is, in many cases the unauthorized reproduction or distribution of copyrighted work is simple fair use?the very essence of which requires no authorization or permission. Our country, our culture, and creators depend on fair use, which stems from no less an authority than the United States Constitution, ?to promote the progress of science and useful arts.?
But exercising this simple right risks engaging the content community?s full legal arsenal, who are ready to fight regardless of whether fair use is in play or not. Educators, in particular those who work with digital media and film, have the law on their side but lack legal teams to defend their fair use of copyrighted works. Perceived risks for the average person are just too great.
So what can fair use advocates and educators who work with media do? In 2007, Anderson and Willis won a HASTAC/MacArthur Digital Media and Learning grant to create CriticalCommons.org, a knowledge network bent on putting the fair back in fair use. Critical Commons will function as a social network for advocacy and education, a media-sharing tool, and a safe harbor, making commonly used media samples available to scholars, students and researchers in a critical context.
This idea of a safe harbor is critical for educators, since they should be focusing on teaching, not worrying about whether the Recording Industry Association of America, the Motion Picture Association of America, or the Association of American Publishers is out to sue them. The good news is that Congress created a fair use safe harbor for educators who use copyrighted media. However, to qualify for that safe harbor a user must understand the fundamentals of fair use ? not an easy task when fair use is obscured by misinformation.
In October, Hastac Scholar Veronica Paredes hosted a forum at Hastac.org to discuss fair use, held in conjunction with Critical Commons? Fair Use Day at the University of Southern California. Peter Jaszi, Professor of Law at American University, addressed the audience of scholars and students, pointing out that, ?we live in a golden age of fair use.? Paredes, reporting on the event, agreed with Jaszi?s comment, noting that ?Fair use has been the safety valve that reduces the pressure of copyright law, but that is changing. The landscape has changed and fair use is becoming really tough to use and difficult to employ. And yet in recognition of these paradoxes, a fair use renaissance has emerged.?
By shaping and sharing best practices, by building a showcase of legitimate claims to fair use, by helping educators argue for ethical and valid claims to fair use, Critical Commons will help ground the copyright debate, and help give the academic community a firm grasp of fair use?so essential to teaching, learning, creating and inventing in the 21st century.
Written by Sheryl Grant, Director of Social Networking for the HASTAC/MacArthur Digital Media & Learning Winners? Hub, and David Lombard Harrison, Associate Vice President for Legal Affairs at the University of North Carolina.