Today’s teenagers live in a time where technology gives them the tools to create, share, and publish just about anything they can conceive, and enables and encourages them to use and remix existing content from TV, movies, music, and games. At the same time, they are repeatedly reminded that their creations can be shut down, removed, or monetized by others who simply claim to have a copyright. So they know how to snag a clip from The Walking Dead, set it to “Yakety Sax” and post it on YouTube, but what they may not know — because most schools are failing to teach them — is under what circumstances the law actually protects the fair use of copyrighted material, and when it doesn’t.
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) 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) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
So much of what we hear about copyright law is about how it limits the use of protected content — you can’t sell pirated movies; don’t share your mp3 library on Pirate Bay; no selling T-shirts with Hello Kitty on the front.
In fact, a California state law now declares that if a school wants to receive an educational tech grant, its curriculum must “include a component to educate pupils… on the appropriate and ethical use of information technology in the classroom, Internet safety, the manner in which to avoid committing plagiarism, the concept, purpose, and significance of a copyright so that pupils are equipped with the skills necessary to distinguish lawful from unlawful online downloading, and the implications of illegal peer-to-peer network file sharing.”
The 2006 law that created this rule, backed by recording and movie industry lobbyists, has the effect of requiring schools to treat lessons on copyright in a way that is not unlike lectures on the dangers of misusing prescription drugs.
Likewise, the Center for Copyright Information — an organization whose members include Comcast, Time Warner Cable, AT&T, and Verizon — sponsors an educational program for California schools called “Be a Creator: The Value of Copyright.”
When we do hear about issues of “fair use” and “public domain,” the discussions are usually limited to issues around ownership of relatively ancient content like the “Happy Birthday” song, or bizarre edge cases like the infamous “monkey selfie,” rather than the everyday applications of these principles.
What many students aren’t told is that there’s also this handy part of U.S. copyright law called the “Fair Use Doctrine” that lays out guidelines for when it’s okay to take something you didn’t create and use it in your own work. It grants exceptions to copyright when works are used for the purpose of criticism, comment, news reporting, and education.
So why isn’t this valuable information being taught to more kids?
In addition to industry pressure for schools to push the prohibitive aspects of copyright, there is the bigger problem widespread misinformation and confusion about what actually constitutes “fair use.”
Because many adults aren’t clear on fair use exceptions, they tend to teach the message that they know: Don’t. Don’t steal, copy, don’t download; don’t be a pirate.
But isn’t there a difference between downloading entire movies off the Internet versus using a bunch of short clips to create a montage of movie trailer cliches?
Jennifer Jenkins, director of Center for the Study of the Public Domain at Duke Law, tells Consumerist that the message conveyed to the public is “You can’t do anything, and if you do, you’re bad, and you’re violating copyright law!”
Jenkins contends that this approach to copyright ignores the more subtle aspects of the law.
“It either has the chilling effect of deterring young people from doing creative things that they want to do, or it turns young people who are doing creative things into assuming that they’re all lawbreakers,” she explains.
You’ve probably heard people say that it’s okay for a show to play a short clip of a song without permission so long as it’s shorter than 30 seconds, that you’re okay to photocopy up to X number of pages in a book before you’ve violated copyright, or that you can put on a play if you don’t charge people money to see it.
But the truth is that there are no hard and fast rules when it comes to fair use, which is another reason it’s such a difficult topic to teach.
“We wouldn’t have to write about it because you could just say, ‘Oh, you took 30 seconds of a five-minute song, you’re fine!’” explains Jenkins. “In one sense, it would be wonderful if there were clear categories that the general public, the average person, could understand and apply.”
But that’s impossible, mostly because copyright law was written during a bygone era that doesn’t have much to do with the reality we’re living in now.
In spite of countless court rulings on the matter, copyright law remains controversial, author and advocate Cory Doctorow tells Consumerist, because it was conceived of as an industrial regulation, instead of as a law that could be applied to cultural activity.
In a pre-computer age, the only people who could really violate copyright were those who had access to the means to actually make copies.
“Making a copy used to be intrinsically industrial: you couldn’t copy a book without a printing press, you couldn’t copy a film without a film lab,” Doctorow, who is currently working with the EFF on a 10-year project to reform copyright law, explains.
Now anyone with a smartphone can be a movie producer, photographer, recording artist, or publisher, resulting in a metastasis of entities that now fall within the scope of copyright law.
“Making a rule that’s fit for purpose — a rule that Warner can use to license out Harry Potter to Universal for the Harry Potter Theme Park — means that you are going to make a rule that is never going to be fit for purpose for a 12-year-old who wants to make Harry Potter fan fiction,” he says.
Lending A Teaching Hand
Image courtesy of Adam Watstein/ Consumerist
Fair use might be difficult to make digestible for young students, but there are several groups currently trying to educate America’s youth about their rights.
TeachingCopyright.org
After California passed the law making copyright-related curricula a requirement for any school trying to get educational tech funding, the Electronic Frontier Foundation’s Corynne McSherry says that the resulting curricula were “heavily influenced by a particular perspective that didn’t seem to think that Fair Use was an important part of the story.”
In response, the EFF developed a Teaching Copyright Curriculum that anyone can use and which stresses fair use rights.
“We wanted to create a curriculum that we thought would be a little bit more balanced in terms of how we think copyright really works,” McSherry tells Consumerist.
The EFF curriculum is licensed for public use under Creative Commons, but McSherry notes with a laugh that “One of the things that’s ironic is I often get requests for permission to use it! You don’t have to ask me! Go for it! That’s the whole point!”
Fair Use Gets Comical
Jenkins and her colleagues at the Center for the Study of the Public Domain have also pitched in to appeal to the younger set, with a comic book called Bound By Law first published in 2006, outlining the basic tenets of fair use [PDF].
Why? Because, says Jenkins, younger people might not be so into really hefty texts, think pieces, or legal documents about fair use, but they should understand where the boundaries might be between uses that they’re allowed to engage in, and things that they can’t do without permission.
“The younger generation, they’re all subject to copyright,” she explains. “They’re interacting in a media-saturated culture, they’re interacting with copyrighted stuff every day, all the time, and they have the tools at their fingertips to play with it and do creative things with it.”
Jenkins says the response to the comic book from educators and students has been positive.
“The people who have gotten in touch with us from middle school, high school, and of course college and beyond said that they absolutely think that it’s important to students, and the reason it’s important to kids is because they run into it all the time,” she says.
The LAMP Turns On The Lights
Outside the traditional classroom experience, others are waging a war to help kids learn their rights by teaching them to first be critical of all the various forms of media prevalent today, and then to talk back to it, by remixing it using the concepts of fair use.
Since 2007, The LAMP — Learning About Multimedia Project — has been working with kids, from kindergarten through high school, to teach them about commercials: what they are, how they’re trying to sell their products, and why it’s important to be more than just a passive consumer in the face of the many messages those ads send.
Here’s a good example from one of The LAMP’s past projects with kids:
One such project, now in its fifth year, is called “Break the Super Bowl.” The event helps students learn to dissect the spate of high-profile ads that most of us just chuckle at and quickly forget.
Consumerist attended this year’s event, along with 18 students in a Brooklyn classroom — on Super Bowl Sunday — to “break” the current crop of Super Bowl commercials by remixing, re-editing, and otherwise transforming the ads to insert their critical voices — while exercising their Fair Use rights.
“It’s really important to help them understand, ‘you not only have the right to remix other people’s stuff, but you have responsibilities and you need to know those responsibilities,” D.C. Vito, co-founder of The LAMP, tells Consumerist. “And in this day and age when piracy is such a problem, it’s really important to be on the other side, on the positive side, and teach the educational aspect — how you can interact with copyright material, and do it smartly.”
One tool The LAMP uses to illustrate those Fair Use rights is an easy-to-understand video that is available on YouTube. Using the medium they’ll be working in, on a site they use regularly, helps break the issues down for both kids and adults alike:
For those who can’t attend The LAMP’s events in person — a series which now includes “Break the Election,” where students dissect political candidates’ ads — the organization has developed its own “Breakathon in a box” kits, with all the materials an educator (or even a parent) might need to replicate what the group does with their trained facilitators and volunteers.
Not everything the students made at this year’s event passed fair use muster, but even if their work doesn’t get posted on YouTube, it’s still an important lesson.
“Even though yes, it has to be fair use for us to publish it on YouTube, you’re exercising your fair use rights” just by the act of creating it, explains Alan Berry, The LAMP’s director of education. “Maybe they won’t get it that first time, but if they keep doing it… they’ll get it, but just the act of them going through that process is what’s important to me.”
So what message should we send to youngsters who are trying to understand this complicated issue?
“I think what we need to tell kids about copyright is if they have to understand copyright to do the things that children have done since storytelling began, since drawing began, since learning music began, then the system that they’re in is manifestly broken and bankrupt,” says Doctorow. “And that they should devote their energy to changing it not figuring out how to stay within its lines.”
The problem isn’t necessarily that a man in Massachusetts went out and patched some holes in his street himself, at his own expense. The town prefers to use hot asphalt instead of the patching material he used. The core problem is that he happens be the sales manager for the company that sells that patching material. 
