Fair use–what it really means

Joyce Valenza at School Library Journal has a confession to make. Her recommendations regarding use of copyrighted materials for teaching had been too prohibitive:

I was reluctant to use, or bless the use, of copyrighted materials–movies, television, advertising, popular music, etc.–in teaching and student projects, especially those that were broadcast or published online. To avoid danger, I guided teachers and learners to the use of copyright-friendly materials. As wonderful as these growing collections are, sometimes what you really need to use is commercial or more conservatively licensed materials.

Most teachers are aware that their use of copyright materials is protected under fair use, but most schools and districts are uncomfortable with uncertainties about how the laws may be interpreted, and tend to warn teachers–emphatically–to stay away from questionable uses. Valenza attended a conference where the distinctions for using copyrighted works were finally clarified:

Fair use is a doctrine within copyright law that allows use of copyrighted material for educational purposes without permission from the the owners or creators. It is designed to balance rights of users with the rights of owners by encouraging widespread and flexible use of cultural products for the purposes of education and the advancement of knowledge.

Her understanding has now completely turned around, and she now encourages creative use of all types of materials for teachers to make the world more relevant to their students:

I learned . . . that the critical test for fairness in terms of educational use of media is transformative use. When a user of copyrighted materials adds value to, or repurposes materials for a use different from that for which it was originally intended, it will likely be considered transformative use; it will also likely be considered fair use. Fair use embraces the modifying of existing media content, placing it in new context.

Like Valenza, I always felt guilty about my use of current commerically-sold writings in the classroom. I’ll make my own confession. One semester I copied out a chapter of The Kite Runner by Khaled Hosseini. It’s that wonderful chapter about the two boys who are still young and innocent of the evils of war, cruelty and betrayal, and are about to enter a kite running competition. I was excited to see how my tenth grade students would react to these two scrappy Afghan boys. I made enough copies for classroom use only, and I made certain the title of the book and the author’s name were displayed on each page. Still, I was not kidding myself that this was ‘legal.’

I developed study questions which the students answered in groups once we finished the reading, and I ended the lesson with a freewrite: How did your reading of The Kite Runner change your perceptions of the Afghan people? I learned that although they were aware that the United States had invaded Afghanistan in retaliation for the 9/11 attacks in the US, they had huge misconceptions about the people. Many students reported that they weren’t aware that the Afghans lived in houses or drove cars. They were surprised that they were educated and actually used computers. They were amazed by the idea of ‘mortal’ combat with kites lined with glass (to cut down other kites). Most importantly, however, these boys represented real flesh-and-blood people who were surprisingly much like them when they were younger. This realization quickly led them to questions about how the lives of Afghan children changed after the wars with Russia and the US. Their responses were lengthy, focussed, concerned, and strong.

Was this misuse of copyrighted materials? Did I hurt the author or publisher? I can’t possibly imagine how this exposure could have hurt either. I know for a fact that a few of the students went out and bought the book. Others looked for it in the school and public libraries. There was more excitement when it was announced that there would be a movie based on the book.

This was one of those lessons that make you want to shout from the rooftops about how great it is to be a teacher–definitely transformative.

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