It’s time for the triennial DMCA 1201 rulemaking process at the U.S.Copyright Office and that means time for another effort to protect the fair use rights of educators and students to use audiovisual content that’s locked up behind encryption for educational and fair use purposes.
I have just submitted two petitions: one to support the needs of K-12 educators and their students and another to and another to support the needs of educators and learners in out-of-school contexts including those working in libraries, museums, media access centers, and non-profit and cultural organizations. You can learn more about the DMCA 1201 exemption process here.
I’m grateful to the American Library Association, the Library Copyright Alliance (with members including ALA, ARL and ACRL), Sherri Culver at the National Association for Media Literacy Education (NAMLE), Erin O’Neill of Media Literacy Now, Gretjen Clausing of Philly CAM, the public media access center, DC Vito at The LAMP in New York City, and Frances Jacobson Harris, emerita professor at the University of Illinois Champaign-Urbana for joining me as signatories to the petition. These key advocates recognize the need for educators and learners (working in and out of formal education contexts) to be able to rip video for educational purposes. They and others know this is part of the expanded nature of literacy in a digital age.
Here the gist of the argument I made:
Why it Matters. Today, what we call “learning” is transforming: it’s no longer focused on learners who sit-and-listen and instructors who stand-and-deliver. A new model is emerging where teachers are designing-and-curating rich multimedia artifacts and learners take responsibility for their own education by demonstrating their comprehension, knowledge and skills by making-and-creating media messages in print, visual, sound, audiovisual, interactive and digital formats. Learning no longer happens only in a classroom. In addition to amazing work in elementary and secondary schools, the tertiary sector of education is emerging as a bastion of innovation as new models of digital literacy are emerging as a result of the rise of digital media and the Web 2.0.
Expanding Literacy Requires Quoting from Audiovisual Texts. We request an exemption that enables educators and students to use artifacts of their cultural heritage – classic and contemporary film and other digital media – for these new instructional practices that have the potential to engage, motivate and inspire children and young people in American public, parochial and private schools. Such learning experiences activate digital and media literacy competencies, including the ability to access, analyze, evaluate, and create messages in a wide variety of forms. Students are able to reflect on the social consequences of media in society and take action in the use of information and communication to make a difference in the world. Such purposes involving the use of copyrighted content in education are well-aligned with the goals of copyright law, which is to promote creativity, innovation and the spread of knowledge.
The spirit of the Section 1201 rulemaking process is to protect and preserve fair use in the digital age. We seek an exemption for the circumvention of audiovisual works used for educational purposes to allow both educators and students the ability to make high-quality clips of lawfully obtained motion pictures for a variety of educational purposes, including to facilitate the acquisition of media literacy competencies. We maintain that educational uses that depend upon close analysis of film or media images are adversely impacted if students are unable to apprehend the subtle detail or emotional impact of the images they are analyzing. In 2012, the Register of Copyrights agreed that under some conditions, screencasting is not an adequate mechanism to address the need for high-quality digital clips for educational use. As part of their formal learning, elementary and secondary students sometimes engage in creating transformative content using motion picture excerpts. These projects are often designed for authentic audiences including parents, peers and members of the local community and thus students have an authentic need for high-quality source material. Elementary and secondary teachers and their students both need the ability to make fair use of entertainment, documentary and other forms of film that are currently protected from copying by various forms of copy-protected protection measures.
Learning in and Out of School. Educators and learners in non-school settings also need to make video clips of copyrighted content for fair use and educational purposes. Over the past seven years, the John D. and Catherine T. MacArthur Foundation has invested more than $150 million in understanding new forms of learning in informal, interest-driven networks that use the powerful new creative and expressive tools of digital media. To understand how learning is changing as a result of the rise of digital media, they developed a research hub at the University of California, Irvine and established other innovative programs such as the YouMedia program at the Washington Public Library in Chicago. Learners come to the library to “hang out, mess around and geek out” and learn how to create and express themselves using digital media tools, including music, video and multimedia. The Digital Media and Learning community (DML) are exploring a new vision of learning that is more engaging, motivating, social and supported by a constellation of mentors, educators, knowledgeable peers and parents. At the present time, these educators and the learners they support are unable to legally “rip” copy-protected DVDs for informal learning in out-of-school contexts.
We request an exemption that enables both educators and learners working in these settings to use artifacts of their cultural heritage – classic and contemporary film and other digital media – for these new instructional practices that have the potential to engage, motivate and inspire children and young people who often experience transformative learning experiences in informal settings. Learners are able to reflect on the social consequences of media in society and take action in the use of information and communication to make a difference in the world. Such purposes involving the use of copyrighted content in education are well-aligned with the goals of copyright law, which is to promote creativity, innovation and the spread of knowledge.
An Exemption is Needed. Here’s Why:
- Both teachers and learners in informal settings need to use film clips for a wide range of teaching and learning purposes characterized broadly as educational use.
- Critical analysis of film clips is a vital component of teaching and learning with and about media.
- The creation and use of highly customized film clip compilations increases the efficiency of instruction in informal learning settings.
- The effective use of audiovisual resources is facilitated when educators and learners can create their own clips intentionally with a specific purpose in mind.
- Screencasts are inferior to digitally copied clips that are needed by some learners for various forms of direct instruction and project-based learning in informal learning contexts.
Adverse effects of not having an exemption include:
- Learners lack access to film cultural heritage for purposes of learning and this contributes with other factors to diminish the quality of education.
- Current law makes irrational distinctions among learners who engage in learning in different buildings and at different types of the year.
- Reliance on movie clip websites puts some learners at an educational disadvantage.
- Confusion over how teachers and learners can legally access audiovisual clips for fair use is exacerbated by current DMCA law.
This requested exemption supports lawful uses that fall squarely within the mandate that section 1201 confers on the Copyright Office. Importantly, the incorporation of video clips into student-created multimedia presentations represents a strong transformative use of the copyrighted material. In light of each of the statutory factors set forth in 17 U.S.C. 1201(a)(1)(C), this exemption is recognized as a fair use:
- Nature of the Work. Copy-protected audiovisual content, including entertainment, informational and other forms of contemporary and classic film and video content is relevant to learners today as educators aim to make direct connections between the academic content of the classroom, the targeted competencies and skills to be strengthened, and the lived experience of the learner.
- Character and Use. Whether originally used for entertainment, information or persuasive purposes, short excerpts of copy-protected works are repurposed as resources for learning in informal education as learners activate critical thinking, collaboration, creativity and communication skills in responding and creating with these resources.
- Purpose of the Use. An exemption enabling circumvention of technological measures applied to copyrighted works enables the robust practice of learning and teaching as well as criticism and comment.
- Effect on Market. The circumvention of technological measures does not impair the market for or value of copyrighted works because learners in informal settings are using these resources for an educational purpose only. The bypassing of copy-protection is used not as a replacement or substitute for the original, but as a resource for learning used for the primary purpose of activating learners’ critical thinking, creativity, communication and collaboration skills.
We Need Your Help! If you are a educator or learner working in elementary or secondary schools or in an informal learning environment like a library, museum, media access center or non-profit organization, and you have not been able to legally bypass CSS-encryption for DVDs or online streaming media to make video clips for educational or fair use purposes, please email me at email@example.com. We would love to include your story in our presentation to the U.S. Copyright Office later this spring. Click here to add your name to our list of supporters!
As Patricia Aufderheide and Peter Jaszi have written in their marvelous book, Reclaiming Fair Use, fair use is a “use it or lose it” kind of thing. Only through advocacy can we ensure that fair use enables copyright law to fulfill its purpose in promoting creativity and the spread of knowledge and innovation.