I always thought that Fair Use laws were very generous when it came to the education arena. 30 seconds of music here and there, videos clips, quotes from books, thumbnails from searches, all for the purpose of making education more engaging. But not all educational use is covered under fair use policy.
The purpose of Fair Use as defined in Wikipedia is “To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative.”
I thought that surely copyright laws and fair use policies were of recent developments within the last couple of decades since the economic and technology boom and necessary in our lawsuit-happy society. It was surprising to find out that the first conception was in 1709 in the United Kingdom with the Statute of Anne. To this day, lawsuits examine fair use through the lens of the four factors determined in the 1841 case of Folsom v Marsh, 9 F.Cas. 342.
To be fair, we (as a society) have to place ourselves in the shoes of the artists/authors who should have rights to their intellectual property. They deserve acknowledgement in the form of monetary royalties or at the very least credit for their creative process. Unless the artist has specifically stated that the work is public domain, we should try our best to assume that everything has a default copyright and be respectful in our use, even for the benefit of educating students.
As educators teaching copyright and fair use, we should model how and when we encounter situations that fall in these categories. To better understand from an artist’s point of view, classes can Skype with an artist/author and ask questions about how and why “we” should heed copyrights/fair use policies. Very recently Amy Krouse Rosenthal visited our international school. We wanted to surprise her with a song using the words in her book, Plant a Kiss. Our librarian and the music teachers contacted Amy Krouse Rosenthal who gave her permission. Our kindergartners serenaded Amy in our community garden. It was a lovely way to welcome her to our school. (I have second thoughts about sharing the video of this moment. Is it covered under her copyright permission to broadcast this in a public forum like a blog?)
In the end, fair use rights may be applied when there is no profit involved or the use is not for commercial purposes. In a school setting, this is tricky when it comes to fundraising ideas, theatre/musical or celebrations such as yearbook/graduation that use some sort of media in this digital age. In any case, it is always good to check with the author(s) or see if the work is under contract or license, which would supersede the fair use rights of the property.