School district kicks out fair use

I have an email folder called “sad, but true,” where I store weird news items, usually about copyright/fair use: The Irish daycare centers that were sued for showing DVDs at playschool, and each child was each charged a three euro penalty fee. The news that Rod Stewart was being sued over the rights to an image of his own head. The litigation around who was the rights holder of the selfie of a monkey. (Yes, the monkey took the photograph of himself.) These tales are like the ones in the “sad, but true” folder.

empty teacher desk in classroom

Photo credit: daveynyn for Flickr

Here’s a “sad, but true” tale I found recently, and it has a horrible conclusion:

The story is about a school board that was deciding whether to “take an official policy position on the legally tricky issue of copyright compliance for its 18,000 employees and 159,000 students.” The school board debated whether having a copyright policy was more trouble than it was worth. (That made me laugh). After some discussion, the school board ultimately thought they needed to “take a stand.”

The board decided to remove the section on fair use because it would give teachers, staff and students “a false sense of security.” Multiple attorneys advised and the School Board Association agreed that “the problem with fair use is that there’s no specific provision in the law” that gives a “cut and dried” definition of “what is fair use.” The committee also agreed to “drop the section about providing training on fair use” (well, yeah).

But there’s more. The committee chair suggested that, because fair use is “super broad,” teachers should always ask for guidance from the principal, but the group felt it would be too much of a burden for the principals. The committee reached consensus on the issue and ruled that “employees, students and visitors are prohibited from the use or duplication of any copyright materials not allowed by copyright law, fair use guidelines sanctioned by Congress, licenses or contractual agreements.” This is crystal clear, and will not be confusing to people.

I then envisioned the things that the schools in this district would have to stop doing. Without fair use, using digital technologies and networks for teaching and classroom purposes would have to be severely curtailed. No cutting and pasting! No linking! No collages (maybe no art class altogether because it would be too risky). If a student is required to write a story, it better be original (and when I say original, I mean original). No music over the intercom system during morning assembly. I suppose you could read (but not aloud) and watch DVDs in classrooms. Class assignments would be very hard for teachers to craft, and new standards for assessing performance would need to be created for not learning. School talent shows would have to be prohibited, no yearbook, no student newspaper. (Reader: I wonder how many things you could name that this school district could not do without fair use. Let’s make a big list.)

This poor school district. Being advised by attorneys to refrain from using fair use because there are no cut and dried answers to “what is fair use.” Resorting to copyright guidelines that are not even in the copyright law. Censoring student assignments. Never being allowed to build on an existing work, or even comment on it. Of course, you could just get permission from the rights holder before doing anything – that would give one a “sense of security” (as if there are security guards in the school that arrest people who copy more than 10% of a book). This sad school district without fair use. Teachers can’t teach, students can’t learn and you’ll never be able to sing a song in the talent show.

About Carrie Russell

Carrie Russell is the Director of the Program on Public Access to Information in the Office for Information Technology Policy (OITP). Her portfolio includes copyright, international copyright, accessibility, e-books and other public policy issues. She has a MLIS from the University of Wisconsin-Milwaukee and a MA in media arts from the University of Arizona. She can be reached via e-mail at crussell@alawash.org.

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