Monday, October 01, 2007

Kopyright and Kids Continued

My last planned post on efforts to expose children to copyright law concerns the Copyright Society of the USA. The Society states it is "dedicated to advancing the study of copyright law and related rights in literature, music, art, theater, motion pictures, television, computer software, architecture, and other works of authorship, distributed via both traditional and new media." To this end, the Society puts on excellent meetings at which copyright issues are discussed, holds a very entertaining annual meeting, and publishes a journal, of which I was once the Editor-in-Chief. The Society also has on its website a section devoted to "Copyright Kids." On the Society's website is a Copyright Basics and FAQs, which says this about fair use:

Unless you are absolutely sure, relying on the doctrine of "Fair Use" to avoid seeking Permission to copy a work is risky. Despite what you may have heard, there are no set rules about what kind of use is "fair" and what is "infringing." For example, using less than a certain number of words from an author's work does not automatically constitute fair use. Courts apply the four factors on a case-by-case basis, and one court's interpretation of the factors could easily differ from another's. Thus, it is often impossible to predict whether or not a court would find any given unauthorized use to be "fair." The best course of action is simply to seek permission for all copied material you intend to use.

In other words, kiss off fair use as a practical matter: you can sit around until Hell freezes over waiting for a response to your request, or if you get a refusal, and then what do you do? Why not use the work since the copyright owner said no, just like Nancy Reagan earlier told students.

There is also a quiz, one question of which asks the following:

You just saw the coolest video clip on the Internet, You want to download it and cut it into your own video that you have been working on. You will not use the entire video clip so it should not be a problem to use the music. True or False? If the student answers true, the student is told this is wrong. Students are told they may not copy the entire work (the facts however said the student wasn't doing so anyway), and then the students are cautioned that under fair use, one may use "a very small portion" of the work but even this will depend on the facts. If the student had read the above FAQ about fair use, he or she would already know never to rely on fair use. Where, for example, is a discussion of transformative uses, parody, satire, or cases which have permitted the copying of entire works?

There are a number of activities, including a pretend "Lincoln Middle Multimedia School Year Book, in which "Copyright Cat" helps students who want to put together a multimedia CD-ROM. The gist of the yearbook is that students have to ask permission and then follow the permission guidelines very very carefully.

The Copyright Society's effort is disappointing: it takes an extreme, and inaccurate view of fair use, and even so, urges kids not to rely on it anyway. The overall thrust is that copyright owners own all rights and if they license them, you better do what they say. I find it misleading to describe such efforts as education: they are propaganda, albeit propaganda copyright owners in good faith believe in. If you think this is a harsh assessment, read this statement from the "Why should I care about copyright" intro:

As the creator of your work, you should have the right to control what people can and cannot do with your work. In the United States - one of the world's biggest sources of creative works like movies, television shows, books, computer games, etc. -- this right to control your work has actually turned into big business, but that's what allows all the creative people around us to get paid for coming up with all the wonderful songs, shows, books, painting, movies and other great works that we enjoy. Just think of all the cool songs your favorite band wrote, the great books you loved reading, the plays, movies and television shows you love to watch again and again. These talented musicians, authors, illustrators and screenwriters deserve our respect and appreciation - and they deserve to make a living from the hard work they put into their creative works -- otherwise most of them wouldn't be able to produce as many (or any) of the songs, books, plays, movies and TV shows that you like. That's what copyright is all about. It reflects our appreciation for all the hard work that goes into creating "original works of authorship" and respect for the right of the creator of that work to control what people can and cannot do with it.
Naturally all of those creators themselves created every single part of every single work of theirs from scratch, without ever building on the work of others: if so, they were very hard workers indeed. And if you dare use more than a very small part of one of the works produced by a large multinational corporation in your Lincoln Middle School Multimedia Yearbook, you will kill the goose that laid the golden egg.

There is of course nothing requiring schools to adopt such efforts and hopefully they won't. In the current environment, I am doubtful all sides could sit down together and develop a consensus product: the Canadian experiment is one such failed example. I certainly don't think we should be teaching third graders about digital rightds management; whether there are other things at other grade levels that are properly a part of a schools' agenda, remains to be seen.

6 comments:

Anonymous said...

These talented musicians, authors, illustrators and screenwriters deserve our respect and appreciation - and they deserve to make a living from the hard work they put into their creative works -- otherwise most of them wouldn't be able to produce as many (or any) of the songs, books, plays, movies and TV shows that you like. That's what copyright is all about. It reflects our appreciation for all the hard work that goes into creating "original works of authorship" and respect for the right of the creator of that work to control what people can and cannot do with it.

Man, that is some strong propaganda to be sure.

Personally, I have about as much respect for authors -- in a copyright context, that is -- as I do for dairy cows. Neither group is of intrinsic value; we just want the desirable thing they produce. If we could somehow get it without the messy thing that produces it, that would be so much the better! Alas, this not being possible, the next best thing is to induce them to make as much as possible of what we want for as little cost as possible to us.

How they manage to get respect or appreciation in there, I can't imagine. Nor rights, really; authors don't deserve rights over their work. It's just a convenient mechanism to get them to create and publish the work to begin with. I'd happy trade it for a better mechanism (where better means more works for an even lower public cost). And since it's so important to get public domain works, the grant shouldn't even last more than the minimum time period necessary.

Honestly, how shameful can the Society get?

K. Matthew Dames said...

Quite an interesting post. My full response is too long and complex to post here, but it echoes (in varying ways) what I've written before on Copycense.

I think the Society’s slant on fair use is unfortunate, and I don’t condone it. But the spiel seems to reflect the mindset certain user-representative institutions (like libraries) have been battered into thinking (or allowed themselves to think): fair use does not exist.

This brings me, in a roundabout way, to the Society’s inclusion of this view in what it calls an “educational” piece. Rationalizing the practical limitations of Section 107 to an adult whose job may include institutional protection is totally different from suggesting to a child (rather strongly) that fair use does not exist.

I expected better from the Society in this regard, since one never should expect that large corporate copyright portfolio owners (“copyright trolls”?) will present a fair reading of the Copyright Act.

I wonder what Snoopy & Woodstock would say about all this.

Lastly, in a late paragraph you state “There is of course nothing requiring schools to adopt such efforts and hopefully they won't.” I’m unsure if you meant “copyright education” when you wrote “such efforts.”

If so, that ship already has sailed. California adopted legislation last year (AB 307) that requires school districts to implement a technology plan that must include “a component to educate pupils and teachers on the appropriate and ethical use of information technology in the Classroom [and] … 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.” Cal. Educ. Code sec. 51871.5.

So, the content lobby already has begun to tie propaganda to state education funding proposals. It's just that they want teachers to teach children to "distinguish lawful from unlawful online downloading" without any conception of Section 107.

Dean C. Rowan said...

I'm not sure what Mr. Dames is referring to when he notes the "mindset [of] certain user-representative institutions (like libraries)" who now believe fair use does not exist. I'm currently an academic librarian, but I also spent a good chunk of time in a public library. While academic institutions may be understandably nervous about the appropriate disposition of their own and others' intellectual property, in my experience both academic and public libraries have been well aware of fair use. Not only do we routinely comply with the warning notice requirements, but we are often engaged in the very business--I mean that word in a figurative sense--of promoting fair use of the collection. We're here to support readers' creative and research projects. Granted, we have not done enough proper education about fair use. Believe me, there are manifold topics relating to literature, research, intellectual property, and so forth, about which libraries could and perhaps should provide reliable instruction, but our failure to do so is likely more a matter of insufficient resources than of misunderstanding.

Anonymous said...

I agree that the Society's overall discussion presents a miserly view of fair use, but the fact of the matter is that very young children are engaging in online activities that raise copyright issues and therefore do need to know something about those issues (and definitely not just the propaganda that comes from the content industry). Moreover, but for the last (always seek permission) sentence, the Society's advice is pretty accurate -- fair use is, inherently, risk analysis. Given that five year olds are unlikely to understand the nuances of a doctrine that even 99% of adults don't understand, is a cautionary note really all that inappropriate?

William Patry said...

Anon: as a pedagogical tool, the Society's miserly approach disvalues a critical aspect of copyright, fair use and transformative uses. I agree that were I advising a corporation that might get sued, getting a license, assuming it is available (not an assumption one should make), might make sense as a business matter. But as an educational matter, I think we have to be more expansive; and even as to schools, is there a serious threat that a third grader who makes a genuinely transformative use would get sued?

Anonymous said...

I agree the chances that a third grader who makes a genuinely transformative use would get sued are slim (but see the RIAA . . .), but I also suspect that a great deal of the uses third graders make of other people's copyrighted material really aren't terribly transformative, and I'm not sure that third graders are likely to understand or take seriously the concept and importance of tranformativeness. I guess what I'm arguing for is a sort of informed consent notion -- until you're at a stage at which you can make intelligent decisions about that (and have your own bank account to back them up), "be careful" is good advice. (I definitely disagree with and would delete the last, always seek permission, sentence.)

That said, I also have no problem trying to teach kids about transformativeness specifically and fair use generally as early as possible -- they need to hear both sides of the story, not just the content industry's. I'm just not sure they'll get it at that age.