Doug Johnson

Most of these columns, updated and edited, can be found in my book School Libraries Head for the Edge. Buy it and I might be able to afford a nicer nursing home one day. Thank you.

From Cop to Counselor on Copyright

Head for the Edge, Library Media Connection, October 2008

Most of us shudder when asked a question about the fair use of copyrighted materials. “Uh, the poster over the copier says I can only use a poem of less than 250 words in my project and this poem is 251 words. Am I breaking the law?” Been to law school recently enough to know how to answer that question?

Actually law school may not help you much. Fair use guidelines are, well, guidelines, subject to interpretation. Temple University professors Hobbs, Jaszi, and Aufderheide wisely write: “Applying fair use reasoning is about reaching a level of comfort, not memorizing a specific set of rules.” There are no definitive answers to “is this fair use?”

So, how do we help our teachers and student establish an informed, personal “level of comfort?”

Few of us are comfortable at either extreme of copyright enforcement – playing the copyright bully or completely ignoring situations of questionable copyrighted materials use. Complicating the issue is that each of us is likely to arrive at his/her own personal level of fair use comfort, judgment of seriousness of possible use, and perspective of the morality of intellectual property use both personally and professionally.

I propose we re-brand ourselves, “copyright counselors” and do what good counselors have always done – help others reach good decisions about their actions rather than serve in a judgmental role.

Allow me to advance some practical steps to teach and enforce copyright compliance and other issues of intellectual property use. Raise your right hand, stand on one foot, and repeat after me:

1. I will acknowledge that the enforcement of all laws and policies is an administrative responsibility, not mine. Quite honestly, if building principals choose not to learn about copyright, about how materials are being used in his/her building, or about whether district policies are being broken, it is not LMS’s job to make him. They’re the ones getting paid the big bucks. Let them earn them.
2. I will rat out my fellow teachers only under a very narrow set of circumstances. There are copyright infringements so egregious that you should bring them to your boss’s attention. But, they need to be something that carries a genuine risk of generating a lawsuit. Put your concerns in writing, include examples of this type of use causing harm to other schools, send it only once, and keep a CYA copy. (See Carol Simpson’s database of copyright lawsuits <http://carolsimpson.com>. E-mail me if you want to know what CYA means.)
3. I need not commit any acts I deem illegal. If a teacher asks you to make a copy of something and you feel it does not fit under your personal view of fair use guidelines, you will politely say no and explain why. And probably teach him/her how make the copy.
4. In inservices and communications, I will emphasize what can, not what can’t be done with intellectual property. You will stress “fair use,” give open source options to software, and alert your staff to royalty free and public domain sources. Change your role from enforcer to enabler. If someone asks you specifically whether a use is legal or illegal, you will respond: “It depends on your personal philosophy. If you can justify that the use meets fair use guidelines, is transformational, and sets a good example for your students, go for it!”
5. I will make sure any signs about fair use will be accompanied by a caveat. If you have a sign hanging over the photocopier with a long list of copyright and fair use guidelines like the one produced by Hall Davidson., make a sign of your own that reads, “This chart states only ‘safe harbor’ guidelines and is not an authoritative legal statement. More flexible uses and amounts may apply under certain circumstances.” Paste it to the other sign.
6. I will teach copyright to students from the viewpoint of the creator. You will ask students to assign a Creative Commons designation to each piece of original work they produce – especially those items they will be sharing online or publishing. By thinking about how one wants his/her own work treated, one is forced to consider the rights and wishes of other IP creators as well. Counsel teachers to use a CC designation on their work as well.

My long-standing philosophy is that education is about teaching others to think rather than to believe. It’s our job as LMSs to help both students and teachers arrive at personal comfort levels when using protected creative works.

* Hobbs, Renee, Peter Jaszi and Patricia Aufderheide “Ten Common Misunderstandings about Fair Use” Temple University Media Education Lab http://mediaeducationlab.com/index.php?page=274