New copyright law affects educators Higher-ed film students get exemption; K-12, other studies left out By Meris

Stansbury, Associate Editor Communication and Collaboration, Higher Ed, Top News
Aug 5th, 2010

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K-12 was unable to prove that clips are essential to accomplish learning goals. Copyright: opensourceway

A new ruling from the U.S. Copyright Office will affect how higher education students and teachers can use digital material in the classroom, thanks to the proactive efforts of a university professor who says that increasing digital literacy and student skills is a responsibility educators can’t afford to brush off. The change comes as part of the Digital Millennium Copyright Act (DMCA), a U.S. copyright law that criminalizes production and dissemination of technology, devices, or services intended to circumvent digital rights management (DRM) that controls access to copyrighted works. The Copyright Office, which meets to discuss exemption proceedings every three years, oversees management of the DMCA. Renee Hobbs, professor of communication at the School of Communications and Theater at Temple University in Philadelphia, along with a small handful of other higher ed educators, formally petitioned the Copyright Office in 2009 to receive an exemption that would allow educators and students to legally “rip” excerpts of copy-protected movie DVDs for comment and criticism. Thanks to this small but determined group’s efforts, higher ed students and teachers can now “rip” movie excerpts legally to make commentaries and compilations, as well as other works. Hobbs, who teaches courses in mass media and children, media literacy, media and society, and research methods, says this change will help teachers who are using “remixing” (using excerpts from copyrighted materials, such as image, video, and sound to create something new) and other instructional uses of copyrighted materials to promote language and literacy skills that build critical thinking and communication skills. Hobbs described how students may use excerpts from recent and historical movies that feature an endof-the-world theme and then write a voiceover that comments on how cultural fears are embodied in popular movies. She explained that one recent video from a student used clips from 25 different movies to comment on the way in which menstruation is negatively depicted in film. “Remix videos are not ‘highbrow’ and are easily accessible to the general public,” Hobbs said. “They can be used to question some of the assumptions of contemporary culture and offer a critical perspective.” Hobbs said that before the new ruling, the DMCA deemed it illegal to rip video by bypassing the copyprotect code on a movie DVD using easily available software like Handbrake, unless the user qualified for a special exemption received in 2006 for film professors–the only group of people who were legally entitled to rip film excerpts from movies owned by their department libraries for teaching and learning. She explained that the fear and uncertainty about how digital materials can be used grew as time passed and motivated her, along with colleagues, to work on the “Code of Best Practices in Fair Use for Media Literacy Education,” and spurred the group to petition the Copyright Office.

“Media literacy educators depend on the use of copyrighted materials–we can’t do our job without using them. Educators want to be lawful, and we didn’t want to bypass encryption when it wasn’t legal to do so.” Thanks to the ruling that now allows ripping, Hobbs’ students studying mass media and children will be asked to develop projects that explore various themes in children’s movies. Hobbs said she will feel more confident about requiring her students to use screen capture tools like Jing to develop writing and speaking skills. However, not all rulings are created equal. Students can rip movie excerpts legally, but only if they are film/media studies majors–meaning students in subjects like history and sociology still won’t have the exemption. K-12 students and teachers are still also at a disadvantage. The Copyright Office deemed K-12 teachers and students ineligible for exemption, and indicated that they should instead use only screen captures of a film, because K-12 doesn’t need access to visually highquality clips. Hobbs speculated that the exemption’s lack of reach may have to do with pressure from the film industry. “The MPAA [Motion Picture Association of America] and Warner Brothers did not wish to see this exemption expanded, that’s for certain,” she said. “Even though the film industry acknowledges the legal rights of educators and students to create film clip compilations, they pointed out that it doesn’t have to be easy.” Hobbs explained that screen capture tools used by many K-12 schools, such as Jing or Camtasia, don’t require bypassing the DVD’s encryption code. That encryption code is known as Content Scramble System or CSS, and is employed on almost all commercially available DVDs in order to protect DRM. “The Copyright Office wanted to limit the exemption only to those groups, who could prove a reasonable harm, and who could demonstrate that bypassing CSS encryption is the only way to accomplish fair use purposes,” she said.

During the petition in 2009, the group was unable to prove, with evidence, that high-quality clips are essential to accomplish the teaching and learning goals of media literacy education in K-12 settings or for non-film college students. “The Copyright Office has acknowledged that screen capture is a legal resource for K-12 classrooms and non-film/media students, and truthfully, that may be all that’s really necessary for many student projects,” said Hobbs. “But when student work is submitted to film festivals or designed to be viewed on the big screen, then high-quality images are essential.” She also explained that even though the Copyright Office did not give a special exemption to K-12 teachers or students, there is still an exemption available to them that allow them to rip videos legally under some circumstances. According to Hobbs, if K-12 students or teachers are using clips to create a new work for purposes of comment and criticism, and they have a real need for higher-quality clips, they can legally rip video excerpts as long as they are for noncommercial purposes. This non-commercial exemption will enable elementary and secondary students and teachers to create and remix videos legally under these limitations. But Hobbs said that though major strides have been made in DMCA during the last petition, she and her colleagues will continue to fight for education’s digital media rights at the Copyright Office’s next hearing in 2012. In preparation for the hearing, Hobbs and her colleagues will invite K-12 educators to help demonstrate the need to bypass CSS for educational purposes. “We want to be able to assemble a list of ‘projects-not-undertaken’ due to the current ruling. We especially want examples of where students need to be able to bypass CSS or where screen capture is not adequate for a particular project. We also want to be able to prove that image quality makes a

difference, especially in classrooms where controlling light (from windows, etc.) makes for image display problems,” she said. Educators who have examples to share should eMail Renee Hobbs Hobbs, who has spent more than 20 years advocating for media literacy education and has created multimedia curriculum, staff development programs, and the nation’s first national-level professional development program, the Harvard Institute on Media Education, is a prolific author and recently publishedCopyright Clarity: How Fair Use Supports Digital Learning. The book outlines three key perspectives on the future of copyright in relation to the needs of students and teachers and explains how the future of education will be at risk if educators don’t fully understand their rights under the law. “Educators need to understand the strengths and limitations of each of these arguments because we are creators of intellectual property ourselves,” she said. “Educators often ’sign away’ their intellectual property rights to employers or publishers simply because of ignorance. We may also violate copyright without awareness or communicate misinformation to our students. Our ignorance is limiting our ability to use the power of digital media to create transformative learning experiences with our students.” Hobbs and her colleagues are holding a day-long workshop at Temple University Center City Campus, called “Copyright Clarity” on Aug. 19 that is designed as a train-the-trainers program. The program fee is $99, which includes lunch and a copy of Hobbs’ book. Educators can register for the program online at: “Our culture is in a time where the concept of authorship and ownership are in transformation,” Hobbs said, “and K-12 educational leaders need to participate as advocates in ensuring that the law continues to support the essential and timeless values of education. Links: Temple University School of Communications and Theater Digital Millennium Copyright Act