The Society for Cinema and Media Studies' Statement of Best Practices for Fair Use in Teaching for Film and Media Educators

Introduction

The field of film and media studies in the United States was shaped by the legal principle of fair use—the ability of educators, critics, and others to teach, study, and write about media without having to ask copyright holders for permission every time their works are used. Educational and critical uses of media, such as those employed by film and media educators, are woven into the fabric of a free, democratic society, and lead directly to the continued health and creative vibrancy of both commercial and non-commercial film and media. There are two main barriers to the full exercise of lawful uses of media by film and media educators. First, many film and media educators lack a basic understanding of copyright law, particularly of the framework through which they may make legal, non-infringing uses of another's work. Second, vagueness in the law has resulted in a lack of consensus among educators regarding permissible practices and a confusing patchwork of policies, guidelines, and actual uses. In light of these two barriers, it is unsurprising that academic gatekeepers (libraries, university general counsels, IT staffs, etc.) frequently choose to adopt overly cautious and conservative copyright policies that sometimes result in a diminished educational experience for film and media students.

The Society for Cinema and Media Studies (SCMS) has created this Statement of Best Practices for its membership to clarify some of the issues concern-ing the permissible use of media for teaching. Note that this statement explains and clarifies United States copyright laws and policies, as over 85% of SCMS survey respondents teach within the U.S. SCMS members teaching in other countries should consult with local experts as to how these guidelines might apply in other parts of the world. This statement is informed by statutory provisions and their legislative histories, analogous case law, and current professional practices based on a survey conducted by the SCMS Public Policy Subcommittee and input from members of the subcommittee. The online survey was administered using SurveyMonkey.com. It generated 659 responses over 10 days in Spring 2007, representing approximately 30% of SCMS membership, polled the current practices of SCMS members and asked for comments and feedback concerning the issue of copyrighted material and film and media pedagogy. The survey focused on the sources used to obtain course material, the screening of that material, and the creation of compilations for instructional purposes and student uses. SCMS has attempted to use the information it gained through the survey to compile, analyze, and evaluate common practices of film and media educators. The final report was reviewed and approved by the SCMS Board of Directors.

SCMS's Statement sets out to accomplish four specific goals:

1. 1. To provide practical assistance to film and media educators in determining whether a particular use of a work is permissible;

2. 2. To provide a guide for publishers, universities, and other gatekeepers or insurers to support the work of film and media educators;

3. 3. To deter copyright owners from taking unfair or intimidating action; and

4. 4. To formalize customary practices that over time can help guide courts in determining what types of uses are generally accepted as non-infringing by film and media educators.

The Concepts of Copyright and Fair Use

The freedom of film and media educators to use audiovisual works in their courses—and the limits on such use—are rooted in existing copyright laws. Copyright law provides owners of copyrighted works a number of limited rights, including the right to exclude others from reproducing, performing, displaying, and distributing their works. The law also gives copyright owners the right to exclude others from preparing derivative works from their original works, including translations, adaptations, and compilations. In many cases, if someone engages in any of these activities without the permission of the copyright owner, that person may be infringing on the owner's rights and may thus be held liable for damages.

In the interest of balancing copyright owners' rights against potentially beneficial uses of the works by others, copyright law has imposed a...