Creating copyright legislation that supports media literacy

A submission to the federal Copyright Consultations by Face to Face Media, The Jesuit Communications Project and the Canadian Association of Media Education Organizations and its provincial members, written by Gary Marcuse.

Gary Marcuse is a writer and producer of documentaries for broadcast television, and classroom resources for educational use in K-12 and post secondary classrooms, since 1988. He is also a member of the Writer’s Guild of Canada and the Documentary Organization of Canada.  For more than 20 years his company, Face to Face Media, has been collaborating with educators, producers, publishers, broadcasters and the National Film Board in the creation of classroom video resources in the areas of global education, First Nations studies, media literacy, sociology and psychology.  He is a former programming executive for CBC television and the recipient of the Gemini Canada award sponsored by the Department of Canadian Heritage for his documentary The Mind of a Child. 

John J. Pungente, SJ, has worked in media education for over 35 years. He has co-authored Media Literacy: A Resource Guide (1989), Meet the Media (1990), More than Meets the Eye: Watching TV Watching Us (1999) and Finding God in the Dark: Taking the Spiritual Exercises of St. Ignatius to The Movies (2004). He has contributed to international journals and books on media education. He has degrees in English, Film, and Theology as well as two honorary doctorates for his work in media education.

Mr Marcuse and Fr. Pungente have been collaborating on the creation of media literacy resources since 1997, including the award-winning collection Scanning Television, a collection of videos and a teaching guide widely used in media education across Canada. They are also in the final stages of developing an on-line university level credit course Understanding Media Literacy: Inside Plato’s Cave for in-service and pre-service teachers in Canada. This course will be offered by a Canadian university in 2010.

What is media literacy, and why is it important?

Media literacy was first introduced in Ontario schools in the 1980s. The Ontario Media Literacy Resource Guide defines the practice succinctly:

“Media literacy is concerned with the process of understanding and using the mass media. It is also concerned with helping students develop an informed and critical understanding of the nature of the mass media… Media literacy is a life skill.” [1]

Media education is now mandated by all provincial ministries of education at the K-12 level. Currently there is little, if any systematic training of teachers in media literacy… Copyright legislation has a key role to play in the training of teachers and the education of students as informed, critically aware citizens and as sophisticated users and consumers of media.

1(a). How do Canada’s copyright laws affect you?

The protection offered by Fair Dealing provisions in copyright laws is essential in the development and distribution of curriculum materials.

The classroom resources we have developed for media literacy education have included a substantial amount of material made possible by relying on the Fair Dealing provisions… We frequently seek and obtain copyright clearances… At times, however, we choose to rely on Fair Dealing in lieu of copyright clearance because:

• It is a protected activity, provided for under the law.
• The materials my not be otherwise available because the copyright holders:
  • May not wish their materials to be subject to critical review…
  • May not have obtained, themselves, the necessary clearance rights…
  • May not be willing to investigate, negotiate and administer… a copyright release because the financial return is too small to interest them.

The current provisions of the Copyright Act are confusing and poorly utilized.

In our experience media producers, teachers and educational institutions in Canada are wary of exercising their right to utilize media materials for critical study… The situation in the United States is noticeably different. There, by utilizing the broader, more clearly stated and more expansive provisions of the US copyright legislation governing Fair Use, educators and producers have created Codes of Best Practices… This more robust approach creates a more dynamic environment for media education and reflects a better balance between the competing needs of copyright holders… and educators.[2]

The prevailing atmosphere of confusion and uncertainty in Canada, by contrast, creates a chilling effect on use of media materials in the classroom…

“(T)he fundamental goals of media literacy education—to cultivate critical thinking and expression about media and its social role—are compromised by unnecessary copyright restrictions… As a result of poor guidance, counterproductive guidelines, and fear, teachers use less effective teaching techniques, teach and transmit erroneous copyright information…”[3]

The creation of documentary programming utilizing Fair Dealing is also hindered.

Educators make frequent use of documentaries in the classroom, but many documentary producers and writers are themselves confused… This situation is worsened by the cautious position taken by insurance companies… Here again, in the US, the situation has been greatly clarified…[4] This ensures a freer flow of independent documentaries and other media into the classroom.

1(b). How should existing laws be modernized?

The study of dynamic and transient culture requires liberal access to short excerpts of cultural works… Where original works are used for entertainment purposes, they must be paid for. Where they are used for critical study and review, a generous atmosphere supporting these activities should be actively engendered. Measures to that end would include:

• Providing a more secure foundation for educational use.
• The laws should make it clear that educational use is a fundamental issue, not merely an exception…
• Proposed restrictions on the retention of examples… should be changed or deleted.
• The peculiar and contradictory rules that punish the breaking of TM’s should be adjusted to exempt legitimate uses.

Addressing Technical Measures (TMs ), and allowing educators to “escape prosecution”

The proposed law currently allows the Governor in Council to make regulations that address the needs of educators… We submit that the need to be able to “effect criticism, review, news reporting, commentary, teaching, scholarship or research” is so clearly evident that either the right to do so should be written into the law…

…[and so on, pasting the full, unedited text for the rest of the submission, including questions 2, 3, 4, and 5]…

Footnotes

[1] For an overview of media education in Canada see the Media Awareness Network site: www.media-awareness.ca/english/teachers/media_education/media_education_overview.cfm

[2] See, for example, the publications of the Center for Social Media including Code of Best Practices in Fair Use for Media Literacy Education… www.centerforsocialmedia.org/resources/fair_use/

[3] Center for Social Media The Cost of Copyright Confusion for Media Literacy

[4] Center for Social Media Documentary Filmmakers’ Statement of Best Practices in Fair Use