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Monday, May 16, 2016

Should excerpts from the high-stakes PARCC exams be allowed under the "Fair Use" doctrine?

See the post I reblogged with excerpts from the PARCC exam here.  Thanks to SO MANY of you who have reblogged it as a collective act of defiance after PARCC demanded that the excerpts from the 4th grade exam be deleted from the original post on Celia Oyler's blog, claiming that these excerpts violated their copyright.

Since then, others have pointed out that publicizing items from an exam is critical for demonstrating how unfair and inappropriate these exams really are.  See this column by Anthony Cody, for example, who writes:

In 2012, the patent absurdity of Pearson’s talking pineapple made that story irresistible to mainstream media, and Haimson’s report made its way into the New York Daily News and other major newspapers. Pearson initially defended the pineapple question, However the pressure became too great, and New York removed the question from the test. The underlying issues this time are similar. Fourth grade students are being given questions that cannot be justified educationally. The test cannot be seen as a legitimate means of measuring their learning. Just as we needed to read the question about the talking pineapple to understand how lousy it was, we must be able to discuss and criticize the content of the PARCC test. These are not sacred texts. They ARE, however, being used to make Godlike judgments about children and teachers, with potentially life-altering or career-ending consequences.

I have heard from others that these excerpts should be allowed under the "Fair Use" exception.  Here is a discussion of the "Fair Use" doctrine, on the Stanford University website dealing with Copyright and Fair Use:


What Is Fair Use?

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement.

So what is a “transformative” use? If this definition seems ambiguous or vague, be aware that millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use. There are no hard-and-fast rules, only general rules and varied court decisions, because the judges and lawmakers who created the fair use exception did not want to limit its definition. Like free speech, they wanted it to have an expansive meaning that could be open to interpretation.

Most fair use analysis falls into two categories: (1) commentary and criticism, or (2) parody.

Commentary and Criticism

If you are commenting upon or critiquing a copyrighted work — for instance, writing a book review — fair use principles allow you to reproduce some of the work to achieve your purposes. Some examples of commentary and criticism include:
  • quoting a few lines from a Bob Dylan song in a music review
  • summarizing and quoting from a medical article on prostate cancer in a news report
  • copying a few paragraphs from a news article for use by a teacher or student in a lesson, or
  • copying a portion of a Sports Illustrated magazine article for use in a related court case.
The underlying rationale of this rule is that the public reaps benefits from your review, which is enhanced by including some of the copyrighted material. Additional examples of commentary or criticism are provided in the examples of fair use cases.

- See more at: http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/#sthash.miyRCr5D.dpuf 

Clearly, the brief excerpts used from the 4th grade PARCC exam were used in the context of a larger critique and should be allowed under the Fair Use exception.  What do others think? Comments welcome, especially from attorneys!

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement.
So what is a “transformative” use? If this definition seems ambiguous or vague, be aware that millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use. There are no hard-and-fast rules, only general rules and varied court decisions, because the judges and lawmakers who created the fair use exception did not want to limit its definition. Like free speech, they wanted it to have an expansive meaning that could be open to interpretation.
Most fair use analysis falls into two categories: (1) commentary and criticism, or (2) parody.

Commentary and Criticism

If you are commenting upon or critiquing a copyrighted work — for instance, writing a book review — fair use principles allow you to reproduce some of the work to achieve your purposes. Some examples of commentary and criticism include:
  • quoting a few lines from a Bob Dylan song in a music review
  • summarizing and quoting from a medical article on prostate cancer in a news report
  • copying a few paragraphs from a news article for use by a teacher or student in a lesson, or
  • copying a portion of a Sports Illustrated magazine article for use in a related court case.
The underlying rationale of this rule is that the public reaps benefits from your review, which is enhanced by including some of the copyrighted material. Additional examples of commentary or criticism are provided in the examples of fair use cases.
- See more at: http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/#sthash.miyRCr5D.dpuf

1 comment:

Anonymous said...

IANAL, but I believe that there is a strong case for fair use there. There are, however, some issues that complicate matters. First of all, the anonymous teacher may have been contractually obligated to keep the questions secret via the arrangement between PARCC and the state/local school district. It is not clear that any liability could extend to 3rd parties like Ms. Oyler, who would have the fair use argument (however fair use would not be a defense against an effort to have Ms. Oyler reveal her source). Second, there is a balancing interest in PARCC's favor that it is necessary within any standardized test regime to reuse questions from year to year. Publishing the questions makes it harder to do this. This interest should probably not outweigh the public debate interest in allowing criticism, but it has been a factor in prior case law involving publication of standardized test questions.

It might be worthwhile for you or Ms. Oyler to communicate the details to some actual lawyers like @Popehat or @marcorandazza. They often blog on 1st Amendment issues and occasionally help fellow bloggers out when they are being bullied by corps that want to suppress criticism.