Fair use scenario - Ms DaVinci and the wiki

In a continuing series of scenarios that explore educational fair use issues.

Humanities teacher Ms DaVinci’s assignment asks students to examine how different ancient cultures portrayed the human figure. Students search subscription databases containing high quality art images, as well as the free web, to find examples of the art works they will analyze. Students share the images and collaborative analyses using a wiki only accessible from within the district. This year, Ms DaVinci wants to open the wiki up to the general public. The media specialist is concerned doing so would violate the terms of use of an art database often used.*

1. What is the copyrighted material? Who owns it?
2. Does the use of the work fall under fair use guidelines? Is the use transformational in nature? Can this be considered "educational" use?
3. What is your level of comfort in helping create such a product? Are there any changes or limits you might like to see that would make you more comfortable with this project?

Your level of comfort with this use of copyrighted materials: High 5 4 3 2 1 Low

You comments are most welcome.

* This scenario was based on a question posed by Frances Jacobson Harris (author of I Found It on the Internet) from the University of Illinois Lab School. Here is her further discussion:

*The fourth principle of the new Code of Best Practices in Fair Use for Media Literacy Education addresses student use of copyrighted material in their own academic work. It makes specific mention of comment and criticism, which is the purpose of this exercise. We find that though password protecting the wiki isn't crippling for students, it raises one more barrier to access and simplicity of use. The third principle addresses the rights of educators to share media literacy curriculum materials. In this case, password protection means that other teachers and librarians cannot draw on this unit in creating their own instruction. In my mind, the new Code would allow us to un-password protect this wiki, at least on those two grounds. The kicker comes in this phrase of the Terms and Conditions of Use for the art database we use the most: "You may not distribute, make available, and/or attempt to make available, any of the Content in the XXXX Digital Library (whether alone or incorporated into other materials) to persons and/or entities other than: (a) your institution and/or other Authorized Users at your institution." It goes on to make exceptions for scholarly or educational presentations, etc.

So my question is, what wins out? The TOA or the Code?

Francey adds: As an epilogue, I think I'll go ahead and open access to the wiki, but I should probably let the appropriate administrators know. Our principal often reminds us that he doesn't like surprises and I can't really blame him!

Other scenarios you'd like to see discussed here, readers?

Comments

[Tom Hoffman]

Indeed, what is the deal with terms of service?

[Tom Hoffman]

Following up on my own comment -- is there a difference in enforceability between TOS for a public site like YouTube, that anyone uses with no explicit contract, and a paid database for which a district is entering a contract. I suspect the answer is yes.

[Frances Jacobson Harris]

Thanks for posting this, Doug. My conundrum also makes me think in terms of "It's better to ask for forgiveness than for permission." Still, seems like sort of a backwards way of doing things.

[Lazygal]

I have a problem with the "asking for forgiveness" crowd - what about this? I *could* ask for permission to take that nice Jaguar my neighbor has, but it's just easier to ask for forgiveness if I'm caught. While I may not agree with the TOS, it's there and we did sign off on it. Just because we don't like it doesn't mean we can ignore it. Morally, ethically, what are we teaching students if we do ignore it?

[Frances Jacobson Harris]

Exactly, which is why the "asking for forgiveness" approach seems backwards to me. But what does it mean when Terms of Service agreements deny what is allowed under fair use? Can an information producer put any old requirement in the Terms of Use, particularly when they know that the library/education community has no real choice but to sign if they want to serve their users? One of the truly good things about our legal system is that laws are designed to be scrutinized and tested. Asserting the right to do so in an open way is a lesson in ethics/civics I think is well worth teaching students.

[Doug Johnson]

Hi Tom,

I’ve always said that I could put on my blog that the reader was required to be drinking gin and wearing a pink bathrobe while reading, but these TOS would be neither legal nor enforceable. I am not sure what makes TOS legal.

Doug

Hi Francey and Lazy,

Maybe “forgiveness and permission” is not the right way to look at this (although I use the phrase myself.)

My thought here is that when there is a legitimate question of IP use being ethical/legal/fair/moral whatever that instead of always erring on the side of the IP owner, we start thinking about erring on the side of the user. And then ask forgiveness if it turns out a later legal ruling proves us wrong.

Who are the most important people we serve?

All the best,

Doug

[Jacquie Henry]

I see the password protected wiki as fair use - but as soon as the wiki is public, I think the institution is in violation of the TOS. And in this scenario, I think the TOS is fair and reasonable. We still need to protect copyright owners' right to make money on their intellectual property. Database companies create their products by negotiating payments to their authors/artists/publishers in return for promising that creative work will be accessible AND protected from uncontrolled, free distribution.

If the wiki is opened to the general public, then those contracts have been rendered useless, threatening database companies, publishers and content creators. We COULD throw all creations into the marketplace of the web to sink or swim on their own merits - but then how does anyone make money on their work? "Long Tail" theory notwithstanding - I just don't see the general public paying for information personally. It is too easy to turn to the great and powerful Google instead. With databases, we have at least SOME chance of getting students to turn to their school or college website to access quality, proprietary information for "free".

[Doug Johnson]

Hi Jacquie,

Would we never allow the public publication of a paper in which there is writing quoted from a subscription database? Personally, I believe we have two sets of standards related to IP – one for print which use and reuse; and one for multimedia which we overly protect. Seems like we should be using the print model of fair use, citing sources, using transformatively etc. with graphics, sound and video as well.

IMHO,

Doug

[VA LMSs]

The teacher does not need to open up the wiki to the general public or needs to use pictures from the free web. The teacher could also contact the subscription database for use of art images.

[VA CRS]

Use of the database should be licensed or not used at all. Posting to a wiki would depend on the materials used.

[Catie]

My opinion is that Ms. DaVinci could get away with putting this wiki on the web. This is because education gets exceptions when dealing with copyrighting. But my question is what is the instructional value of making this wiki available to the general public? How will this help her students learn more? Because I do not see any educational value in putting this wiki for the general public, I do not think Ms. DaVinci should do it. Just keeping it for her students is perfectly fine and she will avoid any copyrighting problems.

[Troll]

Making the wiki public could present a problem that is avoidable; simply keep it open only to a select audience that represents the wider classroom community.