Changing how we teach copyright Pt 2

Last Saturday I started writing a "a rational, ethical and legally-defensible way" of how educators should change their approach to both using and teaching about intellectual property, especially copyrighted work. I got side-tracked with some paradoxes. I continue in this post with the second of 3 or 4 ideas about how we might go about doing this...

2.  When there is doubt, err on the side of the user.

A Singapore educator once shared with me that Singaporeans tend to suffer from NUTS - the No U-Turn Syndrome and that Americans do not. When no signs are posted at an intersection, Singapore drivers assume U-turns are illegal; US drivers assume they are. He felt this “assume it is OK” attitude gave our country a competitive edge.  It really is better to ask forgiveness than permission.

Shouldn't an educator’s automatic assumption be, that unless it is specifically forbidden and legally established in case law, that the use of materials should be allowed? I believe it should.

A high profile example of moving to a forgiveness-based approach comes from Google’s Scan the Book project. In its attempt to put all the world’s books into a digital, searchable format, Google found that 15% of the world’s cataloged books are in the public domain and 10% are actively in print, but 75% of the worlds books are “in the dark” – neither being made available by publishers or in the public domain. Since few publishers have shown willingness to investigate the actual ownership on these materials, the Google Scan the Book project decided to scan first and then remove the digital copies if so requested when and if the owner appears. (Kelly, 2006)

Yes, current copyright law says that everything written in the US is automatically copyrighted (as of 1989) and material does not need to include a © symbol to be considered protected. Unfortunately the will of the owner of the work is always assumed to be that she/he has exclusive rights. With the advent of Creative Commons, an alternative means of describing creator’s level of control over a work, should “exclusive rights” simply be assumed anymore?  

Even when copyright or use warnings are implicitly stated, they often disregard uses that fall under Fair Use or Alternative Versions provisions. Even if a book contains the following standard warning:

"All rights reserved. No part of this book may be reproduced, transmitted, or stored in an information retrieval system in any form or by any means, graphic, electronic, or mechanical, including photocopying, taping, and recording, without prior written permission from the publisher."

I have a right as a researcher to do all the expressly forbidden things listed in the warning.  (See also the two motion picture warnings that begin last Saturday's blog entry.)

As far as I know, as a content creator or provider, I can write any sort of restriction I wish without it ever needing to be vetted by a court of law. YouTube’s Terms of Use read: “C. You agree not to access User Submissions (defined below) or YouTube Content through any technology or means other than the video playback pages of the Website itself, the YouTube Embeddable Player, or other explicitly authorized means YouTube may designate. Has there been a U.S. Court Case to determine whether YouTube has the right to make and enforce such a condition? If I place a "Terms of Use" on the Blue Skunk that the reader must be drinking gin and wearing a pink bathrobe to read the posts legally, could I take Peter Rock to court right now? Until something is proven illegal, assume it is legal.

Be aware that schools and other institutions may place restrictions on the use of copyrighted information that go beyond legal requirements. Our district’s board policy on copyright states: “All of the four conditions [of the Fair Use Doctrine] must be totally met to qualify a work for use or duplication under this clause.” The law itself only reads that these are “factors to consider.”

Finally, there is an inherent bias toward copyright owners when copyright “experts” offer advice about particular situations. A lawyer, a book author or columnist who answers question on copyright issues may be held liable for the advice they give -  that if proven wrong, may result in litigation, fines or a finding against the person who originated the question.  The common advice given becomes “assume the U-turn is illegal.” As one of my college days t-shirts once read, “Question authority!”

Places to look for “expertise” that have a more user-centric bias include:

• Center for Social Media at American University
  
• Chilling Effects (added thanks to Keith Johnson)
  
• Creative Commons
• Electronic Freedom Foundation
• Media Education Foundation
• Stanford Law School Center for Internet and Society “Fair Use Project”

Blue Skunk Readers, help me expand this list! (I feel like I've forgotten some big players in this!)

Place the onus of proof of wrong doing on the provider, not the proof of fair use by the user.

Assume the U-turn is legal.

Ask forgiveness, not permission.

Be subversive. 

Comments

[Rob Darrow]

The Department of Justice put together this cybercrime / plagiarism / copyright website that is interactive for kids and, I think addresses many of the topics discussed here: http://www.usdoj.gov/criminal/cybercrime/rules/kidinternet.htm

[Keith Johnson]

The threat of violating copyrights, and a desire to do what's right, coupled with the uncertainty of exactly what *is* right renders most of us paralyzed, afraid to do *anything.* This also renders us afraid to exercise what rights we do have. The scary realm of YouTube and the downloading of such videos is a prime example. The website http://www.chillingeffects.org is working to re-establish and clarify what rights we do have and seeks to counter the heavy-handed scare tactics of corporations. Here's a blurb from their website (Chillingeffects.org is a joint project of Harvard, Stanford, Berkely, U of San Franciso, U of Maine, George Washington School of Law, and Santa Clara U School of Law):

Do you know your online rights? Have you received a letter asking you to remove information from a Web site or to stop engaging in an activity? Are you concerned about liability for information that someone else posted to your online forum? If so, this site is for you.

Chilling Effects aims to help you understand the protections that the First Amendment and intellectual property laws give to your online activities. We are excited about the new opportunities the Internet offers individuals to express their views, parody politicians, celebrate their favorite movie stars, or criticize businesses. But we've noticed that not everyone feels the same way. Anecdotal evidence suggests that some individuals and corporations are using intellectual property and other laws to silence other online users. Chilling Effects encourages respect for intellectual property law, while frowning on its misuse to "chill" legitimate activity.

[Susan Tanner]

Hi, Doug,

I find that some of the resources on techLEARNING.com are useful when I'm teaching about copyright & fair use. I particularly like the Copyright and Fair Use Guidelines Chart for teachers and the Copyright Quiz. Those two are from Hall Davidson, and he definitely seems to have a "user-centric bias!"

Sue

[Doug Johnson]

Hi Rob,

Pretty much what one would expect, I think, from the Department of Justice. I don't think the information is wrong, but just very, very safe, traditional and property owner-centric. I'm looking for something more ... subtle and subversive ;-)

Oh, thanks much for the kind words on your California Dreamin' blog!

All the best,

Doug

[Doug Johnson]

Hi Keith,

Good to know you are not just a pretty face and great singer!

http://doug-johnson.squarespace.com/blue-skunk-blog/2007/10/19/librarians-blues.html

This Chilling Effects is a terrific site that I hope a lot of people learn about and visit. I am going back and adding it to the original post.

I have that chilling effect myself:

http://doug-johnson.squarespace.com/blue-skunk-blog/2008/3/8/the-4th-r-trademark.html

Thanks and all the very best,

Doug

[Dave]

"Unfortunately the will of the owner of the work is always assumed to be that she/he has exclusive rights. With the advent of Creative Commons, an alternative means of describing creator’s level of control over a work, should “exclusive rights” simply be assumed anymore?"

I think this question best embodies what concerns me about this article. If we take away the assumption that content creators reserve rights, then you're forcing mandatory copyright statements before every performance, right? Otherwise, it's legal for anyone in the audience to record, publish, distribute, etc...

I think it's great that you're trying to bring this information together. With most people, they either fear breaking copyright or disrespect it entirely. The solution is for these people to learn about copyright.

I, personally, think the key to getting people to learn about copyright is to push more people to create content. Copyright is mostly about protecting the rights of content creators -- if teachers were making and publishing their own curriculum, writing articles, etc, then they would get to enjoy the protections copyright gives.

[Doug Johnson]

Hi Dave,

My blog and website have this Creative Common's license that I feel is a "middle of the road" approach:

Attribution-No Derivative Works 2.5 Generic
You are free:
to Share — to copy, distribute and transmit the work
Under the following conditions:
Attribution. You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).
No Derivative Works. You may not alter, transform, or build upon this work.
For any reuse or distribution, you must make clear to others the license terms of this work. The best way to do this is with a link to this web page.
Any of the above conditions can be waived if you get permission from the copyright holder.
Nothing in this license impairs or restricts the author's moral rights.

I wonder what my "moral rights" might be. Anyway, I hope don't simply assume that unless otherwise stated, that the author of a work is either totally restrictive or totally loose with his/her work.

All the best,

Doug

[Tom Hoffman]

I don't think the phrase "moral rights of the author" has any specific legal meaning in the US -- at least it doesn't mean the same thing as it does in some other countries. In Germany, I believe, the concept of the author's moral rights gives him or her greater claim to ownership of a work even if he is being paid to create it. That's very hand-wavy... perhaps we should read http://en.wikipedia.org/wiki/Moral_rights

[Tom Hoffman]

Susan,

I think the broader context here is that we need to be questioning some of the well known references like the ones you cite. They may still be unnecessarily restrictive. Those "rules of thumb" are really pretty arbitrary.

[Peter Rock]

Keith says:

"Chilling Effects aims to help you understand the protections that the First Amendment and intellectual property laws give to your online activities."

I've responded to this claim here.

[Doug Johnson]

Hi Peter,

As always, an interesting take on the issue.

I apologize for contacting you in this way, but if you could recommend any “seminal” documents on the free culture philosophy (or however you describe someone with your POV), I’d appreciate it.

Thanks!

Doug