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.)
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.