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EdTech Update





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...

copyright.gif2.  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:

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. 


Changing how we teach copyright Pt 1

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 today with the first of 3 or 4 ideas about how we might go about doing this...

copyright.gif1. Change the focus of copyright instruction from what is forbidden to what is permitted.

The 2007 document “The Cost of Copyright Confusion for Media Literacy” published by American University’s Center for Social Media coins a new term: Hyper-comply. It means that some educators “over-comply with copyright law, and even forego using legitimate teaching tools and techniques for fear of violating copyright."

As information professionals, we have as great an obligation to see that staff and students get as complete access and use from copyrighted materials as possible, as we do in helping make sure they respect copyright laws.  Period.

Our instructional efforts need to include:

  • Teaching users that the use of copyrighted material in research and projects, if properly cited and if it supplements, rather than supplants the researcher’s product, is perfectly legal.  Our district’s Guide to Cheating and Plagiarism clearly describes when information needs to be cited and when it does not, how to cite a source and how to avoid inadvertent plagiarism.
  • Teaching the concepts and tests of Fair Use.  Both staff and students should be able to name and explain the factors surrounding fair use.
…the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
      • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
      • the nature of the copyrighted work;
      • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
      • the effect of the use upon the potential market for or value of the copyrighted work. (the Copyright Act of 1976, 17 U.S.C. § 107)
  • Teach that a copyrighted work’s use is considered Fair Use if it is of a “transformative” nature.  In “Recut, Reframe, Recycle,” the authors define these uses of copyrighted works in online videos as “transformative” and meeting Fair Use Guideline:
    • Parody and satire
    • Negative or critical commentary
    • Positive commentary
    • Quoting to trigger discussion
    • Illustration or example
    • Incidental use
    • Personal reportage or diaries
    • Archiving of vulnerable or revealing materials
    • Pastiche or collage

    Other media besides video can be "transformative" as well.

  • Inform teachers of all special rights given to them as educators. Teachers can show personal copies of copyrighted videos in class; off-air broadcasts can be re-shown to classes; school software loaded on home computers, and photocopies of copyrighted news and magazine article can be given to students. (Some restrictions apply, but these are conditionally legal.)
  • Teach the Consortium of College and University Media Centers's Fair Use Guidelines For Educational Multimedia. These guidelines (as described by Linda Star on Education World) state that educators who create educational multimedia projects containing original and copyrighted materials may use those projects for
    • face-to-face student instruction.
    • directed student self-study.
    • real-time remote instruction, review, or directed self-study for students enrolled in curriculum-based courses, provided there are no technological limitations on access to the multimedia project and that the technology prevents copying of the copyrighted material.
    • teaching courses for a period of up to two years after the first instructional use. After two years, educators must obtain permission for each copyrighted portion in the project.
    • presentation at peer workshops and conferences.
    • such personal uses as tenure review or job interviews.
        The guidelines also allow students who create educational multimedia projects containing copyrighted materials to use their projects for
      • educational uses in the course for which they were created.
      • portfolios as examples of their academic work.
      • such personal uses as job and graduate school interviews.

Educators need to know the “outer limits,” not just the “safe harbors” of the use of copyrighted materials – and allow their students to explore those outer limits as well.

Help me build a repository of "permitted uses"of copyright material in your comments. I am sure I have overlooked some guidelines that help, rather than hinder, educators and students.

Let's see that teachers and students are as aware of their legal rights as they are of their limits. 


Have you voted for Gordon yet?

The ISTE Board Election will close this Friday, April 11, at 5 P.M. Pacific.

My thanks to those of you who’ve already cast your ballots. And if you haven’t voted yet, I urge you to do so NOW. Every ballot counts as we work together to improve opportunities and outcomes for all students. Learn more about this year’s inspiring ISTE Board candidates at Then vote!

Login is required to vote and to view each candidate’s answers to three critical questions. Can't remember your login or password? Visit ISTE's support page for assistance. If you need further help, you may speak with an ISTE Customer Service Representative at 1.800.336.5191 (Int’l 1.541.302.3777).

Help shape the future of your professional organization—and the field of Ed Tech. Cast your ballot today!

P.S.: Please remember that you'll need to login as a member to view the slate of candidates, read their statements, and vote. Voting is a privilege—and a responsibility!—of membership.

Yeah, yeah, the above is a form letter. But it is heart-felt form letter from me just to you alone, the Blue Skunk Reader. If I had mail merge, I'd have used it. My choice of candidates can be found here.