Changing how we teach copyright Pt 3

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 third of 4 posts about how we might go about doing this...

3. Be prepared to answer questions when the law seems to make little sense, when a law is inconsequential, when a law is widely ignored, or when breaking the law may serve a higher moral purpose.

It is illegal to wear a fake mustache that causes laughter in church in Alabama.
It is illegal to fish for whales on Sunday in Ohio.
Having sexual relations with a porcupine is illegal in Florida. (lawguru.com)
It is illegal to show a film for reward purposes in a school in the US.

Blue laws once restricted commercial and other activities on Sundays. They were so routinely ignored that the term came to mean a law that was on the books, but never followed or enforced. I often think about blue laws when I hear questions asked about whether something is legal regarding intellectual property.

Are there intellectual property laws that are on the books but are so routinely ignored that they have become meaningless. And when enforcing them, the librarian looks like Mayberry’s Barney Fife? Are there uses of intellectual property in which the benefit to society outweighs the rights of the property owner?

A few years ago, I went to our family computer one morning to find that the hard drive was full. My son had downloaded an illegal copy of one of the Lord of the Rings movies. I asked if did felt bad about depriving Peter Jackson, one of his heroes, of his payment for making the film. His reply was, “Dad, I paid to see the movie twice and I will buy the movie when it comes out in a regular version and when it comes out in a director’s cut version. I think I am “paying” Peter Jackson for his creative works. What harm does this digital version cause?”

Other common uses of copyrighted works that regularly interpreted as illegal, but are so routinely ignored as to be meaningless include:

• Showing movies in class for entertainment or reward without a public performance license.
• Playing a commercial radio station that plays popular music in a public venue, including classrooms and gymnasiums.
• Using copyrighted or trademarked items on school bulletin boards, locally produced study materials or on personal websites. (Yes, even Disney characters!)
• Making a diligent effort to contact a work’s owner with no response and then using the work.
• Converting 16mm films or videotapes that are not available for purchase into DVD to a newer format.
• Making copies of materials for archival purposes.
• Making copies of materials that are no longer in print.
• Making copies of copyrighted materials of online resources (that can be read online without cost) for classes.
• Downloading Flash videos, such as YouTube, onto a local hard drive.
• Converting analog materials (text, pictures, video, audio) to digital formats to be used with interactive whiteboard or slide show software for whole group instruction. Readers, add to this list!
  

The uses above have either no or minimal impact on a copyright holders’ profits.  Overly strict enforcements of the letter of copyright laws will lead to creating scofflaws of not just students, but teachers, and make all copyright restrictions suspect.

We need not give every instance of intellectual property abuse equal weight and attention. When I was a little boy growing up on the prairie, I would on occasion steal an apple or watermelon from a neighbor. Had I been caught, most of the community would have seen the action as “mischievous” rather than criminal. Were a child today caught downloading an illegal song, would we consider this act, with an equal (or some would argue smaller) degree of financial loss to the property owner, as simply “mischievous?” Should we? Adults view online misbehaviors as more serious than they are simply because they themselves did not participate in them as children. In physical property laws, crimes are rated as misdemeanors or felonies based on the amount of material stolen.

It is interesting to note, according to Temple University’s Media Education Lab, that “There’s never been a lawsuit involving a media company and an educator over the rights to use media as part of the educational process.” Which again calls the question the seriousness of the “crime.” Do we turn a blind eye when we see students or staff committing obvious thefts of intellectual property? No, but we need not over-react either. SchoolTool Project Director Tom Hoffman in a blog comment says it well:

… there is a long list of things right now, like downloading a random YouTube video, that are probably legal, certainly ethical if they're legal, never enforced if they are illegal, and if they are enforced in many cases it is by a DMCA takedown notice, not a lawsuit. OTOH, there is a fairly short list of things, like file sharing current movies, that kids, by law at least, definitely shouldn't do, might get prosecuted for, and against which there is a clear (if not decisive) ethical and practical argument. Shouldn't we focus on the short list?

If there are no alternatives and the use of the material has educational value. On her blog, Pamela Burke writes:

 If we librarians do not encourage the application of Fair Use in the classroom, we're in danger of loosing it. If your school blocks YouTube, but there is a video there that would be helpful for use in class that you can get no where else, is it so bad to download it at home simply so you can use it as part of the curriculum?

Burke’s comment introduces my final question – are there ever moral precedents that should supersede questionably legal practices.

There is a large and growing movement that believes current intellectual property law, especially copyright, works against the greater good of society. “Free culturists” argue that everyone in a society benefits when creative work is placed in the public domain where everyone is allowed to use and build upon it, that current copyright laws give the owner too much control and for too long a time. Building on the free software, open source software movement, this cult at its most extreme that “intellectual property” and “copyright” are meaningless terms. (Free culturists, I feel I am giving short shrift here to these ideas. If you have "must-reads" about free culture ideals, please share them with Blue Skunk readers.)

However, Lawrence Lessig, often seen as the movement’s founding father, writes in his book Free Culture:

The free culture that I defend in this book is a balance between anarchy and control. A free culture, like a free market, is filled with property. It is filled with the rules of property and contract that get enforced by the state. But just as a free marked is perverted if its property becomes feudal, so too can a free culture be queered by extremism in the property rights that define it.  That is what I fear about our culture today. It is against that extremism that this book is written.

Hobbs, Jaszi, and Aufderheide wisely write: “Applying fair uyse reasoning is about reaching a level of comfort, not memorizing a specific set of rules.” Should this statement apply to all issues involving copyright and intellectual property?

And if so, how do we help our teachers and student establish an informed, personal “level of comfort?”

Temple University Media Education Lab “Ten Common Misunderstandings about Fair Use”

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. 

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...

1. 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.