©ollectanea

Apparently, the time is ripe for a broader discussion about the use of 3rd party copyrighted material within an online educational setting, such as electronic reserves (including all types of works in addition to text) and streaming entire videos within a course management system. Yesterday I commented on an Inside Higher Ed article that reported a complaint by AIME against UCLA concerning the university's practice of streaming entire copyrighted videos within access-protected course web sites. That initial article "Hitting Pause on Classroom Videos" (see previous post) struck a real nerve within the higher education community and generated lots of comments, both there and on other blogs.

In fact, a follow-up article, "Who's Right On Video Copyright?" [http://www.insidehighered.com/news/2010/02/04/copyrightredux] was posted today and is sure to keep the issue front and center. Between this controversy and the ongoing lawsuit against Georgia State University concerning their electronic reserves, the awareness of copyright's intimate connection and relevance to how higher education uses technology to teach ought to become painfully clear to academic affairs administrators and the culture they foster on their campuses.

As you read this article and the intensity of the opinions and comments both quoted in it and in response to the initial article, keep in mind a couple of things as you form your own opinion:
1. Whether it is accurate or not, the end of this 2/4/10 article suggests that the practice being challenged is probably not widespread: perhaps 14% or less of institutions. What does it mean that such an infrequent activity (maybe it isn't so infrequent?) triggers such - dare I say it - emotional responses? Is it 'just' another example of the fault line that exists between the academic model of sharing, even giving away, their works and the commercial information market that cannot exist without income in exchange for access?

2. Are you going to accept/believe everything you read as an accurate representation of copyright law and the facts simply because it is written and/or stated very firmly? For example, the most recent article refers to the "fair use" provision of the Digital Millennium Copyright Act (DMCA) and then links to Section 107 of the copyright act. [I would expect many of you on this blog to find an number of questionably accurate statements in both articles]. If any hay is to be made of such sudden interest in copyright law, do you think we might benefit from a move towards more accuracy in restating the relevant copyright provisions and perhaps more established ways of changing ineffective or outdated laws than just ignoring them?

3. Do you think expecting faculty members to exhibit a thorough and nimble understanding of copyright and its opportunities is realistic or likely to succeed? Faculty members undoubtedly possess the requisite mental ability to absorb and apply copyright law, but, with a few exceptions, is simply is not how they want to spend their time. They want to use certain material for their classes and they expect to be covered by an "educational use" umbrella that is truly waterproof. I don't blame them one bit - but what does that mean for our current strategies for campus copyright education? Do they want the nuances or do they want bright lines?

These articles certainly provide us with plenty to think about as we consider all the other activities occurring on our campuses that are implicated. Technology moves fast; the law does not. As new projects and ways of delivering information online are developed, the cart is usually way behind the horse. That is, wonderful, imaginative, time-intensive technology vessels and delivery mechanisms are developed before the copyright implications of the anticipated content are even examined. Vessels without content don't look good. It does not follow that because technology permits something, that the law also does.

Thanks, Peggy

I'm sure many of you have read last week's Inside Higher Ed's interesting, if somewhat confusing, article entitled "Hitting Pause On Class Videos", http://www.insidehighered.com/news/2010/01/26/copyright.

In short, the story reports that the Association for Information and Media Equipment (AIME) is alleging that UCLA faculty members are infringing copyright by streaming entire (presumably) videos via their access protected course web sites. As I read the article, it appears as though UCLA is trying to defend this practice under Section 110(1), which only applies to traditional face to face (F2F) classroom settings. It is true that under that section an entire video can be show as long as it is lawfully made (p.s., rented movies are "lawfully made").

However, it doesn't matter, as suggested in the article, whether the online environment is a "class" and therefore, should qualify for the F2F exception; the TEACH Act amendments to 110(2) have already said that. The key is whether or not the performance or display is "transmitted". That is the difference between 110(1) and 110(2). Otherwise, no one would ever use 110(2) because its requirements are so many and so challenging.

The Copyright Act, §101, specifically says that "To "transmit" a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent." And that is exactly what is happening when videos are streamed online. Now, streaming (the transmission) a video online is allowed, under certain conditions, but not the entire thing. Only a reasonable portion of it. Not helpful, doesn't make sense, but there it is. While there is some indication that, on a case-by-case basis, showing the entire video may constitute what is reasonably necessary, but I have yet to see it condoned as a generally accepted practice.

There are also some interesting discussions occurring as to whether or not it is permissible to stream entire videos into a "live" F2F classroom from a central location on campus. Again, this would, strictly speaking, seem to be a "transmission", and, therefore, not authorized by 110(1); although there is probably some room for a fair use argument. But, as to a 110(1) (F2F) argument - hmm.

At the time 110(1) and 110(2) were authored, I believe Congress intended 110(1) to cover the scenario where the faculty, the students, and the work were in the same location. Here is the relevant legislative history for Section110(1) of the 1976 Copyright Act:
"There appears to be no need for a statutory definition of "face-to-face" teaching activities to clarify the scope of the provision. "Face-to-face teaching activities" under clause (1) embrace instructional performances and displays that are not "transmitted." The concept does not require that the teacher and students be able to see each other, although it does require their simultaneous presence in the same general place. Use of the phrase "in the course of face-to-face teaching activities" is intended to exclude broadcasting or other transmissions from an outside location into classrooms, whether radio or television and whether open or closed circuit."

It is that last sentence that gives the most cause for pause in the rush to stream entire videos from a central location into a "live" classroom. I fear that some of these distinctions between the various provisions of the act are being glossed over in the stretch to justify what certainly seem to be legitimate and non-threatening uses of technology which allow efficient use of resources for maximum educational experiences. I know from personal experience, though, that many libraries are reluctant to rest their e-reserves practices entirely on fair use. It seems only fair that they should also have the information that streaming entire videos online is not specifically sanctioned by the copyright act and instead relies much more on fair use.

Evidence of my blog learning curve here:

This footnote was meant to be with my previous blog: On Being Relevant: Copyright and Higher Education -

Notable exceptions to the 'no relevancy' attitude include university libraries, the IT and student affairs groups that must respond to student P2P file-sharing activities, and Legal Affairs, who understands the problem, but often has insufficient time and resources to deal with it. This is not an all-inclusive list.

P

By way of explanation and introduction, I have been given the opportunity and privilege of being a guest blogger on ©ollectanea for the next month or so. Some of you already know me through other CIP activities, including blogging several years ago. I'm really happy to be "on" with Peter Jaszi since I have long been a fan of his and of his work, particularly the work with the American University Center for Social Media (http://centerforsocialmedia.org) and its facilitation of Best Practices documents. (http://www.centerforsocialmedia.org/resources/fair_use_and_teaching)

What I find very interesting about the Center's work and its development of best practices (that have already been widely accepted) is the way this group has facilitated and reinforced the belief that copyright is indeed relevant, in the world of documentary film studies as well as other areas. Of the many worthwhile objectives the Best Practices documents meets, unmasking copyright as relevant is a most remarkable achievement. Whether the Center affirmatively set out to establish the relevance of copyright or whether they were simply dealing with a uniquely "aware" group, I do not know.

I have come to the conclusion that the greatest challenge for campus copyright educators (as well as those trying to reach the general population) lies in helping individuals appreciate copyright's intimate relationship to many of their daily activities, both at work and at play. If copyright is not understood and accepted as even being relevant to core campus activities - if it is viewed instead as optional or a "luxury", educational efforts will not succeed. Indifference will rule the day and the campus will be unequipped to participate in the copyright debates and national discussions that currently dominate scholarly communication.

I have been involved in copyright education at higher education institutions for fifteen years; given and attended dozens and dozens of presentations and workshops all over the country; and developed several copyright educational web sites including the TEACH Act Toolkit and the Know Your Copy Rights. So I have spent some time in the various strongholds or centers of copyright expertise, understanding and appreciation. Being among like-minded colleagues is almost like a vacation. It's at least a validation of your choice to spend your waking moments doing what others also consider a worthwhile venture. What a relief to be around people who understand the manner in which copyright has soaked into the very fabric of life in American - whatever their take on copyright law may be. For purposes of appreciating copyright's role, its limitations, nuances, goals, and the opportunities present for shaping its evolution, it doesn't even matter whether you are sitting amongst a group at the RIAA, MPAA, or AAP or at the EFF, Creative Commons, or Public Knowledge. Because in these groups, all are safe with the cocoon of consensus that copyright matters to the average person and has relevance to how various aspects of life are conducted.

These are great and stimulating places to spend time and I thoroughly believe in and applaud the work they do. However, I spend most of my time outside that cocoon, in the "trenches", if you will. So do you, unless you're one of the lucky few who get to skip that first great big hurdle - the one that consistently leaves most universities at the starting line on a horse that won't run.

That hurdle is the complacency evident where copyright is concerned; the pervasive apathy that prevails in all (including, at times, the very upper administration) but a few areas or groups at the university; the belief that copyright plays no role in teaching and outreach activities. The conviction that copyright considerations are optional and that it is ridiculous, if not delusional, to suggest that permission might be necessary when all that is being done is using the best resources available to teach - a noble and worthy cause. Academia doesn't make money from its works and is, in fact, happy to share them; ergo, the creators that are being "borrowed" from no doubt share that same attitude.

It becomes virtually impossible to convey copyright information and assistance to those who believe it has no current relevance to anything they do and has never had any relevance or inhibited their manner of presenting material to their students. They assert that the correctness of this attitude is evident in the lack of any negative consequences resulting from the practice of completely ignoring copyright law when teaching in the past. In that same past, when the copyright and distribution of copyrighted material was in "analog" form and face2face teaching was the norm, nothing happened if copyright was ignored by faculty (coursepack permissions were handled and paid for by copy shops and costs passed to the students). Now, in the digital world, they believe nothing has changed. Those who handle their own online courses or online components of courses generally believe that fair use and access controls suffice and copyright remains irrelevant.

Although I did not personally attend the 2009 Annual EDUCAUSE conference this past fall, I was able to view the keynote address by Lawrence Lessig online and it was fascinating. See "It is About Time: Getting Our Values Around Copyright" (http://blip.tv.file/2827842). I recommend taking the time to listen to his presentation.

I mention it here because Dr. Lessig made several initial points, sometimes using quotes from Jessica Litman, that resonated powerfully with my growing observation that for most people, including or particularly those in higher education institutions, copyright is perceived as having no significant relevance to the core teaching mission of the university. Dr. Lessig refers to copyright as the huge elephant in the room but I would suggest that in many places, the elephant has left the building.

Dr. Lessig stated that, in the past, copyright played a tiny role in the way people engaged with their cultures. Quoting Dr. Litman, "At the turn of the century {19th to 20th}, U.S. copyright law was technical, inconsistent and difficult to understand but it didn't apply to very many people or very many things... If you were an author or publisher,..playwright or producer of plays, or a printer, the copyright law bore on one's business... But ... booksellers, record publishers, motion picture producers, musicians, scholars, members of Congress, and consumers could go about their business without ever encountering a copyright problem." Then, according to Dr. Lessig, things changed radically because of technology and the current context is one where copyright reaches across the spectrum of ways in which we engage in our culture.

Continues Litman, "Ninety years later, U.S. Copyright law is even more technical, inconsistent and difficult to understand; more importantly it touches everyone and everything...Technology, heedless of law, (emphasis added) has developed modes that insert multiple acts of reproduction and transmission - potentially actionable events under the copyright statute - into commonplace daily transactions. Most of us can no longer spend even an hour without colliding with the copyright law." (emphasis added)

As I stand with a foot in each world, I wonder what hybrid copyright law creature will emerge from such incompatible versions of reality - those who recognize that a great deal of what they do is affected by copyright and those who barely give it a second thought. Where do you even begin? How can you possibly convince our children, our students, of the illegality of P2P music file sharing when their role models run digital music audio reserves or place entire music tracks in their online courses? That you cannot copy large portions of works when private companies are allowed into their library to scan entire library collections? How do you split those hairs in a way that is meaningful and credible to the average student?

In a world of scanning, burning, streaming, and ripping, how does copyright achieve relevance when campus leadership, down through the levels of the faculty pyramid, are satisfied with a courteous, but dismissive, nod in the direction of copyright? How can copyright be anything but ignored when educational institutions consider copyright education and guidance optional?

How does copyright achieve and maintain relevance in an atmosphere that acknowledges only that which threatens to cost a lot of money?

You got me.

The U.S. Copyright Office is a generous and generally reliable font of information on a wide range of technical copyright questions. Despite that, or perhaps because of it, the Office's testimony at last week's hearing on the Google Books settlement, before the House Judiciary Committee, may have generated more heat than light. That's because the real legal issues facing Judge Chin of the New York federal district court, as he considers whether to approve the settlement, aren't about copyright at all. Instead, they concern abstruse specialties (competition law, class action procedure, etc.) in which neither the Copyright Office nor I can claim special expertise, By contrast, the most important factual question the judge confronts -- whether the settlement will add meaningfully to the public accessibility of books -- is one on which we're all entitled to our opinions. And, in the spirit of full disclosure, I should say that I have mine. Having given some advice to the National Federation of the Blind as it worked to shape the provisions on accessibility for the print-disabled that now appear in Article 7 of the proposed settlement, I can say that the settlement will be a boon to the many Americans (probably more than 30 million in all) who have difficulties processing conventional text.

So what about last week's Copyright Office testimony? It identifies three major copyright concerns about the settlement, all of which I think are misplaced. The first and most significant is the possibility that the settlement will put in place a "compulsory license" for on-line uses of out-of-print books still protected by copyright. Non-copyright geeks need to understand that in our world, these are fighting words. In fact, of course, this mechanism has a long record of success in cutting the knots that get tend to tied around issues involving copyright and new technology (e.g. the compulsory license for making cover versions of recorded songs, or the ones that have enabled cable and satellite television). But that doesn't prevent many experts (like those at the Copyright Office) from disapproving on general principles of governmental action that takes negotiating power away from classes of individual copyright owners.

The point here, however, is not that compulsory licenses actually may be less frightening than the Copyright Office testimony suggests, but that what the proposed settlement describes isn't, by any reasonable stretch, a compulsory license. Rather, it's a negotiated understanding on future licensing for particular uses that individual rightsholders (here authors and publishers) are free to avail themselves of, or not, as they choose. In that respect, it is closet relative in the menagerie of mass licensing options is probably "collective administration," a technique we know in the United States mainly as it is practiced by the musical performing rights societies (PRO's) like ASCAP and BMI - and which is employed far more widely in most other countries. Of course there are differences between classic collective administration and the scheme that would be administered by the Book Rights Registry under the proposed settlement, of which the most obvious is that while rightsholders must opt into traditional collective administration, they would have to opt out of this contemplated licensing regime. But that difference is more apparent than real. As a practical matter (in the U.S.) or a legal one (in many other countries) the only way a rightsholder can be paid for some uses is by "voluntarily" affiliating with a collective administration organization that manages this set of rights. The settlement proposes is at least as fair as that, and perhaps fairer!

The Copyright Office testimony might also be read to suggest that the licensing solution in the proposed settlement deserves special scrutiny because it is so invasive of rightsholders' markets. In fact, however, that solution has no bearing on print sales, including the emerging print-on-demand model, which is so well adapted to the exploitation of out-of-print material. And, of course, it doesn't touch the markets for adaptation, translation, excerpting, etc. On-line reading, and only on-line reading, is covered. So whatever kind of licensing this is, its reach should not be overstated. The real question, I'd suggest, isn't how the licensing regime proposed in the settlement should be labeled, but whether or not we like what it accomplishes.
Likewise, the Copyright Office's next concern may actually distract rather than focus attention where it belongs; that's the idea that the Google Books settlement would somehow preempt efforts to resolve the ongoing "orphan works" issue through new legislation. The campaign to "free" orphan works is one in which I've been actively involved for years, and in which the Copyright Office admirably has taken a leading role. Here, though, Google may be a victim of its own excellent public relations efforts. In fact, claims and counterclaims notwithstanding, there's nothing about the proposed settlement that would put more than a slight dent in the problems faced by scholars, creators and publishers who want to make new uses of old works whose current owners cannot be identified. Most orphan works, it should be emphasized, aren't out-of-print books - as to which there usually is an adequate paper trail; instead, they are unpublished manuscripts, letters and diaries housed in archival collections, historical photos and art works, and so forth. And even if the some of the old copyrighted books that consumers could read under the proposed Google Books settlement are well and truly orphaned, the settlement wouldn't authorize anyone to reprint them, or make movies based on them, or include excerpts from them in scholarly publications. Even if the settlement were approved, in other words, plenty of work would remain for orphan works campaigners to do!

Third, and finally, the Copyright Office testimony points out - accurately - that some of the U.S.'s trading partners object to the proposed settlement. There's some irony here, of course, given that (as I mentioned earlier) collective licensing is practiced far more widely outside the U.S. than it is here at home. But putting that to one side, I need to suggest that whether or not foreign nations approve of this way of organizing a portion of our domestic market in texts, it may be (strictly speaking) none of their business - especially since foreign rightsholders of out-of-print books have the option of disassociating themselves from the Book Rights Registry and making their own deals - if they can - with consumers. It's also worth remembering that this whole story began - and the settlement is the directive outgrowth of - Google's strong assertion of "fair use" in connection with the scanning of in-copyright books. So it's no wonder that our European partners (who seem to be making most of the objections), whose national laws don't include a fair use provision, would come up with other ways of dealing with issues of mass digitization - though it remains to be whether those ways will prove are as effective in promoting meaningful access as the proposed Google Print settlement has the potential to be.