fair use and public pedagogy

An interesting report (PDF) mentioned in the Chronicle from the Center for Social Media on the subject of Fair Use in education. Not surprisingly, the report notes that educators are often confused about fair use and how it applies to them. In this report's account, it would seem that we often err too heavily on being overly restrictive in our interpretations (though clearly some faculty believe anything they do for an "educational purpose" is ok). This business is confusing, and there are, in reality, no definitive guidelines. Each case is open to interpretation.

I tend to divide copyright issues into three areas and then add a caveat.

1. Classroom only: here I think that if you are showing something to students, like a movie or images in a PowerPoint or listening to a song, and you are doing this for educational purposes, then you are protected. If you are making copies and handing out in class though, obviously that's different.
2. CMS: if you are in your college's CMS and you are making material available to your class and/or your students are uploading material that is available to their classmates, then you have to think more about Fair Use. However, I think you are still on fairly solid ground, though clearly it depends on a case-by-case basis. (more on this in a moment)
3. Public Pedagogy: if you are doing what I'm doing and teaching in a public, online space then you really have to be even more careful. To give the most common example, a copyrighted text that you might legitimately photocopy and hand out in class or put on your library's electronic reserve, you would never scan and put on a public blog. On the other hand, you might quote from it to offer comment or for educational purpose. However, you won't likely see me ripping a minute of a Disney video and putting on my website no matter how much I transform and/or comment on it.

My caveat is that you also have to consider the Terms of Service of the site you are working with. For example, if you are doing something in Second Life, then Linden Labs will have a say over what you can do, even if you think it is "fair use." Here's my own personal example with the case of iTunes University and my college.

A student creates an enhanced podcast consisting of presumably copyrighted images copied from the Internet, a single, copyrighted song, and her own spoken words. The podcast is about the pressures of living in the "flat world." The images are meant as illustration or comment on those pressures. The song addressed the theme in its lyrics. The podcast gets uploaded to iTunes University where it is available to be downloaded by the 20 or so course participants, but no one else.

Is this "fair use"? I'm not a lawyer. I don't know. I don't know that a lawyer would know until we went to court to find out. I would have preferred that the student included information about the copyright owners of the images and music, though I'm not sure how much difference that makes to fair use here.

If the student had created this and shown it only in class, it would have been fine. If it had been put up in our Web CT CMS, I don't think anyone would have said anything about it. However because it was in iTunes U, I received an e-mail asking me to take it down, not b/c it wasn't "fair use" but because it "might" violate our TOS with iTunes U. I must say that I also thought the piece was likely violating copyright, and I had already planned to take it down.

Afterward, I pointed by students to the fair use guidelines on our library website. However, those guidelines are overly restrictive/conservative interpretations from my point of view. They are the "safe harbors" of fair use as the authors of the Center for Social Media report calls them.

I have to agree with this report that faculty need to be better educated. However, I don't really see that as the primary problem. I think the main problem is on an institutional level. Even if I had a very firm understanding of fair use and felt confident I was in the realm of fair use, I would be unlikely to step out into a space where the university was not going to protect me. In my experience, institutions are FAR more worried about faculty violating fair use than not taking full advantage of fair use protections.

Comments

[Ken]

Your iTunes U example does seem like a violation of copyright because of the ability of those students to further "distribute" the music & images beyond the registered members of the class.

That said - it also does seem like a creative use of the materials and I doubt that the use of the song in this way will restrict sales of the song commercially.

You certainly can find many hundreds of violations that have no connection to education or basis in fair use on sites like YouTube.

Apple, in its TOS, pretty much leaves the copyright issues (and responsibility) with the institution - and, in fact, asks applicants to iTunes U to confirm that the school has a copyright policy.

Schools are certainly not educating faculty about these issues. They almost seem to avoid it. A good example is the TEACH Act which would supposedly offer a school some protection but in itself requires that information & training be given to the campus in order to even invoke it. I would guess that probably 75% of American colleges haven't done the steps required to use the TEACH Act as a defense.

[Alex Reid]

Thanks Ken. Yeah, I wonder about your first point too. It's true that students could distribute the music and images further. But that's almost always true, isn't it? Technically I could illegally distribute DRM free music I buy from iTunes, but that doesn't make it a copyright infringement for Apple to sell it to me.

And that's a really good point about the TEACH Act. Again, it points out to me that schools are more worried about possible infringement than seeing faculty make full use of their legitimate access to media.

[Center for Social Media]

Hi Alex. Thank you for featuring our report on your website! The comments to this post reflect why we need to have a set of clearly defined standards for teachers to turn to (something that would also eliminate conflicts with rights holders and service providers). The EFF has developed a new set of guidelines for UGC content (available on their website), and the Center is also working on researching the range of uses of copyrighted material in new video work on online.

[Alex Reid]

Thanks. I checked out the EFF site. There is some good information there to continue this conversation. Here are their guidelines:

http://www.eff.org/issues/ip-and-free-speech/fair-use-principles-usergen

and here's a page with some videos they believe meet the fair use measure:
http://www.eff.org/pages/UGC-test-suite

By this measure, my example of student work would constitute fair use.