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The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age by William McGeveran, William Fisher

McGeveran, William and Fisher, William W., "The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age" (August 2006). Berkman Center

Research Publication No. 2006-09 Available at SSRN: http://ssrn.com/abstract=923465

Description:

This is a report on a yearlong study produced by The Berkman Center for Internet and Society at Harvard University. It looks at the obstacles that Fair Use law and copyright owners create in the process of attempting to further develop the full potential of the educational uses of technology. The report identifies four main problematic areas:

a. The lack of clarity within the copyright law.

b. The large adoption of digital rights that keeps users from accessing content.

c. The increasing amount of licensing that creates mounting paperwork for users to overcome.

d. The extreme practices by gatekeepers.

Analysis:

This report speaks of the problematic nature of copyright laws and current practices of Fair Use. It informs the readers about the great wall that is being created between students and the materials that should be available for their education and about the perils that such a state of affairs brings to the future of education. At the same time, the report effectively documents and clearly identifies the top four obstacles. Thus, it gives readers a reachable solution and concludes with a series of sound recommendations that if applied, will bring much clarity and fairness to the tense relationships between copyright owners with professors, scholars and artists who claim Fair Use.

Will Fair Use Survive

"Will Fair Use Survive?" (New York: Brennan Center for Justice, 2005).

www.fepproject.org/policyreports/fairuseflyer.html

Description:

This study conducted by the Brennan Center for Justice at New York University School of law researched the causes and consequences of the increasingly heavy hand that is being exercised by copyright and trademark owners on limiting Fair Use. The study highlights the importance of preserving Fair Use for the benefit of democracy, the public in general and to ensure that "the owners of intellectual property cannot close down the free exchange of ideas." It states that copyrighting is a confusing arena for users and one in which the powerful can overstep limitations of Fair Use. It can also be a permissive arena in which intellectual property owners can exercise undue authority. The study concludes with a series of normative and legal recommendations to improve the standing for the users and encourage copyright owner to exercise restraint.

Analysis:

The study's central team is helping the reader to understand the increasing pressures facing Fair Use consumers and the urgent need to take action to prevent copyright owners from eroding the establish laws of Fair Use. It bases it claims on research that points out the weakening of Fair Use law as well as the fact that intellectual property owners have effectively developed an atmosphere of fear around it. By doing so, they have deterred and ultimately limited the free exchange ideas. The study documents several examples of big corporations taking action against individuals whom they claim had violated their intellectual property rights. These examples underscore the unequal legal status that individual users face when attempting to claim Fair Use. Finally, the study questions the survival of Fair Use under the current practices.

"The Law of Fair Use and the Illusion of Fair-Use Guidelines."

Crews, Kenneth D. "The Law of Fair Use and the Illusion of Fair-Use Guidelines." Ohio State Law Journal 62 (2001): 599-702.
http://moritzlaw.osu.edu/lawjournal/issues/volume62/number2/crews.pdf

Description:In this article, Dr. Crews looks at the historical development and use of guidelines in Fair Use. The author uses government documents and court rulings to demonstrate that the guidelines are basically irrelevant to the Fair Use and Copyright laws. Furthermore, the article sets out to demonstrate that in practice such guidelines are an obstacle in the development of truth and understanding of the Fair Use laws.

Analysis:The article criticizes the development of guidelines, because as Dr. Crews demonstrates well, they have not been of help to Fair Use users and have not clarified or aided anyone who has faced the Fair Use law. The author's argument goes further stating that guidelines or the illusion of the guidelines indeed have mislead the consumers (the public) into believing that they possess an agency value and that they would be universally recognized in a court of law. Dr. Crews documents how such has not been the practice in reality and that in fact certain users would have been better served if guidelines were not employed at all and they just focused strictly on the preexisting laws.

News from the Future of Public Media -- Center for Social Media at American University

News from the Future of Public Media Posted by Patricia Aufderheide on May 7, 2009 at 4:12 PM.http://www.centerforsocialmedia.org/blogs/future_of_public_media/dmca_fair_use_and_educators/

Summary:

This news report from The American University Center for Social Media reports on the recent efforts of media professors and professor from other disciplines to obtain renewals and extensions on exceptions in copyright law. After battling industry lawyers three years ago, the reports say professors such as Dr. Peter Decherney are again in the courtroom to once again attempt to make cases on behalf of educators and their students.

Analysis:

Coming for the Center for Social Media the report is very sympathetic to the professors who are trying to convince the industry and the lawmakers that when it comes to education, the rules for copyright use should be different, because (among other things) it is in the best interest of society, and because profits are not derived as a result of materials used in the classroom.

The Growth of Intellectual Property:

The Growth of Intellectual Property:A History of the Ownership of Ideas in the United StatesWilliam W. Fisher III. forthcoming in Eigentumskulturen im Vergleich (Vandenhoeck & Ruprecht, 1999) http://cyber.law.harvard.edu/property99/history.html

Description:

This publication is best described as an historical and outlined recompilation of who or what created legislation such as copyright law and intellectual property. It includes the rights to protect an author's "original" work as well as the protection of celebrities who wish to profit from their own image.

Analysis:

William W. Fisher's publication on the historical growth of intellectual property in the United States summarizes the history of copyright law while at the same time takes the reader on a journey that both explains and criticizes the forces that had taken copyright law to the place that it occupies today. Fisher identifies three main forces that impact the growth of intellectual property: economics, ideology and politics. He consistently emphasizes that for the most part and throughout the entire process, the consumer (the public) has been left out of the discussion. Thus, the growth of copyright law has been primarily developed and described by those having a personal interest in it and wish to profit from it. Dr. Fisher calls into questions ideas such as "original writing" pointing out that writers always support and draw their work from previous work. This is a very well documented and well written article that at the same time points out the problems with intellectual property and on some level encourages readers to develop their own agency in order to prevent the erosion of consumer protections such as Fair Use.

The Pros and Cons of an 'Educational Fair Use' Project (Luncheon Audio) | Berkman Center

The Pros and Cons of an 'Educational Fair Use' Lewis Hyde, Berkman Fellow, speaks on "The Pros and Cons of an 'Educational Fair Use' Project" http://cyber.law.harvard.edu/interactive/events/luncheon/2008/02/hyde

Description

In this video The Berkman Center for Internet and society of Harvard University and Dr. Lewis Hyde are discussing the problems with the laws, guidelines and practices related to fair use in education. Dr. Hyde speaks of the historical and current confusion around fair use in education and the negative consequences that such confusion has created for professor and instructor in higher education. The impact as Dr. Hyde discusses can be found in areas such as free speech, academic freedom and the quality of instruction. At the same time, Lewis Hyde is calling for an educational fair use project to be conducted by educators who will have small groups that will use their classrooms and instructional needs as guidelines to determine what should or should not be fair use in education. Such a project will then be used to negotiate with owners in good faith and with the goal of community service in mind.

Analysis:

Dr. Lewis Hyde from the Berkman Center for Internet and Society of Harvard University is in this video advocating for changes and measures to prevent owners from eroding fair use, free speech and academic freedom. In his presentation, Dr. Hyde effectively documents the history that brought fair use to this point of conflict while at the same time attempts to clarify the laws that regulate copyrighting. Professor Hyde's presentation also very clearly describes step-by-step the guidelines that one could use in order to conduct a project for fair use in education.

Fair Use for Media Literacy Education

http://www.centerforsocialmedia.org/resources/publications/code_for_media_literacy_education/ :

Discusses fair use in media literacy education, appropriate uses for educators and students of fair use when it comes to using copyrighted materials in order to teach media literacy. It also clarifies what benchmarks are as used by lawyers and judges to decide what is fair use as well as the myths and facts about fair use in the classroom. Finally, it encourages educators to be leaders, not followers in the process of establishing the best practices of fair use in education.

Analysis:

The article is aimed at educators with the purpose to educate teachers about the guidelines of fair use in the classroom. The principal goal of the article is to encourage educators to use technology in the classroom and to contribute to the current dialog and process of establishing best practices in fair use in education and in particular media literacy. The underlying goal of the article is to call on educators (uses) to participate in the conversation about fair use in order to create an environment where all educators feel more comfortable using the media and therefore, have students and the public in general take advantage of the benefits of media literacy.

Rice, David A. "Legal-Technological Regulation of Information Access"

Libraries, museums, and archives : legal issues and ethical challenges in the new information era / edited by Tomas A. Lipinski. 0810840855 (hbk. : alk. paper) series Lanham, Md. : Scarecrow Press, 2002.

In this text, Rice outlines the contractual and technological regulations that have been placed on the access of digital information. His argument is that information is the "common fiber of science, arts, hostory, culture, and even self," and that the press to privatize control over acces to digital information "diminishes the luster of the late-twentieth-and early-twenty-first-century opening of the information society."

Specifically Rice focuses on the implications of the privatization of control over things such cultural knowledge, including folklore, legends, and information on heritage, in cases where this information would not be legally accessible to members of the represented culture. Rice argues that the importance of the information era is the access one has to learn about the things most intimately related to him as a person.

I find this essay useful because, though it targets the wrongfulness of privatized control from a deeply personal level, the underlying question of whether all information should be accessible to everyone is also present, because within the academic arena researchers develop relationships with information that may have no relevance to their cultural backgrounds but remains as personal to them as if it did. This essay also asks its reader to think about the kind of information he would not want to be withheld from him. Though the essay doesn't specifically get at the issue of confusion over copyright and fair use issues within an academic setting, it does provide an awareness of what information may be being withheld from researchers, and forces those researchers to consider the usefulness of this kind of information to there personal projects. This kind of awareness goes hand in hand with the understanding of fair use and copyright that my thesis argues for because it emphasizes the importance of having an active and correct knowledge of fair use and copyright issues that affect university settings, in order to get the most out of ones education.

Warwick, Shelley "Copyright for Libraries, Museums, and Archives: The Basics and Beyond"

A general explanation of the issues and history surrounding copyright law and library services, this text also summarizes pending issues of copyright and the importance of having them dealt with. Many of the resources already circulating as guides for the legal use of copyrighted works for librarians and other educators are geared specifically toward face-to-face educational experiences, such as classroom settings. Even instances in which rules for online or other electronic reproductions of copyrighted works are outlined, there still seems to be a great deal of confusion about where distance education fits into these guidelines. For this reason the DMCA has suggested that the Copyright Office amend the the Copyright Act to more clearly define what constitutes a "classroom."

Other issues that are still pending include the question of whether producers of databases, which arrange lists of facts in an alphabetical or other standard form, should get added protection against laws which require "compilations" to be original both in the sense that they are not copied and that they possess some "quantum of creativity." Warwick, here, points out the importance of researchers and educators to be aware of their rights, so that we are able to continue to ensure that facts will never become protected under copyright laws. This notion helps further my argument about the importance of educators and researchers understanding their rights as well. The essay also will help me to contextualize the major issues of copyright law as they refer to library services, which I believe will help elucidate where much of the current confusion about copyright law within the academic arena stems from. The issue of database protection also brings up interesting questions about the necessity of the Copyright Office to develop laws or guidelines for all aspects of educational services or if many of these aspects should be left to interpretations of fair use.

Buttler, Dwayne K. and Kenneth D. Crews "Copyright Protection and Technological Reform of Library Services; Digital Change, Practical Applications, and Congressional Action"

This essay provides an explanation of the problem of section 108 of the U.S. Copyright Act, which does not clearly define what technology is allowed in the reproduction of copyrighted materials. This problem has proven to confound many librarians who continue to wonder if technology that did not exist at the time of the section's revision is included under the seemingly "technologically nuetral" language of 108's subsections. Furthermore, 108 seems only to allow the use of digital formatting in the case of preserving copyrighted materials, but not distributing them. This has caused greater confusion, especially with regards to services such as interlibrary loan, in which case the digital format is most easily sent via e-mail, a service which would make it possible for the material to be printed and thus owned by another library or patron.

No specific argument is layed out in this article. However, the authors do elucidate the ways in which section 108 can be understood and utilized in regards to reproduction and without resulting negative consequences. These explanations are important because the law will never be as quick as it needs to be to adapt to the technological advances happening all the time. This essay supports my own thesis, because it emphasizes the importance of understanding copyright law whether you are a researcher or an educator (including librarians). In order to take full advantage of the resources that exist for education, one must fully understand his rights to that information.

SSRN-The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age by William McGeveran, William W Fisher

"We found that provisions of copyright law concerning the educational use of copyrighted material, as well as the business and institutional structures shaped by that law, are among the most important obstacles to realizing the potential of digital technology in education."

Preserving Education Fair Use in the 21st Century/ Carol Silverberg [.pdf]

This article from the Southern California Law Review highlights the importance of the preservation of fair use rights in the educational realm. Silverberg describes the changes to the fair use landscape in the past few decades, and then highlights how these changes specifically affect academia. Current “safe harbors” for academic fair use are critiqued as being overly restrictive, and the author urges the court to take a less restrictive view on fair use claims, in order to increase academic discourse.

Copyright and Fair Use in the Classroom, on the Internet, and the World Wide Web - UMUC

University of Maryland, University College, has developed a series of resources to help educators determine their ability to claim fair use in an academic setting. This document outlines the basics of copyright and fair use and included a sample letter that can be used by academics or students to request permission to use copyrighted materials. To help educators make judgments on what is (or is not) Fair Use, this document includes various guidelines such as the amount of time for which a claim of fair use holds, or the percentage amount of a complete text that can be reproduced legally.

Stanford Library Copyright & Fair Use Resources

This site, run by Stanford University, is a clearinghouse for up-to-date information on copyright issues and legislation. Connected with Stanford Law School and Professor Larry Lessig, this site provides links to articles and guides detailing current copyright and fair use issues. Articles from experts commenting on recent court cases is also available. Here, visitors can also download a full version of Lessig’s latest book, Free Culture.