We heard from Kyle Courtney  yesterday (Oct 22, 2014) about “Fair Use and Copyright in the Digital Era”. Kyle is a terrific and engaging speaker. I had spoken to him earlier when I had questions regarding the use of copyrighted material in MOOCs.

Bottom line – there are no simple answers and use your discretion in interpreting a complex set of laws based on your risk tolerance. As we have seen in the Georgia State University e-reserves case (Cambridge University Press et al v Patton et al), even the courts can’t seem to decide one way or the other! For all the resources related to this case, click here.

The core issue is that faculty rely on content created by many others for their teaching. The content comes from a variety of sources and from all over the world. Copyright laws provide the general framework for the appropriate use of the content, however, there are considerable variations from one country to the other. Copyright protection is in effect the moment content is created and stays with the author. Duration of the copyright is pretty complex subject matter and you can read more about it here. When an author publishes content, generally, they transfer the copyright to the publisher. This results in enormous inconveniences for the use of published work including the fact that for certain uses of the published work, the original author himself/herself need to seek publisher’s permission. Open access policy is beginning to address this issue somewhat in case of  scholarly articles.  According to this, the author exercises his/her rights to the content in addition to granting rights to the publisher.

As always, technology is ahead of policies and this issue is not an exception. The explosion in born digital content and the use of digital materials in teaching, learning and research has brought to light the lack of clarity of current copyright laws which are still catching up.

The use of copyrighted material in teaching for a face to face class is the most lenient. Fair use criteria are applied for using copyrighted content in these cases. As Kyle pointed out, the fair use is a “balancing act” of four factors. The following are taken from “Measuring Fair Use: The Four Factors“:

• the purpose and character of your use
• the nature of the copyrighted work
• the amount and substantiality of the portion taken, and
• the effect of the use upon the potential market.

The important point Kyle made is that these four collectively determine whether one is in compliance or not. And it is this subjectivity that makes things complicated. It is impractical to go through each of these every time you are planning to use some copyrighted work under the fair use guidelines. Generally faculty look to the library or IT organization to provide general guidelines. Those who give advice are nervous about generalizations (which will always lead to certain level of misuse) because one mistake could result in non-compliance. However, those who seek advice cannot be bothered by too much detail. They are generally frustrated and perceive the recommendations as inconsistent application of laws. So, you get the picture as to why this is a mess.

It gets worse when a faculty member wants to teach a MOOC. The fair use guidelines for face to face class don’t generally apply there because there are no “students” in a MOOC. They are learners or participants and these courses don’t give credits. In short, the advice is to use material in the public domain or under creative commons license. This is much easier said than done. As Smitha Radhakrishnan pointed out, this completely changed the way she had to deliver her MOOC in comparison to her face to face class and has serious pedagogical implications. You cannot use readings, e-reserves, certain images and videos the way you use them in face to face class. In all of our four WellesleyX MOOCs, we experienced this pain!

Kyle told us about a case where a faculty member wanted to use a certain background music and he advised against it because of copyright issues. Instead they got the Harvard Symphony Orchestra (I believe this is right!) to play the music and used it as the background!

The struggles around the use of copyrighted material is rooted in money in the end. The notion is that the intellectual property should be valued and the content creators have the right to monetize it based on the valuation. However, in reality, the publishers and other middle men tend to benefit from the monetization more than the content creators. Of course the publishers and others contribute significantly in monetizing the content. But, when you see the prices of textbooks, scholarly books and the rate of price increase for electronic journals, you know that there is something not right. When a textbook author gets about 12% in royalty and in general reviewers of journal articles get nothing for their work, one wonders about the financial model. Open textbooks, open access policies, open access journals are a growing list of content repositories which allow the use of content typically under the creative commons license. It will take a long time to overcome the fight that the publishers will put up and also the resistance to change by higher ed to make these open resources to grow and become highly relevant.

Until then, make sure to balance the four factors of fair use. When in doubt, you should seek help. You may not like the answer you get, but in the long run, it may point you in the direction of hassle-free resources.