Category Archives: Copyright in the Classroom

Where should we spend our money?

The attention paid in the last few weeks to the cost of textbooks and the promise, as well as the risk, of moving to e-texts has prompted me to consider the above question.

Some of the recent reportage has focused on e-textbooks as a way to reduce the costs students must pay for course materials; this article in USA Today is an example of this kind of story. There have also been several comments from open access advocates supporting the move toward open online textbooks; see this post by Georgia Harper and this one from Peter Suber.

There has also been some commentary recently on the abuse of new models of textbook distribution. The Boston Globe ran this article on “Textbooks, free and illegal, online” just a few days ago. It is unfortunate, but hardly surprising, that it is only in this article about “pirated” textbooks that the Association of American Publishers is quoted; they could do so much more if they were actively involved in a positive solution that could reduce textbook costs and improve access. But it is the faculty who write the textbooks who are quoted as seeking a legal solution, while the publishers merely resort to heavy-handed enforcement measures for a law that is rapidly becoming unenforcable in a technological environment for which it was never designed. The fuss usually works in individual cases — the Chronicle of Higher Education reports today that the specific site discussed is off-line — but it is ineffective to stem the digital tide.

But faculty do not come out unscathed in this discussion either, as is clear from this post about the practice of professors commissioning “custom” textbooks and receiving “royalties,” which William McGeveran of the University of Minnesota Law School calls “kickbacks,” from the required purchases by their students.

The lesson here seems to be that the digital environment is inevitably going to change the environment for textbooks as it has for most other kinds of intellectual property, for good or for ill. Georgia seems to feel that the publishers will eventually figure the market out and move to new profit models while supporting open access. But I think there is also an opportunity here for institutions to be more proactive and seek ways to invest in open access textbooks on a campus-wide level.

Why should schools consider doing this. First, with all the pressure that institutions of higher education are under to reduce the costs for students to attend, open access textbooks offers an avenue for proactive investment that will simultaneously reduce student costs and encourage faculty scholarship. Second, this is a place where universities actually can help combat copyright infringement. Universities have been made the scapegoats in the file-sharing wars, but there is really not a lot they can do to ameliorate that problem, especially since the vast majority of music and movie file-sharing does not occur over college and university networks. But by supporting open access to e-textbooks, we really can reduce the problem of infringement in that realm.

How can universities invest their funds in ways that will encourage open access textbooks and reduce costs (and therefore the incentive to infringe copyright) for students? I can think of three ways, off hand.

First, institutions could invest in infrastructure that would encourage new models for electronic course content. This means a great deal more than simply providing the storage space necessary for an institutional repository. Universities also need to support their faculty authors in efforts to retain copyright so that they can deposit their works in an IR and create new and unanticipated derivative works from those publications. The opportunity to combine materials located in an institutional repository in new ways would create a different spin on the custom textbook; it would offer a heretofore unimagined flexibility based on legal rights retained by the authors of the component parts and licensed to institutions or, using a Creative Commons license, to a broader group of users.

Second, universities and consortia could bring their purchasing power to bear to negotiate multi-user licenses for existing e-textbooks or new ones created in the commercial market. The current models all rely on students to each pay individually a licensing fee (putatively lower than the purchase cost of a hard copy) to obtain access, for a limited time, to an e-text. Multi-user site licenses could further reduce the price per user and give the university flexibility about whether to assess each student user for that lower cost or simply cite the funding to legislators as an investment in reducing student costs.

Finally, universities could make funds available for faculty to encourage the development of open access texts. There has been a great deal of talk recently about funding to support open access via “hybrid” publishing — traditional publications onto which an open access alternative is grafted if the author, or her institution, is willing to pay an added fee. It seems to me that a much wiser investment, and one with a greater return for the dollars spent, could be made by turning those funds to support faculty who want to create online open access textbooks that can be used by students on their own campuses and by others who teach similar courses. Adaptation by others, in that case, would provide an effective “peer-review” to measure the quality of the faculty author’s contribution. In this way, student costs could be reduced, faculty scholarship supported, and the real potential of the digital environment for collaborative learning more fully exploited.

Wolves in sheep’s clothing

A couple of recent developments in the copyright arena remind us that all news is “spun” one way or another (including this blog, I suppose).

A story yesterday in the Chronicle of Higher Education reports that the Copyright Alliance is proposing a wiki site that will help broker permissions requests from academics; the idea is to have representatives of the content industry monitor the site for questions from professors in order to expedite the permissions process. Sounds good, since the process of asking permission is terribly cumbersome and the result is often nothing but silence from the rights holder. But wait; lets look at the example used in the story. A professor wants to show the film “Monty Python and the Holy Grail” to a class on British Humor. Why, we should ask, is that professor seeking permission at all? An in-class screening of a film within the curriculum of a non-profit educational institution is clearly permitted under section 110(1) of the Copyright Act; no permission is needed as long as a legally obtained (bought, rented or borrowed) copy is used.

The fact that this example is used raises some troubling concerns. This wiki would not be the first attempt by the content industries to try to inculcate a more narrow view of the copyright exceptions than is actually the law under the guise of helping with permissions. Even worse, this site could add more ammunition to the claim that as it gets easier to ask for, and pay for, permission for a particular use, the scope of the fair use get narrower. It is imperative that academic institutions and faculty members make their own fair use decisions and ask permission when truly necessary, not merely when there is a convenient hand out to take the money.

Last week also saw the introduction in Congress of a bill called the PRO IP (for “prioritizing resources and organization for Intellectual Property”) Act. In spite of the name, there are many who are pro IP who will not be happy with this bill. Its primary purpose is to ratchet up, once again, the penalties for copyright infringement, both criminal and civil. In the realm of civil damages, this bill would allow music companies to get separate damages for the infringement of each track on an album that has been downloaded without authorization; for a twelve track album the potential damages would rise from a maximum of $30,000 to $360,000. This would be a windfall for some in the content industries, but it is hard to see how it would advance the fundamental purpose of copyright law. I am not at all in favor of illegal file-sharing, but the chilling effect this draconian increase in potential liability could have on legal activities seems to outweigh the benefit it could provide. It is already the case that many people are unwilling to exercise their legal rights because of the scare-tactics used by content owners to prop up their failing business models.

The other major purpose of the PRO IP Act is to create two new bureaucracies in the federal government — a “White House Intellectual Property Enforcement Representative” and a new division in the Justice Department dedicated to IP enforcement. The former office seems to be modeled on the US Trade Representative as an adviser to the President and watchdog over US interests abroad. It is not clear whether there has been some felt need for these additional offices outside of the desire by the big entertainment industries to have as many bureaucrats arguing on their side in the copyright conflicts as possible.

There are comments on PRO IP, as well as some links, here at the Electronic Frontier Foundation site.

Worth noting — a public domain search engine, which describes itself as “the site for collaborative solutions in sustainability, poverty reduction and international development,” has made available, in cooperation with Google, a beta version of a “public domain search engine.” The purpose, of course, is to help people find public domain material that they can use freely, without having to worry about copyright restrictions. Since such material can provide source for education, creativity and economic development, this project fits well into the self-defined mission of Appropedia.

It appears that the search engine focuses primarily on U.S. government material, which is in the public domain from the moment it is created. They have a nice explanation here of how they have gotten to the point of beta launch and where they hope to go. While this is a good start, there is a wealth of public domain material beyond the reach of this plan. Like the Google book search, this project is limited by the difficulty and expense of discovering what is and is not in the public domain. Ironically, while this search engine focuses on federal government materials, the Google Book project treats most government material as copyrighted works, since its definition of the public domain is limited to material published before 1923. Both definitions are radically narrow, and they emphasize the need to revise our copyright law to make the many works that are likely in the public domain (many so-called Orphan Works never had their copyright renewed, for example) easier and safer for the public to use.

In the meantime, however, this search engine, along with the more robust ability to search for material licensed under the Creative Commons licenses, offer great tools for helping scholars, teachers and others escape the straitjacket of our overly restrictive copyright law.

Student rights and academic values

Do students own the copyright in the works they create as part of their education? Generally the answer is yes, but we have recently been reminded of some troubling exceptions. The University of Hawaii’s “Academy of Creative Media” is a film school that insists that all of its students completely assign their copyright in all of their works to the school. The Electronic Frontier Foundation has a story about this rule here, and they include links to several other comments, as well as to the Hawaiian Academy’s agreement and an FAQ they use to justify the practice. It also links to a story about a similar policy at the University of Southern California.

Student rights are often ignored on college campuses, perhaps because of long-standing practices that stretch back to before copyright vested automatically when an author fixed her work. But we need to deal seriously with student rights, especially now that digital networks give us so much flexibility for making class works available to the public. There are real pedagogical advantages to having students work for a larger audience, but there are also opportunities to abuse the rights students now have from the moment their works are fixed in a tangible medium. Part of learning how to use these new technologies is developing policies that respect those rights.

The policies of the University of Hawaii and USC undermine the respect students deserve. Even more startling is the justification found in Hawaii’s FAQ – that this policy is consistent with the University’s claim that most faculty works are also works made for hire. Most universities do not claim ownership of faculty works, even though there is a stronger argument for that claim than for demanding rights in student works. Courts have even suggested that the work for hire rules do not apply to faculty writings, although those rulings are old and in doubt. To claim student copyrights, however, these two universities can’t even rely on work for hire; they need to compel students to sign an agreement that gives the copyright to the school.

Does the proximity of these schools to Hollywood justify their grab of student rights? As one commentator points out, at the very least, students who are subjected to these avaricious and rigid policies will be better prepared to work in the commercial film industry. These seems like a clash between academic values, which, contrary to what some in the content industries claim, usually try to teach respect for rights in creative works, and commercial values that see creators’ rights as one more commodity to be acquired as cheaply as possible.


The Creative Commons, the organization behind the increasingly-ubiquitous Creative Commons licenses, has recently announced the formation of a new division, CCLearn. The stated goal of CCLearn is to minimize the legal, technical and social barriers that impede the sharing and reuse of educational materials.

Towards this end, one of the activities of CCLearn will be to encourage those who create educational resources to make them available free of legal and technical barriers that discourage adaptation and creative reuse. The Creative Commons license, by which creators can waive their copyright claims as long as their works are used for non-profit educational purposes, is a major tool toward creating such “open educational resources.” So a major initiative of CCLearn will be to encourage those who create education resource to employ CC license or some similar mechanism to communicate their desire to share those resources with the educational community.

Equally important, of course, is the ability to find resources that are made openly available for educational purposes. An important aspect of CCLearn will be its Open Education Search, a tool that “aims to direct search engine traffic to the incredible diversity of OER repositories and communities.” This tool should make it much easier for faculty members to find resources they can use in their classes without having to worry about copyright concern. It is a frequent and bitter observation that our system of copyright law does not accommodate the needs of education very well, even as it relies on institutions of higher education for much of the material that populates that system. Careful attention as CCLearn develops its open education search tool is called for; it promises a system that could offer both a potential solution to some of these copyright problems and an immense resource for creative approaches to teaching.

“A Disgrace to the Forces of Evil”

Although it is available from lots of sources, I can’t resist adding a reference to the “A Fair(y) Use Tale” video to this site.  This 10 minute remix video, constructed entirely from Disney cartoons, offers a very clever explanation of copyright and fair use while at the same time asserting the latter as the justification for the whole creation.  It could provide a valuable resource for teaching students about copyright and fair use; its evident bias in favor of aggressive fair use provides a needed balance to the one-side educational material offered by the content industries.

The video, which was created by Bucknell professor Eric Faden, is available on YouTube, of course, or through the Stanford University Center for Internet and Society web site (which is the link provided above).  The presence of Stanford Law School as a host site may prevent the promiscuous use of take down notices to suppress this amusing and important work; as the video itself says, Disney is notorious for using its copyright to intimidate others and Stanford may be indicating its desire to push back some against that practice.

Be sure to read the “FBI Warning” at the beginning of the video; it is not at all what we are used to seeing on commercial videos.  And listen for the quote used to title this post, which is part of the explanation of fair use.

WKRP in copyright limbo

How do the struggles to release a DVD of a 1970s era sit-com inform our difficulties with copyright in higher education? At the very least, the problems encountered in preparing a DVD of “WKRP in Cincinnati” illustrate the complex layers of rights with which academics who study or create multimedia must deal.

Those of us old enough to remember WKRP will recall that, in a sit-com set in a radio station, pop music was a central part of the story. Often the humor of a particular situation was created or enhanced by the music being aired on WKRP. The sound track of the show was a collection of contemporary pop, but the producers only licensed those tunes for a limited time. It was difficult, in 1982 when the show ended, to anticipate the need to release the shows in a format that had not yet been invented. But once the licenses expired, the music could not be used in subsequent releases, so a DVD of the show has been long delayed.

As William Patry explains in his blog post on this case, the complexity of music copyright is that there are multiple rights and rights holders for each recording, including, at least, a copyright in the underlying composition (sometimes one for the music and one for the lyric) and a copyright in the performance. When dealing with video, the rights situation is even more complex, with layer upon layer likely owned by different people. These are the complications that go into re-releasing a TV show, but they are also the difficult shoals that have to be navigated when an academic wants to use existing video to teach filmmaking techniques, for example, or get permission to put a video into a digital archive.

The good news (if you were a fan) is that WKRP in Cincinnati will be released on DVD shortly. The bad news is that much of the contemporary pop music has been replaced with “elevator music” versions that were much cheaper for the producer to license. All those classic songs will no longer be “living on the air in Cincinnati.”  This small piece of TV history has fallen victim to the same burgeoning and increasingly expensive market for permissions that holds back much academic innovation in multi-media.

A more serious look at these problems for higher education can be found in the 2006 white paper from the Berkman Center for Internet and Society called “The Digital Learning Challenge,” which is linked under recommended reading in the right hand column, through our Connotea feed. It is a detailed (and rather discouraging) look at the many ways current copyright law hampers digital teaching and learning, and it isn’t even enlivened by a sound track featuring Pink Floyd or Blondie.

8 Cool things about the Creative Commons

EDUCAUSE, which is a non-profit organization devoted to promoting “the intelligent use of information technology” in higher education, has recently been offering a series of sort informational pamphlets call “7 things you should know about… ” The most recent item in this series is 7 things you should know about Creative Commons, and it is worth the attention of faculty seeking material that they can use in their classrooms without any of the copyright hassles that often arise.

The Creative Commons is a movement to encourage creators of all kinds of material to make their work available with only “some rights reserved” and with specific authorization for educational and other non-commercial uses already attached. Faculty who can find appropriate articles, image, video or music that is released under a Creative Commons license are way ahead in their ability to build a class without worrying about when and if the need to seek copyright permission. The two page PDF brochure linked above offers examples of teaching with Creative Commons materials, as well as more detail about what the Creative Commons is and how to find CC licensed material.

So what is the 8th cool thing about the Creative Commons? It is this article from the NY Times that describes the upcoming US tour by Brazilian songwriter and pop star Gilberto Gil, who also hapens to be the Minister of Culture for his nation. As a musican and a government official, Gil is an important advocate for the Creative Commons, which is rapidly becoming an international movement. As the article says, “One of Mr. Gil’s first actions after becoming the culture minister in 2003 was to form an alliance between Brazil and the nascent Creative Commons movement.” To anyone teaching about Latin American music and culture, that alliance should be good news indeed.

Know Your Copyrights

The Association of Research Libraries offers a concise and clear brochure, Know Your Copyrights, that stresses multiple opportunities to use copyrighted materials in the classroom. It is intended to emphasize the positive things that classroom instructors are allowed to do with copyrighted material, employing the various teaching exceptions built into copyright law. It is an ideal resource for classroom instructors who want to quickly comprehend what they can do, instead of focusing on what is not allowed. The link on the title above offers several ways to download this helpful brochure.

Recent Reads

Two recent books provide brief and interesting insights into two different aspects of scholarly communication.

Richard Posner, the amazingly prolific federal judge, has recently published “The Little Book of Plagiarism.” As both an academic and a judge, Posner is well placed to comment on the rash of high-profile accusations of plagiarism. His book is a thoughtful attempt to sort out why plagiarism is such an issue and to distinguish those situations in which it is worthy of sanction from those in which it is forgiveable and even desirable. Among other useful discussions is his distinction between plagiarism per se and “creative imitation,” which is something upon which culture depends, and Posner’s use of “detrimental reliance,” a concept from contract law, as a way to highlight why certain instances of plagiarism are especially blameworthy. Apart from its overly sanguine assessment of the TurnItIn software product as heralding the end of plagiarism, this is an interesing and helpful meditation on a vexing contemporary issue.

“Art History and Its Publications in the Electronic Age” is a report issued in September of 2006 that takes an in-depth look at the special problems and potential of scholarly publication in art history, where the need to reproduce high quality images adds layers of copyright uncertainty, permissions expenses and production complexity to the already strained system of academic publishing. Its discussion of copyright issues is a balanced look at the needs of artists as well as those of scholarly authors, and its examination of the publication process should be enlightening to many readers. The concrete recommendations about how libraries and university presses might collaborate to improve the climate for art historical scholarship deserve widespread attention and consideration.

The art history report, incidentally, is available on the Internet under a Creative Commons license at, or from Rice University Press’s digital print on demand service. I think this is the first POD book I have ever purchased, and I am very impressed by the speed and quality of Rice’s service.