Friday, April 04, 2008

an education in educational use

Sifting through all the copyright commentary out there on the net, I came across an account of Dr. Michael Geist's recent presentation at the University of Calgary. A video interview of Geist in Calgary is available on the Fair Copyright Facebook group, and some net sources, probably his own website included, have his entire talk on video or audio file. Go wild.

Me, I'm a reader, so I dug into the blogs and came up with this very interesting account and analysis from one D'Arcy Norman, who appears to be a thoughtful and committed advocate for open source/open content. Mr. Norman attended the Geist presentation, and has complimentary things to say about it. And then he relates an anecdote about listening to others interpret what they've heard. He writes:

Walking back from the presentation, chatting with two unnamed faculty members. They were saying how eye-opening the session was, and how they had no idea that Fair Dealing was as useful and potentially as flexible as it sounds like it is. How great, that they can go ahead and scan books as PDF and post them in their courses in Blackboard.

Scan entire books as PDF, and then use them as unlicensed course material for tuition-paying students in a publicly funded institution? Is this a potential new practice Michael Geist is advocating for under expanded fair dealing? I can't imagine it is. Does it sound fair to anyone out there?

Norman goes on to register his own extreme discomfort with what he was hearing. His perspective is totally open content, which is not always my own, but I think our core values in this discussion are the same:

First and foremost, we need to model ethical and appropriate use of copyrighted materials. Hiding copyright infringements behind the Blackboard login is not good enough. You have to realize that you’re modeling this infringement for your students to see. “It’s OK to infringe on copyright, because The Man can’t see, right?” “uh… if Dr. Whatsisname could do it, why can’t I?”

Norman sends his readers to the University of Calgary's copyright policy for classroom use, which in itself is an education.

Under Print Materials that need to be scanned, they have this:

Discretion must be used in deciding what amount of a work can be copied as a fair dealing.

Ordinarily requests to use one article from an issue of a journal; one chapter from a book; or no more than 10% of a collective work such as an anthology will be recognized as a fair dealing.

... which clearly does not recognize a fair dealing that would allow unlicensed PDFs of entire books. Yet under Digital Material, the policy states it will allow use if:

- The material is available on the open Web, and the Library can provide a link to it.

... which sounds to me like the University of Calgary has an acting Publicly Available Material exception already in place. Note there is no mention of the copyright status of the material on the open Web, only that it is available.

So, a physical book that anyone can take out of any library cannot be scanned and used digitally in its entirety because of a recognized limitation under fair dealing. That same book available on the Internet (just as it is in a library), yet still protected by the same copyright law that determined UoC's fair dealing policy, is suddenly fair game as publicly available material.

So much respect for working creators as long as they kill trees; so little respect as soon as they hit the web.


Chris Brand said...

It sounds to me like all they're going to do in those cases is provide a link to the material where it's already publicly available.

The only problem I see with that being in a copyright policy is that it copyright really doesn't come into it at all !

Infringer said...

John, respect has absolutely nothing to do with it. The difference in policy is a function of the differences in the mediums, as well as a practical matter of what is realistically possible.

Books are descrete items which it is very easy to draw a fence around. (Literally if you so choose.) and say "thou shalt only make copies of what is within this sacred ground if you do so in a way which pleases the owner." amen

The Internet is a very different beast. It is essentially an over glorified coping machine. There is nothing to draw a fence around, only data. What is worse, MOST of that data isn't even in Canada. Many authors put their work online expecting it to be copied, and a great many of them know little of copyright laws, least of all Canadian copyright laws when they are in other countries.

Given the lack of international standards in this regard, I think it is perfectly reasonable for people who want to restrict access and dissemination of their work over the internet to have to actively take measures to do so. It's not hard. So do it. The inverse is much more complicated.

To illistrate, take the Private Infringer character I penned a couple years ago. There were a ton of people who copied it virbatum into news groups and bulletin boards all over the world. Should I, as an author, have to know what licence is implictely implied in each countries copyright laws? Also, all these people are just doing what comes naturally. Repeating something interesting they heard. Somebody tells you a joke you like, do you not turn around and tell it to your other friends?

The reason I use these examples to to show how silly it is to expect either authors or readers to be so familiar with complex laws that go against their very nature.

The reason I think they are applicable to the issue of education is that I don't think educational institutes should have a different set of copyright laws then the rest of us. Neither more nor less strict.

Finally. All that information on the Internet which comes with no terms of use. Should educational institutes have to find the author and negotiate a licence every time? You could have a collective, but what if the author is in another country, or does not register with the collective? Would that mean that Canadian authors profit on the work of others? I don't think these are easy questions.

Infringer said...
This comment has been removed by the author.
John said...


I think this is an important point for anyone wanting to join in the big public promenade that is the Internet, without being forced to give up some basic rights. A publicly available material exception for educational use punishes creators for making their work easily and freely accessible on the net.

If someone takes some of my writing from my website without permission or license, formats into an online magazine and then sells ads aligned to what I've written, it is generally recognized that they have infringed my copyright and also acted against the spirit of the freely shared Net. Unlocked content on the Net is not available for any kind of exploitation. Copyright law still protects it, and should. And while copyright traditionally reserves "all rights", Creative Commons licensing exists for those who want to better define which rights they are willing to waive.

No-one can take Cory Doctorow's novel, available free from his website, and turn it into a blockbuster feature film, without permission or payment for rights transfer. He has, presumably, reserved that right under copyright despite the fact that you don't have to pay to get a digital copy of his book. So far, I would imagine, most readers would agree that the protection of film licensing rights under active copyright is still a reasonable thing.

Why then should it be okay for someone to take an entire text -- a full essay, perhaps, or even an entire book of essays -- and turn it into curriculum for a university course. As long as kids and parents still pay tuition, and still pay taxes directed at K-12 education, planned curriculum is a commercial use of material. The fact that the material is easily and freely accessible does not factor into that equation. Entire books of essays have been freely accessible from libraries as long as there have been universities. I see no functional difference between licensing for photocopied use, and licensing for digital use. The "use" is curriculum. It doesn't change with the format.

An expanded fair dealing provision that would have the same effect -- removing curriculum use from the list of commercial uses -- would be just as unfair to creators as a publicly available material exception. It would remove rights from one traditional partner in education while providing, in my opinion, no measurable economic benefit for students.