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Describe one scenario which you currently experience in which copyright is a factor in the use of learning materials. What is the relevant copyright law in your jurisdiction? Are there any relevant exceptions? Does the law hinder or assist you to obtain access? How could this scenario be improved by open educational resources? Are there any obstacles to using OER's? If so, please describe them, along with proposed solutions or work-arounds.
Scenario
Maria works in the faculty technology support office of a US-based institutiion and provides OpenCourseWare support. She helps professors convert their traditional courses into OpenCourseWare (OCW) courses. In addition to digitizing, designing, and assembling the layout of the OCW course, Maria also does a copyright check for each piece of course content in order to determine which materials can be included in the OCW version of the course and which cannot.
Maria has been working with Professor Crabb, who has recently decided to put his Cognition and Instruction course on the school's OCW site. Maria discovers that a journal article used to illustrate the various aspects of meta-cognition is copyrighted by the publisher. Professor Crabb explains that he has always claimed fair use when making photocopies of the article. He feels that it illustrates an important point, and he doesn't want to remove the article from the OCW course.
Questions on scenario:
1. Why might materials used in a face-to-face course require a copyright check before uploading the content as an OpenCourseWare course?
2. What are the four factors of fair use? Does fair use apply to OCW when the materials are made publicly available, such as in an OCW site? Why or why not?
3. What possible solutions or work arounds can Maria offer Professor Crabb?
4. Professor Crabb also wants to use an image for the course that is licensed CC-BY-NC-SA, but he insists on making his whole course CC-BY because he has been told it will be easier for others to reuse. How might you resolve this issue?
Responses:
1. The original contents of an instructor's course must be vetted before releasing an OCW course because teachers often include copyrighted materials in teaching content used in a traditional classroom environment. Faculty are not always aware of copyright infringements, and some materials that have been illegally used in a classroom setting may expose an institution to legal risk when posted to the open web. However, it should be noted that fair use can and often does apply to material that is re-used in appropriate amounts and in a way that is "transformative," or repurposed in a new context or for a new audience.
2. The four factors of fair use are:
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- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
While fair use can be invoked under US copyright law in the case of materials used in teaching, course materials hosted on an OpenCourseWare site are not necessarily protected the same way. Fair use might be harder to justify for an article that is available for purchase from a publisher because the free OCW article would then be available to anyone, for purposes that aren't necessarily educational, and would also compete in the market for the original.
3. Copyrighted course content may be resolved in one of several ways:
1. Determine Fair Use: According to the recently published Code of Best Practices for Fair Use in Open Courseware, two guiding principles for determining fair use as if most often occuse in OCW are as follows:
i. Is the re-use “transformative”— that is, does it add value to and repurpose preexisting material for a new audience?
ii. Is the amount of material taken appropriate to the re-use?
2. Request Permission: Permission to post the material to an OCW site may be requested of the copyright holder.
3. Link: If the work is legally available online, a simple solution could be to like to the original work. Links are not copyright infringements.
4. Replace: Equivalent, openly licensed content may be found or created in place of the original content.
5. Remove: If there is no other solution the copyrighted content must be removed.
4. Content that is easily used to create an OCW course includes works that are in the public domain or openly licensed with a compatible license. License comptilibilty should be mentioned here because a share-alike license may be unuseable to a project with a different license. However, in this case, if the professor doesn't wish to modify the SA-licensed work and only plans to reproduce it in his course, then license compatibility is not an issue because he is not creating a derivative work he is simply making a copy. The license compatibility matrix provides a good overview of license compatibility or incompatibility. If OER components can be used to create OCW content, it can greatly improves the instructor's ability to remix and reuse existing content, provided that the original license does not impede its reuse. Fair use may still be claimed in situations of license incompatibility, so this can seve as an alternative route to reuse provided the conditions of appropriate fair use are met.
Questions on scenario
1) How can she use technology (formats, hosting) and licenses to achieve what she wants? (Answer for your own jurisdiction)
These seem like two different scenarios. For the first, involving making her work on weather prediction available to her students online for comment, a wiki or blog with a CC license seems like the best option. In this way, students can participate either by editing the work directly in the case of the wiki, or leaving comments in the case of a blog.
In the second scenario, concerning sharing materials with an individual colleague, I would suggest that either email, or some kind of password-protected information management system would be the best mechanism. In this way, the copyrighted materials are not being widely distributed, and an argument can be made for personal use and fair dealing.
2) What licence or licences would be appropriate for her to use on the work? (Answer for your own jurisdiction)
For the first scenario, Professor Dube's concerns about people profiting from her work could be managed with one of the more restrictive Creative Commons licenses, such as BY-NC-ND. This will also limit modifications of her work, which will reduce the possibility that people will use it in ways she objects to. This would limit the usefulness of her work by others, however, and it would not qualify as an Open Educational Resource, but after she tries the more restrictive license and finds that nothing bad happens, perhaps she would be willing to consider a more open license that would expand the impact and reach of her work.
For the second scenario, the licensing options for the works that the professors created together are limitless. If they want to make the works widely available for reuse and remix, the Creative Commons Attribution license would be best. If Professor Dube's concerns from the first scenario also apply here, then a more restrictive license like BY-NC-ND would be better.
3) How does copyright law affect the cross border transfer of each of the materials listed? (Answer for the jurisdiction listed)
As use of the Internet increases globally, cross border transfer of copyrighted materials is more common than ever. Unfortunately, there is no international standard for copyright to facilitate this. While copyright exceptions and limitations can be claimed in some cases, CELs depend on the location where the work is created, the origin of the copyrighted material, and on the jurisdictions of the "downstream users" of the resulting materials. As a result, using CELs can be problematic for works that will be used globally. While our group is not as familiar with African copyright laws, these would have to be respected in each instance of cross border transfer.In Zanele Dube's case, the five specific copyright scenarios are listed below:
(1) A copy of a recent research article authored by one of Professor Mashaba's post graduate students.
(2) An electronic copy of an article published in an all rights reserved journal that Professor Dube's university library has made available in the university intranet under a license from the publisher.
(3) A scanned version of an article which Professor Dube has used under fair dealing.
(4) Lesson notes from Professor Dube which incorporates photographs used under copyright exceptions.
(5) Tsonga translations of the 1-4 prepared by the Professor's working together.
Assuming the absence of an open license for the first case (the research article by the post grad student), each of these five cases involves the use of materials under a location-specific CEL (in the second case it is actually a limited license between the article publisher and Professor Dube's university library). Because each case relies on CELs, cross border transfer of each of these materials could result in copyright violations.
Questions on scenario
Are Bongani's use of the NC material permitted? Would Bongani's use of the material change if the college has Google Adsense running on her blog?
What copyright issues must Bongani resolve to publish her notes on Siyavula? Can she post the resources licensed under CC BY-NC-SA on her blog that is licensed CC BY-SA?
Bongani's use of content with a Creative Commons non-commercial (NC) clause is not the problem here, even if there are Google Ads on her blog. The NC clause of the CC license is generally interpreted as restricting the direct sale of the licensed content, but ad-supported sites such as blogs are not prevented from using content in this interpretation (see this article for Lawrence Lessig's reading of NC with regard to ad-supported sites). Bongani can charge her students for copies of NC works since the fee simply pays for the paper copies and no additional revenue is generated by the content.
The more problematic issue Bongani faces is license incompatibility. She will have no problem using the content licensed CC BY-NC, but the CC BY-NC-SA contains a "share-alike" clause, which means that in order to create a derivative work or adaptation of this content she must license her resulting work with the same CC BY-NC-SA license. She may have license compatibility problems, a situation with two distinct licenses requiring that any derivative content be licensed in two different ways (see the CC license compatibility matrix). This is the unfortunate limitation of stipulating the "share-alike" clause in a CC license. It is not clear from the case study whether Bongani wishes merely to reproduce the NC-SA-licensed works on her blog, or to adapt them in some way. If she simply wants to post the material on her blog she can do so because she won't be creating a derivative work, she is just copying the work. However, if she does wish to modify or remix the NC-SA licensed work, she will either have to release those remixes under the NC-SA license, or find different source material. It is also the case that a CC license does not preclude the option to contact the content creator to request permission under different terms, nor does it affect fair use rights. Bongani could resolve this issue by requesting explicit permission to use the CC BY-NC-SA content on her CC BY-SA blog and on Siyavula. The other, easier option would be to simply link to the CC BY-NC-SA content, thus respecting the creator's original license.
Overall score 8/10
Comments: The orange group gave a combined answer for case study 3, citing Canadian copyright law. The structure of the response was a bit confusing because the first few paragraphs explored the blanket license option for Francesca's situation, but the conclusion seemed to suggest that she should claim the 10% fair-dealing provision as long as she had not copied more than that amount. While the limited description of the content Francesca had copied onto her overhead transparency certainly left many unanswered questions, the orange group's response seemed to take more than one position on the question of appropriate licensing without really explaining why that might have been necessary. Overall it was still a reasonable, clearly articulated response.
Overall score 10/10
Comments: The yellow group was once again quite thourough in its response to case study 3. Three separate responses described Australian, Indian, and South African view on the licensing implications for Francesca's case. I appreciate the extra time taken to show the diversity of perspectives for the different countries. Very interesting.
Questions on scenario
Is this form of reproduction a violation of copyright laws?
If so, how could Francesca avoid violating copyright in this situation??
In the United States, the legality of Francesca's strategy depends on whether or not she is making a fair use. We can return to the four factors of fair use from last week, found in section 107 of the U.S. Copyright Act: 1) Purpose of the use; 2) Nature of the work being used; 3) Amount used relative to the whole; 4) Potential impact on the market for the original. Without knowing details about the work that she is copying onto transparencies, it is impossible to make a complete fair use assessment, however, given that the use is limited to the classroom, and given that photocopying for classroom use is generally permissible under section 107, we would argue that not only is Francesca probably not breaking the law, she can probably do more than she is currently doing and make photocopies to share with her students.
While case-by-case licensing of individual works has been a straightforward process among schools, colleges, and libraries for many years, collective and blanket licensing schemes for educational use are still in their infancy in the United States. The Copyright Clearance Center began offering blanket licenses for educational institutions in 2007, but these have been criticized by James Boyle and Kevin Smith, (among others) and it is not clear how widely they have been adopted. Furthermore, there is not currently any case law in the United States indicating that because the market for licensed educational uses is growing, photocopying for classroom use is no longer fair. The textbook Introducing Copyright suggests that blanket licenses may now be part of the "normal exploitation of the work" according to the Berne Convention, and therefore "royalty-free use of copyright works will no longer fall under the three-step test" (page 90). However, both common practice and written law in the United States suggest that unlicensed photocopying for the classroom, provided it is not performed by a copy shop (see Basic Books, Inc. v. Kinko's Graphics Corporation), remains legal.
Overall score 9/10
Comments: The yellow group was very thourough in its response about fair use, giving separate responses from Australian, Indian, and South African perspectives. The responses explained the rationale for what copyright exceptions could be claimed in each country, however the case of the photograph in India was not explained. In addition, thefollowing sentence is somewhat difficult to understand: " It could be motivated that complete copies of the full article and photograph are needed for the course and can not easily be obtained in other ways by the students." The use of the word "motivated" is ambiguous, but the general meaning was still understandable. Overall, a very good explanation of how fair use would apply in each of the three countries for each of the three types of works specified.
Assessment of Case 2: Orange Group
Overall score:
(Responses have not yet been submitted by orange group)
What exceptional uses can Xuan make of the resources, including how much of which resource and under what conditions?
The answer to this question varies by type of resource and by country depending on local fair use and fair dealing laws:
United States
In the United States, there are no numerical guidelines for what percent of copyright works can be used under fair use. Since Xuan is using these materials to teach community journalists, the Code of Best Practices in Fair Use for Media Literacy Education
(http://www.centerforsocialmedia.org/resources/publications/code_for_media_literacy_education/)
provides helpful guidelines (but they are just that, guidelines, not statute). Instead of a numerical guideline, Xuan needs to make a reasoned judgment about what portion of the works are required to accomplish her educational goals. In some cases, this can be the entire work if her educational goals could not be accomplished with only a portion of the work. Applying these guidelines to the 3 works Xuan would like to use suggests:
- 10 page article from a local newspaper: Xuan should determine if she can use a portion of the article to achieve her goals. It is likely that she could and therefore should only use the relevant portion. However, there may be a legitimate educational purpose to provide the entire work - for instance, she might be teaching article development so including the beginning, middle, and end might be necessary for the lesson.
- 100 page textbook: It is very unlikely that Xuan could only accomplish her educational goal if she used the full 100 page text. Therefore, she should identify only the required portion. However, she would be able to photocopy and distribute that portion to her class.
- Photograph: It is unlikely that Xuan could accomplish her educational goals with only a portion of the picture. If indeed, the entire picture was required to achieve her educational goals, Xuan could copy in its entirety.
In all cases, Xuan should provide attribution for the works wherever possible.
Overall score 9/10
Comments: The yellow group's responses to the case study are clear and well stated. I especially like the detailed response to the NASA weather photos. The response on the bishop's writings seems to suggest that there is no way they could still be subject to copyright, but it really depends on whether or not the work was published and how long the bishop lived. We are not given enough information to be sure it is out of copyright. (This may also be a difference in US and other copyright.)
Overall score: 8/10
Comments: I think the group understands the copyright situation in this case study quite well. They have, however, made the assumption that the bishop's writings were published, and I don't believe this is made clear in the case study. It may seem like a small detail, but the bishop's writings may not be in the public domain if they are an unpublished work and if the bishop lived to a ripe, old age. Of course, the result is still be the same, since Professor Dube can use portions of the bishop's writings in his course and claim fair use. In the second portion of the case study, using a pre-peer review manuscript of the article may not avoid litigation from the publisher. Depending on the agreement between the publisher and the professor, the publisher may also own the rights to all pre-press manuscripts of the article. But again, fair use would allow the professor to make copies for a class, so I don't think the publisher would have any real grounds for legal action against the professor (although this is always a risk when claiming fair use, at least in the US).
Part 1: Which of the materials used by Professor Dube are subject to copyright? Why or why not in each case?
Subject to copyright:
- Any original writing by Professor Dube would be subject to copyright as long as it was captued in a fixed medium. (Tom)
Not subject to copyright:
- Factual data about local weather patterns, because facts by themselves do not represent original or creative ideas and cannot be copyrighted. (Tom)
- NASA satellite images of clouds are in the public domain because they are works of the United States Government. US Government works are not subject to copyright. Sometimes NASA and other government organizations note that some of the materials they publish or distribute may be protected by copyright, but this is only applies to third-party content mixed in with NASA-generated content. (Molly/Tom)
Possibly subject to copyright:
- A lengthy account of local weather patterns written by the local bishop in 1905 could still be subject to US copyright if it was unpublished. While pre-1923 works are in the public domain if they have been published (and would enter the public domain after 95 years from the date of publication), unpublished works are under federal copyright for at least the life of the author plus 70 years. So if the bishop's account of local weather patterns was unpublished it could still be subject to federal copyright, depending on how long the bishop lived. (Tom)
Part 2: What could Professor Dube do about the refusal to allow her to assign her own article?
The professor should refer back to her contract with the publisher to see what rights she has given to the publisher. While most publishers require authors to grant them exclusive distribution rights this can vary. Another important point to make here is that just because an organization, such as a publisher, asserts itself as an exclusive distribution chanel does not mean this assertion is correct. In the United States Professor Dube could assert fair use, make photocopies of her article, and assign it to her class. Section 107 of the US Copyright Act explicitly identifies photocopying for classroom use as permissible and fair. If she makes a fair use of the article, she can do so without the publisher's permission, and can do so even if the publisher says she can't. (Molly/Tom)
Questions:
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What is copyright?
Copyright is a "bundle of rights" governing who may use a creative work and how. It is a limited monopoly granted by governments to authors and creators "for limited times" that grants creators a certain amount of control, but not total control, over the use of their works. Copyright comes with five major rights: The right to copy the work, the right to distribute copies of the work, the right to create derivative works, the right to perform the work, and the right to display the work. In addition, copyright holders are able to transfer or license these rights to others.
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What activities does copyright prohibit?
Copyright limits certain uses of a creative work, but because there are exceptions to those limitations, it's hard to say whether copyright absolutely prohibits some kinds of activities. The exclusive rights of the copyright holder are the right to copy the work, the right to distribute copies of the work, the right to create derivative works, the right to perform the work, and the right to display the work. As a result, it would appear that copyright prohibits everyone from doing those things with a creative work unless they are the copyright holder. However, it is possible to do things such as make and distribute copies, or create derivative works, in a manner that would be considered fair use or fair dealing and hence not prohibited. If a use is not fair, or otherwise protected by an exception to the exclusive rights of the copyright holder, then it is prohibited. Some kinds of uses that are probably not fair include making and selling copies for profit that compete with the original in the marketplace; making a derivative work that is not considered a parody or transformative in some way; performing the work publicly in a commercial setting without permission.
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Does copyright cover ideas or only expressions?
Copyright only covers expressions.
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What requirements must resource meet for copyright to apply?
A work must be an original literary or artistic production. In most countries, it must involve some small measure of creativity, but in other countries, the investment of "hard work" absent creativity (the phone directory example) suffices. A work must be "fixed" in some tangible form, such as on paper, on celluloid, on canvas, made of copper, or even on a hard drive. This can get tricky, but, as an example, in the case of choreography, the choreographers' notes are considered the choreography for the purposes of copyright.
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What about the rights of authors? Can someone sell the right to be known as the author? What right does the author have over how others who get copyright over her work can change it?
Authors can sell some of all of the economic rights of their copyright, but not right to be known as the author. In places where there are moral rights, such as the UK and France, the author maintains the moral rights even if all other rights have been sold or transferred. Moral rights include "the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation." As such, the author could control the derivatives of the work if she could prove that it would negatively impact her reputation.
6. What is the public domain? When does something enter the public domain? Are there some works that automatically enter the public domain?
Public domain describes works where copyright does not apply. They may be used by anyone, anywhere, anytime without permission, license or royalty payment. Works enter the public domain when copyright term ends or the copyright has been abandoned. The copyright term lasts for a minimum of 50 years beyond the death of the copyright holder, depending on the country. In the US and EU, this has been extended to life plus 70 years. Works can enter directly into the public domain if an author declares no rights reserved. Additionally, original works by the US government, some other federal governments, and some state governments are not copyrighted and - save for some statuatory exceptions - enter automatically into the public domain.
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