Fair Use, Media and Education in the Digital Age

I was just watching a video at MIT World, titled “Copyright, Fair Use, and the Cultural Commons,” from MIT 5 earlier this year. After watching, “Documentary Filmmakers’ Statement of Best Practices in Fair Use,” played during the panel, I thought how powerful it would be to build a code of practice among educators with a particular focus on increasing access to teaching and learning materials in the digital age, similar to the current Copyright Confusion effort.

What’s so important about the Center for Social Media’s example is how it is moving outwards and being applied in sort of a step-wise fashion to other disciplines. This is a topic we discussed earlier this year at Berkman Center meeting in considering different concerns in a multi-disciplinary fashion. During our meeting, we also discussed how educators might join together to develop a similar statement in building an cross-institutional repository for open access educational material. There’s lots to learn from ongoing efforts in this area, including MIT’s OpenCourseWare, Connexions, Sakai, OER and many others.

I’m beginning my paper for this course and will be including a literature review on this topic. The paper builds on ideas found on this site and draws from resources on copyright, fair use, and open access in the digital age.

Admittedly, through my employment at Berkman Center for Internet & Society, I’ve learned a great deal from the people and projects concerned with many of the complex challenges facing teachers and students in the digital age. However, I did not think that I would have the opportunity, one year later, to focus on these issues for this study. In preparing for this week’s assignment, I found it incredibly useful to not only review the Berkman Center’s Digital Learning Challenge White Paper, but also the two podcasts that I had the incredible opportunity to produce with Amanda Michel. This is a full disclosure of my interest in this study. However, over the past two months, I’ve learned a great deal here which has given me new insights into the issues involved. For this post, I will attempt to highlight a few examples from the Digital Learning Challenge that contribute significantly to this study. In particular, I wanted to focus on the last section, which introduces some possibilities for reform within this practice.

First, some background. The Digital Learning Challenge, written by William Fisher and former Berkman Fellow, William McGeveran and completed in 2006 was funded by a grant from the Andrew W. Mellon Foundation. Through its four case studies, and drawing from “comments made by a cross-section of scholars, lawyers, librarians, educators” the paper explains the following as “the most significant copyright-related obstacles to educational uses of copyrighted material”:

• Unclear or inadequate copyright law relating to crucial provisions such as fair use and educational use;
• Extensive adoption of “digital rights management” technology to lock up content;
• Practical difficulties obtaining rights to use content when licenses are necessary;
• Undue caution by gatekeepers such as publishers or educational administrators

In its comments on the Teach Act and classroom boundaries in the digital age (as I wrote in my last post), the paper reiterates that “its coverage may represent no more than a modest update of the ‘face-to-face teaching’ standard under the classroom use exception.” The paper goes on to say that DRM presents further boundaries to sharing copyrighted material within and across educational online spaces. And as seen in the cases of New World Records and WGBH, burdens of copyright clearance process can create serious financial and other obstacles to those interested in sharing educational resources in the digital age.

In the final section of the Digital Learning Challenge, the paper presents what it sees as “Potential Paths Towards Reform.” And as Bill McGeveran states in the Berkman Center podcast, these paths are not intended to be “solutions,” but rather guidelines in thinking about “what are the best ways to move forward.” Furthermore, as the paper reminds its readers

It is important to restate here a recurring theme running throughout the white paper: the regime governing educational use of content, like all of copyright, requires balance . . . Copyright exists to ensure content providers are rewarded for their efforts. And the special incentives for creation of academic content do not apply to material aimed at a more traditionally commercial market thata is nonetheless important for educators to use . . . Solutions, therefore, must maintain — or perhaps more accurately, restore — the appropriate balance.

That said, the paper explains that legal reforms; greater reliance on technology to ease the clearance process; agreements among educators and others on standards and best practices; and encouraging open licensing models, such as Creative Commons, for copyright holders are among the four key paths moving forward.

One of the most interesting reminders from the paper, is that practitioners in this area often look first to the courts to provide them with guidelines for acceptable practice among academic and other educational institutions. However, the challenge is that there is little precedence to use in determining these guidelines. Therefore, as educational policy-makers work towards developing frameworks for educational sharing of copyrighted material in the digital age, more often than not, they will arrive at extremely conservative positions, in fear of “potential” legal backlash.

In response, the paper explains that changes in practice among copyright holders, within educational institutions and our legal system, will help to increase opportunities for technological innovation and further opportunities for sharing access to educational resources in the digital age.