April 22, 2018

The Advocate's Toolbox

Who’s Afraid of the Big Bad ©?

It’s time to make some risky choices

Few subjects spark more disagreement and confusion than copyright. As an information professional, I’m often not certain that I have a firm grasp of it.

And I’m not alone.

The authors of the 2007 report “The Cost of Copyright Confusion for Media Literacy” coined the term hyper-comply to describe how many of us respond to copyright. According to the study by American University’s Center for Social Media, educators often “over-comply with copyright law, and even forego using legitimate teaching tools and techniques for fear of violating copyright.” Along with hyper-compliance, the researchers also found that “studied ignorance” and “clandestine transgression” lead to schools where “teachers use less effective teaching techniques, teach and transmit erroneous copyright information, fail to share innovative instructional approaches, and do not take advantage of new digital platforms.”

What can we do to change things? For starters, we need to overhaul the way we teach copyright and other intellectual property issues in our schools. Library media specialists also need to quit being copyright cops. And it’s time to stop thinking that if we don’t know for sure if something’s 100-percent legal, we shouldn’t do it—that mindset just doesn’t work. Below are four changes our profession must seriously consider if we’re going to meet the needs of our students and teachers.

Ilustrations by Mark Tuchman

Change the focus of copyright instruction from what’s forbidden to what’s permitted.

As information professionals, we have a responsibility to make sure our staff and students have access to all of the copyrighted materials they’re entitled to—and we also need to help them develop a healthy respect for copyright laws.

We need to let our students and colleagues know that it’s perfectly legal to use copyrighted materials in research, if they’re properly cited and supplement, rather than supplant, one’s own work. The question we should be asking is not “What percentage of another’s work did you use?” but “What percentage of your work is of your own making?”

We also need to teach others how to understand and apply the principle of fair use, a provision that allows educators to use copyrighted materials under certain conditions without seeking permission from the rights holder. According to the Copyright Act of 1976, educators are sometimes allowed to use copyrighted materials “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research….”

We need to teach that the use of copyrighted work is considered fair use if it is of a “transformative” nature. According to the Center for Social Media’s study “Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video,” transformative uses include parody and satire; positive, negative, or critical commentary; using an illustration or example; incidental use; personal reportage or diaries; archiving of vulnerable or revealing materials; and pastiche or collage.

We need to understand the special rights we have as educators. For instance, we can show personal copies of copyrighted videos to a class, reshow off-air broadcasts to classes, and hand out photocopies of copyrighted news and magazine articles to students. (Some restrictions apply, but these are all legal uses.) The Fair Use Guidelines for Educational Multimedia (www.adec.edu/admin/papers/fair10-17.html), created by the Consortium of College and University Media Centers, clearly state that educators may create educational multimedia projects containing original and copyrighted materials. They may also use those projects for face-to-face student instruction, directed student self-study, real-time remote instruction review or directed self-study for students enrolled in curriculum-based courses, and presentation at peer workshops and conferences. Educators also need to know that students can use copyrighted materials for school projects and in the
ir professional portfolios.

Bottom line? We need to know the outer limits, not just the safe harbors of the use of copyrighted materials—and allow our students to explore those limits as well.

When there’s doubt, err on the side of the user.

A Singapore educator once told me that in his country, people tend to suffer from NUTS—the No U-Turn Syndrome—and Americans don’t. When no signs are posted at an intersection, Singapore drivers assume U-turns are illegal; United States drivers assume the opposite. He felt that our “assume it’s OK” attitude gives our country a competitive edge. It really is better to ask forgiveness than permission. An educator’s automatic assumption should be: unless it’s specifically forbidden and legally established in a case law, the use of copyrighted materials should be allowed.

A high-profile example of moving to a forgiveness-based approach comes from Google’s scan-the-book project. In its effort to transform all of the world’s books into a digital, searchable format, Google found that 15 percent of cataloged books are in the public domain, 10 percent are actively in print, and 75 percent are “in the dark”—neither being made available by publishers nor in the public domain. Since few publishers have shown a willingness to investigate the actual ownership on these materials, Google decided to scan first and then remove the digital copies if requested.

Yes, current law says that everything written in the U.S. is automatically copyrighted. Unfortunately, it is assumed that the owner always wants the rights to be exclusive. With the advent of Creative Commons licenses—an arrangement that lets content creators keep the rights to their works while enabling others to copy and distribute them—”exclusive rights” can or should no longer simply be assumed.

When copyright or use warnings are implicitly stated, teachers often disregard uses that fall under the fair-use provision. Most books contain the following warning: “All rights reserved. No part of this book may be reproduced, transmitted, or stored in an information retrieval system in any form or by any means, graphic, electronic, or mechanical, including photocopying, taping, and recording, without prior written permission from the publisher.”

Yet as a researcher and teacher, one has the right to do all of these expressly forbidden things provided that fair-use guidelines are followed.

Web content creators or providers can impose any sort of restriction they wish without it ever needing to be vetted by a court of law. YouTube’s terms-of-use agreement reads, in part, “You agree not to access… YouTube content through any technology or means other than the video playback pages of the Web site itself, the YouTube Embeddable Player, or other explicitly authorized means YouTube may designate.” To my knowledge, there’s no U.S. court case to determine whether YouTube has the right to make and enforce such a stipulation. If I post a term-of-use agreement on my blog that requires visitors to drink gin and wear pink bathrobes in order to legally read the content, can I take offenders to court?

Until something is proven illegal, assume it’s legal.

Schools and other institutions may place restrictions on the use of copyrighted information that go beyond legal requirements. My own school district’s board policy on copyright states: “All of the four conditions [of the fair-use exemption] must be totally met to qualify a work for use or duplication under this clause.” The law itself only reads that these are “factors to consider.”

Finally, consider that there’s an inherent bias toward copyright owners when copyright “experts” offer advice. Lawyers, authors, and columnists who answer copyright questions may be held liable for their advice; so they usually err on the side of the party most likely to be litigious. As one of my college-era T-shirts read, “Question authority!”

Other places to look for expertise that have a more user-centric bias include the Center for Social Media at American University (www.centerforsocialmedia.org), Chilling Effects Clearinghouse (www.chillingeffects.org), Creative Commons (creativecommons.org), Media Education Foundation (www.mediaed.org), Public Knowledge (www.publicknowledge.org), and the Stanford Law School Center for Internet and Society “Fair Use Project” (cyberlaw.stanford.edu/taxonomy/term/374).

Assume the U-turn is legal and place the onus of proof of wrongdoing on the provider—not the user.

Be prepared to answer questions when a law makes little sense, seems inconsequential, is widely ignored, or when breaking it may serve a higher moral purpose.

A few years ago, I found that my son had downloaded an illegal copy of one of the Lord of the Rings movies. I asked if he felt bad about depriving their director, Peter Jackson, one of his heroes, of his payment for making the film. My son’s reply was, “Dad, I paid to see the movie twice, and I will buy the DVD when it comes out in a regular version and when it comes out in a director’s cut. I think I’m paying Peter Jackson for his creative works. What harm does making this digital version do?”

Simple control over a person’s intellectual property, even if there are no financial considerations, is a concept many find difficult to explain and defend. And this is just a single example of laws that seem to be dated, overly restrictive, or just nonsensical.

As a result, there are intellectual property laws that are so routinely ignored that they have become meaningless—and enforcing them makes librarians appear to be martinets. Common copyright violations that are so routinely ignored include showing movies in class for entertainment or as a reward without a public performance license, playing a commercial pop-music radio station in a public venue, using copyrighted or trademarked items on school bulletin boards or in locally produced study materials, converting 16mm films or videotapes that are not available for purchase into DVDs, and making copies of materials for archival purposes.

Making free copies of copyrighted online materials and passing them out to students, downloading digital videos (such as YouTube’s) onto a local hard drive, and converting analog materials to digital formats to be used with an interactive whiteboard or slide-show software for whole group instruction are all regularly done by teachers. These uses have either no or minimal impact on a copyright holder’s profits. Overly strict enforcements of the letter of copyright laws will lead to creating scofflaws of not just students, but teachers, and make all copyright restrictions suspect.

It’s interesting to note that, according to Temple University’s Media Education Lab, “There’s never been a lawsuit involving a media company and an educator over the rights to use media as part of the educational process.” Which again calls into question the seriousness of the “crime.” Do we turn a blind eye when we see students or staff committing obvious thefts of intellectual property? No, but neither do we need to overreact.

We also must acknowledge that there’s a growing movement that believes current intellectual property law, especially copyright, works against the greater good of society. “Free culturists” argue that everyone in a society benefits when creative work is placed in the common domain and we are all allowed to use and build upon it, and that current copyright laws give the owner too much control, for too long a time. Building on the free and open-source software movements, this cult at its most extreme insists that “intellectual property” is a meaningless term.

However, Stanford Law School Professor Lawrence Lessig, often seen as the movement’s founding father, writes in his book Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (Penguin, 2004): “A free culture, like a free market, is filled with property. It is filled with the rules of property and contract that get enforced by the state. But just as a free market is perverted if its property becomes feudal, so too can a free culture be queered by extremism in the property rights that define it.”

Renee Hobbs of Temple University and Peter Jaszi and Patricia Aufderheide of American University wisely write in “Ten Common Misunderstandings about Fair Use”: “Applying fair use reasoning is about reaching a level of comfort, not memorizing a specific set of rules.” This statement applies to all issues involving copyright and intellectual property.

Teach copyright from the point of view of the producer, as well as the consumer.

The library media specialist’s role is to help each teacher and student establish an informed, personal level of comfort in using others’ intellectual properties.

Few of us are comfortable at either extreme of copyright enforcement—playing the copyright bully or advocating total disregard of the rules governing intellectual property. Complicating the issue is that each of us is likely to arrive at his or her own personal level of fair-use comfort, judgment of seriousness of possible use, and perspective of the morality of intellectual property use both personally and professionally.

And that’s OK. My longstanding philosophy is that education is about teaching others to think rather than to believe. We need to help students arrive at their own personal comfort levels when using protected creative works.

Media specialists can assume some practical stances toward copyright instruction and enforcement. They must insist that the enforcement of all laws and policies falls on administrators—not teachers or librarians—and rebrand themselves as “copyright counselors.” Plus, they need to do what good counselors have always done—help others reach good decisions about their actions. Media specialists need not commit any acts they personally deem illegal. In in-service training and communications, we should emphasize what can be done, not what can’t be done with intellectual property.

When it comes to working with students, it’s best to be real. We can certainly get students to bubble in the “right” answer on a test about copyright, we can refuse to accept work that may include copyrighted media, and we can say, “Think hard about your actions, young woman.” But I doubt any of these actions will stop students from illegally downloading materials once they’re out of our sight.

Studies do suggest that teens are not amoral, but uninformed. Consider the following statement from a KRC Research study that was conducted for Microsoft: “The more teenagers know about laws against illegal downloading, the more they will come to think it should be a punishable offense. Likewise, teenagers unaware of the rules are more tolerant of illegal activities. Among teenagers who said they were familiar with the laws, more than eight in ten (82 percent) said illegal downloaders should be punished. In contrast, slightly more than half (57 percent) of those unfamiliar with the laws said violators should be punished.”

We must allow the fair use of copyrighted material in student work, but expect them to be able to articulate why they believe it constitutes fair use. Only when students begin to think about copyright and other intellectual property guidelines from the point of view of the producer as well as the consumer, can they form mature attitudes and act in responsible ways when questions about these issues arise. And as an increasing number of students become content creators, this should be an easier concept to help them grasp.

Among the most serious misperceptions about copyright holders is that the theft only impacts big, faceless companies. A popular view is that it’s acceptable to steal from big companies but not from the small fries. Too often adults, as well as students, forget that many large corporations are made up of small stockholders and employees who are also trying to make a buck. Publishing companies represent the interests of individual artists, writers, and musicians whose ranks students themselves may one day join.

Students should be required to assign a Creative Commons designation to each piece of original work they produce—especially those items they’ll be publishing online or in print. By thinking about how one wants his or her own work treated, one is forced to consider the rights and wishes of other creators as well. Counseling teachers to use a Creative Commons license on their work would be a good thing as well.

Increasingly, I’m looking at the moral issues involved in intellectual property. Many states once had segregation laws that required African Americans to sit at the back of the bus. More than 50 years ago, a brave woman named Rosa Parks defied the law and changed the course of history. Are our current copyright laws requiring students and teachers to sit at the back of the intellectual property bus? How do we respond if a student’s or teacher’s actions seem legally suspect but morally correct? As librarians and educators in the information age, there are times we need to have the courage to stand up for freedom.

Author Information
Doug Johnson is the director of media and technology for the Mankato (MN) Public Schools.