An Uncertain Future: Copyright in the Digital Classroom

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Where do we go from here?

With all the important copyright and fair use issues presented through previous posts, one important question remains: where do we go from here? It’s no secret that the current copyright system was built in a time where copyright issues and infringement were easier to recognize and resolve. This leads to the conclusion that in order to maximize the positive affordances of this digital age, copyright laws, or perhaps even the ideologies behind them, will need to change.

What needs to change?

A more complete answer to this question is beyond the scope of this post, but there are some ideas for educators to consider to help make the intersection between copyright law and the digital age less complicated. First, the idea of common good is an important concept of intellectual property, and, specifically, the public domain. The public domain exists for the good of the public. This concept recognizes the importance of art, artistic freedom, and sharing to the growth of individuals and culture. Copyright laws exist, of course, to protect creators and artists. This protection is intended to encourage artists to create by providing legal protection.

Many copyright issues, it would seem, are more an issue of what journalist Kirby Ferguson describes as loss aversion than the threat of financial loss. Loss aversion, in short, is the idea that people hate losing what they’ve got. For more info on loss aversion and a very helpful and informative review on copyright in the digital age, watch Ferguson’s video from his “Everything is a Remix” series. If the resources offered by the digital age are to flourish, then individuals will need to be willing to give up some things in order to gain others. In other words, the drive to monetize everything that is a (not always bad) characteristic of a capitalistic culture will need to be relinquished to a degree. This applies to anybody who creates, but what are some ways educators can play a role in shaping the future of copyright?

What can educators do? 

First, one of the most important things educators can do to help prepare students, and future leaders, on copyright issues is to set the standard for proper citation and attribution methods. We need to, like any good writer, show not tell. Students should be able to observe a careful and respectful approach to citations and attributions that goes deeper than correct formatting, but that includes the reasoning behind citing sources. This reminder, as more students fail to see the difference between creating and copying, is more important than ever.

In the same way, educators can set the example by sharing free resources through outlets such as Open Educational Resources. When this happens, other educators benefit from this collaborative process and students then see this important concept at work: if the work is not created for the purpose of maintaining livelihood and can help others, then share it.

Lastly, educators, especially teachers of writing, can help students see the importance of both copyright and the public domain. As teachers of writers, this is an important point to emphasize. Not all students are creators in the way that writers are. Educators have an opportunity to stress the importance of approaching these issues from the perspective of “sharing responsibility for cultural policy” (WIPO and the The Future of Copyright).

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The TEACH Act and Navigating the Digital Classroom

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What is the TEACH Act?

In 2002, the Technology, Education, and Copyright Harmonization (TEACH) Act was added as an amendment to the Copyright Act of 1976 (the last major revision to copyright law). The TEACH Act is designed to address copyright issues that arise from digital and distance learning.

Why was the TEACH Act created?

The TEACH Act was needed for many reasons. For one, as more and more learning moves to a digital environment, it can be difficult to apply some of the more traditional copyright rules that are designed for face-to-face learning. Second, the Digital Millennium Copyright Act of 1998 restricted the use of digital media in any environment, including educational settings. The TEACH Act was enacted to provide educators with a little more flexibility in the digital environment (Copyright Basics).

What does the TEACH Act say?

Specifically, The TEACH Act covers “a performance or display of a copyrighted work by an accredited non-profit educational institution to students officially enrolled in a course or a government body to officers or employees of government as a part of their official duties or employment” (Guide to The Teach Act).

In order to apply this exemption to using copyrighted materials in the classroom, there are guidelines such as the degree to which the material is relevant to the course and the discretion of the instructor. These rules are similar to the guidelines that help instructors apply fair use. It is also important to note that the TEACH Act does not replace or modify fair use; it is an additional measure created to give educators flexibility to use copyrighted works for educational purposes.

For this reason, the doctrine of fair use might still apply to some situations, while the TEACH Act might apply to other situations. This depends on many factors, including the nature and use of the work.

Concerns about the TEACH Act

The TEACH Act is not the easiest amendment to understand and apply. Although the goal is to be helpful, definitions and guidelines, as usual, are boundaries. Some potential issues with the act are the time limits that the work is available and the “download controls” that are meant to provide digital limitations on the replicability of the copyrighted work. For more details, see the Frequently Asked Questions at the bottom of this page.

For another helpful list of the criteria for using the TEACH Act, see the list under “TEACH Requirements” here. Also, for a helpful review of many of the copyright issues discussed here and in previous entries, click on the “Test Your Copyright Knowledge” on the same page for a brief quiz. Another summary of the TEACH Act is available here.

Why is this important for writing instructors? 

The issues addressed by the TEACH Act are issues that will inevitably arise in any classroom that includes a digital component. Even for classes that meet face-to-face, there is usually still a portion of the course that happens in a digital space. To navigate this space with care, the TEACH Act, despite its boundaries and lengthy guidelines, is a helpful addition to copyright law.

Since writing courses often include readings from a variety of sources, many teachers include copies of works from different sources since there is not one book that contains all the works. Although many restrictions still apply, this act can help writing instructors understand what can be uploaded and used in a digital classroom.

Lastly, since the overall trend of copyright law is more restriction and protection for copyright owners (which is not always a bad thing), any additional flexibility for educators to use the many affordances offered by digital media is welcome and helpful.

Creative Commons, Public Domain, and Open Education

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This post will discuss an organization currently redefining copyright law, an important aspect of copyright law not mentioned in previous posts, and an idea in education philosophy.

Creative Commons

First, Creative Commons is an organization seeking to realize the “full potential of the internet”  by changing the way that copyright is handled by the copyright owner. The potential of the internet is, according to Creative Commons, “universal access to research and education.” To achieve this, Creative Commons provides infrastructure that allows for copyright owners and authors to find a balance between the affordances of the internet and the “reality of copyright laws.”

The best way to understand exactly how this works is to consider the “all rights reserved” nature of traditional copyright law. It’s an all or nothing approach. The infrastructure provided by Creative Commons allows for a “some rights reserved” approach. The reason for releasing some of the rights and maintaining others is to maximize the capabilities of the internet by allowing the work to be shared for certain purposes.

Why is this important for writing instructors? 

Creative Commons is important for writing instructors for many reasons. We will discuss two. First, instructors of writing are charged with preparing future generations with effective communication and thinking skills. The rise of digital media is polarizing the idea of intellectual property and the democratization of knowledge. Creative Commons is seeking a balance between these two extremes, and this balance will be very important to future thinkers, writers, editors, producers, creators, and more. The second reason will be discussed below.

Public Domain

Since Creative Commons offers a new perspective (avoiding copyrights) on the idea of public domain, we will highlight this important aspect of copyright law before moving on. The public domain, in summary, is where copyrighted works go when the copyright expires. It allows for works to be available for public use without the limitations of copyright law.

Public domain is, for the most part, easy to understand. Some of the details, however, can be a little tricky with revisions to the number of years after an author’s death before the copyright expires. Cornell University has produced a helpful and up-to-date review of public domain. It’s available here.  One of the most important details is that for any works currently published in the U.S., copyright laws extend for 70 years after the death of the author.

Open Education

The second reason Creative Commons is important for writing instructors, or anyone in education, is its connection to the idea of open education. Open education is an idea that advocates for a sense of openness and sharing of ideas, resources, teaching methods, courses, and more. It is a great example of the application of the balance between keeping some rights and releasing others that’s offered by Creative Commons.

For a great introduction to the idea of open education, see this video by David Wiley. It’s a little long, but it’s worth your time.

Additionally, OER Commons offers a very useful resource for educators of any subject matter. It has lessons, lists, ideas, strategies, lesson plans, and much more. When visiting the site, notice the conditions of use (no strings attached, remix and share, share only) besides each time. Also, open education week is March 5-10 this year.

Lastly, many large universities are making more and more courses available online under the idea of open education. The Massachusetts Institute of Technology (MIT) was one of the first. Since then, many universities have followed suit, including New York University and Yale.  Furthermore, many universities use iTunes U to share information. Note: look for the Creative Commons logo on the pages while exploring these sites.

As educators, these resources are invaluable. They also should help shape what we think about education, our roles as educators, and the possibilities offered by digital tools and the internet.

Where is the Line? Fair Use in the Classroom

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In the previous post, we covered a brief history of copyright law in the United States and discussed the importance of a good understanding of these laws for educators, especially writing instructors. Since the majority of writing, academic or not, is in response to the work of others and a process of “joining the conversation,” it’s essential to understand the boundaries of copyright law.

Once again, Troy Hicks highlights the importance of this component. In The Digital Writing Workshop, Hicks writes that “Copyright law, a key component of literacy in an increasingly digital culture, guides us all as we strive to understand the rights that we have as consumers of others’ work, as well as the rights that we have as producers of our own work” (p. 135).

Fair use

One of the key guides we have to understanding copyright is fair use. As previously mentioned, fair use is a doctrine of the copyright laws that allows for copyrighted works to be reproduced or referenced for specific reasons. This includes commentary, criticism, teaching, and more. In addition, fair use outlines four guidelines: purpose of the use, nature of the work, amount of work used, and effect on the market.

The first guideline, the purpose of the use, allows for copyrighted works to be used for educational purposes. Although this provision allows teachers the freedom to use copyrighted works in the classroom, the line between “fair use and infringement may be unclear and not easily defined” (U.S. Copyright Office: Fair Use). Before the digital age, the line was easier to see, and details of fair use such as “one copy per student” were easier to follow. The proliferation of digital media, however, has blurred the line between fair use and infringement and made the application of various fair use rules more difficult to uphold.

What does fair use cover in the classroom?

The answer to this question depends on where you look. Interestingly enough, the U.S. Copyright Office websites says, “There is no specific number of words, lines, or notes that may safely be taken without permission.” There are, however, resources that do list specifics.

Hall Davidson, a speaker on a number of digital media issues, has developed a chart that covers the specifics of fair use in the classroom. Davidson does list the U.S. Copyright Office as one of his sources, so it could be simply due to a certain part of a website not being updated. Nevertheless, Davidson has developed a helpful resource for instructors to follow in their application of fair use. The PDF is available here. Note: If the PDF is displayed vertically, opening it in a new window should allow you to rotate it.

More resources for fair use

Another helpful resource for understanding fair use, and copyright laws in general, is mentioned by Hicks in The Digital Writing Workshop on p. 139. It’s is a video by Eric Faden developed from clips in Disney movies that offers a good overview, albeit slightly repetitive, of fair use. The video is available here. For the specific chapter on fair use, skip ahead to 6:20. Be sure to watch the whole video to see why Faden selects Disney movies to review copyright issues.

Lastly, one of the best resources on fair use is the Code of Best Practices in Fair Use for Media Literacy Education developed by the Center for Social Media at American University. This document outlines five common situations for fair use in education, reviews common misconceptions for fair use application, and provides useful definitions and updates on copyright laws.

One of the guiding ideas of this code is that “fair use is flexible” (p. 5). It also states that “It [fair use] is not uncertain and it is not unreliable” (p. 5). The PDF is available here. There is also a video here that serves as a helpful introduction to the document.

After reviewing the above resources, what other questions or concerns do you have about fair use in the classroom?

Introduction and Definition of Copyright Laws

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Copyright laws are complex and often difficult to understand. Their complexities only increase when applied to education and proper teaching methods. Before we begin the conversation on copyright issues for writing instructors, let’s examine a brief history of copyright laws in the United States and define some key terms.

A brief history of copyright law in the U.S.

The history of copyright law in the U.S. dates back to the creation of the Constitution when James Madison submitted a request to protect the copyrights of literary authors. Since then, the U.S. has had some form of copyright protection for authors, although these laws have changed often. Change, however, is not always a bad thing as technological developments create the need for additional protection for authors of creative works.

The first copyright law in the U.S. was enacted in 1790 with the U.S. Constitution. Since then, copyright laws have undergone 4 major revisions (1831, 1870, 1909, 1976) with numerous smaller additions and revisions during the intermediate years. Some of these additions, especially the Digital Millennium Copyright Act, will be referenced in subsequent posts.

What is a copyright?

The U.S. Copyright Office offers this definition: “Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression.” The “tangible medium of expression” is an important aspect of copyright laws since these laws do not protect ideas or facts but the creative or unique expression of ideas or facts.

A good example of this is a recipe. A basic recipe, or a simple list of ingredients, is not protectable under copyright laws. It’s not possible to copyright “two tomatoes” or “four cups of flour,” but if the recipe is presented with significant explanation that requires creative effort, then it’s possible for the recipe to be protected under copyright laws.

In the same way, a phonebook is a collection of facts (names, addresses) and although the production of a phonebook, or something like it, does require effort, it is the creative expression that applies to copyright laws. A novel requires significant creative effort; a phonebook does not.

What does copyright include?

Copyright laws protect original creative works, including “literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.” Other works or acts that could require legal protection are included in different sections of the law. Inventions or discoveries, for example, require a patent. Phrases, words, or designs are protected by trademarks. The law, or principle, that serves as the umbrella for copyright, trademarks, and patents is called Intellectual Property.

What is fair use?

Fair use is a legal provision that allows copyrighted works to be used for specific reasons. In other words, it’s an exception to the rule. The four common criteria for exception are listed here, but we will focus on the first as we transition to how this is relevant for writing instructors. The first criterion of fair use concerns the “purpose and character” of the use, including educational reasons. One example of this exception is the distribution of copyrighted works in a classroom for the purpose of education.

Why is this important for writing instructors? 

It is important for teachers of writing to understand the details and transient nature of copyright laws for multiple reasons. For one, writing instructors serve to prepare the next generation of writers and teachers of writers. As a result, their proper understanding of copyright laws and fair use is essential.

Second, it’s no secret that technology is changing the way that information is created and shared. As teachers begin to incorporate digital tools such as blogs and wikis into the writing classroom, the proper application of issues like fair use can be complicated. The majority of this blog will focus on this second reason. Also, a proper understanding of these issues can be helpful in avoiding legal complications.

In The Digital Writing Workshop, Troy Hicks notes that “when we ask students to be writers in this age, we are inherently asking them to be digital writers” (p. 11). If all students in writing classrooms today are digital writers, a good understanding of the legal issues related to the creation and distribution of creative work in a digital space is necessary.

As teachers of writing or future teachers of writing, what are some issues you’ve encountered with copyright laws and digital writing?

Exploring Copyright Issues in Writing Education

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Welcome to “Copyright Issues in Writing Education,” a research based blog created to explore various issues related to copyright, fair use, and ethics in the writing classroom. This blog is part of a graduate course on “Digital Technology in the Writing Classroom” at Kennesaw State University.

Some possible topics on this blog include a brief history of copyright laws in education, common problems faced by writing instructors, fair use in the writing classroom, best methods for preparing current and future writers, and the future of copyright laws.

One of the purposes of this blog is to create a conversation, so all posts will include questions aimed at building a conversation on the particular topic. Thanks for reading.