Copyright in Distance Education

(It is at this time that I would like to make a plug for Creative Commons licenses.  Thank you.)

I think I've talked more about copyright this semester than at any other time in my entire life.  This is not surprising, however, as I would guess that I am like most people in many respects, and I am assuming that most people aren't well versed in the subtle nuances and intricacies of US copyright law, including the Digital Millenium Copyright Act (DMCA) and the Technology, Education, and Copyright Harmonization Act (TEACH).

What a mouthful.



And truly, this whole copyright issue is just that.  There is a LOT to say no matter how you feel about it.  As I see it, copyright is such a complex issue because we, as humans, are sometimes torn between two very strong desires: 1) the desire to do awesome stuff, and 2) the desire to be recognized, reimbursed, or otherwise recompensed for the awesome stuff that we do.  Often, these two desires play quite nicely together.  Thus we encounter each day hordes of people who take a crack at creativity, sculpting works of art, taking photographs, writing novels, and generally just having a good time.  It's fun to do awesome stuff.

A few lucky individuals in these unnamed masses will eventually rise to mega-stardom and sell a few copies of their pictures or books or whatever.  And for those who don't actually acquire any monetary gain from their creative works, just having their work referenced somewhere, attributed to them with their name on it, gives a lot of satisfaction as well.  The recognition of awesomeness is pretty fun, too.

The problem comes in when one person's desire to do awesome stuff is pitted against someone else's desire to be recognized for being awesome.  For example, you see something that someone else did that was noteworthy.  You think, "I could really use something like that, or do something really similar to it."  And in this case, the only thing stopping you in your quest for awesomeness is something we call copyright.

Now I think I'll stop using the word "awesome."  But that's really what it comes down to.  I think, "Wow.  so-and-so really did a great job on this piece of work!"  And then I think, "I wish I could use that piece in my own work and make my own work even better!"  To which the author of the piece  may reply, "That's fine, for a price," or, "No, absolutely not."

Of course I believe that copyright has it's place.  Really.  I understand the need to recoup costs after having invested time and effort in a creative work.  But after reading today''s article by Michael G. Moore of Penn State, I am convinced that copyright law with regard to education is a complete mess.

Copyright law as regards education in general presents some difficult challenges.  Among these mentioned by Moore, the following two really stuck out to me:

• The work-for-hire doctrine and the ongoing battle between faculty vs. institutional ownership


• The three types of copyright infringement: direct, contributory, and vicarious

The work-for-hire doctrine states that,

In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright (17-U.S.C. Sec. 201(b)).

This can be a good thing.  Let's say that I own a software development company.  If I, as an employer, ask an employee to write up some code I expect that my company will own that software.  This makes perfect sense.  He writes code for me, I pay his bills.  And, I would also concede that any code that my employee writes at home, on his own time, not using company equipment or any other company resources (physical, intellectual, or otherwise), belongs to him, and not to us.  I would even let him use his personal code to help him at work, if he wanted to, and if it would really increase his productivity.  Fine.  (I know some of you out there think this sounds pretty naive.  Fair enough.  I don't own a software company.)

However, teachers also do work at home, on their own time, using their own resources, and we would like to think that the course outlines, the tests, the homework assignments, the lecture notes----completely consisting of the teacher's own intellectual energy and creativity----would then belong to the teacher.

This isn't always the case.  As Moore points out, legal precedent has been set in several cases where courts sided with the institution in copyright disputes over an employee's "on-the-side" endeavors.  They did so, citing the work-for-hire doctrine, stating that the teacher's hard-earned course materials did, in fact, belong to the school district for which he worked.

So what happens if this work-for-hire doctrine ends up being strictly enforceable in every educational situation?  What if I, as a teacher, understand that, upon being hired by an institution, everything I do to improve the educational experience for my students will be subsequently owned by the educational institution?

Lame.  Where is my incentive to create, experiment, and innovate?  Where is my incentive to become a better teacher and produce better teaching aids for my students?  Sure, I get plenty of satisfaction from seeing my students learn, but it would be pretty galling to have what I think of as "my property" ripped out of my hands the moment I decide I want to work at some other institution and that I want to take my materials with me.

This is something that needs some attention.  I know that both sides have their arguments, but some definition and clarification on this "work-for-hire" doctrine are certainly in order.

There was another issue that awakened me to a new sense, not to a sense of indignation like that from the work-for-hire issue, but to a sense of the gravity of the situation of copyright law in education.

"Fair Use" does not mean "Use whatever you want, whenever you want to, in any way whatsoever."

Moore gave a hypothetical example (which likely has happened more than once in real life) where a professor would place on his course website a link to an external website that provided illegal downloads of Spark Notes publications.  In this one instance, a legitimate case could be made alleging three types of copyright infringement: direct infringement, contributory infringement, and vicarious infringement, committed by the student, the professor, and the institution, respectively..

The students who download any books from this site, as well as the publisher of the web site, are guilty of direct infringement, as they are the ones carrying out the actual work of infringement upon the author's rights of reproduction and distribution.

The professor whose website links to the illegal site could be found guilty of contributory infringement, as his actions as a teacher persuaded and encouraged his students to go to the website to get the book.

The institution that employs the professor could be found guilty of vicarious infringement, as current applicable law holds the institution responsible for the conduct of its employees.

In other words, if I, as a distance ed teacher, am not absolutely vigilant in making sure that neither I nor my students in any way violate copyright outside of real legitimate educational "fair use", I could find my students, myself, and my employing institution treading some deep legal water.

Having Carl Johnson (BYU Copyright Department) come to talk with our class tonight about what constitutes real educational "fair use" was very informative, and just underscored how important it is for us as teachers (distance or f2f) to be sure that we really are within the bounds of legal propriety as we use the copyrighted works of others in our courses.