Thursday, August 07, 2014

Fair use for the faculty creator - where are we now?

As a vestige of my old campus job I'm still on the listserv for OER-Community, where I lurk and from time to time read the messages.  OER stands for Open Educational Repository.  This particular list is moderated by Susan D'Antoni of UNESCO and is hosted by Athabasca University.  The big picture goal for list members is for developed countries to re-purpose educational materials they've already produce and then make those materials freely available for use in developing countries.  Those materials would reside in an OER.  This model takes after MIT's Open Courseware Initiative (OCW).  The goals that the OER movement advocates for are noble.  I embrace those goals.

However, I am less enamored with the OER mechanism for achieving the goals.  In other words, I am no fan of repositories.  Here are two reasons why.  One is technical.  The other is ethical.  On the technical side search, a la Google's search engine or the search engine of competitors, obviates the need by potential users of the educational materials to browse in a single location to find what is good and useful for them.  All that is required is for the materials to be readily available online and to be linked to on some Web page.  This is a very low threshold for participation by providers of open content.  The search engines would do the rest.

The repositories, such as OCW, receive the Institutional branding of the host.  MIT got a lot of publicity out of OCW.  The marketing value of such branding confounds the reasons for engaging with OER.  The noble goals get blended together with institutional advancement.  Some might argue that is a good thing because grass roots efforts at Open Education will invariably have little impact only.  One needs a more systematic approach to scale up Open Educaiton.  I have heard this argument on multiple occasions, but I don't buy it.  I believe the institutional branding is ultimately corrupting unless it serves as a first step towards a repository that aggregates across many institutions.  I note that on the research side of the equation, which has gotten a lot less publicity as of late say as compared to MOOCs, there has been this sort of aggregation.  So, for example, the Institutional Repository on my campus, IDEALS, has become a member of the Open Library project, which is such an aggregator.  To my knowledge, the same sort of thing is not happening in the Open Education space.

There is the further issue, which gets me closer to the theme of this piece, that the repository approach does nothing about influencing the campus culture, to make it more amenable to Open Education.  Why should there be the need to re-purpose educational materials at all?  What aren't these materials freely available from the get go?  One might envision some grand conspiracy as answer to this question.  The reality is much more humdrum, in my view.  Nobody gives the matter a lot of thought.  People just assume that educational materials belong inside a Learning Management System (LMS).  Such systems happen to be closed, not open.

Here is a recent bit of evidence to illustrate.  The Center for Innovation in Teaching and Learning on my campus is giving some training for new TAs next week.  I am doing a session for them on Socratic Dialog.  In an email that informed me of the classroom where my session would be held, there was a request for materials that I've produced for the session.  The number attending the training is in the thousands.  My particular session has a capacity of about 50.  Conceivably there are others who would have wanted to come but my session competed with something else they also wanted to see.  So the request for these materials is to help graduate students in this category.  Fine.

As part of the request, I was told the materials would reside within the campus LMS and only attendees of the training would have access.  Implicit in this message was an argument that I should be more willing to release my materials in this way because of their limited distribution.  It is this implicit argument that I'm referring to when talking about the campus culture.

In the old days (late 1990s through early 2000s) some faculty didn't want to release their materials broadly for a variety of reasons.  One reason that I'm mildly sympathetic to is that broad availability of the content would serve as a disincentive for students to come to class.  For a while there was a big deal made about students who would attend class, take notes, and then make those notes available to other students (for a fee).  However else you felt about this behavior, you'd have to agree that it gave evidence of demand for this sort of content.  Another reason for reluctance to make the content publicly available is that the instructor may have entertained thoughts of eventually producing a textbook and wanted to maintain control of their materials until then.  Perhaps these reasons are still with us.  I don't know.  My guess is that for the most part they no longer are, for the vast majority of instructors who do produce their own content.  What remains, instead, is a gut reaction to want to keep content under password protection for limited distribution, without much if any justification as to why.

If this is right, then moving the campus culture towards an embrace of Open Education would take substantial time and effort.  In turn, that would require leadership, championing by various faculty who would be motivated not by institutional glory but rather by the noble ideas that are behind OERs.  Yet I'm afraid such faculty would nonetheless meet resistance from the campus - for legal reasons.  And they might themselves become fearful as a result.  Here is the issue, which I can illustrate with the content I've produced for grad student training. 

An Inquiry into Socratic Dialog (pptx format)
An Inquiry into Socratic Dialog (pdf format)

Note that this is an ordinary PowerPoint presentation.  There is nothing special about it.  I've made it available to anyone with an Internet connection.  I'm using my campus account at for hosting the content.  Anyone on campus can get such an account.  So, technology-wise, there is no trouble whatsoever in making such content open.

Most of the text in this presentation was written by me.  Where I use the words of others, I cite the author.  There is very little of such content, so I don't believe there is any issue with plagiarism or copyright for the written stuff.  And if I had contained the presentation simply to text, there wouldn't be much of an issue at all.

But I didn't do that.  Most of the slides have images on them.  Those images are there to improve the presentation, to make the viewers better able to connect to the ideas.  This is why any author employs somebody else's work.  The mixture of stuff I've created with other stuff that I've found is better than what I could produce on my own, if I had to make everything from scratch.  This is not to say that what is there now is anything to write home about.  It is just to affirm that without the images, the quality would be worse.

These images were found via Google Image search.  The originals, from which I made copies, reside on open Web pages.  I chose images that seemed best to match my text content.  I omitted images that had an obvious watermark.  As it turned out these two criteria were sufficient to have each image come from a different source.  In the past when I've done this sort of thing for my own course, I've provided back links for the images to where I found them, this to show that I didn't plagiarize the images.  I didn't do that this time around because I needed to get the thing done.  (The reader should readily attribute the real cause - my sloth.) I mention this so as to not confound it with the real issue, which is copyright.  Providing back links in no way protects me from the charge that I've copied this content without getting permission from the content authors, who wouldn't have granted permission had they known about it.

Far greater protection against the charge of copyright violation comes from the observation that I'm a nobody and this content is far from extraordinary.  So it will get very limited viewing.  In other words, the probability that I will be detected violating copyright is nil.  Partly for this reason, I make all my educational content open.  A second reason for making open content is that in the little experience I've had with complaints about copyright, I simply took down the content and that proved sufficient redress.  The third reason is that I feel that I should be legally entitled to make my stuff publicly available - with the pictures included - because the Fair Use exception to copyright is meant to cover content such as my presentation.

(Sidebar:  This blog has a Creative Commons License.  Non-commercial users are free to copy the content and re-purpose for their own use, though I do ask for attribution when they do so.  However, the images that are in that PowerPoint can't possibly be covered by this license, since I don't own the copyright to the images.  That is likewise true for many other images found on the blog.)

If we are to get leadership that moves the culture on campus to an Open Education approach, those leaders will need visibility to achieve that end.  Some of the content they produce, then, should get substantial viewing and with that the content should produce benefit in an overt and obvious way.  Projecting my own preferences onto such leaders (what I would do if I had the ability to make highly viewed content) I would be quite willing to push on the Open Education button and endure the seemingly endless arguments from others on campus who would like to maintain the current approach where most stuff ends up in the LMS, with one proviso.  I would not want to expose myself to potential liability from copyright violation.  I would take steps to avoid that, if it otherwise seemed a likelihood.

In my years as a campus level administrator, I sought clarity on those sorts of things that were protected by Fair Use.  I was never able to obtain that from Campus Legal.  I can understand why lawyers don't want to overtly draw a line, but times have changed and Open Education has far more potential now than it did then.  The public is now focused on containing the cost of higher education.  Open content would not be a full solution to that, to be sure, but it is not hard to see that it could be an important piece of the puzzle. For that to come about, however, there needs to be a fairly aggressive view of Fair Use, embraced by those faculty leaders who will drive the change in culture.

Even idealists are cognizant of practical reality.  Such an aggressive interpretation of Fair Use must be based on some actual precedent.  So I ask, where are we now on Fair Use, particularly as it obtains to the type of content Faculty produce for instruction? 

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