This morning members of the campus community received a massmail with subject line - Annual Announcement of Copyright Polices. I searched my Inbox for previous messages with the same subject line. Sure enough, this is the fourth year in a row where we received such a message, although this is the first time I can recall noticing it. While it is not a bad message, in that it did include mention of Fair Use as a possible exception to Copyright, the bulk of the message is about misuse of copyrighted material where the copyright holder is external to the university and hasn't authorized the use. I'd like to discuss that issue in regard to instruction and, in particular, content that can be found inside the learning management system (LMS).
Before I do, let me note that the campus is in the business of creating new knowledge. Part and parcel of that is the production of copyrighted material. The campus policy that is given in the massmail doesn't say anything about how campus copyright holders - faculty, staff, and students - are to be protected from the abuse of copyright by an external audience. This is not really a concern of mine. I mention it here more to illustrate the asymmetry in the policy document. Much more of a concern for me is that the campus doesn't vigorously encourage copyright holders to give broad public dissemination of their work, either by releasing it into the public domain or via a Creative Commons license, followed by making the the work available on a publicly accessible Web site. I have been singing this tune at least for a decade, such as in this post Ly Berry 2.0. This idea could be in the campus policy on copyrights, but it is not.
In itself, that makes it seem that the policy is about limiting liability rather than about doing the right thing. No doubt, limiting liability is something the campus needs to be concerned with. However, in addition to research mission the campus has a very important education mission and part of that is providing an ethically sound environment in which students can learn to respect the rules that are in place. In contrast, consider traffic law and how most people respond to speed limits. They don't view how fast they drive as an ethical matter at all. Mild transgression of the speed limit is the norm. The goal is to drive as fast as possible subject to not getting a ticket. Does the campus care if the same sort of behavior emerges in its response to copyright?
One other point should be made before turning to the LMS. Twenty years ago, campuses were a hotbed for piracy of digitized music (think Napster). The reason for this is that bandwidth was much better in the dorms than it was at home, where people were using dial up. The college students at the time were very much like kids in a candy shop. So there is that legacy. However, now broadband is ubiquitous. Being at college affords no technological advantage that way in illegal file sharing. So if copyright policy at campuses like mine emerges from push by RIAA, MPAA, and other groups that want to limit illegal file sharing, maybe the campuses need to collectively push back at that. Universities should not be the unwitting agents of copyright enforcement for such organizations.
Let us move away from consideration of sharing commercial music or video files and turn to academic content. As a matter of fact, I will openly admit that I occasionally violate copyright, taking a piece from a subscription journal (for example, The Chronicle of Higher Education) making a pdf copy of it, and placing the copy where others can read it. If, in addition, I place a link to the pdf in my blog, then it is an open violation of copyright. In my way of thinking, such an open violation is a more honest way of breaking the law - a mild expression that I believe the content itself should be publicly available. There is further that my blog has a very limited readership and those readers I do have are very unlikely to repost the pdf elsewhere. So, in the grand scheme, this is a needle in the haystack thing and though it is out in the open will quite likely never go detected. Further, in the rare instance where I have posted something that the copyright holder has found and doesn't want me to post, I immediately take it down. This seems to me like the way things should work, even though it doesn't produce strict compliance.
Now let me to turn to the LMS. Here are some potential abuses of copyright that can happen.
1. An instructor uses publisher provided content - presentation material or test bank questions uploaded in the LMS quiz engine - and this is done with publisher permission because the instructor has adopted the publisher's textbook. Then, a few years later, the instructor adopts a different textbook from another publisher. The relationship with the old publisher has severed. Implicitly the old publisher has withdrawn permission to use the publisher content. But the instructor continues to do so because the content still has use value. The publisher can't detect this because it is done inside the LMS and the publisher doesn't have access.
2. An instructor has subscription to content that is not freely available to students. Instead of seeking copyright clearance for the content or seeing whether the content exists in one of the Library's databases, the instructor makes pdfs of the content and puts it inside the LMS. It is also possible that copyright clearance might have been attained at first, but that once the pdf becomes available, on re-use the file is in the LMS and no copyright clearance is attained thereafter.
3. Instructors republish the work of students who have taken the course and do so without asking for their permission. (Students hold the copyright to their own work.) The work of the past students is made available to current students in the LMS. The past students don't have access to the current class site so can't monitor this abuse.
There may be other categories of abuse, but the above is sufficient for this discussion. To my knowledge, nobody external to a course polices course sites in the LMS. Quite apart from copyright issues, this is a good thing and parallels the approach to the live classroom. In other words, the trust model is in full operation here. What happens in the classroom and in the LMS are matters for the instructor and the students in the class. The copyright issues, in other words, are left to the discretion of the instructor. What the actual behavior is by those who exercise this discretion is then not knowable by outsiders.
So we are left to discussing norms of behavior - what should instructors do in this case? What is communicated to instructors about these matters? Apart from the massmail I mentioned at the top of the piece, I believe there is no further communication about copyright.
An important additional issue is whether students are aware when an instructor abuses copyright inside the LMS or if this falls entirely under the radar. Again, it is hard to say what actually happens. It should be clear, however, that it is most troubling when students are so aware. The campus policy then appears very much to be a double standard.
On campus, we make a big deal about plagiarism and also about cheating on exams. We need to think all of this through from the perspective of the broader ethical education we are trying to give students. It challenges one's thinking to believe that there are certain areas where strict compliance with the rules make sense while there are other areas where mild transgression of the rules makes sense, without becoming quite cynical about the rules themselves.
Let me close with what I hope is a humorous story. Earlier in the week I had my eyes examined. One of the technicians administered a test to measure my peripheral vision. I was told to look straight ahead. Then she would hold up some number of fingers, doing so in various positions with her hand, and I was supposed to say how many fingers she was holding up. Presumably, I want an accurate reading of my vision. Yet I cheated during the test and I couldn't help myself from doing so. My eyes would not look straight ahead but instead would follow where her hand was. I did this repeatedly, even after being told not to do it. So, maybe there is a little cheating in all of us and we should learn to accept that, in which case we should give each other a bit of slack, on copyright and on everything else.
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