The Copyright Paradox

Image courtesy of kygp

Copyright can be a barrier to sharing knowledge and resources, but it can also be an enabler to achieve the aims and objectives of the OER movement.

Copyright as barrier

There is an abundance of information you can access on the Internet, however in many instances you will not be able to use these materials legally, or without restriction. The challenge lies in partly in de facto copyright law. Images, videos, podcasts, and pages that are accessible on the Internet are, more often than not, copyrighted. This means that it may not be legal for you to download them, use them or adapt them for the needs of your students, or redistribute them to your students or other teachers.

The default legal situation in most countries is that the original author holds full copyright on their creations, unless:

• contracted otherwise by their employment agreement where materials developed at work belong to the employer;
• the copyright of the work has been handed over to a publisher;
• in cases where the author declares that the work will be released under public domain.

Full copyright means that you cannot use, adapt or redistribute these materials without the express permission of the copyright holder. Downloading and using an image from a news site without the owner's permission may seem harmless, but it can expose you and your institution to liability. Furthermore, if you plan on sharing your OER with others, most online sites like Youtube and Flickr will remove material from their websites if they receive a copyright or ownership-related complaint. That means all your work may be at risk of being deleted if you incorporate someone else's copyrighted material into your work.

Copyright as enabler

In contrast, copyright licenses can be used to promote and encourage the sharing and reuse of educational materials. Without copyright law, we could not choose how to license our open educational resources (for example, requiring others to share changes they make to our materials), because a license is only enforceable in the context of copyright law. Under current copyright law, each teacher, lecturer, or trainer is the default copyright holder of the materials they create (unless your institution has an explicit policy stating otherwise). Because you are the copyright holder, you can choose to license your OER in the way that you believe best supports the goals you want to accomplish by sharing your materials.

Because most OER have copyright licenses that are purposefully designed to give you permission to download, alter, and share them, OER provide an exciting opportunity to create and share educational materials in your classroom, with your colleagues, and with the world at large.

What about Fair Use?

Fair use is a doctrine in U.S. copyright law (called Fair dealing in most countries outside the U.S.) to allow for select uses of copyrighted material without the copyright holder's consent under certain conditions. Fair use is open to interpretation and there are no definitive rules regarding fair use. Furthermore, the interpretation of fair use (or fair dealing) may differ across jurisdictions, but here are a few ways in which it is typically measured:

1. The nature of the work. That means whether or not it is being used for a non-commercial purpose. When something copyrighted is used in a non-commercial way, it is more likely to be considered fair use.
2. The nature of the copyrighted work. The more useful something is to the common good, the more likely it will be considered fair use. For example, a paragraph about fire safety tips is less protected than a popular song.
3. The amount of the work used. The less you use of a copyrighted material, the more likely it will be considered fair use. As an example, 30 seconds of a movie might be considered fair, while 30 minutes might not.
4. The effect of the use on the value of the work. The more the use diminishes the value of the original work, the less likely the use is to be ruled fair use. (U.S. Copyright Office, 2006)

Unfortunately, fair use is often unclear and difficult to determine. For example, while it may be fair use to show a magazine advertisement in your class when teaching a lesson on the social impacts of advertising, it may not be fair use to make a digital copy of the advertisement for a slide show presentation and then upload your teaching resource on a public website.

Copyright laws also vary from country to country, so it is a good idea to know local laws and regulations regarding copyright. Sound complicated? Using OER and bypassing the worry altogether is a good option!

But I'm using it in a classroom, isn't that fair use?

Fair use protects many uses in the classroom. The problem comes when you want to share these great materials you've made with others (for example, online). Fair use does not protect you when placing educational materials online, because you're outside your classroom. Because educators are not as protected when sharing online, many opt to put their material on a private site behind a password (perhaps in a system like Moodle, Blackboard, or Angel), which in many situations would be considered fair use.

While fair dealing may assist your teaching in the classroom, it is still a barrier to sharing knowledge. Potential audiences, such as family members and others in the community, will not be able to access the materials. There is also the difficulty of administering passwords and access. Most importantly, creating new lesson materials is time-consuming. Sharing materials brings value to many other educators, but inappropriate licensing can make the legal sharing of educational resources online difficult, if not impossible.

More information on copyright

• Cornell's Copyright Information Center
• Information on the TEACH Act which updates copyright law with regards to online education)
• COL resources on copyright

Sources

U.S Copyright Office. (Last Updated 2006, July). Fair Use. Retrieved March 21, 2008, from http://www.copyright.gov/fls/fl102.html
Wiley, D. (2007, August). Open education license draft. Iterating Towards Openness. Retrieved March 28, 2008, from http://opencontent.org/blog/archives/355