XplanaZine

The Technology, Education and Copyright Harmonization (TEACH) Act passed in November 2002 presents challenges and opportunities to all institutions involved in the production and dissemination of educational multimedia, digital resources, and research tools. At heart is the issue of intellectual property and complex issues of ownership and rights, which have been complicated not only by the widely publicized development of peer-to-peer (P2P) networks, but by the way educational materials are presented in the digital classroom. Ironically, SCORM compliancy sets up a new area of contradiction and confusion, particularly in the way that the shared content objects (the SCOs) are managed and deployed.

As in the case of student privacy guidelines (FERPA), there are seeming contradictions, and the same law that is used to protect access or privacy often seems to open the door to misuse. In the case of digital assets, the first iteration of “Fair Use” laws seemed to set up a massive contradiction between what was possible in the typical face-to-face classroom while expressly disallowing the use of the same resources in the electronically-delivered instruction.

The first pass at trying to address digital media assets (specifically those on the Internet) was entitled the Digital Millennium Copyright Act of 1998. It severely limited the way that digital assets could be distributed, and was widely viewed as a step toward “pay per use.” Libraries and schools reacted with alarm. The article, “New Digital Copyright Ruling Poses New Barriers for Library Users and the American Public” by Miriam Nisbet reflects many of the commonly-held concerns.

Under Digital Millennium, copyright owners have the right to aggressively pursue anyone who downloads assets, regardless of the use or purpose of the download. This was recognized to be an untenable position for libraries and schools, particularly in cases where the copyright owner(s) could be difficult to determine, and, where the purpose for download was strictly non-commercial, with educational usage only.

In response, libraries and educational institutions united in order to propose a more reasonable policy, and one which more parallels current practice in face-to-face libraries and classrooms. Their focus was on public interest issues that arise when information assets are controlled or restricted, and the impact on society if access is made problematic.

The goal was not to give carte blanche to those who download and share entire digital works, or to condone the proliferation of file-swapping networks and mechanisms. Instead, the idea was to allow educators and librarians to have access to single images and samples of media assets, that would replicate the pedagogical approach used in face-to-face settings. Educators pointed out that in reality to be able to use samples or single images from a work, particularly if it is linked to the original site, stimulates sales of an asset, rather than discouraging it.

According to “The TEACH Act Finally Becomes Law” developed by the University of Texas system, “The TEACH Act expands the scope of educators’ rights to perform and display works and to make the copies integral to such performances and displays for digital distance education, making the rights closer to those we have in face-to-face teaching. But there is still a considerable gap between what the statute authorizes for face-to-face teaching and for distance education. For example, as indicated above, an educator may show or perform any work related to the curriculum, regardless of the medium, face-to-face in the classroom - still images, music of every kind, even movies. There are no limits and no permission required. Under 110(2), however, even as revised and expanded, the same educator would have to pare down some of those materials to show them to distant students. The audiovisual works and dramatic musical works may only be shown as clips — “reasonable and limited portions,” the Act says.”

Recognizing the borderlessness of the Internet and shared / sharable digital content, the World Intellectual Property Organization (WIPO) has conducted a number of studies and has provided guidelines for fair use. One white paper, “Museums and the Digital Future,” written by the International Intellectual Property Institute addresses many of the issues.

What implications do current policies and procedures with respect to Fair Use have on the Internet-based educational programs?

Here are a few useful guidelines to follow:

—Use “reasonable and limited portions” of digital assets;

—When using single images, try to link back to the original source.

—Do not download and host entire articles, files, or digital works on your own server. Instead, link to them.

—When using a single image for educational use, limit the locations where it is accessed so that all viewings of it are connected to the learning / educational goals of the course or program.

—Try to present all digital assets in a way that encourages users to go to the source of the information and to be encouraged to purchase one’s own full-length copy.

—When adopting texts for a course, leverage the publisher’s media assets (copyright-cleared) in order to provide a richer experience without worry of copyright infringement.