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Educational Use in Digital Age

Educational Use in Digital Age

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Published by: geissjet on Sep 20, 2010
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www.infotoday.comApril 2010
n January, the Association for In-formation and Media Equipment(AIME) introduced itself to the staff at the University of California–Los An-geles (UCLA).From press coverage of the encounter,it appears the meeting did not bear anygood news for UCLA. AIME, which wasfounded in 1986 as a lobby group for ed-ucational film and video producers andcounts PBS among its members, chal-lenged the legality of UCLA’s use of videofrom its members in online coursewaresystems. The discussion resulted inUCLAdiscontinuing the practice of post-ing video in the courseware system, de-spite a university spokesperson insistingthe university did nothing wrong.Less than a week later, a representativefrom Cornell University announced that AIME had contacted the university, alleg-ing copyright violations stemming fromsimilar activities. At the risk of dating my-self, I can’t help but think of The RollingStones’classic “Sympathy for the Devil,”in which Mick Jagger hisses, “Pleased tomeet you; hope you guessed my name.”This situation highlights ayawning gap in our contemporary copy-right law. There are statutory limitationsthat allow certain types of educationaluses that excuse having to ask a copy-right owner for permission to use por-tions of a protected work and eliminatehaving to pay for such use. Unfortunately,those limitations do not clearly allow auniversity staffer or faculty member torip content from a video source and placeit online for later streaming or for down-loading it for educational uses, even wherethe courseware system is protected bypasswords and available only to regis-tered members of a specific class.The controversy over educational useof video content in digital course systemsis the latest contretemps in an ongoingstruggle between copyright owners andeducational institutions about the properuse of protected works in a digital age.The roots in this battle stretch back overdecades, but its contemporary manifes-tation became evident about 6 years ago,with the controversies over electronic re-serves, or e-reserves.
E-Reserves Controversies
The controversy over video usage on-line echoes the conflict of e-reserves thathave traditionally pitted the Associationof American Publishers (AAP) againstseveral colleges and universities. The is-sues have been similar: Atrade group fora collection of corporate copyright own-ers occasionally (then, frequently) al-leged that select institutions routinelywere placing copyright-protected contentwithin some virtual holding space (inthat case, digital course reserves sys-tems) beyond an amount the organiza-tion thought was acceptable. From theoutset, implicit in this challenge has beenthe theory that e-reserves use of any kindwas illegal. It is a cost-per-click theory of contemporary copyright: No pay equalsno click. AAP’s modus operandi has been topresent its allegations written in a coverletter that was sent from the organiza-tion’s outside counsel and to accompanythe letter with the draft of a federal courtlegal complaint that alleges copyright in-fringement. The suggestion is that if therecipient did not comply with the organi-zation’s demands (and by extension, itscost-per-click theory of copyright law), thetrade group’s attorneys would start an in-fringement lawsuit.Over the past 4 years, AAPhas ap-proached at least four universities in thisCorleonic manner: Cornell, Hofstra,Syracuse, and Marquette. The threatshave resulted in agreements in whicheach of the schools affirmed that educa-tional content in digital formats shouldbe treated under the same copyrightprinciples that apply to printed materi-als. AAPannounced its agreements withHofstra, Syracuse, and Marquette inJanuary 2008; its agreement with Cor-nell had been announced in September2006. AAPhas been floating trial bal-loons about alleged e-reserves infringe-ments since 2004, when it approachedthe University of California–San Diego.(In full disclosure, I work for SyracuseUniversity Library as its copyright andinformation policy advisor, but I was notinvolved in negotiating the agreementbetween Syracuse University and AAP.)Of course, AAPhas played a role in
Cambridge University Press, et al. v. Pat-ton
, better known as the Georgia State e-reserves lawsuit. In April 2008, not longafter AAPmade its agreements with Hof-stra, Syracuse, and Marquette, a trio of academic publishers sued Georgia StateUniversity, accusing the school of im-properly using its library’s e-reserve sys-tem to “facilitate[], enable[], encourage[],and induce[] Georgia State professors toupload and post … many, if not all, of theassigned readings for a particular coursewithout limitation, without oversight,and without the requisite authorizationand appropriate compensation to thecopyright owners. …” That case cur-rently is mired in pretrial activities. Themost recent development as of this writ-ing is that the judge had ordered the par-ties to submit pretrial dismissal motionsby late February.
Issues andQuestions
There are somedifferences betweenthe AIME and AAPscenarios, but thereare a number of sim-ilar issues in thesedisputes.The first issue Ialways wonder about is how the copyrightowners, or their trade groups, get theinitial pieces of information to begin in-fringement investigations. “We have leadsin terms of other universities, and we doplan to investigate further,” Allen Dohra, AIME’s president, said to
 Inside Higher Ed
about his organization’s investigationinto UCLA. Dohra added that AIME isprepared to take on other colleges if itbecomes clear that similar practices aretaking place elsewhere.In terms of source information, it’simportant not to overlook the disgrun-tled employee. But another possibility isthe Copyright Clearance Center (CCC).In an interview I had with CCC’sTracey Armstrong a few years ago, theCEO conceded her organization has oc-casionally helped coordinate or provideresearch for what it calls “enforcementactions” against a variety of parties, in-cluding copy shops and bookstores. Arm-strong said these actions are done at apublisher’s behest; CCC does not initiatethem. (This interview, titled “Miles to Go: AConversation With Copyright Clear-ance Center’s Tracey L. Armstrong,” waspublished in the January/February 2008edition of 
magazine.)In the interview, Armstrong did notindicate that CCC had ever specificallytargeted universities for an investigationor enforcement action. However, in retro-spect, I never asked that specific question,and I should have.CCC is a unique organization in aunique position. It is a not-for-profit,royalty collection agent for copyrightowners (traditionally print publishers).Since its revenue comes from the roy-alties it collects for publishers, it is notunreasonable to suggest it may have avested interest in maximizing publishers’royalty collections.CCC positions itself as having federallegitimacy (its representatives consis-tently introduce the company as havingbeen “created in 1978 at the suggestionof Congress”). But the organization’srepresentatives almost never reveal thatscientific and technical journal publi-shers created CCC as the official pay-ment center for collecting reproductionfees on behalf of AAPmember publish-ers in 1978, when the current Copyright Act became effective. (This is the same AAPthat has been clanging swords overe-reserves.) Yet at the same time, CCChas positioned itself as a partner to col-leges, universities, and libraries, help-ing some of them educate universitypersonnel about copyright issues, in-cluding fair use issues.
K.Matthew Dames
Intellectual Property 
Educational Use in the Digital Age
Yet at the sametime,too few  institutionsvigilantly conduct their ownenforcement of copyright violations.
www.infotoday.comApril 2010
Given CCC’s business purpose, his-tory, and its current push of its annualcopyright license to colleges and univer-sities as a payment facilitation and copy-right compliance tool, it is worth raisingquestions about the extent to which theorganization does or does not engage inso-called enforcement actions or investi-gations that lead to so-called enforce-ment actions. Further, it also may beworth asking whether there is any cor-relation between the amount of annualfees a school pays to CCC and the likeli-hood that the school will be investigatedfor copyright infringement, either by CCCor by a publisher for whom CCC acts asroyalty collection agent.The second issue worth in-vestigating is a publisher’s normative viewof copyright law. As William Patry andJessica Litman have chronicled in lawreview articles, large, industrial and in-creasingly multinational copyright own-ers historically have been Congress’solestakeholders when copyright law andpolicy have been discussed and promul-gated. These copyright owners posit allsorts of theories to justify their positionson copyright.But to understand recent threatsagainst colleges for what may be edu-cational uses, let’s take a look at thehistory of the publishing industry andits never-ending fight to preserve theeconomic integrity of making one sale foreach intellectual work that is manufac-tured. This principle, which I have dubbedthe cost-per-click theory of copyright, isthe economic basis upon which entiremedia industries have been built.Of course, a key component of thatprinciple is having a physical item to man-ufacture, count, and sell, which is typicallya book. This principle does not withstandthe societal and technological disruptionof moving from entire books to chapters,or from chapters to sections, or from paperto digital. Yet in the publishers’minds,many of them continue to expect to be paidfor each item that is produced or madeavailable. Their business models dependon the cost-per-click theory. But adoptingthis attitude means that copyright has nolimitations and that protection is the de-fault and lasting state of original worksfixed in a tangible medium of expression.It also means that policy or statutory coun-terbalances to copyright monopoly, such asfair use, simply do not exist or exist onlywhen it would be embarrassing for a right-sholder to decline use or access.I am not claiming the colleges anduniversities are without fault or liability.But I do maintain that the rightsholders’normative view of copyright tends to beso narrow in the 21st century that userfault is virtually irrelevant. In publish-ers’minds, any use of protected workswithout compensation and permission isan infringement.The final issue that comes to mindwhen I read about issues such as theseis the lack of spine so many colleges anduniversities seem to exhibit in the face of any questioning about the use of copy-righted works. Have colleges and uni-versities become so afraid of being suedthat they will cave reflexively upon theslightest trade group inquiry?Litigation is time-consuming, disrup-tive to business, and often a poor resolu-tion to a disagreement among former busi-nesspartners. For these reasons alone,officers at colleges and universities havegood reason to avoid litigation. But it issurprising to see how quickly some in-stitutions (some of them billion-dollarorganizations) cower in the face of theslightest examination of copyright prac-tices on campus. In my opinion, part of the reason why the fair use doctrine is soweak and ill-defined is because highereducation has failed to draw, maintain,and defend reasonable parameters fortheir faculty, students, and staff. Yet at the same time, too few insti-tutions vigilantly conduct their own en-forcement of copyright violations. Often,and ironically, claims of fair use are par-roted across college campuses to excusethe most egregious and unjustified usesof protected works.Both these attitudes are unacceptablefor any learning institution, particularlysince it has such a vested interest in gen-erating scholarship and culture and mak-ingthat scholarship and culture avail-able for the purpose of learning. In theend, colleges and universities must do abetter job at understanding the copyrightsystem and rightfully defending againstcommercial restrictions of informationuse and access, but they must also pe-nalize those in their own communitieswho abuse the privileges of informationuse and access.
 K. Matthew Dames is the executive ed-itor of 
(http://copycense.com)and the new publication
Core Copyright
(http://corecopyright.com), which helps persons learn U.S. copyright law. Send your comments about this column to itletters@infotoday.com.
irefox has become in-creasingly popular withthe technology crowdover the past 4 years for threemain reasons. First, it is consid-ered anti-Microsoft; second, itis user-driven (folks can createadd-ons and market them onthe Firefox site); and third, itsprogressiveness displays sheer brilliance. As I mention during most of my talkson the topic, it’s a good idea to take a lookat the current version of Firefox, if youwant to see what Microsoft is going to dowith the next iteration of Internet Ex-plorer. While I have been a loyal Firefoxuser for a while, I still tested GoogleChrome when it was first released, butthe lack of third-party extensions turnedme away. Even though Chrome was faster(it takes up much less memory than In-ternet Explorer and Firefox), the extensionaddict in me still needed my add-ons.When Google finally announced the releaseof Chrome 4.0 (www.google.com/chrome/ eula.html?extra=devchannel), along withit came the ability to use extensions. Iimmediately started to download them.
Some of My Favorite Things
Locating the extensions is easyenough. Just go to https://chrome.google.com/extensions and start searching orbrowsing. Google extensions are a bit dif-ferent in that most of them live on ornear the toolbar on the right-hand sideof the browser bar. It may take some timeto look there, but that’s a small issue.Here are some of my favorites that I amsure you will find useful as well.
URL Shortener
(http://tinyurl.com/ y9sq3p6)—If you send as many links asI do to colleagues, this is the perfect ex-tension. When you click the icon at anysite, it will ask you which shortener youwant to use, and it will create a smallerURLwith one click. This will then becopied to your clipboard and sent out.There are more than 10 available serv-ices, and you can also send posts directlyto Twitter.
Ping This
(http://tinyurl.com/y9ymvwz)—I use Ping.fm when I want to postsomething to all of my social networks atonce. This extension will do just thatwith a click of a button. This particularextension is similar to placing a PingThis bookmarklet on your favorites barin your browser.
Twitter Reactions
(http://bit.ly/8Yzpdb)—This is one of those quick and easyextensions that allows you to see quicklywho has linked to (and maybe commentedon) any webpage on Twitter. I use thistool to see who has mentioned my blogand usually take the time to thank theperson (always consider thosemarketing angles, right?) andthen follow them (unless theyare a spam account, which hap-pens often on Twitter). This isa must for those who maintaintheir library webpages or doany type of public relations.
Auto Reload
(http://bit.ly/ 5AKOSc)—One of my favoriteadd-ons in Firefox is ReloadEvery (URL), which will automaticallyreload any webpage at any interval thatthe user needs. I missed this immenselywhen I moved over to Chrome, but I wasthrilled when I found a similar tool. Af-ter you install Auto Reload, a blue circlewill appear on the right-hand side of theaddress bar. To activate the auto refresh, just click that button, and the page willrefresh every 1 or 2 minutes. This is auseful tool when accessing a webmailprogram that logs you out after a certainperiod of inactivity.
Google Reader Compact
(http://bit.ly/6QCWTX)—If you use Google Readeras much as I do, you know that there areplenty of extra parts of the tool that canslow down the service. With Google ReaderCompact, these extra tools are taken away,and you are left with a bare-bones RSSreader with the extra functionality thatyou are used to having. All of the foldersare still available as well as the search bar.Take this add-on for a ride, and you willsee the difference right away.
Better Gmail
(http://bit.ly/4TJkzr)—This is an unofficial version of the BetterGmail add-on for Firefox, but it does manyof the same functions, such as removingads, hiding the chat interface and the “in-vite friends field” (when will Google getrid of that thing?), showing attachmenticons (instead of paperclips), and high-lighting the row when moused over. I havebeen a big fan of the official Firefox add-on and am glad that this was finally re-leased on Chrome. As I add to my collection over the nextfew months, I will be writing about themin my upcoming columns. I have beenrunning both Firefox and Chrome on mydesktop for the past few months and havebeen debating on getting rid of one in fa-vor of the other. But I have been unableto decide which one to cease using. That’sa good thing, I guess. That way, I get totry out neat tools to make my web expe-rience easier for myself and then pass onthe tips to you.
Steven M. Cohen is senior librarian at Law Library Management, Inc., in NewYork. He is the creator of Library Stuff,a blog published by Information Today, Inc. His email is stevenmcohen@gmail.com. Send your comments about this col-umn to itletters@infotoday.com.
Library Stuff Revisited 
 A Few of My Favorite Tools
Steven M.Cohen
In publishers’  minds,any useof protected works without compensation and  permission is an infringement.
, I

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