20.1 Fair use as a complement to open licensing  (Page 5/5)

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. ( (External Link) )

The resource ends with a short checklist that helps an individual or institution understand if they are already using the Teach Act. I am wondering if this type of approach, reformatted as a questionnaire, could be used to get a sense of how “Fair Use/Fair Dealing/etc.” is being practiced in the US and outside. If so, how might that contribute to a process resulting a “Community Standards” document/resource?

Cheers, Ken

5. steve foerster -november 24th, 2007 at 10:23 am

Ken, I expect you’re right that educators everywhere usually do what’s right for their students regardless of whether the what the local legal climate may be, and rightly so.

The TEACH Act is useful in certain situations, but it has some limitations. One is that it only applies to government run schools or accredited non-profit schools. Say what you want about commercial schools, but this means that their students don’t have the same access to knowledge that their peers in government and non-profit schools do. It also forces schools that take advantage of it to distribute materials that “accurately describe, and promote compliance with, the laws of United States relating to copyright.” Not sure how I feel about that, especially “promoting compliance — what if there’s a group on campus that distributes materials that promote not complying with copyright?

The advantage of the TEACH Act is that it’s a lot more clearcut than fair use. The problem with fair use is that there are enough overlapping gray areas that no checklist could provide a definitive answer. Even when people try to put together guidelines they’re oversimplifications that might get those who follow them into trouble, e.g. (External Link)

A statement of best practices would be better. I understand that media literacy educators are starting to work on this for themselves, I’m corresponding with them now about whether there’s room in their initiative for all educators.

6. ken udas - november 25th, 2007 at 8:35 am

Great points. I really had not dug into the restrictions associated with the Teach Act. I was thinking less of using the “Check List” a tool for compliance and more as one way of collecting information about current application (practice). I was thinking that it might be a low-barrier means of getting base-line information about how teachers think about Fair Use without asking them to write full descriptions of best practice. This would simply describe some facets of current practice, which might help inform an effort leading to something more fully formed – perhaps a statement supported by illustrative examples. Is this coherent with what you see as useful?

7. ken udas - november 25th, 2007 at 8:38 am

Now, for the last really broad question that I want to ask. In your opinion, what do you think the relationship might be between Fair Use and OER (if any)?

8. steve foerster - november 25th, 2007 at 12:37 pm

I’m not sure the idea is necessarily to get teachers up to speed on fair use before putting together a statement of best practices. I think it’s more to have those educators who already have expertise and understand the issue to draft it and have it be recognized by a variety of educator advocacy groups. Once that’s done it should be a much more manageable task for teachers and lecturers to get a clear understanding of what’s acceptable and what isn’t.

As for the relationship between fair use and OERs, I don’t think there really is one when it comes to the materials themselves. Fair use is nothing more than a limited set of circumstances when closed content can be used without permission. However, we’re all part of the free culture movement. Just as the OER movement has benefited from involvement from the Access to Knowledge crowd, hopefully as the movement to reclaim fair use grows among educators, those people will be interested in getting involved with OERs as well.

9. karen - november 30th, 2007 at 8:34 am

Interesting discussion. One other thought on the possible relationship between fair use and OER is that as more educators realize how limited and ambiguous fair use really is (many think it is a blanket exemption to use closed materials) the need and value of OERs becomes more evident.

I have been doing some awareness-building presentations about OER for K-12 educators. I decided to do this in part in response to some appalling experiences hearing educators misinterpreting copyright law and fair use and passing these misunderstandings on to students. The reception to these sessions has been very strong. Most teachers want to do the right thing, I think; they just don’t understand what that is and what options, such as OER, exist.

I think that your idea of a drafting a “statement of best practices” in this area is a good one. Are you interested in putting together something like that, perhaps in a wiki where an interested group could collaborate on this?