On Being Relevant: Copyright Law and Higher Education

15 01 2010

By way of explanation and introduction, I have been given the opportunity and privilege of being a guest blogger on ¬©ollectanea for the next month or so. Some of you already know me through other CIP activities, including blogging several years ago. I’m really happy to be “on” with Peter Jaszi since I have long been a fan of his and of his work, particularly the work with the American University Center for Social Media (http://centerforsocialmedia.org) and its facilitation of Best Practices documents. (http://www.centerforsocialmedia.org/resources/fair_use_and_teaching)

What I find very interesting about the Center’s work and its development of best practices (that have already been widely accepted) is the way this group has facilitated and reinforced the belief that copyright is indeed relevant, in the world of documentary film studies as well as other areas. Of the many worthwhile objectives the Best Practices documents meets, unmasking copyright as relevant is a most remarkable achievement. Whether the Center affirmatively set out to establish the relevance of copyright or whether they were simply dealing with a uniquely “aware” group, I do not know.

I have come to the conclusion that the greatest challenge for campus copyright educators (as well as those trying to reach the general population) lies in helping individuals appreciate copyright’s intimate relationship to many of their daily activities, both at work and at play. If copyright is not understood and accepted as even being relevant to core campus activities – if it is viewed instead as optional or a “luxury”, educational efforts will not succeed. Indifference will rule the day and the campus will be unequipped to participate in the copyright debates and national discussions that currently dominate scholarly communication.

I have been involved in copyright education at higher education institutions for fifteen years; given and attended dozens and dozens of presentations and workshops all over the country; and developed several copyright educational web sites including the TEACH Act Toolkit and the Know Your Copy Rights. So I have spent some time in the various strongholds or centers of copyright expertise, understanding and appreciation. Being among like-minded colleagues is almost like a vacation. It’s at least a validation of your choice to spend your waking moments doing what others also consider a worthwhile venture. What a relief to be around people who understand the manner in which copyright has soaked into the very fabric of life in American – whatever their take on copyright law may be. For purposes of appreciating copyright’s role, its limitations, nuances, goals, and the opportunities present for shaping its evolution, it doesn’t even matter whether you are sitting amongst a group at the RIAA, MPAA, or AAP or at the EFF, Creative Commons, or Public Knowledge. Because in these groups, all are safe with the cocoon of consensus that copyright matters to the average person and has relevance to how various aspects of life are conducted.

These are great and stimulating places to spend time and I thoroughly believe in and applaud the work they do. However, I spend most of my time outside that cocoon, in the “trenches”, if you will. So do you, unless you’re one of the lucky few who get to skip that first great big hurdle – the one that consistently leaves most universities at the starting line on a horse that won’t run.

That hurdle is the complacency evident where copyright is concerned; the pervasive apathy that prevails in all (including, at times, the very upper administration) but a few areas or groups at the university; the belief that copyright plays no role in teaching and outreach activities. The conviction that copyright considerations are optional and that it is ridiculous, if not delusional, to suggest that permission might be necessary when all that is being done is using the best resources available to teach – a noble and worthy cause. Academia doesn’t make money from its works and is, in fact, happy to share them; ergo, the creators that are being “borrowed” from no doubt share that same attitude.

It becomes virtually impossible to convey copyright information and assistance to those who believe it has no current relevance to anything they do and has never had any relevance or inhibited their manner of presenting material to their students. They assert that the correctness of this attitude is evident in the lack of any negative consequences resulting from the practice of completely ignoring copyright law when teaching in the past. In that same past, when the copyright and distribution of copyrighted material was in “analog” form and face2face teaching was the norm, nothing happened if copyright was ignored by faculty (coursepack permissions were handled and paid for by copy shops and costs passed to the students). Now, in the digital world, they believe nothing has changed. Those who handle their own online courses or online components of courses generally believe that fair use and access controls suffice and copyright remains irrelevant.

Although I did not personally attend the 2009 Annual EDUCAUSE conference this past fall, I was able to view the keynote address by Lawrence Lessig online and it was fascinating. See “It is About Time: Getting Our Values Around Copyright” http://blip.tv.file/2827842. I recommend taking the time to listen to his presentation.

I mention it here because Dr. Lessig made several initial points, sometimes using quotes from Jessica Litman, that resonated powerfully with my growing observation that for most people, including or particularly those in higher education institutions, copyright is perceived as having no significant relevance to the core teaching mission of the university. Dr. Lessig refers to copyright as the huge elephant in the room but I would suggest that in many places, the elephant has left the building.

Dr. Lessig stated that, in the past, copyright played a tiny role in the way people engaged with their cultures. Quoting Dr. Litman, “At the turn of the century {19th to 20th}, U.S. copyright law was technical, inconsistent and difficult to understand but it didn’t apply to very many people or very many things… If you were an author or publisher,..playwright or producer of plays, or a printer, the copyright law bore on one’s business… But … booksellers, record publishers, motion picture producers, musicians, scholars, members of Congress, and consumers could go about their business without ever encountering a copyright problem.” Then, according to Dr. Lessig, things changed radically because of technology and the current context is one where copyright reaches across the spectrum of ways in which we engage in our culture.

Continues Litman, “Ninety years later, U.S. Copyright law is even more technical, inconsistent and difficult to understand; more importantly it touches everyone and everything…Technology, heedless of law, (emphasis added) has developed modes that insert multiple acts of reproduction and transmission – potentially actionable events under the copyright statute – into commonplace daily transactions. Most of us can no longer spend even an hour without colliding with the copyright law.” (emphasis added)

As I stand with a foot in each world, I wonder what hybrid copyright law creature will emerge from such incompatible versions of reality – those who recognize that a great deal of what they do is affected by copyright and those who barely give it a second thought. Where do you even begin? How can you possibly convince our children, our students, of the illegality of P2P music file sharing when their role models run digital music audio reserves or place entire music tracks in their online courses? That you cannot copy large portions of works when private companies are allowed into their library to scan entire library collections? How do you split those hairs in a way that is meaningful and credible to the average student?

In a world of scanning, burning, streaming, and ripping, how does copyright achieve relevance when campus leadership, down through the levels of the faculty pyramid, are satisfied with a courteous, but dismissive, nod in the direction of copyright? How can copyright be anything but ignored when educational institutions consider copyright education and guidance optional?

How does copyright achieve and maintain relevance in an atmosphere that acknowledges only that which threatens to cost a lot of money?

You got me.
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