Copyright for Educators

Case Study Week 6: Fair Use and OCW

Describe one scenario which you currently experience in which copyright is a factor in the use of learning materials. What is the relevant copyright law in your jurisdiction? Are there any relevant exceptions? Does the law hinder or assist you to obtain access? How could this scenario be improved by open educational resources? Are there any obstacles to using OER’s?  If so, please describe them, along with proposed solutions or work-arounds.

Scenario

Maria works in the faculty technology support office of a US-based institution and provides OpenCourseWare support. She helps professors convert their traditional courses into OpenCourseWare (OCW) courses. In addition to digitizing, designing, and assembling the layout of the OCW course, Maria also does a copyright check for each piece of course content in order to determine which materials can be included in the OCW version of the course and which cannot.

Maria has been working with Professor Crabb, who has recently decided to put his Cognition and Instruction course on the school’s OCW site. Maria discovers that a journal article used to illustrate the various aspects of meta-cognition is copyrighted by the publisher. Professor Crabb explains that he has always claimed fair use when making photocopies of the article. He feels that it illustrates an important point, and he doesn’t want to remove the article from the OCW course.

Questions on scenario:

1. Why might materials used in a face-to-face course require a copyright check before uploading the content as an OpenCourseWare course?

2. What are the four factors of fair use? Does fair use apply to OCW when the materials are made publicly available, such as in an OCW site? Why or why not?

3. What possible solutions or work arounds can Maria offer Professor Crabb?

4. Professor Crabb also wants to use an image for the course that is licensed CC-BY-NC-SA, but he insists on making his whole course CC-BY because he has been told it will be easier for others to reuse. How might you resolve this issue?

Responses:

1. The original contents of an instructor’s course must be vetted before releasing an OCW course because teachers often include copyrighted materials in teaching content used in a traditional classroom environment. Faculty are not always aware of copyright infringements, and some materials that have been illegally used in a classroom setting may expose an institution to legal risk when posted to the open web. However, it should be noted that fair use can and often does apply to material that is re-used in appropriate amounts and in a way that is “transformative,” or repurposed in a new context or for a new audience.

2.  The four factors of fair use are:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

While fair use can be invoked under US copyright law in the case of materials used in teaching, course materials hosted on an OpenCourseWare site are not necessarily protected the same way. Fair use might be harder to justify for an article that is available for purchase from a publisher because the free OCW article would then be available to anyone, for purposes that aren’t necessarily educational, and would also compete in the market for the original.

3. Copyrighted course content may be resolved in one of several ways:

1. Determine Fair Use: According to the recently published Code of Best Practices for Fair Use in Open Courseware, two guiding principles for determining fair use  most often used in OCW are as follows:

i. Is the re-use “transformative”— that is, does it add value to and repurpose preexisting material for a new audience?

ii. Is the amount of material taken appropriate to the re-use?

2. Request Permission: Permission to post the material to an OCW site may be requested of the copyright holder.

3. Link: If the work is legally available online, a simple solution could be to like to the original work. Links are not copyright infringements.

4. Replace: Equivalent, openly licensed content may be found or created in place of the original content.

5. Remove: If there is no other solution the copyrighted content must be removed.

4. Content that is easily used to create an OCW course includes works that are in the public domain or openly licensed with a compatible license. License compatibility should be mentioned here because a share-alike license may be unusable to a project with a different license. However, in this case, if the professor doesn’t wish to modify the SA-licensed work and only plans to reproduce it in his course, then license compatibility is not an issue because he is not creating a derivative work he is simply making a copy. The license compatibility matrix provides a good overview of license compatibility or incompatibility. If OER components can be used to create OCW content, it can greatly improves the instructor’s ability to remix and reuse existing content, provided that the original license does not impede its reuse. Fair use may still be claimed in situations of license incompatibility, so this can seve as an alternative route to reuse provided the conditions of appropriate fair use are met.