DRM & the Undefined Future of Online Education
Posted by Garland H. Green Jr in
Tuesday, December 2. 2008
The last decade has seen the development of new online media technologies that have sparked new and innovative ways to deliver content to the home user. The deployment of increased connectivity mechanisms, commonly referred to as “broadband” technologies, has led to the increase in faster and more stable networks, supported by affordable commercial pricing structures, often times bundled with more traditional media content packages such as cable and satellite. Such providers as Dish Network, Cox Cable, Directv, and most recently, Charter Communication, now boasts that their customers can “(e)njoy blazing-fast speeds up 16Mbps” (fast enough to watch a full screen movie) for just under sixty dollars a month.
These new developments in broadband connectivity and affordability have allowed for the increased ability to download data and opened the door for these new delivery technologies to flourish. With these new technologies has come an increased ability to deliver more content rich information to students. This is done through the use of web-ready presentations. These tools have tested the ability of educational institutions to monitor the use of these technologies as well as pushing the laws of the United States and their ability to keep up. But these developments have had a tremendous impact on the way K-12 educational institutions comply with Digital Rights Management (DRM) and Fair Use in the twenty-first century when it applies to distance education.
This paper, and the research contained within, is intended to be a guide for educators and administrators to use as they evaluate these new technologies, in particular, streaming technologies, used in an online and virtual educational setting. While serving as supporting document in the development of policy for the Sonoma Academy, it is offered as an addition to the broader dialog of DRM within K-12 organizations, and the surrounding challenges associated with complying with all laws, and the development of online programs.
With the exception of dedicated criminal elements, few organizations intentionally set out to break copyright law. But even fewer institutions have the resources needed to employ a full time copyright expert to continually monitor compliance with the ever-changing issues surrounding digital rights management and international copyright law. It is for that reason the K-12 organizations have tried to place the responsibility for copyright oversight and enforcement within the portfolios of existing library and media specialists. In the past, DRM and the responsibility for institutional oversight was traditionally the responsibility of the library and media specialists (librarians) to teach their staff about digital rights management. This portfolio structure required that these specialists deal with two very distinctively different content areas: traditional DRM focused on books and magazines and the photocopying of the media, and now the digital accountability and streaming media technologies that have emerged within the last ten years. Furthermore, what is complicating the need for digital copyright oversight has been who within the organization will have the responsibility for ensuring copyright oversight?
What makes this even more complicated is there is a growing need to support online curricular developments by using these new technologies and this has stressed educational organizations' ability to deliver and still comply with copyright law. K-12 institutions at one time had only to concern themselves with supporting media demands within the traditional brick-and-motor school.
There have been many efforts in the past to support the media professionals, and to provide guidelines to aid them with copyright compliance. These guidelines gave traditional educational organizations an umbrella protection that made the use of media rich content broadly available to their teachers and allowed them to adhere to the copyright laws of the nation. These protections were broadly referred to as Fair Use. Before 1980 the concern for media professionals had to deal with following copyright law regarding the recording of video off the airwaves, or “off-air” recordings. It is for that reason Congressman Robert Kastenmeier (Chairman of the House Subcommittee on Courts, Civil Liberties and Administration of Justice), appointed a Negotiating Committee the purpose of establishing these guidelines to provide standards for both owners and users of content.
These guidelines in no way could have predicted the impact that the Internet would have on the development of new audiovisual technologies (RealMedia, QuickTime, MythTV, the iTunes Store, Hulu.com and Blinkbox.com). Furthermore, the guidelines were so restrictive that they did not allow for the legal long term storage made possible by the drastic drop in storage cost. While one could argue that the guidelines were well meaning, they had the result of being more effective in limiting use than allowing it. They even went so far as to define the amount of time the teacher had to preview a piece of work and determine if she wanted to use it in her curriculum.
But even in 1979 Congress understood that new technologies would challenge existing copyright law as well as the impact they would have on the way educators and library and media specialists would need to approach copyright. Congress could not know that educators would be grappling with a moving target of compliance with the development of the home-computer-to-home-computer sharing software first pioneer by Napster. The home-computer-to-home-computer technology has become known as Peer-to-Peer (P2P), in which every computer involved in sharing information is both a server and recipient. But with robust, and affordable, networks within the realm of possibilities, the Copyright Act, and the work done by Congressman Kastenmeier, was fast becoming outdated and ineffective.
By October 2002 these networks had become affordable possibilities and universities had to find ways to meet their responsibility to provide good educational content and yet adhere to digital copyright. Educators have long felt protected by the umbrella of “Fair Use” and by the fact that their end user was a teacher working in an accredited educational institution or a student doing pedagogical research. However, the impact of asynchronous delivery systems, in which the educational information is stored on a school's server and is then accessed at another time by students at their convenience changed the nature of oversight and required a closer look at how media was stored and disseminated.
By definition, innovation of these new media moves beyond the laws that were written to regulate information use. You need the protection of intellectual property in order to grow new media and yet you need the development of new technologies to transfer it. However, the development of new technologies put stresses on the ability to ensure protection. K-12 organizations are confused and frustration about how to use media materials and still comply with the law. A candid look at how teachers and media professionals are coping is important.
Media literacy educators experienced the copyright information they received as mostly negative, and mostly hampering their pedagogical goals. Some responded by attempting studied ignorance, believing that increased knowledge would impede their work even more.” In this case, ignorance is truly bliss. However, still other teachers simply “(c)lose the door. Quiet defiance of copyright norms (as understood), within the four walls of a classroom, is common.”
But the real cost to the educational institution is not simply in paying for the time spent by media literacy professionals chasing down the best practices for a specific use of a particular piece of supporting media, the real cost may, in fact be in hyper-compliance with the law that blocks legitimate use of content. As the Center for Social Media points out:
Forasmuch as educators and media literacy professionals, in good faith, attempt to comply with the copyright responsibilities of the K-12 organization, there is a cost associated with understanding, or misunderstanding, what is required by copyright law. Relying too heavily on old information learned over the years or at a teacher or media conference may be as negligent as not adhering to the copyright laws at all. In this case there may be unduly restrictive rules that are in place and hamper legitimate access to media under the Fair Use sections of the Copyright Act.
The challenges facing K-12 organizations are many if they wish to move forward with distance, asynchronous and online education. These challenges are both understood and very well articulated by the American Library Association (ALA): “To understand the magnitude of the issues at stake, one needs to comprehend, not only the growth of distance education, but also the expansion of copyright protection.” What makes digital copyright in educational more challenging is that no longer are there boundaries associated with educational facilities. Sonoma Academy can be found at www.sonomaacademy.org. Because Sonoma Academy has a web presence it has a global presence that has to be taken into consideration when sharing content with students. As the World Bank points out:
There is tremendous growth and diversity in distance education--in the number and types of individuals learning outside traditional classrooms, in the variety of providers, and in the range and effectiveness of new technologies serving as delivery tools for learning. Distance education is becoming increasingly global, creating myriad new alliances as traditional educational institutions join with businesses, foreign governments, and international organizations to offer and use distance learning. Developing countries now have new opportunities to access knowledge and enhance their human capital. |
Therefore, just as the World Bank has followed the lead of the United States with the language of the General Agreement on Tariff and Trade (US GATT), there is a precedent and a reason to believe that the US copyright language, as it applies to distance education, could become the road map for how the world moves forward with copyright and Fair Use. Let's be clear that when we talk about distance education we are almost always talking about the asynchronous delivery of content on a restricted-access network, that is to say a network that has strong controls over who can access and post information online, and is posted for the purpose of educating students. The most common form of oversight is primarily delivered through the use of a user name and password. Therefore, copyrighted material that is transmitted over a restricted-access network for the purpose of educating students gives the educational institution a copyright advantage over commercial organizations.
However, a certain amount of policy heavy lifting must be done before these educational organizations can enjoy these advantages. It is most preferable to have formalized policies, in place before posting copyrighted material online to be used for distance education, however, it is not necessary. There must be at least a set of informal policies dictating how educational institutions govern the way instructors post copyrighted material online. To comply with both the spirit and the letter of the TEACH Act (Technology, Education and Copyright Harmonization Act of 2002), school districts and universities should have board-approved standing policy that dictates what can be posted online, but again, this is not necessary as long as there is a deliberate and concerted action leading to a final board policy.
Unlike previous copyright law, the TEACH Act eliminates the requirement of a physical classroom. However, section 110(2)(C) of the TEACH Act makes it clear that:
(T)he transmission must be made solely for, and, to the extent technologically feasible the reception of the transmission must be limited to, two defined classes of eligible recipients: students officially enrolled in the course for which the transmission is made; and officers or employees of governmental bodies as part of their official duties of employment.
In those instances where a teacher may be concerned about posting information online for their students, three important criteria should be met:
But the law also makes it clear that even if you meet the criteria above, it is important for educators to know that material posted simply as complementary content or used for entertainment purposes (similar to showing a movie in class before the Christmas break) may not be covered by Fair Use and or the TEACH Act. Furthermore, material should not “...be retained no longer than reasonably necessary to complete the transmission.” This means that allowing students to download content and store it indefinitely will not be covered under Fair Use. There is an admission by lawmakers that, while streaming technologies with restrictive safeguards are available, not all educational facilities have access to these technologies for a multitude of reasons. Again, there has to be a demonstrated, deliberate, and concerted action that puts these technologies and safeguards in place when the reasons for not having them are eliminated.
Like previous efforts to clarify the Fair Use of copyrighted material for educators, technology has moved past even the TEACH Act of 2002. However, what has not changed is the requirement that the educators respect the rights of the copyright holder. If a decision is made by the copyright holder to place copyright protections on their content, the educator must respect these protections to the extent technically possible. That is to say that if a piece of music is purchased from Apple's iTunes store with built-in digital rights management, then the educator is required to adhere to these protections and not remove them, even if it is technically possible. If these protections are not acceptable to the educational institution, then policies that require the purchasing of continent that does not come with such restrictive digital rights should be adopted. To further complicate the matter, such sites as Hulu.com, which allow for the embedding of their content into distance learning tools, must not be striped of the digital rights associated with the content as well as the commercials that are part of the shared content. Section 110(2)(C) makes clear that the educational institution is responsible for understanding the digital rights measures that the content producer has deployed and may not “...engage in conduct that could reasonably be expected to interfere with [such] technological measures.” This includes oversight of all users on the school's system.
The TEACH Act has amended section 112 of the Copyright Act to take into account the so-called “ephemeral recordings” that require a limited long-term retention of copies of copyrighted materials. Ephemeral, in this case, is content that is sent to the end user over a broadband network for only the time required to view or listen to the content, which must then no longer be available to students. This is often referred to as “streaming technologies” where the content is played and is not available to be stored on the client computer for future use. This means that institutions can store copyrighted material on a server, as long as once the content is shared with students “...the content may thereafter be placed in storage and outside the reach of students.”
The TEACH Act allows for specific pieces of work to be shown in an asynchronous environment. More important than what the TEACH Act allows is what it specifically forbids. An educator cannot show work that is marketed and intended for dramatic performance only. It is also made very clear that content that is obtained in an illegal manor can not be used in any way. Therefore, if an educator videotapes a school play and posts that online, they are not covered under the umbrella of Fair Use. Nor is that teacher protected from possible penalties of law if that teacher accepts a “ripped” copy of a movie or downloads that movie using P2P software such as that which can be obtained from Bittorrent.com. While there are many and varied circumstances which the Copyright Act and the 2002 TEACH Act must cover, the one underlying theme that will be considered when the law is applied is, “What were the intentions of the educator at the time that they posted the materials?”
If the educator obtained the material legally, used it as an integral part of their curriculum, made themselves aware of the policies of the educational institution, and used all technical means available to limit access to only students enrolled in their class, then the chances of violating either the Copyright Act or the TEACH are almost none. In fact, “(t)here's never been a lawsuit involving a media company and an educator over the rights to use media as part of the educational process.”
While there has not been any litigation leveled against an educator, what is made very clear is that educational institutions must set aside funds to purchase digital content to replace old, outdated, or analog content if they wish to share it digitally and in an online, asynchronous, distance education environment. While costly and possibly inconvenient, the only provision available that allows for the conversion from analog to digital is if there are no digital opportunities available for purchase. Fair Use does not extend to content that is was not originally purchased in digital form.
There have been many efforts to not only understand copyright law by educational institutions, but to apply it. However, these efforts have fallen short, not in spite of educators' efforts, but because of them. Peter Jaszi, Law Professor, American University concludes:
As much as the Fair Use has been rigid, conservative and outmoded for educators, it has been equally ineffective in keeping up with the delivery and storage mechanisms that emerged over the last decade. With the cost of storage dropping to almost nothing per megabyte, the ability to store digital content on a centralized storage facility has become not only affordable, but also desirable. Robust fiber optic networks and the ability to store and disseminate the digital content needed to support distance education have pushed existing copyright law to a point where the application of the law needs to be challenged. Teachers have started to do that.
The current Copyright Law, and the TEACH Act make it clear that teachers can capture their in-class discussions and post them, even if the course shows copyrighted material. What is in question is the amount of time it may keep these materials. There must, however, be technical measures to prevent “retention of the work in accessible form by recipients of the transmission . . . for longer than the class session.” What is not known, and is not defined, is what constitutes the “class session?” This is something that should be addressed in policy since it has been argued that the class session is the length of time that the class is offered.
Nonetheless, the ability to store digital content and distribute it over a restricted-access network is clear but the ability to store and maintain it is not as clear. The interpretation of Fair Use also applies to storage of media, but these new technologies require that educational institutions deploy additional accountability mechanisms.
The one technology that holds the best promise of meeting the requirements of current copyright laws, and yet does not hamper the Fair Use of content, is ephemeral or streaming technology. Since this technology allows for control over the ability to download and store data, it can be used to limit the availability of content by controlling access via server-side controls, rather than relying on the individual teacher to meet the copyright requirements of law. By managing availability on the server, educational institutions can turn on and off content stored in directories.
For many institutions there is a concern that by simply providing access to copyrighted content to students, the students will use technology to capture and maintain a copy of the school's content, and on their own, create a liability for the educational institution. In addition, such technologies as MythTV, which acts like a digital video recorder (DVR) with a long cable, allow teachers to record television programming that was once provided through “Cable in the Classroom” and show them to their students online. These technologies have become available after the TEACH Act was enacted and once again require an understanding of copyright law. The courts look at the initial intent of the educator when it comes to copyright compliance; however, on August 14, 2008 the United States Court of Appeals for the Second Circuit in New York ruled in favor of cable companies and Fair Use. While I concede that finding good case law that applies to an educational environment is limited, it appears that the courts have started to look closer at opening up the definition and application of how it applies to the use of legitimate content.
In closing, the need for teachers and educational institutions to rely heavily on the TEACH Act to guide their practice is clear. Since the act was written to support the growth of online education, it takes into account the need to deliver rich content to a student who may never enter a physical classroom, balanced against copyright agreements intended to protect the intellectual property of the holder. Furthermore, the TEACH Act takes into consideration the evolving nature of digital content delivery and is broad enough to grow with the rapidly changing market place. Ultimately, however, it is educators, and administrators, who must adapt their practices in light of a constantly evolving copyright law. Even with the broad protections provided to educators under Fair Use, and the TEACH Act, there must be an understanding that technology, and by extension online education, will be constantly changing and the laws will always struggle to adapt.
These new developments in broadband connectivity and affordability have allowed for the increased ability to download data and opened the door for these new delivery technologies to flourish. With these new technologies has come an increased ability to deliver more content rich information to students. This is done through the use of web-ready presentations. These tools have tested the ability of educational institutions to monitor the use of these technologies as well as pushing the laws of the United States and their ability to keep up. But these developments have had a tremendous impact on the way K-12 educational institutions comply with Digital Rights Management (DRM) and Fair Use in the twenty-first century when it applies to distance education.
This paper, and the research contained within, is intended to be a guide for educators and administrators to use as they evaluate these new technologies, in particular, streaming technologies, used in an online and virtual educational setting. While serving as supporting document in the development of policy for the Sonoma Academy, it is offered as an addition to the broader dialog of DRM within K-12 organizations, and the surrounding challenges associated with complying with all laws, and the development of online programs.
With the exception of dedicated criminal elements, few organizations intentionally set out to break copyright law. But even fewer institutions have the resources needed to employ a full time copyright expert to continually monitor compliance with the ever-changing issues surrounding digital rights management and international copyright law. It is for that reason the K-12 organizations have tried to place the responsibility for copyright oversight and enforcement within the portfolios of existing library and media specialists. In the past, DRM and the responsibility for institutional oversight was traditionally the responsibility of the library and media specialists (librarians) to teach their staff about digital rights management. This portfolio structure required that these specialists deal with two very distinctively different content areas: traditional DRM focused on books and magazines and the photocopying of the media, and now the digital accountability and streaming media technologies that have emerged within the last ten years. Furthermore, what is complicating the need for digital copyright oversight has been who within the organization will have the responsibility for ensuring copyright oversight?
What makes this even more complicated is there is a growing need to support online curricular developments by using these new technologies and this has stressed educational organizations' ability to deliver and still comply with copyright law. K-12 institutions at one time had only to concern themselves with supporting media demands within the traditional brick-and-motor school.
There have been many efforts in the past to support the media professionals, and to provide guidelines to aid them with copyright compliance. These guidelines gave traditional educational organizations an umbrella protection that made the use of media rich content broadly available to their teachers and allowed them to adhere to the copyright laws of the nation. These protections were broadly referred to as Fair Use. Before 1980 the concern for media professionals had to deal with following copyright law regarding the recording of video off the airwaves, or “off-air” recordings. It is for that reason Congressman Robert Kastenmeier (Chairman of the House Subcommittee on Courts, Civil Liberties and Administration of Justice), appointed a Negotiating Committee the purpose of establishing these guidelines to provide standards for both owners and users of content.
These guidelines in no way could have predicted the impact that the Internet would have on the development of new audiovisual technologies (RealMedia, QuickTime, MythTV, the iTunes Store, Hulu.com and Blinkbox.com). Furthermore, the guidelines were so restrictive that they did not allow for the legal long term storage made possible by the drastic drop in storage cost. While one could argue that the guidelines were well meaning, they had the result of being more effective in limiting use than allowing it. They even went so far as to define the amount of time the teacher had to preview a piece of work and determine if she wanted to use it in her curriculum.
But even in 1979 Congress understood that new technologies would challenge existing copyright law as well as the impact they would have on the way educators and library and media specialists would need to approach copyright. Congress could not know that educators would be grappling with a moving target of compliance with the development of the home-computer-to-home-computer sharing software first pioneer by Napster. The home-computer-to-home-computer technology has become known as Peer-to-Peer (P2P), in which every computer involved in sharing information is both a server and recipient. But with robust, and affordable, networks within the realm of possibilities, the Copyright Act, and the work done by Congressman Kastenmeier, was fast becoming outdated and ineffective.
By October 2002 these networks had become affordable possibilities and universities had to find ways to meet their responsibility to provide good educational content and yet adhere to digital copyright. Educators have long felt protected by the umbrella of “Fair Use” and by the fact that their end user was a teacher working in an accredited educational institution or a student doing pedagogical research. However, the impact of asynchronous delivery systems, in which the educational information is stored on a school's server and is then accessed at another time by students at their convenience changed the nature of oversight and required a closer look at how media was stored and disseminated.
By definition, innovation of these new media moves beyond the laws that were written to regulate information use. You need the protection of intellectual property in order to grow new media and yet you need the development of new technologies to transfer it. However, the development of new technologies put stresses on the ability to ensure protection. K-12 organizations are confused and frustration about how to use media materials and still comply with the law. A candid look at how teachers and media professionals are coping is important.
Media literacy educators experienced the copyright information they received as mostly negative, and mostly hampering their pedagogical goals. Some responded by attempting studied ignorance, believing that increased knowledge would impede their work even more.” In this case, ignorance is truly bliss. However, still other teachers simply “(c)lose the door. Quiet defiance of copyright norms (as understood), within the four walls of a classroom, is common.”
But the real cost to the educational institution is not simply in paying for the time spent by media literacy professionals chasing down the best practices for a specific use of a particular piece of supporting media, the real cost may, in fact be in hyper-compliance with the law that blocks legitimate use of content. As the Center for Social Media points out:
(s)ome people—even some of the same people—also over-comply with copyright law, and even forgo using legitimate teaching tools and techniques for fear of violating copyright The true cost of this willingness to hyper-comply is that (t)he pedagogical costs of studied ignorance, quiet transgression, and hyper-compliance are many. The quality of the curriculum materials that teachers design is impaired; the work that is created, either by students or teachers, has limited circulation; and students learn copyright misconceptions.
Forasmuch as educators and media literacy professionals, in good faith, attempt to comply with the copyright responsibilities of the K-12 organization, there is a cost associated with understanding, or misunderstanding, what is required by copyright law. Relying too heavily on old information learned over the years or at a teacher or media conference may be as negligent as not adhering to the copyright laws at all. In this case there may be unduly restrictive rules that are in place and hamper legitimate access to media under the Fair Use sections of the Copyright Act.
The challenges facing K-12 organizations are many if they wish to move forward with distance, asynchronous and online education. These challenges are both understood and very well articulated by the American Library Association (ALA): “To understand the magnitude of the issues at stake, one needs to comprehend, not only the growth of distance education, but also the expansion of copyright protection.” What makes digital copyright in educational more challenging is that no longer are there boundaries associated with educational facilities. Sonoma Academy can be found at www.sonomaacademy.org. Because Sonoma Academy has a web presence it has a global presence that has to be taken into consideration when sharing content with students. As the World Bank points out:
There is tremendous growth and diversity in distance education--in the number and types of individuals learning outside traditional classrooms, in the variety of providers, and in the range and effectiveness of new technologies serving as delivery tools for learning. Distance education is becoming increasingly global, creating myriad new alliances as traditional educational institutions join with businesses, foreign governments, and international organizations to offer and use distance learning. Developing countries now have new opportunities to access knowledge and enhance their human capital. |
Therefore, just as the World Bank has followed the lead of the United States with the language of the General Agreement on Tariff and Trade (US GATT), there is a precedent and a reason to believe that the US copyright language, as it applies to distance education, could become the road map for how the world moves forward with copyright and Fair Use. Let's be clear that when we talk about distance education we are almost always talking about the asynchronous delivery of content on a restricted-access network, that is to say a network that has strong controls over who can access and post information online, and is posted for the purpose of educating students. The most common form of oversight is primarily delivered through the use of a user name and password. Therefore, copyrighted material that is transmitted over a restricted-access network for the purpose of educating students gives the educational institution a copyright advantage over commercial organizations.
However, a certain amount of policy heavy lifting must be done before these educational organizations can enjoy these advantages. It is most preferable to have formalized policies, in place before posting copyrighted material online to be used for distance education, however, it is not necessary. There must be at least a set of informal policies dictating how educational institutions govern the way instructors post copyrighted material online. To comply with both the spirit and the letter of the TEACH Act (Technology, Education and Copyright Harmonization Act of 2002), school districts and universities should have board-approved standing policy that dictates what can be posted online, but again, this is not necessary as long as there is a deliberate and concerted action leading to a final board policy.
Unlike previous copyright law, the TEACH Act eliminates the requirement of a physical classroom. However, section 110(2)(C) of the TEACH Act makes it clear that:
(T)he transmission must be made solely for, and, to the extent technologically feasible the reception of the transmission must be limited to, two defined classes of eligible recipients: students officially enrolled in the course for which the transmission is made; and officers or employees of governmental bodies as part of their official duties of employment.
In those instances where a teacher may be concerned about posting information online for their students, three important criteria should be met:
1. Is the institution recognized by an accredited governmental body as an educational institution,
2. Is the information protected from public and intended to be used and “...directly related and of material assistance to the teaching content of the transmission,” and
3. Has the educational institution legally obtained the material needed to support the curriculum?
But the law also makes it clear that even if you meet the criteria above, it is important for educators to know that material posted simply as complementary content or used for entertainment purposes (similar to showing a movie in class before the Christmas break) may not be covered by Fair Use and or the TEACH Act. Furthermore, material should not “...be retained no longer than reasonably necessary to complete the transmission.” This means that allowing students to download content and store it indefinitely will not be covered under Fair Use. There is an admission by lawmakers that, while streaming technologies with restrictive safeguards are available, not all educational facilities have access to these technologies for a multitude of reasons. Again, there has to be a demonstrated, deliberate, and concerted action that puts these technologies and safeguards in place when the reasons for not having them are eliminated.
Like previous efforts to clarify the Fair Use of copyrighted material for educators, technology has moved past even the TEACH Act of 2002. However, what has not changed is the requirement that the educators respect the rights of the copyright holder. If a decision is made by the copyright holder to place copyright protections on their content, the educator must respect these protections to the extent technically possible. That is to say that if a piece of music is purchased from Apple's iTunes store with built-in digital rights management, then the educator is required to adhere to these protections and not remove them, even if it is technically possible. If these protections are not acceptable to the educational institution, then policies that require the purchasing of continent that does not come with such restrictive digital rights should be adopted. To further complicate the matter, such sites as Hulu.com, which allow for the embedding of their content into distance learning tools, must not be striped of the digital rights associated with the content as well as the commercials that are part of the shared content. Section 110(2)(C) makes clear that the educational institution is responsible for understanding the digital rights measures that the content producer has deployed and may not “...engage in conduct that could reasonably be expected to interfere with [such] technological measures.” This includes oversight of all users on the school's system.
The TEACH Act has amended section 112 of the Copyright Act to take into account the so-called “ephemeral recordings” that require a limited long-term retention of copies of copyrighted materials. Ephemeral, in this case, is content that is sent to the end user over a broadband network for only the time required to view or listen to the content, which must then no longer be available to students. This is often referred to as “streaming technologies” where the content is played and is not available to be stored on the client computer for future use. This means that institutions can store copyrighted material on a server, as long as once the content is shared with students “...the content may thereafter be placed in storage and outside the reach of students.”
The TEACH Act allows for specific pieces of work to be shown in an asynchronous environment. More important than what the TEACH Act allows is what it specifically forbids. An educator cannot show work that is marketed and intended for dramatic performance only. It is also made very clear that content that is obtained in an illegal manor can not be used in any way. Therefore, if an educator videotapes a school play and posts that online, they are not covered under the umbrella of Fair Use. Nor is that teacher protected from possible penalties of law if that teacher accepts a “ripped” copy of a movie or downloads that movie using P2P software such as that which can be obtained from Bittorrent.com. While there are many and varied circumstances which the Copyright Act and the 2002 TEACH Act must cover, the one underlying theme that will be considered when the law is applied is, “What were the intentions of the educator at the time that they posted the materials?”
If the educator obtained the material legally, used it as an integral part of their curriculum, made themselves aware of the policies of the educational institution, and used all technical means available to limit access to only students enrolled in their class, then the chances of violating either the Copyright Act or the TEACH are almost none. In fact, “(t)here's never been a lawsuit involving a media company and an educator over the rights to use media as part of the educational process.”
While there has not been any litigation leveled against an educator, what is made very clear is that educational institutions must set aside funds to purchase digital content to replace old, outdated, or analog content if they wish to share it digitally and in an online, asynchronous, distance education environment. While costly and possibly inconvenient, the only provision available that allows for the conversion from analog to digital is if there are no digital opportunities available for purchase. Fair Use does not extend to content that is was not originally purchased in digital form.
There have been many efforts to not only understand copyright law by educational institutions, but to apply it. However, these efforts have fallen short, not in spite of educators' efforts, but because of them. Peter Jaszi, Law Professor, American University concludes:
The so-called Fair Use guidelines on topics like photocopying and off-air taping are rigid, conservative, outmoded interpretations of the law, not the law itself. They no longer reflect the realities of the classroom, if they ever did. Today, they are strangling educational practice, rather than enabling it.
As much as the Fair Use has been rigid, conservative and outmoded for educators, it has been equally ineffective in keeping up with the delivery and storage mechanisms that emerged over the last decade. With the cost of storage dropping to almost nothing per megabyte, the ability to store digital content on a centralized storage facility has become not only affordable, but also desirable. Robust fiber optic networks and the ability to store and disseminate the digital content needed to support distance education have pushed existing copyright law to a point where the application of the law needs to be challenged. Teachers have started to do that.
The current Copyright Law, and the TEACH Act make it clear that teachers can capture their in-class discussions and post them, even if the course shows copyrighted material. What is in question is the amount of time it may keep these materials. There must, however, be technical measures to prevent “retention of the work in accessible form by recipients of the transmission . . . for longer than the class session.” What is not known, and is not defined, is what constitutes the “class session?” This is something that should be addressed in policy since it has been argued that the class session is the length of time that the class is offered.
Nonetheless, the ability to store digital content and distribute it over a restricted-access network is clear but the ability to store and maintain it is not as clear. The interpretation of Fair Use also applies to storage of media, but these new technologies require that educational institutions deploy additional accountability mechanisms.
The one technology that holds the best promise of meeting the requirements of current copyright laws, and yet does not hamper the Fair Use of content, is ephemeral or streaming technology. Since this technology allows for control over the ability to download and store data, it can be used to limit the availability of content by controlling access via server-side controls, rather than relying on the individual teacher to meet the copyright requirements of law. By managing availability on the server, educational institutions can turn on and off content stored in directories.
For many institutions there is a concern that by simply providing access to copyrighted content to students, the students will use technology to capture and maintain a copy of the school's content, and on their own, create a liability for the educational institution. In addition, such technologies as MythTV, which acts like a digital video recorder (DVR) with a long cable, allow teachers to record television programming that was once provided through “Cable in the Classroom” and show them to their students online. These technologies have become available after the TEACH Act was enacted and once again require an understanding of copyright law. The courts look at the initial intent of the educator when it comes to copyright compliance; however, on August 14, 2008 the United States Court of Appeals for the Second Circuit in New York ruled in favor of cable companies and Fair Use. While I concede that finding good case law that applies to an educational environment is limited, it appears that the courts have started to look closer at opening up the definition and application of how it applies to the use of legitimate content.
In closing, the need for teachers and educational institutions to rely heavily on the TEACH Act to guide their practice is clear. Since the act was written to support the growth of online education, it takes into account the need to deliver rich content to a student who may never enter a physical classroom, balanced against copyright agreements intended to protect the intellectual property of the holder. Furthermore, the TEACH Act takes into consideration the evolving nature of digital content delivery and is broad enough to grow with the rapidly changing market place. Ultimately, however, it is educators, and administrators, who must adapt their practices in light of a constantly evolving copyright law. Even with the broad protections provided to educators under Fair Use, and the TEACH Act, there must be an understanding that technology, and by extension online education, will be constantly changing and the laws will always struggle to adapt.
But in the end it is the responsibility of the educator to follow logical best practices as a matter of policy.
Stone, Brad. "Testing Over, Hulu.com to Open Its TV and Film Offerings This Week." New York Times 11 March, 2008 Retrieved from http://www.nytimes.com/2008/03/11/business/media/11hulu.html
Brooks-Young, Susan. "Video Streaming: Harnessing a Unique Capability of Technology" Today's School, Shared Leadership in Education. 30 March, 2008. Retrieved from http://www2.peterli.com/ts/resources/articles/archive.php?article_id=912
"U.S. Colleges Reeling from Financial Crisis" News Max. 30 October, 2008. Retrieved from http://www.newsmax.com/newsfront/unversities_in_crisis/2008/10/30/146095.html
Rothman, David H. "Copyright and K-12: Who Pays in the Network Era?" U.S. Department of Education. 18 September, 2007. Retrieved from http://www.ed.gov/Technology/Futures/rothman.html
Doggett, Sandra L., Montgomery, Paula Kay. "Beyond the Book: Technology Integration Into the Secondary School Library Media Curriculum" Libraries Unlimited. Portsmouth, NH 2000.
Brown,Mary Daniels. "Outdated School Libraries: What Can You Do to Update Yours?" Education World. 01 August, 2000. Retrieved from http://www.educationworld.com/a_admin/admin/admin181.shtml
Pappas, Marjorie L. "Virtual School Library Media Center Management Manual" School Library Media Activities Monthly. January, 2005. Retrieved from http://www.schoollibrarymedia.com/columns/management/index.html
"The 20-Questions Fair Use Copyright Quiz" Glencoe/McGraw-Hill 30 November, 2008. Retrieved from http://www.glencoe.com/sec/computered/col/chapter1/rules/fair_use_quizfrm.html
"Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code" United States Copyright Office. 20 November, 2007. Retrieved from http://www.copyright.gov/title17/92chap1.html#107
"Report of the Conference Committee on the new copyright law H.R. Rep. No. 94-1733", November, 2007. Retrieved from www.copyright.gov/circs/circ21.pdf
"Copyright and the DMCA." 30 November, 2008. MOREnet Retrieved from http://www.more.net/about/articles/2003/dmca-copyright.html
Fisher, William W. McGeveran, William. "The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age" Social Science Research Network 04 November, 2008. Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=923465
Hirtle, Peter B. "Copyright Term and the Public Domain in the United States" Cornell University 10 January, 2008. Retrieved from http://www.copyright.cornell.edu/public_domain/
Hobbs, Renee., Jaszi, Peter. Aufderheide, Pat. "The Cost of Copyright Confusion for Media Literacy" Center for Social Media School of Communications American University. September, 2007. Retrieved from
http://www.centerforsocialmedia.org/files/pdf/Final_CSM_copyright_report.pdf
Crews, Kenneth D. "Distance Education and the TEACH Act" American Library Association 30 November, 2008. Retrieved from http://www.ala.org/ala/aboutala/offices/wo/woissues/copyrightb/federallegislation/distanceed/distanceeducation.cfm#background
Potashink, Michael., Capper, Joanne. "Distance Education: Growth and Diversity" World Bank March, 1998. Retrieved from http://www.worldbank.org/fandd/english/0398/articles/0110398.htm
Crews, Kenneth D. "New Copyright Law for Distance Education: The Meaning and Importance of the TEACH Act" Copyright Management Center, Indeiana University - Purdue University at Indianapolis. 10 November, 2003. Retrieved from http://www.copyright.iupui.edu/teach_summary.htm
Hobbs, Renee., Jaszi, Peter. Aufderheide, Patricia. "Ten Common Misunderstandings about Fair Use." Philadelphia: Media Education Lab. 30 November, 2008. Retrieved from: http://mediaeducationlab.com/index.php?page=274
"The Code of Best Practices in Fair Use for Media Literacy Education" Center for Social Media School of Communications American University. November, 2008. Retrieved from http://www.centerforsocialmedia.org/resources/publications/code_for_media_literacy_education/
"The Cartoon Network LP, LLLP v. CSC Holdings, Inc. United States Court of Appeals for the Second Circuit" 04 August, 2007. Retrieved from http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA3LTE0ODAtY3Zfb3BuLnBkZg==/07-1480-cv_opn.pdf
Brooks-Young, Susan. "Video Streaming: Harnessing a Unique Capability of Technology" Today's School, Shared Leadership in Education. 30 March, 2008. Retrieved from http://www2.peterli.com/ts/resources/articles/archive.php?article_id=912
"U.S. Colleges Reeling from Financial Crisis" News Max. 30 October, 2008. Retrieved from http://www.newsmax.com/newsfront/unversities_in_crisis/2008/10/30/146095.html
Rothman, David H. "Copyright and K-12: Who Pays in the Network Era?" U.S. Department of Education. 18 September, 2007. Retrieved from http://www.ed.gov/Technology/Futures/rothman.html
Doggett, Sandra L., Montgomery, Paula Kay. "Beyond the Book: Technology Integration Into the Secondary School Library Media Curriculum" Libraries Unlimited. Portsmouth, NH 2000.
Brown,Mary Daniels. "Outdated School Libraries: What Can You Do to Update Yours?" Education World. 01 August, 2000. Retrieved from http://www.educationworld.com/a_admin/admin/admin181.shtml
Pappas, Marjorie L. "Virtual School Library Media Center Management Manual" School Library Media Activities Monthly. January, 2005. Retrieved from http://www.schoollibrarymedia.com/columns/management/index.html
"The 20-Questions Fair Use Copyright Quiz" Glencoe/McGraw-Hill 30 November, 2008. Retrieved from http://www.glencoe.com/sec/computered/col/chapter1/rules/fair_use_quizfrm.html
"Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code" United States Copyright Office. 20 November, 2007. Retrieved from http://www.copyright.gov/title17/92chap1.html#107
"Report of the Conference Committee on the new copyright law H.R. Rep. No. 94-1733", November, 2007. Retrieved from www.copyright.gov/circs/circ21.pdf
"Copyright and the DMCA." 30 November, 2008. MOREnet Retrieved from http://www.more.net/about/articles/2003/dmca-copyright.html
Fisher, William W. McGeveran, William. "The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age" Social Science Research Network 04 November, 2008. Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=923465
Hirtle, Peter B. "Copyright Term and the Public Domain in the United States" Cornell University 10 January, 2008. Retrieved from http://www.copyright.cornell.edu/public_domain/
Hobbs, Renee., Jaszi, Peter. Aufderheide, Pat. "The Cost of Copyright Confusion for Media Literacy" Center for Social Media School of Communications American University. September, 2007. Retrieved from
http://www.centerforsocialmedia.org/files/pdf/Final_CSM_copyright_report.pdf
Crews, Kenneth D. "Distance Education and the TEACH Act" American Library Association 30 November, 2008. Retrieved from http://www.ala.org/ala/aboutala/offices/wo/woissues/copyrightb/federallegislation/distanceed/distanceeducation.cfm#background
Potashink, Michael., Capper, Joanne. "Distance Education: Growth and Diversity" World Bank March, 1998. Retrieved from http://www.worldbank.org/fandd/english/0398/articles/0110398.htm
Crews, Kenneth D. "New Copyright Law for Distance Education: The Meaning and Importance of the TEACH Act" Copyright Management Center, Indeiana University - Purdue University at Indianapolis. 10 November, 2003. Retrieved from http://www.copyright.iupui.edu/teach_summary.htm
Hobbs, Renee., Jaszi, Peter. Aufderheide, Patricia. "Ten Common Misunderstandings about Fair Use." Philadelphia: Media Education Lab. 30 November, 2008. Retrieved from: http://mediaeducationlab.com/index.php?page=274
"The Code of Best Practices in Fair Use for Media Literacy Education" Center for Social Media School of Communications American University. November, 2008. Retrieved from http://www.centerforsocialmedia.org/resources/publications/code_for_media_literacy_education/
"The Cartoon Network LP, LLLP v. CSC Holdings, Inc. United States Court of Appeals for the Second Circuit" 04 August, 2007. Retrieved from http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA3LTE0ODAtY3Zfb3BuLnBkZg==/07-1480-cv_opn.pdf
Trackbacks
Trackback specific URI for this entry
No Trackbacks
Quicksearch
Blog Administration
Calendar
|
September '10 | |||||
| Mon | Tue | Wed | Thu | Fri | Sat | Sun |
| 1 | 2 | 3 | 4 | 5 | ||
| 6 | 7 | 8 | 9 | 10 | 11 | 12 |
| 13 | 14 | 15 | 16 | 17 | 18 | 19 |
| 20 | 21 | 22 | 23 | 24 | 25 | 26 |
| 27 | 28 | 29 | 30 | |||
