Copyright meets Internet

From literary-inspired films like “Doctor Zhivago” to historical biopics such as “The Jackie Robinson Story,” teachers have long used copyrighted audiovisual material to enliven their daily lessons.

The pedagogical contribution of such sources can be more than aesthetic. In some cases, the medium is where the message lies: Art history, music, and film courses all rely on “owned” or copyrighted works. Unfortunately, even in small and private class settings, securing permissions for those materials (or using them appropriately in the grab-and-go Internet age) can prove difficult.

College students are all too familiar with expensive, awkwardly copied course packs or books that cost them hundreds of dollars because of licensing issues. Open-access materials, in contrast, provide faculty and students with relatively hassle-free sources, but are in painfully short supply. More often than not, universities are in the unenviable position of negotiating the use of jealously guarded intellectual property.

Imagine, however, what happens when a “classroom” has thousands or tens of thousands of students rather than 30. Some MOOCs (Massive Open Online Courses) may enroll as many as 200,000 students, as in the case of the HarvardX course CS50x, “Introduction to Computer Science,” available on the edX learning platform.

As a result, copyright has become a central consideration in the HarvardX course-development process, a necessary consideration for any institution engaged in new forms of online pedagogy. Not only does the availability of critical source materials shape what and how subjects can be taught, but the potential licensing and sale of courses, parts of courses, or modules poses further challenges.

Peter Suber, an authority on open-access issues and director of the Harvard Open Access Project, notes that this is not a new problem.

“It was a big issue in the pre-digital world, and it’s big now,” he said. “Copyright law limits the freedom of teachers to use the works of their choice in their courses. Sometimes they can’t afford the fees. Sometimes they only decide to use a work in mid-semester, in response to class discussions, and they don’t have time to secure permission.”

When the world is your classroom, the law gets even murkier. And, as has been seen with YouTube (students have been sued for sharing music, videos have been forcibly taken down), rights owners are on the lookout.

With the creation of HarvardX, the University-wide effort to improve teaching and learning on campus and online that launched in tandem with edX, faculty from all Schools have begun learning lessons more familiar to their colleagues in law and business.

Those lessons are ones that Kyle Courtney, the newly minted copyright adviser at Harvard, finds familiar. Operating out of the Harvard Library Office for Scholarly Communication, an endeavor promoting open access of faculty research, he is among a set of new experts, drawn from libraries, information technology units, and offices of general counsel, wrestling with how to best support faculty in the digital age.

For example, the Copyright Act and its accompanying legal guidelines has long provided those in higher education with a right of exception, letting educators reproduce copyrighted works as long as the material does not exceed fair use and is, in recent decisions, “transformative to the educational experience.”

“The concept of ‘transformative fair use’ allows the use of copyrighted material in a manner, or for a purpose, that differs from the original use in such a way that the expression, meaning, or message is essentially new,” Courtney said.

Yet with drag-and-drop technologies and the ability to cut and paste entire books or images, there are an increasing number of caveats. Faculty members are not just grappling with the fair-use question by reinterpreting “transformative use” in their lectures, they are also pioneering new kinds of collaborations with publishers for their traditional syllabus materials. Moreover, the explosion of online learning, experimental by nature, has proven a natural breeding ground for such test cases.

Take Gregory Nagy, Francis Jones Professor of Classical Greek Literature at Harvard and instructor of the HarvardX course “The Ancient Greek Hero.” Nagy collaborated with Harvard University Press (HUP) to provide a free, reduced-function version of course’s text, “The Ancient Greek Hero in 24 Hours,” for online learners.

In a first for both Nagy and HUP, a contract was created that allowed Nagy to forgo all his revenue from the sale of the print version of the book to gain an open and free copy of the textbook. The contract gave him the right to make an open-access copy, in addition to an HTML version for use with his open-online course.

The HTML copy was then enhanced with multimedia to enrich the experience for online students, while the open-access version was posted to the website of Harvard’s Center for Hellenic Studies, where Nagy serves as director.

“Such collaborations may be the future,” said Courtney. “They provide unique monetization strategies for publishers by giving them access to larger audiences than they have previously enjoyed.”

Despite the content being offered for free, HUP still benefited, gaining exposure in the form of nearly 30,000 registered enrollees, for the traditional print and formatted e-copy of the book. Many students, after all, still prefer ink and paper and are willing to pay for high-quality publications.

Not surprisingly, online leaning platforms such as edX and Coursera are developing novel partnerships with rights holders that respect copyright and preserve publisher profitability, while still fulfilling their mandate to transmit knowledge broadly to global students.

“A publisher today can, of course, still sell a work to the bookstores of, maybe, the top 10 major universities in the United States,” explained Courtney. “Or it can say, ‘We own this textbook. It’s open access and available for you in this course. Once the course is complete, you may wish to purchase it; here’s a discount code and some sales.’ All of a sudden, the publisher is reaching 50,000 or 80,000 people, depending on the class.”

As educational offerings get more enmeshed with new delivery models for both on-campus and online use, copyright is expected to become even more complicated for universities. Faculty at Harvard and elsewhere are often the individuals who own or control the desired materials. Both to preserve academic integrity as well as to benefit from their work, academics are not merely sitting on the sidelines.

“The new complexities will come from faculty demanding rights to their coursework and to the revenues it generates,” explained Suber.

Some open-access advocates hope for a still more radical possibility: the complete de-commodification of intellectual property. Suber believes it is highly unlikely, however, that the mega-audiences of online education and a newly broadened interpretation of fair use will combine to create such an outcome.

“The boundary between what fair use permits and what it doesn’t will remain fuzzy and contestable, and fair use itself will continue to evolve. But these facts do not suggest the ‘de-commodification of intellectual property entirely,’ even when we add in the fact that some people are calling for that de-commodification.”

Although scholars are increasingly pursuing clauses in publishing contracts that allow them to include their work in online repositories and open-source education platforms, the profitability of mass culture products such as movies appears to be more rigidly tied to current distribution models.

Suber added, “Careful observers may be reluctant to predict the future of fair use. But I think they’re safe to predict the continuing existence of copyright and patent law.”

For now, the fair-use doctrine continues to protect the ability of faculty to enrich learning with copyrighted material through a variety of current and emerging digital platforms, as well as to allow for continued innovations from ed-tech start-ups such as edX, Coursera, and Udacity.

“The rights holders that have been shopping lawsuits around the country the last 10 years or so are defending their very way of business, their very way of life,” said Courtney. “That’s why I think collaboration is a much better way of doing it.

For faculty and students who wish to delve into the particulars of copyright law, well, there’s a HarvardX course for that. William Fisher, WilmerHale Professor of Intellectual Property Law and Faculty Director of the Berkman Center for Internet & Society, is offering the second version of his copyright course, available here.

In addition, the Office for Scholarly Communications notes that this is Fair-Use Week. The original guidelines for fair use, codified in 1841, came thanks to another Harvard professor, Joseph Story.