Using digital media: copyright, DRM and safe [e]learning practice

Key sources on which this is based:

• Copyright Made Easier. Wall, Raymond A. ASLIB, London, 2000.
• Intellectual Property and Copyright in the Digital Environment CARET. University of Cambridge (excellent web site).
• British Universities Film and Video Council course on copyright

The bad news

Contrary to popular belief, there is no blanket ‘fair use for education’ exemption within British copyright law. Furthermore, educational bodies are increasingly considered to be commercial organisations. If we infringe upon the rights of another commercial organisation, they are likely to pursue us for compensation. The position of the university on this, as embodied in its acceptable use policy (AUP) for IT, is that individual members must not use University facilities to commit such infringments. Employees of the University should not commit such infringements in the course of their work.

Although we have a limited license agreement that allows us to reproduce certain copyrighted materials on paper, there is as yet no such agreement covering digital media. Similarly, print media that has been digitised is not covered. The Library are currently piloting a very restrictive digitisation license, but only in a controlled way. There is a good reason for this limitation, from the perspective of copyright holders. Once content has been digitised, it can be redistributed to thousands or even millions of people at the click of a mouse button. When this happens, they no longer have control. Digital rights management (DRM) systems are being developed to allow controlled digitisation and redistribution, but are not yet widely used.

The situation becomes worse when digitised material is uploaded to the web. Redistribution then becomes even more simple. It is often assumed that storing content on a password or permissions protected web page is acceptable. Rights owners would counter that the material may still accidentally or deliberately be ‘leaked’ into a public realm by anyone with access to the restricted page. Imagine if a student were to make a copy and then post it publicly on their blog. Auditing of digitally stored materials may occur, even behind protected pages, and this can lead to painful consequence.

The good news

There are three significant exemptions that we can exploit. Firstly, and most well known, are the various expiration periods of rights under protection. For example:

• In literary, dramatic, musical or artistic works copyright lasts 70 years from the end of the calendar year in which the author dies.
• Sound recordings, usually 50 years from the end of the calendar year in which the recording is made (there are complications).
• Films, 70 years from the end of the calendar year of the death of the last to die of the following persons: the principal director; the author of the screenplay; the author of the dialogue; and the composer of music specifically created and used in the film.

(Adapted from the Cambridge University copyright web site )

However, you might want to use more recent materials. There are two further ‘permitted uses’ available to us:

1. Making copy for personal research or private study – and that means personal, you cannot use this exemption to make copies for groups of students or researchers. They can of course make their own copies.
2. Reproducing an ‘insubstantial part’ of a performance or publication for the purposes of criticism or review.

One could argue that much of what we do in higher education, especially the arts, constitutes criticism or review. This enables us to use citations from publications or small lower quality images of artworks without explicit permission (although it is often good practice to ask first, as this keeps artists and publishers sweet). There is a significant caveat: ‘insubstantial part’. This does not necessarily describe a quantity of the original work. To calculate whether you are reproducing a ‘substantial part’ consider this question:

Would the acquisition (or viewing) of my reproduction make the acquisition (or viewing) of the original in some way unnecessary?

If yes, then you have definitely used a substantial part. For example, this is the clause that prevents theatre critics from giving away the ending of a play. Note that you can still use your criticism to convince people that the play isn’t worth seeing on artistic grounds. For more information and ideas on the permitted use for criticism and review, read this blog entry.

And finally, remember that if you really must use a substantial part (or whole) of a performace or publication, it is worthwhile simply asking for permission from the copyright owner. Explain to them how you are to use it in education or research, tell them that it will increase the prestige and even sales of their work, and reassure them about how you plan to control access to the reproduction. There are organisations that exist to support this process. I will investigate these and report further.

Robert O'Toole : 04 Jan 2007 16:08 |  Tags: Copyright E-Learning Key Entry Warwick University |  Comments (0) |  Report a problem