I had a very interesting pair of questions come up this week. So interesting and such excellent illustrations of issues in selecting open content for MOOCs that I wanted to share it, but will “change the names” for several reasons. That this is Open Access Week just makes this even more timely. Take this as an example, a case study or sorts, nothing more. However, I do hope that those of you with more experience in intellectual property law will please chime in to clarify any thoughts or misunderstandings I might insert inadvertently.
For background, I’ve been taking a variety of MOOCs in recent years, few of which I complete, and most of which I register for with three reasons in mind. Reason One: The content interests me, and I wish I had time to learn more about it. Reason Two: I’m curious what the bibliography and resources will contain, and hope to add those to my collection, even if I don’t have time for the class. Reason Three: I’m interested in different MOOC platforms and methodologies, and learn about these best by actually trying them out hands on. As a librarian, I have a special interest in the bibliographies, the links, the readings, and where those come from. Part of my interest is personal and part of it comes from our own institution being engaged with MOOCs through the Coursera platform, and wanting to see best practices for how to identify and select content for these types of classes.
EXAMPLE ONE: OLDER PUBLICATION, RECENT COLLECTION
One of the MOOCs I took included in the recommended readings a link to classic content from the 1800s, but which is included in several anthologies, both new and old. A particular anthology was recommended, and a link provided. The link was to a PDF of the entire book hosted in a site for a Slovenian high school English teacher. Meanwhile, given the importance of the work, copies are also available in several well known and highly regarded collections of open access content. These included Project Gutenberg, EServer (hosted by Iowa State University), the American Studies Project (hosted by the University of Virginia), the Internet Archive, Electronic Classics Site (hosted by Pennsylvania State University), and others, such as societies honoring the author and other academic organizations or collections.
I was alarmed to see a link to a suspect source (Slovenian high school?) provided in preference to authoritative sources which track provenance and verify rights to content posted. I dug around in the downloaded PDF and the pages linking to it, hunting for any indication that the teacher had received permission to repost the full book for his students. All I could find was a copyright statement in the PDF that the work was under copyright and that electronic conversion was not allowed, with a statement explicitly asking readers to not encourage electronic piracy. I wanted to bring this up, but did not want to cause any problems for the professor in charge of the MOOC nor for the school hosting the content. For this reason, I did not bring it up in the class forums, but instead hunted for the faculty member’s email address to send a message about the concern and alternate locations to access equivalent content, even if it is not the same anthology.
I received a note from the faculty member explaining the selection, with an interesting perspective. Briefly the logic follows this progression.
1. The contents of the anthology are all out of copyright, and in the public domain.
2. The anthology as a whole and the editorial comments would indeed fall under copyright protection, however, these were not included in the required readings for the class.
3. The professor had asked the students to read selected pages in the work, not the complete anthology nor the introductory content by the editor. The content on those specific pages is not copyrighted.
4. The professor did not himself create the PDF, nor reproduce the pages, but merely linked to them.
As the professor put it, “the assertion of copyright is not the same as having copyright.”
I find this a very intriguing justification, but incomplete and perhaps a bit of nitpicking. I suspect that if push came to shove, if the publisher of the book chose to contest the availability of the PDF online, the professor MIGHT find that his logic stands in a court of law. I suspect that the publisher (widely international, but the work scanned was from an American imprint) might find it easier to establish a suit against American use of the work than trying to take the case to Slovenia. Copyright itself is not the only concern. Additional concerns are placing at risk the institution that provides the MOOC online, the school for which the faculty member works, as potential collaborators in linking to the suspect content. If the school and organization were aware of this and chose to support the use of this link, that would be one thing, but I am not sure that they were or are aware.
Lastly, but not least, I am concerned about the example being set for the students. In my eyes, the faculty have a duty to model information use and resources following methods recommended for their students. Here at the University of Michigan there have been times when the University has elected intentionally to push the boundaries of Fair Use in order to prevent the erosion of the rights, and knowing that they might find themselves the subject of a lawsuit. The Google Book Project is a notable example of this. Google Books is a definite example of the concept the professor noted, that “the assertion of copyright is not the same as having copyright.” If the use of this Slovenian full text link was intended to explicitly test that legal provision, that would be lovely, and I would applaud the bravery and purpose of both the professor and the institutions supporting the content. If so, I would have personally appreciated having that made clear to the students. If not made clear there is the more subtle risk that students will interpret the Slovenian link to a possibly pirated work as having the approval of the professor, especially when so many other clearly open access copies of the work are available and the link is provided in preference to those open and legal copies. That is what baffles me most.
EXAMPLE TWO: RECENT PUBLICATION, OPEN COLLECTION
This example is almost the complete opposite of the first one! This is what makes these two such an exciting pair of examples for me to explore. In this MOOC which I took, the professor had as required readings almost entirely works which were free to the students. There were just a couple notable exceptions, for which you either had to find a print copy in a library or buy a copy. I was lucky, in that I already owned a copy, but when I accidentally stumbled on a free electronic copy online, I thought the professor would appreciate knowing about it, and that it would make life even easier for the students of that course. The professor, quite rightly, was reluctant to pursue making that link available because the author is still alive and the book still in print, making it pretty clear that the copyright is still in force. So, the question became, when is it alright to share an online copy of a copyrighted work? Ever?
The first important concept to understand is that an author may retain the right to share their work, and still keep it under copyright. Even a Creative Commons license does NOT mean that the author has given up their intellectual property rights, only that they’ve simplified the process of requesting certain types of rights. Which rights are simplified depends on which CC license was chosen. So, it is possible that an author could make the choice to permit use of their work in a specific circumstance.
The second important idea is the question of whether the author or the publisher actually owned the copyright in the selected work. Just because an author wrote a book does not mean that they have the RIGHT to make the decision about whether or not it is alright to put up a free copy online. Frankly, based on what I’ve observed, authors are more likely to choose to make a work Creative Commons than publishers. There are publishers that have chosen to make ebook versions of their backfile free when the original is out of print, but that is still more the exception than the rule. For this example, the copyright is owned by the author, se we really don’t have a clue (unless we ask them).
In this example, again, there was a complete PDF of the book, but in addition to the PDF there were also multiple file formats for different e-reader devices, including accessible formats for persons with disabilities and raw text (ASCII). The PDF was not in some distant country or on the web site for a particular local school, but was instead part of a major online collection of full text works. My first step was to look at the credibility of the provider, which is pretty similar to what I did with the first example.
While I’m not listing the specific title, I will list the collection in which it appeared: The Basic e-Learning Library (BeLL) of the Open Learning Exchange, but not the version housed at their main site, rather the BeLL collection housed in the Internet Archive. I tried first to look at the actual work as posted to see if there was any statement about the rights. I couldn’t find anything. Next I tried looking for some sort of statement on the OLE site. I couldn’t find one there either. I wanted to find out more about the OLE, what they do, and how reputable they are. Well, WOW! They are an international initiative focused on providing high quality education resources to 3rd world countries. And do they have powerful partners: UN High Council for Refugees; US Agency of International Development; US State Department; Oxfam …. And those are only a few. My gut reaction was, “They are partners with the US State Department? Well, they MUST be legitimate and responsible!”
I came very close to stopping there, placing my trust in the State Department and the United Nations to properly vet their partners. The group is doing such a good thing, and I really WANT deeply to believe in them and support this wonderful thing they are trying to do, helping low income countries. But then I tried to reverse verify this, and again ran into problems. I tried to find anything on the UN or UNHCR sites to show that they have a partnership with OLE. Hunh. I couldn’t find them listed on the UN site, but there were a couple links on the State Department site. Not anything saying they are partners, but at least people connected with the organization are presenting at State Department events. Normally, I would really not be working this hard. Normally, I would have called this credible and dropped it, which is what I had done when I made the recommendation to the faculty member. But it was starting to really bug me that I had spent so much time on their OLE site and could NOT find anything explicitly about their licensing of copyrighted content, efforts to negotiate in good faith with living authors or their representatives, or anything else. Most of the links that turned up in my searches were broken. Here is what I did find.
“Part 2: Quality Open-Source Content”
“Did we mention that all of these resources are freely available to members under the Creative Commons License?”
Now this just reads wrong. Open source applies to hardware and code, not to, well, books. Open ACCESS is the correct phrase for books, literature, articles, and other written works. And, well, if the works actually are open source, or open access, or creative commons licensed, then they are available to EVERYONE, not just members. It sounds wrong, at least to me, to even imply that the content is limited to members-only.
I kept digging. I found their Learning Toolkit page, which stated:
“The Open BeLL – Coming Soon!
Our virtual interactive library will now be available for public preview”
Preview? That again makes it sound as it, well, the content isn’t actually open. And I thought their “virtual interactive library” was already available through the Internet Archive? By this point I am so baffled, I don’t know what to think. I start asking my colleagues, one of whom actually finds the official OLE Copyright Statement. The reason I couldn’t find it was because I was looking on their web site. Now, why on earth would I expect to find their legal statements on their own web site? [sarcasm] It was instead on the Internet Archive site.
OLE Copyright Statement: https://archive.org/stream/OLECopyrightStatement/OLE_Copyright%20Statement#page/n0/mode/2up
Briefly, what this says to me is that they are putting up full text of commercially available copyrighted works under a Creative Commons license with the assumption that this falls under Fair Use. Let’s take a second and look at fair use a bit more.
“Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.
1. The purpose and character of the use, including whether such use is of 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
4. The effect of the use upon the potential market for, or value of, the copyrighted work”
US Copyright Office, Fair Use. http://www.copyright.gov/fls/fl102.html
I’m no expert on Fair Use. You can find more information on this from Stanford, Texas, and our own University of Michigan Copyright Office.
One of my favorite resources from these groups is the UM “Fair Use Myths.
Fair Use Myths: http://guides.lib.umich.edu/content.php?pid=396670&sid=3248179
The first myth states approximately that just because what you are doing is educational is not sufficient in and of itself to make it fair use. OLE says that they are putting up copyrighted content under a Fair Use claim. They don’t anywhere say that they ask permission, but instead assume it will be ok, because they are good folk. (I’m paraphrasing.) The author might have agreed with them, but there is no way for us to know. But the final of the four factors to be considered is the economic impact. If OLE did not have permission, then making a PDF and text of a complete book available for free does seem like something that might possibly have an impact on sales. For me, it seems like this would fail the “four factors” test.
As I said, I’m not a lawyer, and certainly no expert, but I am a librarian, and I tried really really hard to find any evidence to show that OLE did the right work to protect themselves and their partners. I began this post believing in them, and I ended it with an opposite view. During the days I was working on this post, the work in question, the one that sparked this inquiry, has disappeared from the Internet Archive and now gives a statement of not being available due to an enquiry into a metadata error. I am wondering if someone told the author or their publisher.
Just because you can doesn’t mean you should.
Just because you should doesn’t mean you can.
Who says so?
But what will the neighbors (students) think?