Educational Use in the Digital Age

Article excerpt

In January, the Association for Information and Media Equipment (AIME) introduced itself to the staff at the University of California--Los Angeles (UCLA).

From press coverage of the encounter, it appears the meeting did not bear any good news for UCLA. AIME, which was founded in 1986 as a lobby group for educational film and video producers and counts PBS among its members, challenged the legality of UCLA's use of video from its members in online courseware systems. The discussion resulted in UCLA discontinuing the practice of posting video in the courseware system, despite a university spokesperson insisting the university did nothing wrong.

Less than a week later, a representative from Cornell University announced that AIME had contacted the university, alleging copyright violations stemming from similar activities. At the risk of dating myself, I can't help but think of The Rolling Stones' classic "Sympathy for the Devil," in which Mick Jagger hisses, "Pleased to meet you; hope you guessed my name."

This situation highlights a yawning gap in our contemporary copyright law. There are statutory limitations that allow certain types of educational uses that excuse having to ask a copyright owner for permission to use portions of a protected work and eliminate having to pay for such use. Unfortunately, those limitations do not clearly allow a university staffer or faculty member to rip content from a video source and place it online for later streaming or for downloading it for educational uses, even where the courseware system is protected by passwords and available only to registered members of a specific class.

The controversy over educational use of video content in digital course systems is the latest contretemps in an ongoing struggle between copyright owners and educational institutions about the proper use of protected works in a digital age. The roots in this battle stretch back over decades, but its contemporary manifestation became evident about 6 years ago, with the controversies over electronic reserves, or e-reserves.

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E-Reserves Controversies

The controversy over video usage online echoes the conflict of e-reserves that have traditionally pitted the Association of American Publishers (AAP) against several colleges and universities. The issues have been similar: A trade group for a collection of corporate copyright owners occasionally (then, frequently) alleged that select institutions routinely were placing copyright-protected content within some virtual holding space (in that case, digital course reserves systems) beyond an amount the organization thought was acceptable. From the outset, implicit in this challenge has been the theory that e-reserves use of any kind was illegal. It is a cost-per-click theory of contemporary copyright: No pay equals no click.

AAP's modus operandi has been to present its allegations written in a cover letter that was sent from the organization's outside counsel and to accompany the letter with the draft of a federal court legal complaint that alleges copyright infringement. The suggestion is that if the recipient did not comply with the organization's demands (and by extension, its cost-per-click theory of copyright law), the trade group's attorneys would start an infringement lawsuit.

Over the past 4 years, AAP has approached at least four universities in this Corleonic manner: Cornell, Hofstra, Syracuse, and Marquette. The threats have resulted in agreements in which each of the schools affirmed that educational content in digital formats should be treated under the same copyright principles that apply to printed materials. AAP announced its agreements with Hofstra, Syracuse, and Marquette in January 2008; its agreement with Cornell had been announced in September 2006. AAP has been floating trial balloons about alleged e-reserves infringements since 2004, when it approached the University of California-San Diego. …