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Solutions for Dealing with Copyrighted Materials in an Open Access Course

copyright posterMost regular ProfHacker readers know that I'm an Open CourseWare evangelist. However, I will be the first to admit that fully embracing an Open CourseWare philosophy isn't always an easy thing to do. Challenges can include institutional opposition (from fellow faculty or administration), technical issues (where to host, choosing a platform, etc.), and student confusion (most students have been trained to use the university's chosen LMS, and expecting them to use another platform or follow a different model can sometimes be problematic).

For me, however, one of the most significant challenges that has cropped up in recent years is how one goes about dealing with the inevitable copywritten materials used in class. What do we do with the articles, videos, book chapters, books, and audio that are someone else's intellectual property? The problem (at least for me) is that, in many cases, leaving that stuff out means that the open course will be incomplete. I'm personally of the opinion that we should do our best to make an open course as complete as possible (for me, a skeleton syllabus online hasn't cut it for a long time). On the other hand, putting copywritten materials up on the web for all to access (the point of Open CourseWare) has significant legal consequences. In the spirit of this conundrum, here are some suggested solutions for dealing with copyrighted materials in an open access course.

A couple of caveats before we start. First, copyright law is bordering on the maddenly complex (and I am hardly an expert). I in no way want to imply that these suggestions aren't without other (unforeseen and unmentioned) legal issues. The same goes for fair use—which is part of copyright law, but definitely should be mentioned as it is often used by scholars as a "free pass" for issues of copyrighted materials in the academy. In support of this complexity, I would point to the recent incident in which the Association for Information and Media Equipment (an educational media trade group) threatened to sue UCLA, arguing that the streaming video which was behind the university's authentication still infringed on copyright. Despite the fact that UCLA asserted that they weren't in the wrong, they suspended the practice and are seeking to settle the matter out of court. The point is that copyright issues (regardless of whether they are in or out of the academy) are the furthest thing imaginable from cut and dried. With these caveats out of the way, let's get with the solutions!

Use University Authentication System

All universities have some sort of method of authenticating users. We're talking about the university login and password system that you need to use to access all manner of institutional services and sites. What if you could put the copyrighted materials (PDF article, video, etc) behind that authentication so that when students go to access them through your open course site (that you've created using a platform such as WordPress or Drupal), they are prompted to put in their university login and password? This way, the materials are listed on your open course site, but only your students can access it. Sound like a good option? It is, but it isn't without its issues (no surprise there). While using your university's authentication system will prevent non-university people from accessing the copyrighted material, it also means that anyone with a university login and password will be able to access it. This could have some legal implications (especially for universities with large numbers of students, faculty, and staff). There are technical issues as well. First off, its quite possible that you simply can't hook into your university's authentication system (either because of university policy or because the authentication system's architecture simply isn't designed in such as way that it can be accessed). If you can hook into it (through an API, for example), you are probably going to have to do a lot of hacking to get it work perfectly. You'll probably also have a fair degree of technical knowledge to get things to work (or draft someone who does). Where should you start investigating whether this solution is for you? The first step should probably be getting in contact with your central university IT people. If they don't deal with the authentication system, they'll certainly know who does. At Michigan State University (and this will of course vary from institution to institution), the authentication system (which thankfully has an API) is controlled by Academic Technology Services.

Use Class Level Password

Most platforms that you might use to deploy your open course site (for me, this is WordPress) will have the ability to implement password protection of some sort. That way, you could put links to all of your copyrighted materials on a password protected section of the course site, and only give the password to the students in your class. This gives you added benefit of limiting access to just those students in your class (as opposed to the firehose-like access you get by hooking into your university's authentication system as described above). The downside to this (and it isn't all that much of a downside) is that it requires students to keep track of yet another login and password.

A variation of this option is to use your university's LMS to host open course site (just remember, it isn't open access if it isn't actually accessible to the public). The benefit of doing this is that your official university LMS most likely has granular level control over access (as well as automatically hooking into your university's authentication system). I personally don't advocate this as I'm not a fan of closed source, centrally administered LMS systems in general (and my university's LMS in particular). However, if you think this is the best option for you, go for it.

Use Only Open Access Materials

In the grand scheme of things, using only open access materials is probably the best solution to this problem. By doing this, you completely sidestep the issue of using copyrighted materials. You won't ever have to worry about issues of access (your students vs. the public) because the material is freely available to anyone. Personally, I try to use as much open access material as possible. However, the reality of this option is that there are always things that you want to include (or that you absolutely need to include) that are copyrighted. The end result is that you might still have to implement one of the other solutions discussed herein.

Link Through Your Library

A variation on the "use your university authentication system" option is to directly link to the article or book your library's e-resources system. This way you can provide your students access to the copyrighted material using the established licensing agreement that your university has with the publisher. The drawback to this solution is that while all university libraries provide some level of official electronic access to books and journals, they don't always provide the same sort of access for video (streaming or downloadable). So, if your class uses a lot of video, you are right back in the same boat as before.

Put Copyrighted Materials Up and Damn The Consequences

While there are legitimate instances where you might want to take this route (you firmly believe that your use falls under a DMCA exemption or fair use), this is clearly not the wisest solution of the bunch (from a practical standpoint, at the very least). However, if you have no problem coping with DMCA takedown notices, nasty cease and desist letters from publishers, or angry emails from administration, go for it.

Now its your turn. Do you use copyrighted materials in your open access course? If so, what is your solution?

[Image by Flickr user biwook / Creative Commons licensed]


1. phdeviate - September 16, 2010 at 03:14 pm

I'm using the password protect method, via WordPress. So far, so good.

2. kimon - September 16, 2010 at 03:53 pm

This is a huge issue in art history/dec arts programs where it is not just copyright but museum permissions which hound image use. I actually had an opportunity to talk with Robert Darnton last night (head of the Harvard library) about how I am trying to get people to embrace open access and open sites at the Bard Graduate Center. We were talking about what Harvard and HUP are doing with journals, and when I mentioned open course sights he asked me how do I deal with copyrights and have we spoken to any lawyers. It completely deflated the conversation as the copyright laws are such a morass and the power to suit far too easy to exploit by copyright owners.

As far as my own practice goes, the wikis we use allow for different levels of access to different pages and I may try deploying that (much like the Wordpress solution) but it does create an extra level of programming, and extra logins as you mention Ethan. Another obscuring barrier in an interface I am trying to make as transparent as possible.

I wonder where all of this will stand in ten years and if open information will be more embraced, meaning these types of conversations won't be be necessary, or whether the materials will be even further locked down so that the hopes of truly open multimedia course sites will be more and more fleeting. It can be exhilarating to be pushing the envelope during these hectic times of change, but there are some barriers that are particularly frustrating and the insidious and ubiquitous question of copyright is in many ways the most annoying of them all

3. 22232348 - September 16, 2010 at 04:51 pm

Individual faculty members are often named in copyright suits. So if one decides to "push the envelop", be aware that some universities specifically state that they only defend staff who showed due diligence.

4. philosophy - September 16, 2010 at 06:31 pm

This is a bit tangential, but I sure would like to hear some relevant informed comments. I've put some articles on e-reserve for my classes. Our library says, any such articles, whether our library subscribes to the journals or not, can be put on e-reserve for only one semester without copyright permission from the publisher - but for a second semester, explicit copyright permission is required for articles from journals (obtained via interlibrary loan) that our library does NOT subscribe to. Oh, and we librarians will try to get that permission on your behalf, so you don't have to worry with it yourself; which,I think, is pretty nice.

But my course(s) are not open-access, they use Blackboard (Bb), which (for my course(s)) is available only to students enrolled in my course(s). So for journal articles from journals that our library does NOT subscribe to, and which I got via interlibrary loan, I upload them to Bb, semester after semester - without bothering to obtain copyright permission, since they are only available to students in my course(s). What about that? Have I run afoul of copyright policy?

5. dferrell - September 16, 2010 at 07:51 pm

I think you are potentially in a bad position. Since I started preparing online courses, I have read everything I can find about copyright law (and I am not a lawyer). When I used packets of material for my courses, everything that was copyrighted had to be renewed each semester. What we can do in F2F classes v. online is dramatically different. However, I have not been able to find a difinitive answer as to what we can do. Our library doesn't have answers nor does IT. I really don't want to be sued or hassled for breaking some law that I don't understand. I don't have an answer but I am using sites like NIH and CDC (government therefore, I think I "own" it too--my taxes).
All this is done on Moodle where only registered students have access, but that does not apparently make any difference when it comes to copyrights!

6. cbriggs - September 17, 2010 at 09:43 am

@philosophy, I too think you are probably violating the fair use statute. I'm not certain of this, but I think the reason your library (like many others) allows you to put something on e-reserve for only 1 time without seeking copyright is because fair use gives you a bit of a break if you need something right away and don't have time to get permission from the copyright owner. If I'm interpretting this correctly, it's a loophole that academic libraries fairly commonly exploit to help their faculty (and their reserves staff) get around having to seek permission and pay fees for absolutely everything. In addition, "fair use" has 4 criteria that you must use to weigh the factors for and against your right to use the material without permission. One of them is whether or not your use might diminish the copyright holder's ability to enjoy financial benefits from the work. If a journal article is available only by subscription to the journal or to an electronic journal database, then clearly someone's income is at stake if you make the article available to your students without you or your library subscribing to the source. When coursepacks are printed, typically copyright permission is sought for all articles that aren't being used for the first time, and required fees are paid. Those fees are passed on to the student as part of the cost of the coursepack. At my last university, the biggest problem I had moving from paper to electronic reserves was that there wasn't a way to pass on that cost to students. It would have come out of my department's photocopy budget, which would have gutted that budget, and then some.

7. catlkelley - September 17, 2010 at 09:55 am

A couple of points:

1. Most library systems are also behind a password. And if you look at the Terms & Conditions of the library databases, almost all (perhaps even all) include wording to the effect that access will be restricted to members of the university community. So if your course is truly "open access," providing access to these materials to the general public would be a violation not just of copyright law, but of your university's contract with the database vendors.

Another concern is that direct-linking to many of the database materials won't work, even for authenticated users. The URL is a temporary one generated for your session only.

2. Many libraries actually do include streaming video in their collections. My own campus library includes these titles in their catalog, with a direct link to the streamed feed. Some of these are open-access materials and some are not - in the latter case, users must be authenticated in order to view the material.

3. Finally as somebody already said, individual faculty members can be sued by copyright holders. And by policy many (if not most) universities will not defend professors who wantonly disregard copyright. Nor will they defend ignorant violations, if resources exist on campus to help you and you choose not to take advantage of these resources.

Your best protection is to restrict copyrighted material to people with passwords (i.e., students who have paid the course fees). Even then, you do NOT have a free pass to use anything you like, as many seem to think.

In the case of open access classes, the best protection is to use only material that is explicitly open-access. Or you could inlcude a required text or other materials that all students (normal, paid students or general public) must purchase.

8. wmfxir2 - September 17, 2010 at 10:16 am

Has something happened since this news in March?

Fighting a Copyright Charge
March 4, 2010

The University of California at Los Angeles on Wednesday announced that it will continue streaming copyrighted videos in online “virtual classrooms” despite legal objections from an educational media trade group.

9. aar8413 - September 17, 2010 at 10:57 am

Making copyrighted material accessible only to password-holders does NOT avoid infringement. It just means that you are infringing with a smaller group than if you made the content available to the general public.

Also, can we please get rid of the myth that you can put copyrighted material on e-reserves for one semester without permission but after that you must seek permission. There is no such free first ride and there never has been.

Use of copyrighted materials in face to face classroom teaching, or in distance education under the TEACH Act, is an entirely different story. It has nothing to do with fair use. It has to do with a separate section of the Copyright Act (section 110). This section, and the TEACH Act, allow the performance or display of copyrighted works without permission. Thus, movies, streaming videos, other AV works, readings, etc. are permitted. It does not allow photocopying, posting on e-reserves, open access or anything else: just performance or display, period.

10. aar8413 - September 17, 2010 at 10:58 am

Oops -- my first sentence above should have read, "Making copyrighted material accessible only to password-holders, without permission of the copyright ownere, does NOT avoid infringement."

11. 11159995 - September 17, 2010 at 10:59 am

Those librarians who still believe in the doctrine that "first time use is fair use" should be aware that the person who was responsible for promoting that idea in the first place, Georgia Harper of the University of Texas System, has since repudiated it largely because permissions can now be secured almost instantaneously from sources like the Copyright Clearance Center. So libraries that continue to rely on that doctrine are skating on thin legal ice. Speaking of the CCC, it now offers an Academic Annual Copyright License, which covers a wide range of copying done throughout an entire university for a reasonable annual fee (for the biggest Div. 1 universities, less than what the salary of an assistant football coach typically is). This has several advantages: the university can budget rationally for copying expenses from year to year; individual faculty and staff are freed from having to worry about getting permissions for anything covered in the CCC repertory; the university and all users within it are protected from copyright infringement suits. That repertory is increasing in size all the time and now, e.g., includes the publications of more than 45 university presses, including the largest, Oxford. Getting a CCC license is the safest and sanest way to deal with the problem presented here.---Sandy Thatcher (former president of the Association of American University Presses, 2007/8)

12. michael_madison - September 17, 2010 at 11:06 am

Consider, in connection with this issue, the Code of Best Practices in Fair Use for OpenCourseWare, produced by the Center for Social Media in the School of Communication at American University:

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