The Center for Social Media (CSM) at American University has released another of its important Codes of Best Practices in Fair Use, this time, as it applies to the historically vexing realm of OpenCourseWare (OCW). Like previous guides focusing on Documentary Film, Media Literacy Education and Online Video, the new OCW guide is unafraid to engage arcane and difficult legal issues, while simultaneously managing to be highly readable and of immediate, practical use by educators seeking to make informed, ethical decisions about fair use.
The OCW consortium originated at MIT in 2002 and has become one of the most widely known and influential bodies of open academic resources worldwide. The MIT initiative famously achieved a near 100% participation rate among faculty members for whom contribution of their course materials was entirely voluntary, though strongly encouraged by the MIT administration. Interestingly, one of the few faculty dissenters was Henry Jenkins, then Director of MIT’s Comparative Literary Studies program and himself an outspoken advocate of open education and networked learning. Jenkins’ surprising refusal to participate in OCW marked an act of civil disobedience, designed to call attention to his belief that the consortium’s approach to questions of fair use was overly conservative. In an effort to avoid any controversy over copyright issues, the OCW maintained a near zero-tolerance for copyrighted content in its online resources, forcing them to focus a large percentage of their efforts on identifying and removing copyrighted materials from online course content (often to the detriment of learners), even when fair use might readily apply as defined in the new Code of Best Practices.
The OCW guide opens with a section devoted to “Common Copyright Confusions” designed to dispense with some of the more obvious misunderstandings about what is allowable in open courseware contexts. The guide goes on to describe a number of specific situations and the principles by which a reasonable decision about fairness of use might be made. Since all determinations of fair use are radically dependent upon context and specifics, there is never a one-size-fits-all answer to any question of fair use, and the guide offers insights into some of the most likely situations that an OCW educator might face.
The new guidelines echo several of the now familiar categories of reproduction including incidental capture, critique and analysis, illustration, etc., while delving specifically into issues of particular relevance to OCW educators. Here, the guide offers welcome relief to those who may previously have only tried to satisfy the extremely conservative parameters of the TEACH Act in defining what constitutes classroom teaching and the technological limitations that must be in place to accommodate online learners. Unlike the TEACH Act stipulations, which presume piracy is the most likely outcome of allowing access to learning materials, the CSM guidelines proceed from a commitment to learning and richness of content as values to be respected and encouraged within the allowable limitations of legitimate copyright holders’ concerns — particularly those for whom the educational market is a primary motivation.
Kathleen Fitzpatrick of Pomona College has posted her most recent book, Planned Obsolescence: Publishing, Technology and the Future of the Academy online as a CommentPress text, allowing readers to publish comments and engage in dialogue with the author. Fitzpatrick’s book is an especially fitting text to open up to this kind of public exchange because, among other things, it offers a meta-analysis of the state of contemporary academic publishing including questions of authorship, peer review, electronic publication and shifting models of scholarship. The book is also slated for conventional publication through NYU Press in 2010, but in the mean time you can access the full text of the project and participate in the emerging discussion. Through her work with the Institute for the Future of the Book and the online journal and scholarly network MediaCommons, Fitzpatrick has been a central figure in rethinking publishing and its place in the academy for many years, and not just as an outside observer/commentator but as someone who models her own work on the very ideals she espouses and, perhaps most importantly, building an online architecture to encourage others to do the same.