• The purpose and nature of the use of the copied material
• The nature of the original work
• The quantity and substance of the copied material
• The effect on the value of the original work

If all of this sounds vague, that’s because it is.  There is no clear definition as to what qualifies as fair use.  Most people agree that copying an entire work is not fair use, even if you are using the copies for educational purposes.  Other than that, it’s hard to say how much you can use, where and how you can use it, etc.  Most of the four factor test comes down to a certain measure of common sense: Why am I using this work?  Can I use a different work instead?  How many people am I sharing this with, and to what purpose?  Am I costing the rightsholder any sales, or diminishing the brand or value of the work?

No one has yet come up with a concrete definition of Fair Use.  There are lots of resources to help you decide if what you are doing is justified.  There’s this checklist that will help you document your case for fair use.  And there’s also more specific resources, like this code of best practices for use of video material.  As always, when in doubt, talk to your librarian, as they are often the local expert on this.  You might also talk to your local Intsructional Technologist or even your Academic Lawyer.

Michael Brewer in conjunction with the ALA, developed a slide rule style tool, available at http://librarycopyright.net/digitalslider/ that should help with a lot of these questions.  Of course, if you are a fan of the old slide rule technologies, you can also get a paper version of this tool.  You may purchase it from the ALA at http://www.wo.ala.org/districtdispatch/?p=421.

This problem can be especially pernicious where visual or auditory materials are concerned, as written materials are far more likely to include the creator’s name.  The quantity of works that have been ‘Orphaned’ has grown massively in the past 50 years, as copyright term has been expanded to near ludicrous levels, and since 1978, copyright has been automatically granted to qualified works (and after 1989, doesn’t even require registration to defend that automatic copyright).

The big problem with orphan works is that copyright infringement now carries with it massive statutory (preset, unavoidable) fines.  The fear of incurring these fines has what is referred to as a ‘chilling effect’ on innovation, making individuals and companies shy away from creativity and innovation involving these works.  Given that copyright was originally developed to protect creators so they would be given more incentive to create, it is a clear sign that the system is has fallen down when it does precisely the opposite.

Public Knowledge has championed new legislation to create a safety valve for orphan works.  They would like to protect against statutory fines by giving creators a chance to show that they did a diligent search for the original copyright owner.  If they can show this (by following certain regulations and procedures when they go to use the orphan work) then they will be exempt from statutory damages, but will still need to pay market appropriate license fees to the copyright holder, should they turn up.

Sounds good, right?  Perhaps.  I tend to agree more with Professor Lawrence Lessig, a professor who has made quite the name as the founder of the Stanford Center for Internet and Society (Harvard has their own Berkman Center for Internet and Society, that he has also taught at), and as a board member of both CC and the EFF.  The Orphan Works initiative pressed for by Public Knowledge is an attempt to treat the symptoms, rather than the cause of the problem.  Copyright has become an untenable mess, that now serves more to protect the profits of large organizations like the RIAA, MPAA, Disney, et cetera.  Copyright was intended to protect the small guy from having his creative rights stolen and repurposed by the large guy, and now the opposite seems to be happening.  Undo the excessive expansion of terms and rights, and go back to the original purpose of copyright.

I do understand that Public Knowledge is attempting to make reforms from within the system, and that the efforts they are undertaking are far more likely to be successful in congress, and are more likely to be let through by the lobbyists on the hill.  I will be happy when they do get their legislation approved and passed.  But I’m still going to voice my support for the approach I feel is ‘correct’, because eventually I feel the problems will need to be addressed directly, and not just the symptoms.

As a sample, here is CommonCraft’s video on Podcasting:

But I know you’re dying to get something more than that, so let me leave you with this:

Educause, a nonprofit dedicated to promoting the intelligent use of technology in higher education, has a fabulous podcast series.  As someone who usually has more time to listen than to read, this is a good thing.

Edit: This podcast episode on ‘The Fear 2.0 Group’ is quite relevant.

Huh?

Ok, that’s stretching to a logical extreme, but there’s truth in it.  Here’s the piece in the middle; the current credit crisis affects everyone.  (If you’re unclear as to how investments lead to credit crisis, check out this recent episode of This American Life; it will take you from mortgage investors through to today.)  Suddenly, financial institutions are less able to lend money to students.  Homeowners have less home equity to leverage for educational expenses.  Colleges and universities are less able to take favorable loans for capital projects and plant improvements (the physical facilities).  There are other factors compounding things, such as:

• The government stopped subsidizing educational loans.  Previously the government would pay lenders to lend money, essentially.  Usually in the form of paying off the interest of the loan while the student was a student.  With less money coming in from that guaranteed source, the lenders are less willing to take risk in lending to students.  This leads back to the old saw about you needing to have money before the banks will lend you money.
• The rising costs of energy and food, and the unfortunate reality that the cost of higher ed has been rising at about twice the rate of inflation (more on that in another post), have led to major shifts amongst price conscious families and individuals as to where they are putting education dollars.
• People struggling to meet potentially mounting debt levels (due in many cases to sub-prime mortgages) are having to draw off money from funds set aside for college education, or are deferring education while moving directly to the workforce.

These factors, and many others, have led to a ‘perfect storm’ that is sweeping across higher education everywhere, and the result is this: enrollments are way down for the upcoming academic year (as measured by deposits received).  Some institutions are seeing numbers 30% or more below their projected goals.  Many institutions are having to dig deep into their waitlists to make up for this.  Even Harvard, apparently, has had to go back to the waitlist, much later in the year than they would normally.  And the qualities that lead to being selected off the waitlist are having less to do with academic rigor and more with one simple question: Can you afford to attend?

For some institutions, this is devastating timing, as they may only recently have recovered their endowments from the tech stock bubble burst earlier in the decade.  Now that they are no longer spending money faster than they were making it, suddenly, they may be making money a lot slower than they are spending it.  (You might argue that those are the same thing, but it’s a big perspective difference, especially if you’re the one having to manage the money)

At my own college, belts are being tightened even further.  They’ve been tight for a while, as they struggled to get back in the black (originally projected for 2009, now that has been pushed back to at least 2010), but now they’re having to trim off some of the meat, and not just the fat.  No new staff or faculty will be hired for the time being, replacement positions will be examined critically, salary increases, even cost of living increases, are on hold until at least September, when they know where things stand.  Tenure will still be granted as promised, which will prevent an outright riot from the faculty.  Investments in the physical plant will move forward cautiously, for a few simple reasons; namely that they are long overdue, and that they directly affect the ability to recruit students, who respond favorably to improved infrastructures.

Am I worried?  Not so much.  It will be tight and tough, but unlikely to impact me strongly given how cost conscious my department already is, and our already minimal staff levels.  I may not see a raise, which I was looking forward to offsetting some of the salary loss when I moved from my last position, but I think I’ll be ok for the time being.  My biggest thoughts on this are sympathies for the thousands of students out there who want to go to college, but find themselves unable to afford it now, despite having been accepted.  It can only add to the feeling that the middle class is being squeezed from all sides, and I hope for every-one’s sake that it turns around quickly.

An excerpt from the article:

Cultural observers bemoan the way electronic media—with their demand for spectacle and brevity—have shortened our attention spans. But as a blogger on Eastgate.com noted recently, that equates brevity with debased taste, and sees patience for long stories as a mark of high culture. But if brevity is to be deplored, what should we make of haiku, sonnets, and ink-brush calligraphy?

Today’s faculty members face several instructional technology challenges:

• The technology-adoption cycle: Under ideal circumstances, a faculty member may require anywhere from three to four terms to adopt a learning technology tool; even more time may be needed to produce positive results in teaching and learning. Many faculty members are hesitant to experiment with several tools at once and prefer a “one-at-a-time” approach to adoption and integration. The ever-changing array of available tools and the lack of information related to adoption and use together act as a de-motivator.
• Lack of integrated technology tools: Most faculty members are using some type of course management system, but many tools considered to be “emerging” are not integrated into these systems: blogs, wikis, podcasting. Lack of integration results in multiple log-ins, data input, and results tracking. In other words, tools that are not centrally integrated require an additional “use and management” investment that is otherwise unnecessary.
• Learners’ changing expectations: Students and their preferences are often a moving and diverse target. Not all students prefer the same amount or type of instructional technologies, leaving faculty members struggling to identify and select the appropriate tool.
• Institutional changes to technology commitments: Faculty members often adopt and integrate technologies at a different rate—sometimes slower, sometimes faster—than does the institution where they teach. An organization may decide to review, and possibly change, the course management system every five years. Changes in tools and in the commitment to support them result in an unstable, unpredictable environment, which makes innovation and adoption a risky business for faculty.

A nice overview of the state of technology in education, and what tools are out there now that have proven effective, or show promise of being effective.

And here’s another video on the products of technology and technological influence, and how the classroom can embrace it.  Again this is done by students, for a non-student body.  This one is full of more hope and promise, and above all shows why it is important to be looking ahead.  By keeping up with the students, we can help them match pace with their education.

Thanks to the students, faculty, and staff of KSU for both of these.