Fair Use Resources

Center for Social Media Publishes New Code of Best Practices in OCW

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.

As we approach an upgrade and relaunch of Critical Commons, we are particularly excited about the guidelines offered by this current code of best practices. Although it was not originally conceived as open courseware, the features and beta applications of Critical Commons increasingly seems to suggest a powerful role in support of distributed education. We are grateful for the perspectives and insights offered by the Center for Social Media in thinking through these issues on behalf of online learners.