National Broadband Plan: Access, Education, & Copyright (Part II)
by Nicholas Bramble | March 24, 2010 | Other | 1 Comment
Back in December, when the national broadband plan was still being developed, some of us at the Information Society Project submitted a filing (pdf) to the FCC on the topic of copyright and education. In our filing, we suggested that increased broadband access would transform how education takes place both inside and outside the traditional school environment. We advocated for the creation of a broadly accessible repository of creative works that could be used in the course of education without fear of copyright infringement liability, and we suggested broadening the definition of what activities fall within “the course of education” for purposes of this repository and for the TEACH Act.
On Tuesday of last week, when the FCC released its national broadband plan, I was happy to see a significant amount of space devoted to education. Additionally, the Director of Education for the broadband plan noted that “the work of the team at the Information Society Project at Yale was a critical piece of input for us while developing the plan, on issues of copyright and digital education.” We are proud to have played a role in the development of these national broadband strategies.
Here’s what the National Broadband Plan says on the topic of education and copyright:
Recommendation 11.4: Congress should consider taking legislative action to encourage copyright holders to grant educational digital rights of use, without prejudicing their other rights.
New broadband-enabled solutions are transforming how teachers and students use content and media. But copyright law must keep pace as new technologies and media are developed. In part due to a lack of clarity regarding what uses of copyrighted works are permissible, current doctrine may have the effect of limiting beneficial uses of copyrighted material for educational purposes, particularly with respect to digital content and online learning. In addition, it is often difficult to identify rights holders and obtain necessary permissions. As a result, new works and great works alike may be inaccessible to teachers and students. … [List of examples of inaccessible works.] … Penalties for copyright infringement can be substantial, but the boundaries between permissible and impermissible uses of copyrighted works in educational contexts—particularly with respect to digital content and online learning—are not always clear. That produces a chilling effect on teachers, schools, and school districts, which limits the use of cultural works for educational purposes.
Increasing voluntary digital content contributions to education from all sectors can help advance online learning and provide new, more relevant information to students at virtually no cost to content providers. Congress should consider ways for educators to interact with their students using new educational content contributed by the public in the following ways:
- Update TEACH Act. Congress could consider updating the TEACH Act to better allow educators and students to use content for educational purposes in distance and online learning environments without prejudicing the other rights of copyright holders.
- New Copyright Notice. Congress could consider directing the Register of Copyrights to create additional copyright notices to allow copyright owners to authorize certain educational uses while reserving their other rights (see Exhibit 11-D [NB: basically, this is an "e" inside a circle instead of the © symbol])
- Facilitate licensing. Congress could consider providing a statutory framework to facilitate identification of copyright holders and securing of permissions in an efficient and cost-effective way, while retaining existing protections for educational uses without exceeding permissible exceptions and limitations under copyright law.
Procedurally, some might be wondering why these policy suggestions on education and copyright are relevant to a national broadband strategy. Why shouldn’t the FCC just rely on an “if we build it, they will come” strategy, and let application and content-providers take care of the provision of these higher broadband-related goods?
Well, I’d argue that it’s impossible to assess strategies for increasing broadband growth and penetration without at the same time considering the purposes and the implications of increased broadband access. For instance, a straightforward comparison of the significant costs of increasing rural broadband access with the marginal benefits of connecting a few more communities—without considering the national purposes of education, job growth, security, and health care access—might yield the conclusion that expanding rural broadband access really isn’t worth the investment. But in a country where nearly one hundred million people currently lack broadband access at home, and where there are strong correlations between lack of internet access and lack of economic opportunity, a true consideration of the costs and benefits of Internet access must take these otherwise foregone social and economic opportunities into account.
Perhaps the more fundamental point in weaving these discussions of education into the broadband plan is found in the realization that as faster Internet access comes to schools and communities, a wider array of rich media content and Internet-driven educational applications will come to these schools and communities as well. What does this mean in practice? Rather than having a few centralized rightsholders (textbook publishing companies, content distribution companies with school contracts and licenses, classroom software makers, etc) determine what content will be part of a school’s curriculum, we will likely begin to see schools, teachers, and students making more of these curricular decisions for themselves. Both in the formal classroom context and in the informal extracurricular context, educators and students will increasingly be able to search through the wealth of available applications and content on the Internet and make a choice as to which information is most appropriate to a given assignment or lesson plan.
As the FCC puts it, in a broadband-equipped world,
This examination of information flow fits within an ambitious broadband plan focused on spectrum reallocation, investment in public infrastructure, and more broadly, treating the Internet as *the* crucial communications medium, separate from the one-way medium of broadcasting. But the development of new, interconnected, broadband-dependent education platforms based on improved information flow may be forestalled if the legal status of students’ and educators’ ability to craft, share, transform, and distribute complex creative works remains as unclear as it currently is.
II. Licensing Diversity?
Of course, different people have different ideas about how best to clarify the legal status of educational use and creation of copyrighted works. Timothy Vollmer from Creative Commons objects to the FCC’s suggestion of a new copyright notice that would “allow copyright owners to authorize certain educational uses while reserving their other rights.” See http://creativecommons.org/weblog/entry/21260. Vollmer argues that under the plan’s implementation of a notice whereby rightsholders could authorize free educational use of their content, it will be “difficult to determine what will qualify as ‘educational’ content and use,” and various interoperability problems will arise:
Certainly, Creative Commons has a great deal of experience in designing interoperable licenses, and has made a number of decisions in the past to phase out developing nations and sampling licenses (available here: http://creativecommons.org/retiredlicenses) which represented a more particularized and domain-specific approach to copyright. Indeed, as Vollmer points out, Creative Commons in 2003 considered a proposal to develop an education-only license but ultimately chose not to implement that license.
Yet I’m inclined to defend the rough structure of the FCC’s plan on several grounds. First, a diversity of licensing approaches may not be mechanically desirable, but it is surely inevitable. We have to recognize that a single licensing paradigm granting broad, non-domain-specific use and reuse rights might not make sense in all contexts, particularly in a space where the users themselves (students, educators, etc) might wish to ensure that their creative works do not leak outside the domain of education.
Second, many creators and institutional copyright holders might want to make materials available to students and educators, and the FCC’s recommendation might convince them to share their works with this narrower audience whereas a comparatively more open licensing framework might dissuade them from sharing at all. Perhaps rather than starting from the premise that creative works should be shared only if they can be shared perfectly and universally, we should accept the idea of multiple licensing frameworks that enable maximum content availability in each context—and then work to build a broader system that can cope with this license diversity and make differently licensed works interoperable. This is a necessarily iterative process, but it recognizes the multiplicity of motivations that different creators have for sharing their works, and it takes pragmatic account of the likelihood that a significant number of educational publishers will flip their inventories from closed to open if they can have reasonable assurance that their works will be made freely available only within the context of education. In this respect, the educational right of use notice is analogous to Creative Commons’ non-commercial licenses.
Third, in order to maximize access to the educational content repository created by the educational use notice, the FCC and Congress can employ a hallmark-based approach regarding what constitutes “the course of learning,” and not simply use the indicia associated with formal educational activities as the dispositive criteria for delimiting the educational from the non-educational. The FCC takes an important step in the direction of promoting interactive broadband-based learning where it suggests that Congress update the TEACH Act “to better allow educators and students to use content for educational purposes in distance and online learning environments without prejudicing the other rights of copyright holders.” Perhaps this approach would permit those building online tutorials, educational wiki-style entries, instructional videos, interactive educational software and games, and other online or distance learning materials to draw upon works from the educational repository.
In any case, while the educational use notice might be an important mechanism for clearly identifying freely usable works and thus relieving educators and students of the great uncertainty currently surrounding reuse of copyrighted works, it clearly would not prejudice these same users’ ability to assert fair use or other education-related copyright exceptions with respect to works that did not carry the notice. Similarly, if educational publishers, museums, authors, and other content-holders saw fit to grant even broader use and reuse rights than contained within the educational use notice, they would be free to employ a relevant Creative Commons license to express that intent. The point is that the FCC’s proposed educational use notice will not, in all likelihood, cause any harm to the educational content ecosystem, and in fact may be a quite positive—and strongly iterative and pragmatic—step in the road towards a high-bandwidth educational world where there are few legal barriers to the broad use and development of creative works and applications.
Comments
One Response to “National Broadband Plan: Access, Education, & Copyright (Part II)”
Connect with the Yale ISP
yaleisp.org search
Recent Posts
- is #ACTA unconstitutional? Find out what members of the ISP, including @MargotKaminski, think here: http://t.co/HlAfBsxq
- .@jackbalkin : most people teaching constitutional law thought the challenge to the mandate was (technical term) batshit crazy
- RT @ipjustice: EU Commissioner for Digital Agenda Neelie Kroes: “We are now likely to be in a world without SOPA and without ACTA.” http ...
- .@jackbalkin says we passed the penalty version of health care because Teddy Kennedy died, instead of a tax
- Dean post tells us to eat our broccoli because we're about to talk healthcare...
- surreptitioud Tweeting from the Yale law alumni lunch on health care. Yum tilapia
- RT @DanielBrenton: RT @OnwardJustia Justia guest columnist & @YaleISP fellow @anjalidalal looks at why #CISPA is not the solution ht ...
- Year-end party! I like burgers and beer.
- .@anjalidalal at generalassemb.ly triggers debate over why some file-storage sites—eg, iCloud—state in TOS they may pre-screen user uploads.
- "Not once, but twice, vessel hulls appear on the screen today." - @wseltzer & @margotkaminski build audience excitement by discussing §1301.
Flickr Photos
|
March 24th, 2010 @ 2:49 pm
[...] This exploration of demand-side barriers is related to the final of the Plan’s three major sections, which (in response to the request made by Congress in the American Recovery and Reinvestment Act of 2009) seeks to explore how the implementation of broadband access will affect the development of and access to health care, education, energy and the environment, economic opportunity, government performance, civic engagement, and public safety services. It’s these “national purposes”—and particularly on the question of how broadband relates to education—that I’d like to explore in a second post. [...]