My background

It will take too long to detail all my written remarks, so I’ll just focus on a few key points here:

• Teaching a Distance Learning Course is HARD
• To be a decent teacher, you need flexibility
• Licensing schemes and other prior permission-seeking inhibit teaching flexibility
• Teachers need to be able to use various types of media, whether they are fictional or not.
• Distance Learning and educational innovation will drastically suffer (and probably wither) if the section #110 exemptions are not extended to allow the same performance and display in a distant digital environment that we currently have in the classroom

Teaching with technology is very very difficult, and distance learning makes it even worse.  My research has shown:

Call attention to my Mellon Foundation report on teaching with digital versions of still images  <<show handout>>
• Technical, logistical, & support difficulties <<read frm Mellon sponsored report publicly released 2 days ago>>
• Specific problem of curricular support materials (course readings) for distance learning <<refer to my JASIS article>>

To be a decent teacher, you need flexibility

• Any teacher, from K-12 to higher education who tries to be interesting or engaging, frequently needs to make use of a wide variety of copyrighted material
• If you teach the same way every time you teach a unit, you can obtain prior permission, arrange licensing, etc.
• But creative teachers need the flexibility to respond to current events and incorporate these into classroom discussions. Teachers who want to motivate their students need to be able to respond to topics their students bring up, and to quickly find unanticipated material which they can weave into the learning objectives of the course.
• Obtaining permission to use content is often extremely time-consuming and in effect prevents this type of responsive teaching

 

Licensing schemes and other prior permission-seeking inhibit teaching flexibility

• Much of the material that a teacher needs will not be part of any blanket licensing agreement
• The vast amount of time required to negotiate permission with a rightsholder is prohibitive.  Let’s look at an example to illustrate this point:
• An art history teacher wants to show slides to her students in a same-time/different place arrangement.  Her university has signed a license with AMICO, but AMICO will only have a small fraction of the images she needs (because many of them are not the kind that come from North American Museums from previous centuries).  Say it only takes her an hour to research and obtain permission to use an image (that’s an extremely low estimate of the time required).  If she shows the average 100 images/week that many art history classes show, she’s spending 100 hours/week just clearing rights.
• Licensing schemes are negotiated for general use; the model seldom fits innovative uses or new technologies.  In addition, these are often unequal partnerships, with the content-holder dictating the terms and the school having to either take it or leave it.
• So a library’s license for content might cover on-campus use, or use by students in a “regular” program.
• A licensor probably wouldn’t license content for use by distant-ed students.  It might take years of negotiation for the university to convince the licensor that a particular type of distant technology should be part of a license, and by then there would be some still newer technology that instructors would need included.
• The licensor is likely to have a strict (or at least a conventional) view of what constitutes the body of users they are licensing to.  Distant learners typically don’t fit that category.  And I know from my own experience, that distant teachers fall through the cracks as well.  Because my paycheck comes from UCLA, I drop out and lose my access priveleges every time they reload the UC Berkeley payroll records that the UCB library uses for authentication of users of digital content.
• In terms of granting licenses or any other types of permission, content-holders do not respond well to new technologies.  Their response is usually one of over-protection, and frequently acts to inhibit these new technologies from being used.  Another story from my personal experience:
• -Preparing to teach a Distant Learning class in 1993, I contacted the New York Times offering to pay for a digital subscription for my students so that we could discuss these articles in class.  In the ensuing discussion with the Times, they not only refused to sell me a subscription, but they contended that I had no right to make claims of a Fair Use or Distance Learning exemption.  On my belief in these exemptions I went ahead and used the material in digital form, but I don’t know if I would have done so without these protections.  This has become a very popular class (I’ve taught it for 10 years), and I’ve gone on to be an innovator in the Distance environment, neither of which would have happened if I hadn’t been able to rely on those exemptions.  And today the Times (which then had never heard of the WorldWide Web) has developed both free and marketing arrangements for their newspaper content in electronic form.
by the way, if this hearing today had been a distance learning classroom, and my presentation had been one of a teacher, I couldn’t have used the handout that I gave you a few minutes ago.  To get permission to show you those excerpts took more than a week and countless hours of my time.  And these came from an article that
• I myself wrote
• in a journal issue that I edited
• and I knew all the people in the permission office of the publisher
• and I even visited the head of the rights dept in person
Think about the poor distant learning instructor who doesn’t have any personal connections, and might not even know who to ask for permission.

Teachers need to be able to use various types of media, whether they are fictional or not.  The use of fictional media as part of a class often financially enhances rather than harms the rightsholder.  Another example from my own experience:

• I teach a multimedia class.  In order to teach my students about how these things are made, what constitutes good design, etc., I need to show actual multimedia products to the students in the classroom.  I also need the students to examine them rigorously, and to write reviews of them.  I then post these reviews in a publicly-accessible place on the Web.
• I know for a fact that after seeing the software in class, many of my students have gone out and purchased their own home copies.  They have told their friends and their friends have purchased copies.  And people who have seen these multimedia reviews on the Web have sent me email thanking me for the review and mentioning that THEY have purchased copies based upon my students’ reviews.
• So, instead of distance class use of multimeda programs harming the rightsholder, my classroom use has acted as free advertising for the products.

 

In summary, Distance Learning and educational innovation will drastically suffer (and probably wither) if the section #110 exemptions are not extended to allow the same performance and display in a distant digital environment that we currently have in the classroom

• It’s hard enough to be innovative and use new technology for teaching
• Teachers won’t continue to teach in innovative ways if they have to worry about prior permissions and licenses, and students and learning will suffer if teachers can’t be innovative and don’t’ have the flexibility to interweave new topics that come up in class
• Teachers won’t teach in innovative ways if they don’t have affirmative distance learning exemptions.  Teachers are role models for their students and don’t want to risk violating the law.  This problem can get even more acute when material encrypted or otherwise protected.
• Teachers need affirmative classroom and distance learning exemptions in order to “provide for the general welfare” and “promote progress in science and the useful arts” by motivating their students to learn.  This is what our country’s founders had in mind, and it is exactly what copyright is all about.

Should exemptions cover content distributed by companies targeting the distance learning field

• Yes, but with the assumption that educational institutions will pay for any kind of regular or habitual use of such material.  Exemptions are still needed for the tailored and quick responses to educational needs as I've outlined earlier.
• A point that I don't think we have made strongly enough: Educational institutions consistently choose to pay for content that falls under exemptions (and that they don't legally have to pay for).  Our libraries are full of material that we could use under fair use or classroom exemptions.  I frequently have my students purchase materials that I could present to them without cost by claiming exemptions.  Educational institutions are responsible parties, and we purchase any materials that we use on a regular basis.  And we're well aware of the precarious nature of small publishers that target our community, and want to make sure that they remain financially soluable.

If Distance Learning is such a growth area, why does it continue to require exemptions?

• First of all, the vast majority of successful Distance Learning is primarily confined to a single area -- training or vocational education.  The more academicly rigorous areas of Distance Learning are still in quite a precarious position, and it is unclear whether these areas will be successful.  Yet it is these areas (rather than the vocational area) which really require the exemptions.
• Secondly, both technology and pedogogy in Distance Learning is still very much in flux.  Because of its experimental nature, it is in a precarious state and could easily fall apart and fail.  It needs special exemptions at least until it becomes stable enough that teaching with it becomes routine.

address thru August 1999:
School of Information Management & Systems
102 South Hall
University of California
Berkeley, CA 94720-4600
tel: (510)643-7365
office: (510)642-1464
fax: (510)642-5814
howard@sims.berkeley.edu
http://www.sims.berkeley.edu/~howard/