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Digital Learning: Law, Technology, and Educational Uses of Content

Education and scholarship might be the paradigmatic field in which copyright law and related structures must strike a tricky balance: they must reward the creators who enrich our understanding, but also permit students and scholars to build on previous work. That delicate but crucial balance has become even more difficult to maintain with the advent of digital technology. Digitization offers breathtaking potential for improving the development and spread of knowledge around the world. At the same time, however, digitization disrupts existing structures. As the Berkman Center's Digital Media Project has documented for several years, the advent of digitization seriously disrupts markets for commercial content such as music and movies. The ability to make and distribute perfect copies with ease has placed great strain on copyright law and business models alike, sometimes distorting them.

The Berkman Center is now turning its attention to the same types of strains in a somewhat different context: education. Supported by a generous grant from the Mellon Foundation, the Center has launched a study of educational uses of content in the digital age. We will produce a foundational white paper on the subject later this year.

Teaching and learning themselves have changed in recent years, partly in direct response to the digital revolution and partly as the secondary effect of cultural changes related to a more participatory and media-rich information environment. Beyond the teacher in front of a room transmitting content to students who passively receive it, there is now much more distributed, interactive, and multi-media activity under the rubric of "education." Thus, "digital learning" does not occur only through teaching and scholarship connected to traditional institutions such as schools and universities. It also includes: (i) student use, collection, and creation of diverse content (e.g. web pages, images, video, and audio); (ii) digital activity by other types of established institutions (e.g. public broadcasting; museums); (iii) educational content assembled and presented outside of any traditional institution, particularly on the internet (e.g. the Red Hot Jazz Archive; the Victorian Web); and (iv) grass-roots open source educational projects (e.g. Wikipedia; the online Samuel Pepys Diary).

Legal Obstacles: Fair Use, TEACH Act, and DMCA

In the past, the use of limited portions of copyrighted works has been regarded as a particularly clear example of fair use. But that defense is imperfect: the fair use analysis is unpredictable and potentially huge statutory damages make it very risky for educators - especially nonprofit institutions - to rely on fair use. The fair use defense alone may not be enough to protect the forms of digital scholarship and education that new technologies make available to schools.

Congress enacted the TEACH Act in 2001 to update copyright law and enable educators, especially those engaged in distance learning, to share multimedia and use discussion boards and blogs with their students. However, due to the complexity and the burdensome requirements the Act places upon these educators, many have not taken full advantage of its provisions.

On the more overtly regulatory side, the Digital Millennium Copyright Act, which blocks users from circumventing copy protection measures, may make it impossible for educators to distribute a scene (or even an image) from a DVD to their students or assemble excerpts from multiple films into a form that is easy to play in class.

Code as Obstacle: Technological Protection Measures

Digital technology presents a boundless source of new opportunities for dissemination of information in the classroom, but it also enables tools that can severely restrict the sharing and distribution of new classroom content. In particular, Digital Rights Management code written into various forms of multimedia content often prevents teachers from using this content in multiple classroom contexts and from sharing it with their students. In addition, DRM may stop students from modifying and manipulating such content in interesting and creative ways, thus preventing them from fully engaging with the material. Imprecise internet filtering software might bar students from accessing websites relevant to a class project on breast cancer or popular music. And the imposition of a requirement that students obtain digital IDs before accessing classroom material may lead to students being left out of the discussion if teachers have failed to procure access for each ID, or if students are engaged in less discrete and more collaborative projects.

Clearance

Noncommercial educational initiatives must struggle against the rise of a "clearance culture" that requires licenses for educational uses of content that are minimal or highly transformative. This culture affects public broadcasters who wish to move their content to new media platforms such as DVDs, streaming video, and podcasts--platforms which may not be covered by traditional provisions in copyright law allowing the use of the content during broadcasts. Google's effort to digitize books provided by cooperating academic libraries runs into similar trouble insofar as rightsholders object that Google is unlawfully copying entire books and then profiting by misappropriating from authors the benefits of indexing their works. In addition, obtaining permission from a publisher or creator to use a copyrighted work may not just be difficult, it may be impossible in the frequent case of an "orphan work" which has not yet fallen into the public domain, but for which the original rightsholder cannot be located.

Undue Caution of Gatekeepers

Lawyers, copyright officers for universities, book publishers, and even educators tend to defer to a conservative picture of copyright law and refrain from contributing to and participating in a robust commons. The TEACH Act indirectly encourages such caution by requiring institutions to prevent retention and unauthorized dissemination of copyrighted works that are shown in the classroom; the result is that schools may decide not to take advantage of the Act's provisions out of fear of sanctions for noncompliance. And in terms of incorporating nonscholarly content into scholarly work, the rightsholders for popular cultural content are less accustomed to seeing their content used without remuneration and may be more demanding, either when disputing fair use or negotiating a license. It should be noted that erring on the side of caution may in turn negatively serve the future of the fair use defense; if educators and others are unwilling to engage in new and creative uses of copyrighted materials, then legislators may respond by limiting fair use to this more conservative and 'cautious' picture of users' rights.