Copyright reform | Viewpoint
Islands in the Stream: Academic Technology, Digital Copyright, and The TEACH Act
- By Raymond Uzwyshyn
Puzzling over the arcana of the TEACH Act [Technology,
Education, and Copyright Harmonization Act, 2002], more than a few university
administrators will be reminded of the minutiae of the tax code. To be sure,
copyright law needs to be reconceptualized for the new millennium.
Libraries and universities are witnessing a sea change from an
earlier era of historical development. Definitions of copyright,
technology, and the online classroom need to be recast or the laws become
peripheral in handling digital copyright questions that
increasingly arise. Recent cases represent the widespread confusion among
players. Various strong opposing debates regarding streaming media and the
TEACH Act illustrate these facts well. [For examples
in the education media read Steve Kolowich’s article, “Hitting Pause on Class
Videos,” Inside Higher Ed, January 26, 2010, or his more recent article,
“Stream Away,” also in Inside Higher Ed, October 5, 2011.]
Going Digital in Academia: Copyright Then and
How relevant is it that media industry content
publishers offer movies on a DVD or streaming basis? How should this effect
universities, academic libraries, and copyright regulation? In the past,
Marshall McLuhan put this as “the medium is the message.” On a technological
level, when an academic library purchases a DVD for borrowing, they purchase
the artifact: a tangible, real object. When they stream from a publisher,
they pay for access rights to a stream of bits. One doesn’t own the stream but
simply licenses access to data pipes. Historically, academic libraries have
been in the business of storing, borrowing, and lending ‘objects’ with a myth
of permanence as archives of knowledge. The digital stream though, presents a
fundamental contradiction to a unitary model of archival permanence. The
question arises: Is academia still an island exempt from higher strictures
of copyright? How does this island relate to the ever-growing digital stream?
This becomes a tricky matter for academic libraries especially in terms of digital media and e-reserves
policies. Questions of copyright infringement and interpretation of the TEACH
Act arise. Faculty increasingly request production of copies of a DVD to stream
through online courses. Now just because an academic library has the
technological capability to make this type of copy, does this mean it should?
If an academic library’s policy is not to duplicate copy-protected DVDs, do
they violate their policies and copyright law by streaming? It seems academic
libraries are driven by best practices and the needs of their patrons.
Historically, they are service-driven organizations. As the current needs of
faculty are rapidly changing, academic libraries have made attempts to keep
with their service orientation--though increasingly, this has come up against
the complexity of copyright in the digital era.
Both Netflix and YouTube models currently have made
incursions into brick and mortar and online classrooms. Will all academic
institutions now pay for streaming rights? Faculty will do what they can to
advance pedagogy. For online digital video modalities, the movement seems to be
to pay video vendor database publishers such as Alexander Street Press for
academic access rights.
Does the TEACH Act allow a school to perform an
entire movie on a digital network? This again is a multi-layered question with
no facile answers. Recently, the regents of UCLA seemed to believe that the
spirit of the TEACH Act does allow a school to perform an entire movie on a digital network if the movie is circumscribed for a particular class and session and limited to that class as
direct curricular activity. Through a court case, the film industry seemed to
think otherwise. Will this difference become the upcoming educational Napster
of the new millennium?
Academics as Digital Information Traffickers?
Broadening this discussion, would the TEACH Act
apply if a faculty member wished to place an entire digital movie archive on an
academic library e-reserves system? This does make library e-reserves into a
well-stocked and interesting alternative to online video stores. Most academic
library e-reserves systems are constructed so that the entire university
community has access to the e-reserves content. Previously, few seemed to have
issues with runs of Proteomic Strand Analysis Journal of Cell Biology being open to the university--would there now be a
brouhaha if universities place Spielberg’s entire catalog online for classes
on “Spielberg and America: A Semiotic Analysis”?
At certain academic institutions, there is a
differentiation between DVDs that are copyright protected (DRM protected) and
others that aren’t. Perhaps this pragmatic ‘deterrent’-type reasoning does rule
the day, and there are parallels with the law. Most libraries aren’t in the
business of ripping anything off and actually see themselves in
an opposite role. Yet increasingly, they are being asked to ‘rip’ DVDs for
online curricular video streaming.
In the recent Association for Information Media and
Equipment et al. v. The Regents of the University of California et al. case, legal
metaphors were borrowed from the language of illicit narcotics: The prosecutor
characterized the UCLA libraries as “trafficking” through their use of the
Video Furnace system. That particular reference did not stick overly well, but
related legal issues remain generally clouded at higher education institutions.
Most administrators or faculty would never think of their institutions’
mild-mannered librarians as digital information pushers but perhaps that’s what
it’s coming down to, given the perceived marketplace threat of current players.
What choices do librarians and the academy have?
Pay for copyright protected materials or the online academic gigs up! Well,
gigabytes at first--the looming trajectory is one of posting or streaming
hundreds or thousands of terabytes of digital media, some portion of which
might be at least technically in violation of copyright. This is definitely
something most university administrators would have never associated with
academic libraries or librarians--generally a law-abiding, service-oriented
lot. Instead of being recognized as stewards of the archives of knowledge,
the shift is towards accusations of ‘information trafficking’ in the
twenty-first century. Who would have foreseen such scenarios?
An information explosion is definitely occurring
through media. A paradigm shift through the network forces us to
reconceptualize not only copyright but also academia. The ways we have to think
about this parallax shift have yet to be developed. Society seems to be in the
midst of an era not unlike the first fifty years after Gutenberg. A
profusion of digital activity is shaking foundations of well-established
structures. There is a realization that older socioeconomic systems are
ill-equipped to deal with these new realities. There is also an understanding
that the old system is the only system currently present. It would do well
to remember McLuhan again, “New technologies all but wreck the societies and
associated systems in which they appear.”
Time to Reexamine
In large part, academic libraries have always been
and will continue to be havens for protecting and providing archives of
knowledge and wide access to information. If it is now information trafficking
for universities to proceed along these lines perhaps it’s time for a
wider reexamination of fundamental digital copyright assumptions. In terms of
networked data, artifacts over the Internet are streams of bits:
software, e-book, image, and streamed digital video. In the twenty-first
century, where does the bit end and copyright artifact begin? How can the
law pragmatically insert itself to protect various interests, balancing the market
functions of democratic society with the traditional roles of academic
libraries and universities?
To look forward, it will increasingly become more
difficult to differentiate definitional boundary lines between textbooks,
videos, and software, especially in online learning systems for educational
institutions. ‘Streamed’ textbooks are quickly becoming interactive,
incorporating and intermingling a spectrum of media, images, text, data, and
software. Interactive multimedia will become the preferred ‘textbook’ for all
disciplines. Humans are naturally multimodal and learn through a spectrum of
media. The stewards of copyright need to start planning and gestating better
thinking and more innovative legal paradigms to deal with some of these
challenges but also recognize the opportunities to reconceptualize
nineteenth-century judicial infrastructures for our globally networked
Further Reading: The Changing Landscape of Digital Copyright in the 21st Century
Hilderbrand, Lucas. Inherent Vice: Bootleg Histories of Videotape and Copyright (Durham: Duke University Press, 2009).
Hobbs, Renee. Copyright Clarity: How Fair Use Supports Digital Learning (Chicago: Corwin, NCTE, 2010).
Jean Burgess and Joshua Green, with contributions by Henry Jenkins and John Hartley. YouTube: Online Video and Participatory Culture (New York: Polity, 2009).
Lessig, Lawrence. Remix: Making Art and Commerce Thrive in the Hybrid Economy (New York: Penguin, 2008).
Mason, Matt. The Pirate’s Dilemma (New York: Free Press, 2008).
Simpson, Carol. Copyright for Schools: A Practical Guide, 4th edition (Illinois: Linworth, 2005).