Anthony Davis, Jr., Electronic Resources Librarian, translates copyright and fair use for the academic community.
Faculty members constantly ask, "Can I put articles up on Blackboard?" The question always stumps me. As the librarian responsible for copyright and intellectual property policy, I'm supposed to have an elevator speech ready. They want something quick, "yes" or "no" with a few rules thrown in. Instead, I answer honestly, "It depends," and watch their eyes glaze over after I've talked for 30 seconds.
There's no law for Blackboard. The closest interpretation is a mesh of some best practices from the Teach Act with the all-encompassing mercy of Fair Use. But when we don't know what the Teach Act says and we don't understand Fair Use, that answer is meaningless. Combine these laws with the licensed environment of electronic resources in the library, a piecemeal mash-up of terms and conditions governing a rich collection of databases, indexes, and full-text scholarly articles. The resulting legal mess looks like something to be avoided. But the mess isn't going anywhere, and it's getting in the way of teaching.
Blame it on the Internet. We, as a nation, haven't figured out what to do now that things are so easy to reproduce and distribute. We haven't successfully regulated the issue and we haven't determined how this copying fits within the social contract. When restrictions on copying are completely unenforceable, people have incentives to ignore the vague dictates of the law. Web 2.0, which enables the participation (and file sharing) of billions of individuals, is moving faster than we can think or legislate.
In matters of intellectual property, our lawmakers don't know what they're doing. The Digital Millennium Copyright Act blatantly contradicts Fair Use. The film faculty are told, in direct contradiction to the law, that they can't rip commercially unavailable movies for educational purposes. Right now, an ugly piece of legislation called the "College Opportunity and Affordability Act" is making its way through the House of Representatives. It links federal financial aid funding to a university's willingness to police illegal file sharing on the campus network. So the Information Technology Department will be forced to police on behalf of the Motion Picture Association of America instead of focusing on support for teaching and learning.
The academic community tends to deal with these bad intellectual property laws after they've trickled down. This is because most of our interactions with the law are tacit. We assume we know enough of the law; we are unaccustomed to having to think about it. This dangerously passive approach is not shared by librarians. The American Library Association spends a lot of energy and resources lobbying against bad legislation, but when we're handling other people's intellectual property in the digital environment, we don't have a choice.
Finding our way through this mess will require more than just librarians. We'll need the collective intelligence of the entire academic community. I'm concerned with the lack of confidence among the faculty in matters of intellectual property. I'm concerned that faculty aren't sure if they're breaking the law when they're being creative in their roles as educators, and because of this, they might not make full use of the available information resources and the technologies that enable availability.
The risk averse, those who don't ignore technology altogether, approach it as if it's a mechanism for stealing, stifling their own creative potential and impeding the flow of information to the students. Those who are contemptuous of intellectual property rights tend to resemble irresponsible teenagers, ignoring the fundamental right to property, intellectual or otherwise, that protects us all.
We've reached a place where we can no longer be indifferent; we all have to participate in the discussion on copyright.
To my knowledge, there is no law that requires as much from its citizens, that expects us to know and actively apply the law, and that respects the judgment of the individual as Fair Use does. Because it's done individually, there's a high level of uncertainty inherent in the Fair Use analysis. This uncertainty is integral to the law and we have protection under the law if we are found to be in error. When we post an article in Blackboard, we are claiming our use is fair. We have to know what that means.
In light of all this, "Can I put articles up on Blackboard?" is really a question about responsibility. It's about the academic community developing competence and confidence in the face of uncertainty. It's about being proactive. The question isn't going anywhere; we're going to have to answer it as a community and as individual members of the academy in the course of our instruction and learning.