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How some Teachers Feel About Fair Use and Intellectual Property

Protecting Intellectual Capital While Nurturing Intellectual Capacity

From CoSN's testimony to the Web Based Education Commission on the topic of copyright. Read the entire testimony

Author: Ferdi Serim Thu, 24 Aug 2000
The controversy surrounding copyright issues and the evolving needs of educators in a digital age alerts us to the shortsightedness that can result when we resolve issues before the ramifications are sufficiently understood. The extension of previous solutions (such as "Fair Use") have worked in the interim, but are conceptually dwarfed by the fundamental changes technology introduces to the way intellectual property is conceived, developed, produced, distributed, applied and stored. The recent legal rulings over Napster and how to maintain protection of intellectual property in a digital age underscore the conflicts as well as the stakes.

In the digital age, the organization of data and editorial function of summarizing, hyperlinking, and relating diverse sources of data to meet specific adhoc needs adds value to content, and represents an emerging class of intellectual capital that goes beyond the concepts of "derivative works" or similar earlier classifications. Today, both students and teachers must see themselves as learners. As learners, they need to interact with the highest quality materials in order to develop the skills required to transform data into information into knowledge and hopefully wisdom. Balancing the legitimate needs of content providers and knowledge builders is a far more complex task since the advent of today's communications and multimedia technologies.

However these issues are neither new, nor without historical precedent in terms of how they're addressed. Two stories, one from 500 years ago, and one from the mid-twentieth century, may help to illustrate this.

In 15th Century Turkey, Nasr-ed Din Hodja became the source of stories that are rich in history and legend, transporting the cultural life of a people forward from the days of Tamerlane to today. Hodja often served as magistrate, deciding difficult cases in his village of Ak Shehir. On one such contentious occasion, a beggar and a baker were brought before him. Once they were quieted down, Hodja inquired what was the matter.

"He's a thief!" shouted the baker. "He stands outside my bakery and sniffs the aroma of my fresh baked goods! I work hard to produce these items, and he derives the benefit without paying at all! I demand that he give me 35 ghurush as compensation for my toil!"

Hodja turned to the beggar, who answered "Sir, I have so little that these delicious foods are beyond my reach. They cost more than I have to live on for a month...the best I can do is stand outside the shop, take in the wonderful smell, and savor the satisfaction of my dreaming. If I pay 35 ghurush, I will have nothing."

Hodja thought a moment, then said to the beggar, "give me all your money." Astounded, but having no choice, the beggar reluctantly complied. Hodja held the coins in his cupped hands and shook them forcefully. He then said to the baker, "Did you hear that? The sound of his money is suitable payment for the smell of your goods!" At that, he returned the beggars money, and sent them on their way.

Schools today are cast as beggars. Although they have money, they don't have enough to meet the needs of every child they serve. The Fair Use guidelines put in place for previous versions of copyright law reflect a recognition of the limited economic power combined with the immense social responsibility schools face in preparing our youth for the future. The Internet and related communications / multimedia technologies vastly expand the storefronts before which our metaphorical schools can stand to sniff the goods.

Content providers play the role of the baker in this metaphor. The
expenses, labor, talent and risk involved are completely on their side of the equation. The Internet's tendency to make all information want to be free is directly at cross-purposes to the economic well being of content providers.

Fair Use *is* Fair Play

Obviously, the health of content providers is intrinsically crucial to the health of education. Schools require a steady flow of quality, reliable, accurate information as the source material from which effective educational experiences are built. However, technology changes the transactional basis in fundamental ways.

In "Saying 'Yes' Instead of 'No': Promoting the Fair Use Guidelines for Educational Multimedia" (MultiMedia Schools Magazine, May 2000) Connie Bakker makes the following points:

"Copyright concerns have usually been a negative experience for most library/media specialists. It generally means saying "no" to the plans of well-intentioned teachers. "NO"; you can't make multiple photocopies of a workbook to save the district money." "NO"; you can't play that rental video as a Friday entertainment activity." "NO-I can't make seven copies of a video for temporary reserve."

"The Fair Use Guidelines for Educational Multimedia gives library/media specialists an opportunity to promote copyright compliance in a positive light. In using these guidelines with students, educators plant seeds of ethical judgment in an era when access to and manipulation of information is all too easy. " (Readers are encouraged to explore the full text.


Education consists of more than filling out multiple choice standardized tests, or completing sets of worksheets. When educational technology is used to its full potential, the result is the building of new knowledge.
This knowledge has value that may be an appropriate focus for copyright law. The uses of protected material in ways intended to produce new works which increase the range of high quality materials for learning ought to be themselves protected as an extension of Fair Use that reflects the realities of teaching and learning in a digital age.

Respectfully submitted by Ferdi Serim Educational CyberPlayGround Ring Leader on behalf of the Consortium for School Networking (CoSN)


Art Wolinsky
As Ferdi mentioned in his article, Napster is a prime example why fair use and artist compensation have to be looked at differently today. Napster technology poses a threat to the small artist, but tied to accounting and billing software, it is also poised as the salvation of the small artist and the force that will force the recording industry to reinvent itself. Allow me to illustrate...In November I have arranged for up and coming folk artist, Chuck Brodsky, to come to our school to conduct a song writing workshop as a culminating activity to a series of interdisciplinary lessons being conducted between Sept and Nov. I have been gathering resources for the past month. The resources consist of online material, CDs, cassette tapes, and video. There will be activities conducted in school through our AP Music and Creative Writing classes. Online (Intranet) activities will be provided to open up the unit to any other student who wants to participate. One of my objectives is to make this as copyright compliant as I can. In order to do this I have secured the permission of some artists to use their material on our Intranet and have personally purchased over $200 of CDs, tapes, and video that will be available in school as resources. Add to that the cost of having Chuck come in to do the workshop (at a bargain price because I know him), the planning time of the three teachers involved and the online time spent by all of the teachers and you have a four figure lesson.The online activities are being created using Tom March's Web-and-Flow. When completed, there will be one or two WebQuests, one or two Knowledge Hunts, and a series of Insight Reflectors (prompted writing activities). The Hunts and Reflectors will dovetail with the WebQuests, one of which will seek to answer the essential question, "Does music change the world or does the world change music." The other will be called Napster Schmapster, in which students will look at the issues of copyright and fair use in light of today's technology and will try to design a system that will facilitate fair artist compensation.I have so far I have put 20-30 hours into gathering resources and drafting the online activities. I will probably put in another 50-100 hours before the project is over. Yet, because of the restrictions placed on me by current copyright and fair use policies, the lesson is very expensive and a mere shadow of what it could be if there were systems in place that would allow me to compensate artists directly for online material I use.Again, let me illustrate my point about Napster by telling you of one activity that I put together, would love to do, but can't because of current copyright laws. A major part of the project is a look at the roots of modern day folk music.It starts with a look at the life and times of Woody Guthrie. Much of the material I purchased centers around this, but Napster would add to that immeasurably. I had to purchase four CDs and a tape, but will use less than 20% in the lessons. Whether this material is made available through library sign out or teacher presentations, the distribution and access is limited because of copyright considerations. If I could put it online in our password protected Intranet, it would be accessible to all of our students.If I used Napster, I could download This Land is Your Land by 15-20 different artists. The AP Music students would have a gold mine analyzing the different treatments of the song. Without Napster technology, the only way I could do this would be to purchase another $200 worth of CDs.I don't suggest I should be able to download this material freely. If I could download and use songs in lessons at let's say five-cents a song, I wouldn't blink an eye at spending a $1 instead of $200. How many thousands of other teachers would take the same attitude. The result would be sales that provide artists at least 10 times the compensation they currently get.Organizations like ASCAP and BMI are starting to recognize the need to provide material for online presentation. I can use any of the thousands of songs in the ASCAP data base on our school web site for a licence cost of about $260 a year. That's good for the schools, but not so good for the artists.After a little investigation, I found out that ASCAP represents thousands of artists, but the royalty distribution is grossly unfair. The bulk of the distribution goes to the top 200 artists The antiquated sampling and extrapolation methods used to determine distribution of funds results in the rest of the artists getting much less than their fair share.In my opinion, Napster technology isn't a threat to artists, it is a threat to the recording industry and publishers. If artists had a way to put their music online and get direct compensation for each download, the record companies would be largely cut out of the picture. (Disintermediation at its best.) Book publishers and authors are involved in the same scenarios. Look at Steven King and his cheap download. Did that open a few eyes? You bet it did! In the words of Shabtai Zisel ben Avraham v'Rachel Riva (a.k.a. Bob Dylan), "The times, they are a changin'."
Take care,

Art Wolinsky
OII Technology Director
East Coast Facilitator
National Action Committee

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