MEDEV

School of Medical Sciences Education Development

More Arguments about Copyright As Georgia State Uni Decision Comes In (to see the full article and full credit see http://www.outsellinc.com/insights/11785)

"By Kate Worlock
Director & Lead Analyst
United Kingdom
May 31, 2012

The judge’s decision in the Georgia State University copyright case suggests that putting business models in place to enable the easy sale of small, discrete, and reasonably priced content objects would be a strategic decision that academic and educational publishers would be unwise to disregard." (OutSelling Inc)

Of the material above, I feel that in the UK we need to be much more careful than in the US. We don't really have the equivalent of 'fair use', especially not if 'copies' are made available digitally rather than in hard copy (noting in the example above an issue seems to be about 'portions of works available electronically to students'). Whether released behind a fire-wall/login or in an open context, as soon as content is available digitally it can be (and is) copied and forwarded to others.

'Fair dealing' in the UK is much less permissive for copying for the purposes of, for example, teaching. What is interesting in the article above is that the GSU 2009 'policy' (something that other organisations are probably still striving to achieve) was considered too permissive to the benefit of GSU and therefore the organisation was found in breach - if I tell my PVC T&L (who chairs our PublishOER Steering Committee) that we might be legally safer by failing to articulate a policy at all the whole organisation will shout 'hurrah!'. It is an important consideration. 

Personally *I* don't believe that 'fair dealing' (in the UK) would hold water for a moment in court where copies of third party works (substantive or not) are made available electronically to students, more particularly embedded in OER widely available on the internet. We recommend (and Naomi Korn, national copyright consultant, agrees) that 'fair dealing' is a very weak defence in a digital world, and is simply an excuse for not tackling the issue of academic plagiarism. We are prepared to discipline students with suspension and expulsion from their courses, however we tolerate, in some cases, appalling role modelling for students in this area. This is not necessarily the fault of staff: they simply do not know what best practice to follow, or if they do, then it is pragmatically impossible - the advice/support tools is/are not effective for busy academic (and clinical) teaching staff.

Finally, and this is one of Naomi's points, technology is so far ahead of the law at present that the law safeguards no-one, and we are all having to 'wing it' in real life because our students, employers and social environment demand it. Those creating guidance (or policy) do so in a vacuum where legal challenges are still possible, it is simply an attempt to square the need for pragmatic solutions to complex [legal] problems. A zero-tolerance approach is also, in my view, unworkable because society simply won't adhere to it.

At Cambridge 2012 I had a sense that the next time an organisation is challenged (like GSU) there may be (what I think of as the 'Harrods' effect[1]) 100 other organisations who stand up and say 'cool, put us on the list too'. The cost of bringing litigation against a coordinated response from the academic sector could wipe out significant reserves of any corporate. In this state of legal greyness, especially in relation to digital/electronic copies of third party materials, we need to compromise, for the benefit of all (except the lawyers).

[1]"1986: The small town of Otorohanga in New Zealand briefly changed its name to Harrodsville in response to legal threats made by Mohamed Al-Fayed against a person with the surname of Harrod, who had used the name "Harrod's" for his shop. Other town businesses changed their store name to Harrod's in support, and the resultant lampooning in the British press led to Fayed dropping the legal action." Credit to Wikipedia http://en.wikipedia.org/wiki/Harrods.