The Fourth Pan-Commonwealth Forum on Open Learning (PCF4)
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Frits Pannekoek

Copyright: Athabasca University sponsored panel

Frits Pannekoek
Athabasca University

Rory McGreal
Research Centre, Athabasca University

Gordon Naidoo
Open Learning Systems Education Trust (OLSET)

Santosh K Panda
Indira Gandhi National Open University

Anne Forster
The University of Sydney

More data was created in the last two years than has ever existed before in history. Not only do we have more information but this information is increasingly being 'born digital'. The Internet is the world’s largest intellectual commons providing learners and educational institutions with access to massive libraries of possible learning content either as relevant content for course readings or as specially designed “learning objects”.

This copyright workshop is designed to explore the evolving and complex interrelationship between online course delivery and copyright law, with special attention to the use of new technologies for the variety of digitizing, accessing, and storing functions enabled by the Internet. The presentations are designed to.raise the knowledge level and awareness of the range of issues associated with copyright and intellectual property issues as they apply to digitization within open and distance education contexts internationally in countries with legal systems based on British common law. This workshop will provide educators, researchers, librarians, and learning content developers basic information on copyright and intellectual property issues so that they can make informed decisions as they develop their digital learning projects. Legal issues come up in most if not all digital learning content projects, but few institutions have access to accurate information.

The panelists, through short presentations followed by an open discussion format will enable participants to learn more about copyright to help them in their decision-making processes and providing them with an overview of current copyright issues in distance education, addressing the continued struggles with "old" laws and the need to grapple with major new changes that are seriously impeding the development of online distance education.

The 150 minute workshop will consist of no more than 50 minutes of presentations by panelists, each followed by a brief question period. Then the presentations will be followed by an open discussion format addressing topics such as: “The origins and real meaning of copyright”; “Copyright basics” “Institutional and Policy Issues”; and “How to approach copyright in your institution”. Participants are expected to come to the session prepared with questions or problems that they have faced in their learning, teaching, or research. The participant questions will hopefully touch on most of the significant issues in copyright.

1. Copyright was instituted to protect the rights of the copyright owner.

Copyright was never intended to be primarily a vehicle for protecting the rights of the copyright holders. On the contrary, copyright was initiated specifically to promote learning: The Statute of Queen Anne, An Act for the Encouragement of Learning {House of Commons, 1709 #88}. In the United States this is enshrined in the constitution and in the Copyright Act 1790: An Act for the Encouragement of Learning, which was signed by George Washington (Columbian Centinel, 1790).
The US Constitution echoes the original British copyright law affirming that copyright was enacted “to promote the progress of science and useful arts” {U.S. Constitutional Convention, 1787 #157}. Shirata (1992) notes that this was no co-incidence as the US law was derived from those states that had created their own versions of the British statute.

2. Copyrighted materials are intellectual “property”

Copyright holders possess a simple “copy” right that gives them an exclusive right to exclude others and otherwise control the expression of their ideas for a limited time. Bloom (2002) complained that whoever turned "copy right" into one word had to be a lawyer. One does not say "freespeechright" or "gunright" or "assemblyright" or "religionright."

Bell (2002) writes that the copyright owners have “co-opted the rhetoric of property" (p. 8). The term “intellectual property” was seldom used prior to its popularization following the establishment of the World Intellectual Property Organization (WIPO) by the United Nations in 1968 (United Nations, n.d.). Since then, owners of copyright on creative works have conducted a constant campaign, with some significant success, to transform copyright into a property right. They are extending the property label for intangible things like texts, songs, movies, plays, software and yes, learning objects.

Thomas Jefferson expressly opposed linking copy rights to property rights, noting “Inventions then cannot, in nature, be a subject of property.” He reluctantly agreed to the granting of a copyright monopoly on a limited basis only insofar as it encouraged learning (Jefferson, 1813). In the same vein, President James Madison wrote that “incentive not property or natural law is the foundational justification for American copyright” (as cited in Vaidhyanathan, 2001, p. 43). So, there is no common law support for creative works as property. It is a privileged monopoly not a right.

3. Copying copyrighted material is “stealing”.

No one “owns” an intellectual work. The so-called owners possess only the copy right for the creation. Stealing and theft as confirmed by both the Oxford (Oxford University Press, 1989) and Merriam Webster (Merriam-Webster, 2004) dictionaries involve taking something “away” as well as the taking of “property” belonging to another. Since, nothing is taken away (the owner still has it) and there is no property, it cannot be stealing. As confirmed by the U.S. Supreme Court, the correct word to describe the act of illegal copying is “infringement” not “stealing”. (Dowling v. United States 473 U.S. 207, 1985).

Self (2004) casts doubt on the reported losses due to pirating that companies quote. He provides an economic analysis showing that the figures they use on the billions of dollars lost are manufactured and highly suspicious. He questions their methodologies, which in any case they seldom provide. He also wonders if Microsoft would really prefer a million installed copies of Linux rather than a million installed pirate copies of Windows. There is also a strong argument that pirating has bolstered the profits of many companies. For example MS DOS became an accepted standard because it was copied by everyone with a PC. This helped to establish Microsoft as the leading software company (Anonymous Coward, 2004).

On the other hand, how much extra money have copyright controllers made from consumers paying full price for music and movies in a new format when they had already paid full price only a few years before? For example, many people have bought the phonograph record, the tape, the 8track, the CD and now the DVD of the same song. Card (2003) wrote “Strip away all the pretension, and what you really have is this: Rapacious companies that have become bloated on windfall profits and ruthless exploitation of other people's talents are now terrified that the gravy train will go away.”

4. Sharing your copyrighted materials is “giving away” something.

When you share your materials with others, you still have it. President Thomas Jefferson put it this way: "He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me" (Jefferson, 1813)

5. Pirating hurts the authors of copyrighted material

Ironically, the present day copyright controllers owe their very existence to “piracy”. Lessig (2004) writes that the Hollywood film industry only exists on the west coast because the copyright and patent controls enforced by Edison and others were unduly restrictive forcing independents to flee in order to make movies. The recording industry began by recording songs without permission as did radio and as did the cable industry for television programming.

Content companies crying about the loss of their profits to digital pirates should examine their own history. They tried to stop radio from playing their songs, not realizing that it would be the biggest promoter for record sales. Movie companies attempted to limit the showing of movies on television and TV. Yet, it became a huge aftermarket for their used products extending their life. Card (2003) noted that although B movies and newsreels suffered, the aftermarket for the top hits became very lucrative. The VCR terrified studios and TV executives. At the time of its introduction, the MPAAs Valenti, (1983) commented "the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone". Yet, the VCR has proved immensely profitable, once the content controllers came to terms with rentals and reduced their pricing to sustainable levels. Now with DVDs, the aftermarket is often more profitable than the original cinema showing. The only movie theatres to (almost) disappear because of the new technologies are the pornography theatres. They never learn. To protect their copyright, the Recoding Industry Association of America (RIAA) is now pushing for onerous restrictions to limit the capabilities of digital radio (Reuters, 2004).

6. The Big companies controlling copyright help the artists.

Card (2003) argues that the big content companies’ protestations that they are protecting the rights of their artists are sham. They have been manipulating copyright laws for years, stealing everything they could from the authors and artists who created the content. Movie studios use "creative accounting" to minimize their profits, thus avoiding taxes and depriving the creators of their proper percentage. He refers to these companies as profiteers and bloodsuckers. Former Grateful Dead lyricist, John Perry Barlow (2002) estimates that nearly 90% of musicians with major label contracts cannot pay up the money advanced to them. They want to be heard so much that they are willing to sell their souls to the big record companies. Albini (1998) gives an informative account of how record companies rip off rock band artists. Avalon (2003) reported that the major recording companies were caught stealing $100m a year from their artists and were severely chastised for doing so by a US federal court judge.

In another action, authors had to file suit with the US Supreme Court to assert their rights to proceeds from the subsequent sales of their works to database services ( New York Times Co. Inc. et al v. Tasini et al. certiori to the United States Court of Appeals for the Second Circuit No. 00—201, 2001). More recently, record companies, who normally pay artists from 6 to 8 cents per song, are refusing to pay artists anything more for their “double session” CDs that release the songs in multiple formats. This dispute is being negotiated (Borland, 2004).

A rather contemptible example of the usurpation of an artists right by the big companies is that of Disney and other recording companies, who took over the rights to the hit song “The Lion Sleeps Tonight” otherwise known as “Whinawei” or originally “Mbuba”. The original South African song writer, Soloman Linda died a pauper, although the estimated value of his song is US$15 million (3rd Ear Music, n.d.; Isa, 2004).

U.S. record companies even attempted to furtively insert a clause preventing copyright from reverting to the authors, into the Satellite Home Viewer Improvement Act of 1999, which was unrelated legislation and so unknown to the artists. They attempted to add four words -- "as a sound recording" -- deep within it. This would have made all recording artists’ creations “works-for-hire” and thus the property of the record companies even after the 35 year expiration date when copyright normally reverts to the artist. Fortunately, Congress decided to remove this clause after intense negotiations with artists’ representatives (King, 2002).

7. Copyright does not support the public domain. Fair use” or “fair dealing” is an exception to copyright law

In fact, the original copyright act created the public domain. Prior to the Statute of Ste. Anne, there was no public domain. Copyright law was enacted to encourage learning. The public domain is an integral part of copyright law as is “fair dealing”.
The rights of copyright owners to control their materials are the exception. Fair dealing or use is integral to copyright. This has been affirmed by the courts.

8. Copyright controllers are not trying to entrench their monopoly.

They want to control “in infinite detail all use and duplication of material, monitor that use, and possibly charge for it on a transactional basis if they don't block it out of hand” (Lynch, 2001, p. 29).

The copyright controllers have waged a continuous war aiming to extend their rights at the expense of education and the general public. Barlow (1996, p. 15) warned “The greatest constraint on your future liberties may come not from government but from corporate legal departments laboring to protect by force what can no longer be protected by practical efficiency or general social consent".

Gary Shapiro (cited in Borland 2002) stated: The copyright controllers have “declared war on technology, using lawsuits, legislatures and clever public relations to restrict the ability to sell and use new technologies." Even homeland security is trumped by copyright protections and the $40 billion entertainment industry is imposing its views on the $500 billion technology industry. Forno (2002) calls this assault a case of the “mouse trying to own the elephant herd.” Nadin (1997) noted that governments are quick to give up ideals like human rights, but they “raise a big fuss when it comes to copyright infringement” (p.36).

9. Strict copyright laws benefit consumers.

The big content companies are also at war with consumers. The RIAA has prosecuted thousands of file sharers, from an 11 year old girl (NY, 2003) to a grandmother (BBC, 2003). DirecTV is suing thousands of people who may or may not be downloading its movies. Whereas, the RIAA is “fishing” for infringers by casting a wide net, DirecTV has been focusing on prosecuting Smart card users in the largest legal action in US history with more than 150 000 defendants. A spokesman for DirecTV stated, “ We're looking to put a chill on the market” by prosecuting many people who do not even own satellite systems. Although there are many legal uses of Smart Cards, DirecTV is continuing to prosecute because the cards CAN be used for pirating, not necessarily because people DO use them to pirate (Platoni, 2004).

In addition to their prosecutions, the owners have also developed the concept of “contributory infringement” as a way of downloading the responsibility of enforcing copyright to Internet Service Providers (ISPs), Telcos (RIAA, 2003), universities (Carlson, 2003a; Sherwin, 2003), and others (Jardin, 2004). Zittrain (2002) refers to this as the compulsory “deputizing” of network providers as content police.

If the entertainment industry has a problem with their copyright, they should handle it themselves and not transfer the responsibility and costs of enforcement onto public institutions and the taxpayers.

10. Strengthening Copyright protection enables innovation and creativity.

Librarians have their own problems with the DMCA. Bricklin (2002) claims that copy protection could “break the chain necessary to preserve creative works.” He argues that because of the DMCA “To create a ‘Rosetta Stone’ of today's new formats will be asking to go to jail and having your work banned.” Copy-protected content and applications are less likely to survive for posterity.

Many of the advanced features of ebooks have been removed in order to prevent copying. These regressive measures include technical features that limit the downloading of content to the proprietor’s site, suppress the copy and paste feature, as well as charging excessive prices making e-book purchases less attractive than paper copies. Other controls include publishers withdrawing legitimately purchased subscriptions without notifying the subscribers.


“It's fascinating that we live in a society where openness and sharing can actually be considered crimes.” Downes (

Jefferson, T. (1813). Thomas Jefferson letter to Isaac McPherson 13:333--34. Foundation Constitution, 16(25).

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