Monday, April 25, 2011

Ignore copyright, its research and private study

With the fair-use and fair-dealing exceptions to copyright the independent learner can simplify their perspective when considering using copyrighted material for their research and private study. Other than attribution an independent learner can ignore copyright and use all available materials to learn with reckless abandon. These rather bold statements are based on common sense and not being able to find any case law that would lead me to a different conclusion. In Canada (and many other commonwealth countries) we have fair-dealing. Fair dealing allows limited and non-commercial copying for the purposes of research or private study, criticism, review, and news reporting.

With extensive searches for case law on fair dealing I was unable to find any legal challenges where a self-directed independent learner was being sued because they used copyrighted material for their research, private study or review. To support my position I believe it is important to answer three questions and make four important observations;

Questions:
  1. What is research?
  2. I particularly like this description of research for it includes the importance of communicating to others as being a part of research.
    Research is the systematic process of collecting and analyzing information to increase our understanding of the phenomenon under study. It is the function of the researcher to contribute to the understanding of the phenomenon and to communicate that understanding to others. - Leedy, P. D., & Ormrod, J. E. (2005). Practical research: Planning and design (8th ed.). Upper Saddle River, NJ: Prentice Hall.
    I also like the definition from the intellectual property office in the UK for it also stresses the importance of providing sufficient acknowledgment. And aligns well with my previous statement about attribution.
    http://www.ipo.gov.uk/types/copy/c-other/c-exception/c-exception-research.htm
  3. What is private study?
  4. After review of a number of definitions of private study I found them mostly to be very similar. It is quite clear that private study is an independent activity that includes reading, reviewing materials, writing and reflection. 
    ...in private study during term (not counting time in lectures, classes or supervisions). You should try to work out a regular plan for your week which leaves you several periods free for concentrated reading and writing. Work out in advance what you can reasonably expect to read in the time available, and when you need to stop reading and begin to organise your thoughts and write. - selected text from the definition of Private Study, Department of ASNC Anglo-Saxon, Norse & Celtic, University of Cambridge.
  5. What is review?
  6. There are many forms of review and they are all well described in the following Wikipedia article. What I particularly like about this Wikipedia article is that it includes many different forms of materials that can be reviewed. 
    A review is an evaluation of a publication, such as a movie (a movie review), video game, musical composition (music review of a composition or recording), book (book review); a piece of hardware like a car, home appliance, or computer; or an event or performance, such as a live music concert, a play, musical theater show or dance show. - Review. (n.d.). In Wikipedia. Retrieved April 25, 2011, from http://en.wikipedia.org/wiki/Review
Observations:
  1. Learning is a social activity, and there is no shortage of research and evidence in support of this. Learning with reflection, particularly public reflection deepens learning beyond similar activities without the public reflection.
  2. A well learned and skilled population gives a nation competitive advantage in the global economy. Therefore, I cannot see a court challenge finding against a person using any / all available material (copyrighted or otherwise) when they are learning. Particularly, when they are open about their use and are mindful of the six principal criteria for evaluating fair dealing.
  3. Within a personal learning context and given fair-dealings / fair-use, licensing then becomes about protecting the institutions. And no institution (online or otherwise), or its employees or faculty, are going to suggest to its learner community (students) to ignore copyright and claim fair-use / fair-dealing. This suggestion, made broadly, would be a violation of fair-use / fair-dealing. It is also why the institutions advocate so strongly in favour of copyright (I'll hedge because their lawyers have advised them as such).
  4. We really need some case law on this! Given none exists I'll hedge this falls in favour of the independent personal learner, and all copyright holders who have considered legal action against an independent personal learner and sought legal advice have been advised against taking action due to fair-dealings / fair-use.
Please keep in mind this is my position on this issue. I am a self-directed adult learner who believes learning is a social activity and by sharing publicly my learning I am deepening my learning, engaging in progressive inquiry and focusing my deliberate practice. I do not feel I am pushing the boundaries of copyright for I am consuming, reusing, referencing and mashing resources within the fair-dealings exception and we need some case law to provide guidance to this important issue of open educational resources, personal online learning and fair-use / fair dealings.


Request for information:
  1. If you are an intellectual property or copyright lawyer I would appreciate your commenting on this post from the legal perspective.
  2. If you know of an intellectual property or copyright lawyer, please forward this post and request they make comment.
  3. If you know of any case law regarding an individual self-directed learner within a fair-dealing or fair-use suit please forward it along.

1 comment:

Deborah L Gabriel, PhD, MD said...

Your case is in alignment with what we were taught both as grad students in research and also as professional research associates (in the USA). Two rules: 1. use attributions, 2. do not copy someone else's work verbatim and claim it as one's own. My understanding of US copyright law is if the piece of work varies 30% or more from an existing work, it is considered a new piece. ( I am not a copyright attorney so this is not a professional opinion.)