Navigating uncharted waters

Tuesday, February 4, 2014

Online lectures, classroom capture, MOOCs, e-books and other digital content mean that questions about intellectual property rights are on the rise. Kevin Smith will help guide attendees through the legal landscape in his UBTech featured session “Yours, Mine or Ours? Intellectual Property in a Digital Age.”

Smith is the director of copyright and scholarly communication at Duke University.

Although that title may be a bit out of the norm, Smith says it is becoming more common, especially at larger research university libraries.

Increasingly, he says, we need people to try to keep track of the changing issues and the changing model for disseminating scholarship. “You can’t publish a digital humanities project in the traditional way, so lots of conditions of the dissemination of sharing scholarship are changing.” Smith is also an attorney specializing in copyright and intellectual property issues, a crucial background to have with the many changes brought about by digital technology.

“When we published a book, we all knew what the rules were, and how it functioned. We didn’t have to worry a great deal about the implications of copyright law.”

The internet has changed all that, he says. “The internet is a giant photocopier. Every time you send a book from one computer to another, you are making copies. You are doing things that implicate parts of the copyright law that we haven’t had to deal with in the past.”

Fair use

The legal concept of fair use—which says brief excerpts of copyrighted material may be quoted verbatim without permission when used in criticism, news reporting, teaching and research—is one that Smith deals with often. Fair use is extraordinarily important in the online environment, he says. As an example, he points to the ongoing case of a research university that is being sued by publishers over “electronic reserves” that allow faculty to scan a chapter of a book and put it on their course management system. A lower court ruled largely in favor of the university under fair use principles, but the case is under appeal. “I hope that, by the time I speak at UBTech, there will be a decision I can share with the audience, but who knows?”

New questions of ownership and fair use come up as MOOCs, lecture capture and online learning grow in popularity. The problem is compounded by that fact that these technologies have far outpaced existing laws, leaving content creators to find their own way through somewhat uncharted waters.

“We are trying to live within at least the spirit of the law, but you have to realize our copyright law was passed by Congress in 1976 and went into effect in 1978,” Smith says. “It was written in an era where the biggest threat to copyright ownership was the photocopier. Obviously things have changed a lot since then.”

Smith also says that he wonders whether lawmakers should continue to struggle to keep copyright laws up to date with technology. “Every time Congress passes a statute that deals with a particular technology, it is out of date as soon as it passes. The last time Congress did that, it was about digital audio tape, and nobody uses digital audio tape anymore. It was replaced by the CD almost instantly,” he says. “We are trying to use the rules that were created for a different age to responsibly deal with intellectual property in a new environment. Fair use, because it is so flexible, is the most powerful tool we have for deciding when we can and can’t use other people’s intellectual property.”


Intellectual property ownership is an occasionally contested issue in online courses, Smith says. “One of the questions that comes up is who owns that course. Most of the contracts I've seen say that the intellectual property remains with the faculty member. But when you consider that online courses and MOOCs often incorporate a lot of material owned by other people, you can see that there are complex layers.”

Part of Smith’s job is to work out licensing details between the faculty creator and the university. Then the universities can enter into a contract with an online course provider, such as Coursera or edX.

However, there are some universities that believe that, as the faculty members are employees, the institution should retain ownership. In the case of iTunes U or YouTube, where the school makes entire lecture series available online, these institutions argue that those materials created by their faculty are what’s called “work made for hire,” he says.

“Just like a reporter who writes for a newspaper—his stories are work made for hire and they are owned by the newspaper from the start. But courts have for a long time recognized an exception to the work made for hire rule for teachers, and most universities don’t claim to own the intellectual property of their faculty. At Duke, we can run these lectures on iTunes U or our YouTube channel because we’ve gotten a license from the faculty member to put it there. Other material created by, say, our Office of News and Communications doesn’t need a license, because the university already owns it.”

Smith hopes to impress on UBTech attendees that these issues are more complex than most people realize. “I hope the attendees begin to see the shape of that complexity and take away some basic principles about ownership and licensing, principles of use, and fair use,” he says. “If I can communicate just a few of those principles and help people see the context in which they apply, that would be a success.”

For more information about UBTech 2014, click here.