Wednesday, September 12, 2007

Non-profit, non-partisan education in copyright

In response to Monday’s posting, the Executive Director of the Copyright Alliance asserted in a comment on the posting, “we are a non-profit, non-partisan educational organization.” I don’t doubt that the organization is non-profit, and if by partisan one means whether an organization is populated mostly or entirely by Republicans, Democrats, or members of the Beer Drinker’s party, I am sure this is true too. Copyright is rarely a partisan affair in this meaning, something Lord Macaulay pointed out just before he happily trashed Serjeant Talfourd in the 1842 House of Commons debates on copyright term extension. If, however, by partisan one means espousing a consistent view on the scope of copyright, then the Alliance is thoroughly partisan. A review of its website reveals that every position it discusses as having taken is pro-protection. And that’s fine: Washington, D.C. is awash with partisan groups like this, on all sides of issues, on hundreds of topics; being partisan is in fact such groups’ very reason for existing, so it is hardly a knock to say any such group is partisan. Jack Valenti, whom I regarded with great affection and respect (see here), was fiercely and effectively partisan. (However, the claim on its website that “The Copyright Alliance represents millions of members of the creative community” gives new meaning to the word “represents.” It appears to be based on the fact that ASCAP, BMI and a few unions are members of the Alliance. But if a songwriter gives ASCAP a non-exclusive license to non-exclusively license his or her song, does this mean that every other organization ASCAP itself joins represents the songwriter too,? Apparently so, according to the Alliance).

It is the assertion of an educational role performed by the Alliance and efforts generally to provide educational material about copyright to children that I want to focus on, though. Here is what the Copyright Alliance says on its website:

For Educators It’s never too early to learn the value of copyright. In fact, every time a child takes crayon to paper, he or she has created a copyrighted work, but how many know the rights they’ve just earned? Educators across the country recognize the value of incorporating an understanding of copyright into lesson plans, but the resources haven’t always been readily available. The Copyright Alliance, as part of its educational mission, aims to identify valuable curriculum guides and other educational resources and make those resources available to educators.
You will find some materials here, and more will be added.
This cheery passage makes me think of my six year old twins (today is their birthday), happily drawing on their table in the playroom. But I doubt my twins are thinking of copyright, even with me as their father. The Alliance’s website does not contain educational materials at all, though. It performs no educational role in developing them, either it seems. Instead, the Alliance’s site merely links to sites of its members. These sites include Music Rules! which concerns “songlifters” (by alliance member RIAA), “Donny the Downloader” (by Alliance member ASCAP), and materials “Illegal File Sharing” of videos (by alliance member MPAA). This is “education” of a distinct type; equating copyright education overwhelmingly with stopping file sharing (the Music Rules! plan does discuss briefly some permissible personal uses). Crayon drawers are nowhere to be seen.

A similar effort in 2006 in Canada (by a different group) took the approach of a superhero, Captain Copyright, who would teach respect for copyright. Captain Copyright drew this response from the Canadian Library Association:

The most disturbing aspect of the Captain Copyright advertising campaign is the targeting of children with propaganda-style tools. Advertising Standards Canada, a self-regulating trade association, reminds us that advertising to children is illegal in Quebec and its Canadian Code of Advertising Standards provides guidelines for the rest of Canada. It explicitly states that exploiting children's credulity, lack of experience or sense of loyalty is forbidden. As an entity mandated by law, Access Copyright should be held to the highest standards of accuracy and should carefully reconsider Captain Copyright in light of the Code. CLA believes that any copyright advocacy initiative intended to be used directly by children or in the classroom by teachers should be developed, if required, by the institutions which represent the education community, like the Council of Ministers of Education, Canada, the Canadian Teachers' Federation, and with the library community. Captain Copyright is a unilateral initiative on the part of Access Copyright and reflects its own perception, not the broader Canadian perspective.
The librarians were hardly alone in their criticism of these efforts, leading to this announcement in February of this year from the Captain Copyright folks:

In August 2006, we took the Captain Copyright website offline so that we could revise its content in response to the criticisms the site had received. We worked extensively on revising the original lessons and we commissioned someone with expertise on the creation of educational materials to prepare new lessons on the Creative Commons, fair dealing and the public domain. We also sought the assistance of an advisory panel of educators and copyright experts with a range of perspectives on copyright, and every lesson was submitted to them for rigorous review. We then incorporated their revisions to the lessons so that they could be thoroughly teacher-tested. Despite the significant progress we made on addressing the concerns raised about the original Captain Copyright initiative, as well as the positive feedback and requests for literally hundreds of lesson kits from teachers and librarians, we have come to the conclusion that the current climate around copyright issues will not allow a project like this one to be successful. It is difficult for organizations to reach agreement on copyright issues at this time and we know that, in the face of continuing opposition, the materials will not be used in the classroom. Under these circumstances there is no point in our continuing to work on this project. We began this project because teachers told us that copyright had become too much a part of their students’ daily lives for it not to be taught in the classroom, and they told us they needed a teaching tool to help them do it. We still believe that creating such a tool is important, but we also now believe that no single organization can take the lead on such an initiative. We truly hope that there will come a time when the copyright community – including educators, librarians and copyright collectives – can work together to provide a unbiased teaching tool that provides teachers and students with a balanced view of copyright.

To the Canadians’ credit, after an initial stumble, they appear to have made some attempt to provide a balanced viewpoint, one with actual educational objectives. Alas, that wholesome effort drew fatal opposition, but from whom? I don’t have the answer; perhaps some of my Canadian readers can fill in the story. It would be sad indeed if a balanced educational plan for copyright was unachievable, especially where there is a will to develop one, rather than merely spew out partisan propaganda at our children. If education of children is important, why isn’t it important to sit down until balanced materials are achieved?

Next posting is Monday. L'shanah tovah tikatev v'taihatem, v L'shanah tovah tikatevi v'taihatemi


Crosbie Fitch said...

I remember being taught how to fabricate a collage from clippings out of colour magazines and a pot of glue.

No doubt these days, kids have the scissors confiscated, and are given a handheld colour photocopier emitting self-adhesive inkjet paper.

Presumably they also have a mobile phone with which to negotiate licence deals for each image they fancy copying.

I expect a few kids end up in detention where they can reflect upon their negligence in observing the utmost rigour, and the consequential legal risks they have exposed their school to.

And we thought scissors were dangerous...

Bruce Boyden said...

Perhaps we should assign second-graders to read Leval's Toward a Fair Use Standard? Seriously, how do you explain copyrights to children in pre-printed materials without using simple language and cartoon characters?

William Patry said...

Bruce, I don't think the Canadian Librarians Association had any interest in Judge Leval's views, nor do I think they objected to simple language or cartoon characters. I think it was the substance of what was being taught that they had problems with.

William Patry said...

Professor Zohar Efroni has a post on this issue with an amazing clip to a German video clip for one such program. See here:

Andrew Oh-Willeke said...

Ah, the joy.

Since, as we all know, every child's crayon picture is copyrighted, and as well all know, many of those crayon pictures are derivative works heavily based upon the works of the child next to them or television, clearly we need to immediately get six year olds suing six year olds over crayon pictures.

Kids lack the capacity to commit copyright crimes, but can still commit civil copyright violations. And, after all, even though the crayon drawings have no commercial value, there are statutory damages and attorneys' fees to be recovered if only the child can place a circle c in front of the usual name and date found on a child's picture, before it is copied. Registration can be handled later, just before the lawsuit.

Even if there are fair use issues in this situation, given the prima facie case, surely it wouldn't violate Rule 11 to file such a suit and make a federal case out of it.

Anonymous said...

More years ago than I care to admit while working at ASCAP right out of law school it was my turn to get questions the switchboard couldn’t answer. A teacher at the Ethical Culture School in New York was on the line. Her class of fifth graders had completed an English assignment of writing their own lyrics to “Send In The Clowns” and wished to perform their songs at a small gathering to which their parents would be invited and maybe some schoolmates. The school was just around the block from ASCAP’s offices. The teacher told me she had explained to her class the basic rights of copyright owners and in particular the right of adaptation and public performance. Would ASCAP, she asked on behalf of her students, issue a public performance license for these songs that would include the adaptations by the students and just for the purpose of this one performance to the parents? I said that we could issue a gratis performance license but that it would not cover the adaptation of the work. As practical matter, I said, the gratis license was more than enough in the circumstances. She asked if I could help her contact Mr. Sondheim’s representatives because she could not go back to the students with a half of what was right.
I was so impressed I offered to get it done for her and at the earliest opportunity asked ASCAP’s general counsel for the contact information. He said I would never get consent but I got the management company’s address from his assistant and called. I explained about this great teacher and this great class. The manager said, to this effect: “Mr. Sondheim will not permit anyone to write different lyrics to his works.”
I was crestfallen when I called the teacher back. She wasn’t. “What a great lesson about the integrity of authorship” she said. Of course with a little more digging then I could have provided the fifth graders a more nuanced lesson: Sondheim had already permitted minor adaptive lyric changes for the Sinatra and Collins versions of the song.

William Patry said...

From Jonathan Band, here is an upcoming event on educators and copyright:

New Report Shows Educators' Hands are Tied by Confusion about Copyright. A Special Event on September 25 in Washington, D.C.

Confused about copyright? You're not alone.

Media literacy educators rely on the ability to use copyrighted materials in their teaching. But ignorance about copyright -- and particularly a lack of awareness of the fair use provision - is interfering with teachers' ability to teach important critical thinking and communication skills that enable them to promote digital learning.

Please join Professors Renee Hobbs of Temple University, Peter Jaszi of the Program on Information Justice and Intellectual Property at American University's Washington College of Law and Pat Aufderheide of the Center for Social Media in the School of Communication at American University on Tuesday, September 25, for the release of their report, The Cost of Copyright Confusion for Media Literacy. The event starts at 2pm, followed by a reception.

Participants include will include high school teachers affected by copyright regulations, representatives from the media literacy movement, and leading legal scholars in the area of copyright, fair use, and education. Panelists will explore such issues as:

* What do teachers know (and don't know) about copyright?
* How does copyright confusion limit the quality of student learning?
* What are effective solutions to this problem?

Who: Pat Aufderheide will moderate the event. A panel of scholars, including Hobbs, Jaszi, and Kenneth Crews, a legal scholar at Indiana University School of Law-Indianapolis and author of Copyright Law for Librarians and Educators, will discuss the findings of the report. Following the panel, the following people will discuss the meaning of the report for their organizations and work:

* Dale Allender, Associate Executive Director of the National Council of Teachers of English (NCTE), the leading professional membership organization for English language arts educators.
* Shay Taylor, media teacher at Montgomery Blair High School, Silver Spring, Maryland.
* Karen Zill, on the board of directors of the Alliance for a Media Literate American (AMLA), the national membership organization for media literacy

We look forward to seeing you there and chatting with you at the reception!

Where: American University, Washington College of Law, Room 603_4801 Massachusetts Ave NW, Washington DC Driving Directions and Parking information available at:

When: Tuesday, September 25, 2:00 p.m. Reception to follow.
The event will be webcast at

Registration is appreciated to assist us estimate attendance for purposes of ordering refreshments, but is not required to attend. To register, visit, or email

phone: 202-885-3107

Bruce Boyden said...

Bill, my point was obviously not that Canadian schoolchildren should learn U.S. law, it was that a complete and nuanced description of copyright law is inordinately complex; short of assigning law review articles, cases, etc., I don't see how you do it without some simplification and summarizing.

And although I'm sure you're right that the substance of the message is what had the CLA upset, that is not what they described as the "most disturbing" part of the campaign: "the targeting of children with propaganda-style tools," specifically "exploiting children's credulity, lack of experience or sense of loyalty." I.e., creating materials for teachers to hand out in class that simplify matters and use superheroes. So, teachers, assign a treatise!

William Patry said...

I sort of hoped superheros, being super after all, could explain everything, in an age appropriate way of course. Thou shalt not steal is easy, admittedly, but that was done a few thousand years ago. Surely (don't call me Shirley) we can do a bit more.