The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age

The Berkman Center for Internet & Society at Harvard Law School releases a white paper: “The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age.”

The paper can be downloaded without charge at http://cyber.law.harvard.edu/publications

The paper explores whether innovative educational uses of technology, especially for teaching, are hampered by current copyright law. The paper found that copyright law along with business and institutional structures shaped by the law are major obstacles to “realizing the potential of digital technology in education.”

Of special interest to writing teachers are the sections on the ineffectiveness of the TEACH Act and the way that fear of copyright infringement has hampered a digital-social network created for teachers to share teaching materials. Especially interesting findings reported in the paper include the following:

1. While a great deal of fear exists, “In many situations, the availability of a fair use defense for a certain use is completely clear and the likelihood of litigation – or even a dispute with a rightsholder – is infinitesimal” (p. 85).

2. “According to several . . . [interviews] publishers are now threatening litigation and entering into private negotiations to seek restrictions of a similar scope on digital uses of content at universities” (p.87).

3. “Workshop participants and others interviewed . . . were aware of recent litigation threats by legal representatives of publishers against several large research universities” (p.53).

4. Fair use guidelines that “shrink the scope of fair use and greatly limit the doctrine’s flexibility” (p.56) have been adopted by 80% of American universities (p. 57).

5. “A report by the American Intellectual Property Law Association estimates that the average cost to defend a copyright case is just under one million dollars” (p. 57).

6. “The near-total absence of lawsuits against educators may suggest that rightsholders have tacitly accepted that the appropriate construction of the fair use doctrine leaves significant room for educational uses of content, or that they fear a negative public reaction if they sue educators” (p.53).

7. “There are virtually no precedents in which educators themselves were defendants . . .” (p. 60).

8. The good faith fair use defense available for employees of nonprofit educational institutions as stated in section 504(c) has never arisen in a reported opinion (p. 60).