Guest post about breaking the law by….

It is my great great pleasure to present a guest post by a man who needs no introduction. A teacher, teacher trainer, think, writer, presenter, supporter, ELT guru…his titles are endless. To some he is a mystic figure who inspires them to develop their teaching, to others the creater of amazingly high quality blog posts that always ring bells and give you something to think about for weeks and months.

I give you…the one….the only….Anthony Gaughan…

BREAKING THE LAW IN THE LANGUAGE CLASSROOM

Do you consider yourself a criminal? You probably don’t but chances are good that you are in fact one.

It’s not your fault, in a way.   You couldn’t help it: you just grew up in an immoral environment, fell in with the wrong crowd early on in your career and ended up breaking the law before you really knew what you were doing.

Copyright Criminal image: http://www.flickr.com/photos/amidanyorai/http://www.flickr.com/photos/amidanyorai/36431935/sizes/t/in/photostream/

To find out if this allegation applies to you, answer this simple questionnaire about your life as a teacher:

1) Have you ever photocopied material from a coursebook to use in class?

2) Have you ever typed up material from a coursebook in order to make a more attractive worksheet for your learners?

3) Have you ever taken images that you found via Google to use in class?

4) Have you ever played a section of a movie or TV show for your learners in class?

5) Have you ever shown content from You Tube (such as movie trailers) to your learners in class?

6) Have you ever copied a news article from a newspaper website or the BBC for reading purposes in class?

7) Have you ever converted coursebook audio to MP3 and stored it on your MP3 player or USB storage device?

If you answered YES to one or more of these questions, it is likely that you have broken copyright law.  This would make you a criminal.

Copyright  means “copy”, right?

The recent action against ACTA and SOPA (two extremely broad pieces of legislation intended to protect copyright in the USA and the EU respectively, which were both recently voted down in the face of massive protest) serves as a timely reminder that the notion of ownership of content – and the disputed right to make free use of content created by others – is a highly controversial and massively misunderstood area.

Copyright pie chart: http://www.flickr.com/photos/businesssarah/http://www.flickr.com/photos/businesssarah/5977609373/sizes/s/in/photostream/

People in general and teachers in particular often have no informed idea of what constitutes a breach of copyright in their local jurisdiction – or what penalties could be imposed against them, even if only in theory.

Taking my local context, Germany, as an example, teachers I know regularly break local copyright laws by doing the following:

  • Copying material from coursebooks and self-study grammar books for learners
  • Using content from these books as the basis of self-made handouts
  • Converting audio to MP3 and storing it on their mobile devices
  • Showing video material or playing audio material in their classes

In some cases, most teachers know what they are doing is “wrong” but professional norms have led to a tacit belief that it is “the done thing” (the coursebook copying, for example).

In other cases, teachers are simply unaware that what they are doing represents a copyright breach (did you know that if you make multiple printouts for distribution of an article from the Guardian website, you should request permission from the newspaper, and that for commercial reuse a fee may apply?  Read http://www.guardian.co.uk/help/terms-of-service – You do now.)

Schools and organisations are complicit in this criminality – why else do you think that photocopier is so close to a set of shelves containing only one copy of a massive range of coursebooks?  The fact that prosecutions are hard to complete and are therefore uncommon does not change the reality that in respect to copyright, our profession is a conspiracy of thieves.

Use some Creative Commons-sense

So if typical teaching environments tend to encourage such law-breaking, how can we change our practice to make sure that – from here on, at least – we teach on the straight and narrow?  Here are three basic ideas:

1) Roll your own materials

Get in the habit of mining your own lives and the lives of your learners for the raw material from which texts and tasks can be wrought.  By definition, you own the copyright on your own life story, and you might be surprised how much language and skills work can be rooted in the sublime and mundane details of your collective lives.  Designing your own material can feel daunting at first but it needn’t be difficult.  For inspiration, read this excellent article by Adrian Underhill, which should be tattooed onto the heart of every teacher: http://www.thornburyscott.com/tu/underhill.htm

2) Cry Freedom!

The Internet is not only full of rights reserved content; it is also replete with all kinds of texts and other media that has been freed by is creators for the use and benefit of others.  Such material is often found with a so-called Creative Commons licence.  Often, this licence gives anyone permission to make use of the work in any way they see fit, including for commercial use.  Sometimes, however, some rights are reserved, or commercial use is prohibited.  Using the CC search engine at http://search.creativecommons.org/ , you can quickly and easily find content anywhere on the web that offers you the level of freedom you require.  ELTpics (http://www.flickr.com/photos/eltpics/ ) is an excellent example of a creative commons initiative, where teachers around the world are crowdsourcing visual media (mainly photos) to form a massive archive of images free to use for teaching purposes.  All that they ask is you credit the creator and ELTpics, and that you do not use them in commercial publications (classroom use is deemed fair use).

This image is copyrighted: http://www.flickr.com/photos/liako/http://www.flickr.com/photos/liako/3700283914/sizes/s/in/photostream/

3) The Empty Classroom

Contrary to what some teachers think, it is entirely possibly to do a great deal of teaching without any materials whatsoever.  Tasks can be delivered orally as dictations, the board can be used, real-life outside the window can serve instead of Google Images…  Get in the habit of asking yourself if that handout is necessary.  If it isn’t, then do without it and get the job done some other way.  This helps avoid copyright breach for the same reason Moll Flanders, Daniel Defoe’s morally loose heroine in the novel of the same name, used to pray “Lord save me from temptation lest I steal”: if you avoid creating materials, you will have less cause to fall into temptation to copy that article quickly.

Mea Culpa, Mea Culpa, Mea Maxima…

So there you have it.  Even if you have a few illegal photocopies on your conscience (and who doesn’t?), there is no reason to fear that your fate as a classroom criminal is sealed.  Square up to your former misdemeanors, ascribe them to a wayward youth, and reclaim your spotless conscience from here on by making more of what you and your learners can bring to lessons, seeking out open content and by going into class more often naked.

But not literally, as that would probably be breaking laws of a different kind.

PS: by embedding this video, uploaded almost certainly without authorisation to You Tube, I am also probably breaking some copyright law.  As the song is called Breaking The Law, I could not resist.

And anyway, I never said my copyright conscience was clean.

——-
If you need more Anthony food for thought then his blog is a must. Stroll down to http://teachertrainingunplugged.wordpress.com/ and indulge yourself.
——

58 thoughts on “Guest post about breaking the law by….

    • Everyone is and everyone is in on it. Most books are not legally for copying, they are sold in quantities of 1, everything is designed very well for fitting in copiers and even the pictures and layout tends to look OK on copies. However, smaller books like the Cambridge Prof Eng books are small and don’t copy well. this may be Cambridge fighting back. Certain books often fall to bits after you fold and copy them, perhaps a strategy to make you buy another copy.

      I knew lots of people who just used Reward worksheets. Maybe that is the future. Black and white that copies well. I saw that Hot English add a copyright fee to their magazine for institutions but the colour layout doesn’t look good in B/W.

      • Personally use lots of “photocopiables” from CUP (therefore legal – very sensible of them to charge a bit more and allow copies). But am very guilty of using YouTube, film clips, basing worksheets on books etc. Time we all created a dropbox (or similar like eltpics) full of creative commons things to share with others. If you guys know of a good ‘storage space’ then I’ll kick start it.

        • I have noticed that it is a lot harder to find images on Google to copy. If this continues then we will all have to use CC images, no choice.

          Good idea too Louise. Maybe that could happen at a school level first and then we could share between PLN members.

    • Aren’t we all, Louise, aren’t we all? It’s a funny thing, though: I’ve been working on a CELTA course for the past couple of weeks, and for that time the trainees have almost certainly not broken any copyright as everything in their lessons has been handmade by them, based on their own lives and experiences. Visuals were their own property, texts were self-penned, tasks designed by them. Now we are reaching the midway point, and they are discovering coursebooks, I fear a slide in their moral rectitude, in which I am complicit each time I show them something from one as an example of how to manage a particular teaching effect. Who wouldn’t see photocopying it as a reasonable way of not re-inventing the wheel? But that’s the slippery slope, isn’t it? 😉

  1. In regards to the 7-part questionnaire above, guilty on all counts, and worse. Many coursebooks are perfectly designed to be photocopied and a high proportion advertise the fact. I remember having to stipulate the source underneath any photocopied material when I did my CELTA (2009), although I wouldn’t have failed the course If I hadn’t.

    When I infringe copyright I am usually aware of what I am doing. I have to question, however, what actual damage am I doing? Do I sleep at nights? Not always, but never because of some possible, minor copyright infringement. There is a huge gap between doing it and being caught or sanctioned for doing it. It’s the same with watching TV on a laptop in a University Halls of Residence – it is technically against the law, but no-one is ever going to bother to prosecute because of the time and effort it takes to do so.

    I agree that the ethical way forward is the Creative Commons approach. Most would agree that they don’t mind sharing, as long as accreditation is acknowledged. I am quickly getting round to the idea of acknowledging sources, much in the same way as I have to for my current MA. In fact, I recently re-wrote a well-received song about it – nicking Coldplay’s Paradise in the process – http://tpstefltravels.blogspot.co.uk/2012/06/paraphrase.html – but the point was made, no damage was done. Coldplay didn’t lose any sleep, or money.

    • One of the reasons Izzy and I unplugged our CELTA course (though not the main reason, to be fair) was to reduce the amount of copyright infringement we saw (and in a sense facilitated) going on. Now that we have managed that, I am becoming more sensitive to the less obvious things like online video content etc.

      For me, the question is less: who suffers and more: why break a law when this can be avoided? Whether or not we think there is a justification for copyright protection, the fact is it currently exists and breaking the law might make sense as part of a principled protest against its validity, but not really out of sheer ignorance (he says, provocatively, and in full awareness of his own guilt in this regard 😉 )

  2. Not only have I donw many of the things advertised above but I’ve also advertised the fact that I did by sharing lesson ideas, images used and embedded videos on my blog!

    I do agree with Phil to an extent – yes, it’s technically illegal but is it really worth losing sleep over? – but at the same time, I also feel that some individuals/instituitons are a bit too carefree. I’ve worked in schools that insist on the school logo being on top of any worksheets whether they are original or not and I’ve seen many a teacher do a literal ‘cut and paste’ job and then write/type ‘made by _____’ in the corner!

    A big problem I see at present is school websites. I questioned one of my colleagues about the source of images for the particular year group website they were in charge of. “If it’s online and copyable/downloadbale, what’s the problem?” was the reply… As ever, leading by example is the best way. Later in the year after my colleagues had seen the webpages for the year group I was working in, they started to ask where I got my wonderful images from. That gave me the excuse I needed to send them in the general direction of flickr and the creative commons search option as well as in the specific direction of eltpics, rightly highlighted by Anthony in the post.

    • I’ve seen many a teacher do a literal ‘cut and paste’ job and then write/type ‘made by _____’ in the corner!>/b>

      Heh, heh: the “made in the UK” meaning “perhaps put in cellophane wrapping but all other work done in sweatshop in Mexico” phenomenon. Rather puts the concept of “authorship” under the cosh!

      I sometimes flip the question for myself: how would I feel if someone I had given access to pictures or other content of mine suddenly and without permission placed them elsewhere, such as on youtube, or in a work that they were looking to make money from, and didn’t see any problem in doing so – and may in fact be offended that I think they are out of order for doing so?

      Funny things, people.

      Thanks for the replies, Dave – much appreciated.

  3. Yes, copyright laws as currently on the books are terrible. It’s worth remembering that quotes and excerpts would probably be considered “fair use” for educational purposes under most jurisdictions (see here for more information on the situation in the USA, for instance: http://www.educationworld.com/a_curr/curr280b.shtml), and this can be fun to play around with – by adapting materials from coursebooks, etc. (the more creatively the better) – if you have time. I suspect copying exercises from different coursebooks to illustrate a grammar point would also be acceptable under most jurisdictions, though copying an entire page would not be (please don’t quote me on this – I’m not an expert, though perhaps I should be).

    Even so, classes are long, planning time is short (with apologies to Hippocrates). In itself, this is no excuse for copyright infringement, but I suspect there is a lot of “panic at the photocopier” in (language) schools, and of course it’s understandable. Also, songs, news articles and online videos, correctly attributed to their real authors (I have no sympathy for people who pass off another’s work as their own), can make for really interesting and useful lessons; and the idea that one can only show a short clip of any creative, published work even for educational purposes seems to me absurd: you aren’t detracting from any significant revenue that could be made from such a work by reproducing it in the classroom (as long as you don’t give copies of MP3s, etc, to your students for them to keep); and, by associating the work with its author and publisher or online location, you may in fact be encouraging new listeners, readers and watchers to purchase that work or similar.

    However, as infuriating as current copyright laws so often are, you are right that most copying in most countries (even for educational purposes) is illegal, and might get a school into trouble. The practical question for schools is: what’s the risk of prosecution? The questions I suggest we should all be asking are: what would be a just approach to copyright law in the classroom?; and how can we help change the laws to make them more just?

    All best wishes

    Simon

    PS Very much like your (sneaky?) focus on encouraging teachers to experiment with unplugging their classes from coursebooks and mass-produced exercises more; and totally agree that this is often an excellent thing to do!

    • Hi Simon,
      Speaking for my context (Germany) the law is very clear on what you can and can’t do in terms of copying commercial work for reuse in class: it’s illegal. Fair Use as a concept does not apply here. Many teachers see what they do as “educational” and so believe that they can copy with impunity, but this is not the case. It’s true that teachers within the Adult Community College (Volkshochschule) system here have more leeway, but even they are not allowed to do much.

      Here are some excerpts from recent guidance to give you an idea of how far current practice deviates from current law (leaving aside the question about whether these laws are just or reasonable):

      – up to 12% of a work may be copied for the teacher’s personal preparation but none of this may be passed on to learners in any way shape or form

      – you are not allowed to email a copy of a legally downloadable or photocopiable handout to your learners

      – you are not allowed to scan and project courseware in class

      – you are not allowed to store legally downloadable material on your school’s server

      – you are not allowed to include excerpts from published courseware in otherwise original material that you distribute to learners

      – you are not allowed to send a copy of a legally downloadable resource to a colleague via email

      – you are not allowed to compile a handout from several published sources and distribute this to learners

      – You are not allowed to convert CDs to MP3 and store these on your mobile MP3 device for playback in class

      – you are not allowed to make copies of published audio CDs for courseware in order to play these in class

      – you are not allowed to play any music (e.g. CDs) without the permission of the copyright holder. This constitutes a public performance.

      – you are not allowed to show any video material that you have bought or rented in class without obtaining permission from the copyright holder. This constitutes a public performance.

      If you can read German, you can find it all here. http://www.kopier-regeln.de/media/downloads/VDS_Elvis_Flyer_105x210_Doppelseiten.pdf

  4. Pingback: Teaching without a coursebook | efl-resource.comefl-resource.com

  5. Although I’ve never really been one to use coursebooks, like most people I trained and developed as a teacher within a culture where such things were the norm and nobody ever thought twice about doing it. Fast forward a decade or two to the globally connected world we live in today, and I agree with Dave that we have a problem.

    Is it worth losing sleep over? I think much depends on the materials you use, and how you use them.

    Fair use is a bit of grey issue where copyright is concerned, but I would imagine Phil’s use of the Coldplay song would fall into that category, as a) it’s a very funny parody, and the law allows for such use b) It has an educational message c) the song wasn’t originally written by Coldplay for English language teaching purposes (or at least, not as far as I know, anyway… 😉 In theory, the same applies to adapting most materials for educational use, as long as you attribute your sources, and the way you use any extracts from them is proportionate and adds educational value.

    Unfortunately, fair use does not apply to adapting or uploading materials that were originally written for the purposes of teaching. Fair use only applies to materials adapted for a different purpose to the one they were originally intended for, in order to protect the financial interests of publishers and authors. The impression I get is that very few people seem to be aware of this aspect of copyright law, or if they are aware of it, they choose to turn a blind eye to it.

    I don’t take it personally when educators upload lessons and worksheets I’ve written to other sites without asking and/or giving credit, and I don’t lose sleep over it either, but If I’m honest it does annoy me and I think it’s a selfish and disrespectful thing to do. It creates unnecessary work for me, and it compromises my ability to run my site as a free resource.

    Will there come a day when teachers who upload copyrighted educational materials to blogs, file sharing sites, and wikis find themselves hauled up before the courts? Well, it may never happen, but Googling the words ‘RIAA copyright infringement lawsuits’… or the phrase ‘TVShack extradition’ ought to provide enough grim reading matter to make most people at least pause for thought. A few years back, the notion that someone could be extradited to the US to face trial and a possible ten year jail sentence for simply linking to sites that hosted pirated content would have been considered laughable. Not any more.

    Personally, I don’t like the direction that the wind seems to be blowing on this at all, but I’m tempted to think that it might be wise to err on the side of caution.

    Sue

    • Absolutely, Sue: I’m becoming increasingly disturbed by the way that governments are moving to criminally prosecute in this area.

        • It might be like the one on Father Ted. You should have categories. I always thought that scene would make for a brilliant listening exercise. You’d have to pre-teach ‘liars’, ‘cheats’ and ‘people who’ve really fecked me off over the years’ but it could be fun. 🙂

          • Not sure I remember that episode Phil, though it does sound like good fun. I was thinking of delegating mine to Father Christmas… Nice people get a festive e-card, and naughty ones get a DMCA 🙂

  6. Thanks Anthony for highlighting an important fact and my answers to your questions in the questionnaire are all in ‘Yes’ and hence I carry the stigma of violating the copy right laws.
    But I think teachers be allowed free access to all the material as long as they use it for their learners as they usually happen to be low-paid and their meagre resources rarely allow them to purchase the copy rights of an article for thier class room use.
    Aristotle and Plato didnot use any support materials in thier lectures and still they were great teachers. If ,in this world of materialism and consumerism, teachers are labelled as illegal users of manual or digital resources, they will revert to the age old methods of teaching,i.e, pre-digital period when students used to be highly stimulated and motivated.
    I am sorry if I have ,( of course, unintentionally) hurt some body’s feelings.

    • thanks for the comment Kalim.

      I remember learning Psychology and Sociology at college. One teacher would just dictate her handwritten texts and notes to use. Another would get us to read units and answer the questions in silence. the last would did a bit of both but talk to us. I think the latter was best but I think they used long dictations because they wanted to avoid copying not because they thought we would learn, or maybe they did??

    • Well said, Kalim: teaching may benefit from but is not dependent on prefabricated material. The more we realise this, the better, I would suggest. Of course, some more understanding for the importance of rich input and the poverty of teachers would be very helpful!

      Thank you for the comment.

  7. Another thought that came to mind as I was reading through the comments is the question of ‘commercial use’. Creative Commons is a great way to find images and other matierial but the vast majority of the licences I see state “You may not use this work for commercial purposes”. Now, if I use an image from flckr on my blog with attribution, that must be ok but what about people who allow ads to be placed on their blogs? Are they in breach of the CC licence for images they use?

    And what about the images I’ve used on the wiki site for my 5th graders? The wiki page itself is not commercial but the school I work for is a private college and the students (or rather their families) pay to attend and receive instruction and materials… Culd it be argued that we are in fact using these CC images as part of our wider commercial operations?

    I think I can’t see the grey areas sue to all the murky waters I’m floating in!

    • I’ve wondered the same Dave. I few projects I’ve worked on have used these sources but your choice is very limited. I hope that publishers are building photo collections like a corpus. This may be what all us teachers have to do in the future. I had one tutor who did that and made all her own stuff but put her name in exercises and in other random places because other teachers just copied all her stuff otherwise.

    • Even the Creative Commons people can’t agree on that one, Dave! The licences are currently under review, and hopefully when they are updated things should be a bit clearer.

      The majority view at the moment seems to be that ads on blogs amounts to commercial use, and I think someone would probably be within their rights to ask for something licenced for non-commercial use to be removed from a blog hosting ads – although my guess would be that a lot of people probably wouldn’t bother.

      With the Wiki, I’d say that amounts to non-commercial use, if it isn’t being used for commercial advantage. AFAIK, the the page where the images are hosted generally determines use, rather than the wider commercial aspects of the organisation hosting it – although I’ve seen stricter interpretations in my time. As you say, murky waters indeed!

      One thing worth bearing in mind re: both traditional copyright and Creative Commons is that any conditions attached to licences can be waived by the author, so it’s worth sending a polite email asking for permission if you really want to use something in a way that the licence doesn’t allow for 🙂

      Sue

    • Exactly, Dave: here in Germany, we teachers are 99% freelance in the non-state adult sector, making us businesses. A lesson is a paid service provision.

      the trouble with blogs is that even if you don’t place ads yourself, providers such as wordpress allow ads when viewing your blog on mobile devices, so they are breaching the CC licence for you!

      • Agree Anthony, though it’s not just confined to blogs – file hosting sites, document sharing sites, teacher resource sites, and the likes of YouTube make money out of non-commercial CC licenced stuff as well. Even Google search is in on the act.

        In theory, Creative Commons is a great idea but the present system is full of loopholes and inconsistencies, which is why I rarely use it unless I have to. I prefer to use a traditional copyright notice and grant specific permissions for use, which in the majority of cases boils down to “do whatever you like with this in the classroom with your students, but don’t upload the original or modified versions of it, or sell it for profit.”

        That way, if people choose to ignore the copyright notice, there is no wiggle room for claiming that they didn’t know they were doing anything wrong.

  8. One little point to make here is that the more coursebooks are copied, the fewer copies are sold, the more money it costs to produce them, the higher the retail price. There’s a reason why one copy of these books runs around $40.00. Still, c’est la vie.

    • And maybe why we’re seeing lots of budget books now. Cheap layout, B/W for around 10Euros. Maybe they should just stop printing and offer cheap tablets with materials like phone shops do if you get a contract.

        • In ETp Global ELT have IELTS grammar and vocab books for £10 but are offering lower prices for schools.Collins have similar ones for £7.99+. This seems pretty affordable. No fancy images but the basics. Your school probably gets a discount for bulk orders too.

    • Very true – it’s worth thinking about what is driving courseware out of the price range of many teachers. “Home Taping is Killing Music” and all that.

    • Another factor that affects the price to consider is that many of our colleagues in the ELT industry demand all the ‘extras’ that now come with books. One publishing rep recently explained to me in a rather flustered manner that while there may be teachers like me who feel the sheer amount of stuff that comes in once coursebook pack is way too much, there are many others (regular teachers, heads of departments, owners of schools, government ministers) who want photocopiable resources, flashcards in both physical and digital image formats, CD-ROMs, accompanying websites with extra activites and all the rest. That demand plays a huge part in pushing thr price up, which in turn leads to more illegal copying, which in turn leads to higher prices and so on….

      That’s why Anthony’s ‘basic ideas’ are so important (espcially 1 and 3) – the more teachers realise they can utilise a seemingly empty classroom and make their own stuff when necessary, the less we need to demand from publishers and the more affordable prices can be…

      But can it ever really happen? I’m not sure…

      • Very true Dave.Some countries even demand extra stuff. But a lot of it is now free on the web. Personally, I prefer workbooks as they are more ‘need-to-know’. I ran a short 8 lesson exam prep course last year and the book was just too much so we used the WB. More concise and cheaper too.

    • Good point Tyson.
      After giving a workshop on behalf of a publisher last year a teacher came up to me and genuinely aksed it there could be a less fancy b/w version also produced as the colours don’t come out well on a b/w copy. Hah?!? Well, there you go!
      (ps. wonder if I could make a lesson out of that episode? Thanks for the idea Anthony)

  9. Ah… I see it’s time for a revolution! Great post Anthony.

    In chinese (phil will know) they say: 英雄所见略同 which means great minds think alike, but literally “Heroes have the same battle plan”. Just blogged about “hacking” the internet for language studies on my blog, so I feel there is something in the air. 😉

    Cheers 4 the fine read!!! -brad

  10. Great post, especially for Russian teachers who use torrents actively. Honestly say I also have photocopies and all audios for textbooks on my laptop because all my books and CDs are in the classroom and I prepare for the lesson at home using the laptop. However, I tend to teach unplugged after posts like that.

  11. Thanks very much for posting, Anthony and for hosting, Phil.

    I’d like to let you know about a joint MELTA/BESIG/LTSIG event on this topic which is being held on 22 September 2012, both live in Munich and virtually on IATEFL’s Adobe web-conferencing platform. It would be great if either of you (and other readers of this post) could drop by to add your input. Full details of the event can be found here: http://www.melta.de/events_details.php?id=93

    Thanks again.
    Helen

  12. “… and that you do not use them in commercial publications (classroom use is deemed fair use)”

    What makes you think that? Deemed by whom? Not even the Creative Commons people will tell you what “non-commercial” means in the context of their license. At least not last time I checked. A person who licenses their work CC-BY-NC has every reason to believe that you will “not use this work for commercial purposes” (from the license agreement). Commercial means you earn money. You violate the license if you use the material to earn a living.

    • Thanks for commenting, Chris: I needed to be clearer on this point. Luckily, I think the curators of ELTpics are clearer than I am. A recent post on their blog (http://takeaphotoand.wordpress.com/2012/07/20/a-word-in-your-shell-like/ ) states that classroom use of their resource is foreseen and welcome. As all forms of teaching (barring voluntary work) entails “making a living”, it is evident that the curators are happy for such employment of their resource as fair use.

      But use of images for other commercial purposes (eg on websites/blogs/other publications from which there is income) is not allowed. As they also state, these conditions can be waived on request by the author of the original work.

      I hope this clears the ELTpics permissions issue up, though your general point is very well made that CC licencing is murky – as Sue Lyon-Jones has also written about recently http://www.teachingvillage.org/2012/04/10/copyright-plagiarism-and-digital-literacy-by-sue-lyon-jones/ & http://www.edtech-hub.com/index.php/copyrights-or-copy-wrongs/

      • You an be as clear as you like, but that doesn’t change the legal situation. What they (and other teachers) intend by licensing their work under CC-BY-NC is irrelevant to the correct interpretation of the license agreement. What they say on their blog isn’t part of the license agreement. I assure you that I have no questions as to what the CC-BY-NC license means. It isn’t complicated. What they (and all other teachers who use the NC licensing) are doing is simply unfair to their fellow professionals. From a legal perspective, they are saying don’t use my stuff commercially, then elsewhere they encourage people to violate the terms of the license agreement. This is “have cake and eat it too” thinking.

        You mention “they” also state the conditions can be waived on request of the author. I’m not sure who “they” refers to, but the license says waivers are to signed and in writing. So, as with copyright, you still have to get written permission from the license holder for any exceptions to the license agreement.

        On the subject of “commercial”, the NC part of CC-BY-NC means you can’t use any of the rights the license grants you if your primary intent in doing so is to make money. If you are getting paid, and that payment is reasonably directly related to exercising your rights under the license agreement, then you’ve violated the NC part of the agreement. Regardless of the good intentions of the license holders.

        Granted, maybe we can be reasonably assured that these good-willed license holders won’t sue us. However they have the legal grounds to do just that. Materials writers who really want everyone to use their stuff without worrying about getting sued, should simply license their work under CC BY-SA. This is the non “have your cake and eat it too” option.

        • Well, I won’t go into the amount of photocopies I’ve seen people using or books they’ve been retyping or even the mass of dodgy books with slightly different covers I used to have to work with.

        • I see the point you are making, but I think the ELTpics curators have been sufficiently clear on this point that if they tried to sue, any ruling would go against them where it hinged on classroom use.

          Perhaps they will add a clear waiver on their photostream by way of clarification.

          I do not think that granting permission in advance for a clearly specified form of use (here: classroom exploitation) is the same as “have your cake and eat it too” thinking, but rather a reasonable and clear limited release of rights. I don’t expect you will agree with me on this, however.

          Nevertheless, I’m sure they would take your concerns seriously, and so I am flagging up this thread for their attention.

          • The problem is that they aren’t “granting permission in advance for a clearly specified form of use” in a legally binding fashion. Or, maybe you have contacted them and now have a written signed waiver?

            Under (most) copyright law you have to get permission from the copyright holder before duplicating their work. This applies even if you aren’t somehow earning money from the duplicate.

            Under the CC-BY-NC license you already have permission to duplicate the work under broader conditions. For example, you aren’t restricted to making copies for personal use. However, you still have to get permission from the license holder if you want an NC waiver. People probably request written signed waivers from CC-BY-NC license holders about as often as they do from copyright holders. I suspect this is a rare occurrence. As such, the licensees are still “break’n the law”.

            If the ELTpics and other like minded people really wanted to do us all a favor, they’d simply use the license that best aligns with their intentions. Probably this would be CC-BY or CC-BY-SA. Of all people, language teachers should understand this perspective the best.

            • “If the ELTpics and other like minded people really wanted to do us all a favor, they’d simply use the license that best aligns with their intentions. ”

              As a contributor to ELTpics, I’d say that they are doing so already – unless you know something about the curators’ intentions I don’t, in which case, please feel free to share 😉

              “Probably this would be CC-BY or CC-BY-SA.”

              And you are guessing this is so because…?

              I can’t speak for anybody else who contributes to eltpics, but I certainly wouldn’t consent to my images being distributed under CC-BY or CC-BY-SA licenses.

              “Of all people, language teachers should understand this perspective the best.”

              Why? As a language teacher with a background in law, I probably know more about copyright than the average person, although I don’t presume to know everything. I do know enough about the way that these things work to say with reasonable certainty though that CC-BY or CC-BY-SA licenses are not the way to go if you want to retain any kind of say at all in how materials you have created are remixed or shared with others.

              For an illustration as to why it pays to think very carefully about choosing a Creative Commons licence, read this oldie but goodie in the Register:

              http://www.theregister.co.uk/2007/09/24/creative_commons_deception/

              … and then imagine if the image in question had been used to promote something illegal or immoral that the average person would not want their good name to be associated with, instead of a Virgin Media ad campaign.

              Seems like no brainer really, I’d say.

              • I suspect the curators of eltpics intend to create a resource for teachers. Some of us work for the state, others for private institutions, and others are stuck with freelance work. Here’s a summary of why NC licenses aren’t considered “Free Culture Licenses”:
                http://freedomdefined.org/Permissible_restrictions#Non_Commercial

                Here’s a “summary” of the ongoing debate regarding NC in the 4.0 versions of CC licensing. The effect of NC on use in educational settings is specifically mentioned.
                http://wiki.creativecommons.org/4.0/NonCommercial

                Teachers should understand the costs and limitations of the NC license because they should already understand the costs and limitations of the current copyright system. If you think the current copyright system isn’t badly broken and no longer serving its original purpose, then by all means use an NC license. Just be honest about your intentions, and don’t ask people to violate the terms of your NC license by earning a living with your resource.

                I think it is unfortunate that you chose the “chang case” as an example of why not use CC-BY and followed it up with a bit of fear mongering. Chang’s intent was to post family photos online to share with family and friends. He wasn’t trying to put together a resource to be used world-wide by ELT professionals. So while you do make a point here, it is that you should maybe restrict access to your family photos.
                An even better solution would be to not post the photos at all.

                But we aren’t talking about family photos. We’re talking about a shared resource that’s meant to help ELT professionals. If you want to help the most people with your materials, just say no to NC to ensure they remain unencumbered and at liberty (ie free).

                • “Here’s a summary of why NC licenses aren’t considered “Free Culture Licenses”:http://freedomdefined.org/Permissible_restrictions#Non_Commercial

                  Nobody is suggesting that NC licenses are considered “Free Culture Licenses”, as far as I’m aware.

                  “Free Culture Licenses” may be your personal choice for licensing your work,
                  but you need to respect the fact that others may not wish to opt for that kind of licensing.

                  For instance, those of us who make a living from writing as well as teaching are not in a position to give away the rights to the content we create.

                  “Here’s a “summary” of the ongoing debate regarding NC in the 4.0 versions of CC licensing. The effect of NC on use in educational settings is specifically mentioned.”

                  Thanks. I’d already read it, and I would repeat what I said earlier about the current licenses being badly worded and open to a wide range of different interpretations. A discussion on a wiki that anyone can edit about hypothetical changes to licenses at some point in the future sheds little if any light on what the legal position is regarding the licenses as they stand now.

                  “Just be honest about your intentions, and don’t ask people to violate the terms of your NC license by earning a living with your resource.”

                  As I’ve already made clear, I don’t believe there is a problem with the way the NC license is being used in the context we are talking about. My interpretation of the way non-commercial licenses work and definition of what constitutes earning a living is basically just different to yours. As you said yourself, even the people who issue the licences can’t agree on a definition… and as I said before, you need to accept the fact that I don’t agree with you on this point. There’s nothing to be gained by going round in circles.

                  “I think it is unfortunate that you chose the “chang case” as an example of why not use CC-BY and followed it up with a bit of fear mongering.”

                  I chose the Chang case because 1) it is a case that the Creative Commons Wiki you linked to specifically references as being relevant to the discussion in hand 2) We have been talking about image use 3) It does a good job of illustrating how people who allow commercial licensing have no control over the way their work is used, and 4) it also shows the problems that can sometimes arise when using photographic images commercially that include identifiable people who have not signed a model release (which includes anybody you
                  take a photo of – not just family members, by the way).

                  As for fearmongering, I’ve had things that I’ve written plagiarised, copied and misused in so many different ways over the years, that I think nothing would surprise me any more. Probably the most extreme example was when someone used some of my work to pad out a “made for adsense” type of site running hard core pornographic ads. There may be people out there who
                  wouldn’t mind their materials being used to make money in such a way, but count me out, thanks.

                  “If you want to help the most people with your materials, just say no to NC to ensure they remain unencumbered and at liberty (ie free).”

                  If you want to allow others to exploit materials that you write for commercial use then that is your choice, but it won’t make a difference to how many teachers that you help with your materials. Sean Banville has probably helped more teachers with free materials than anyone else in ELT over the years, and I doubt that he’s had many complaints (if any) about the fact he uses traditional copyright. I’d be willing to bet that the rest of us have a very long way to go indeed before we catch him up 🙂

        • Hi Chris – If I read what you are saying here correctly then I think you may have misunderstood the way that the CC-BY-NC license is meant to work.

          The Creative Commons FAQ states that “NonCommercial (NC) licenses prohibit uses that are primarily intended for or directed toward commercial advantage or private monetary compensation.” It follows from this that using a CC-BY-NC image in the classroom does not breach the license, as the primary use in an educational setting is to enhance learning. It seems to me that eltpics have basically just clarified this point in their blogpost, for the benefit of people who were unsure as to what exactly they were allowed to do with eltpics images.

          • Hi Sue –
            If you read further in the FAQ you’ve mentioned you’ll see that the CC people admit it is hard to say what exactly counts as non-commercial. The definition “does not turn on the type of user”. Teachers aren’t automatically exempt because they are teaching. They’re automatically exempt if they aren’t getting paid.

            For the purposes of this discussion, I’m assuming teachers are getting paid. I assume they are using materials, because it makes it easier to do their jobs. Those teachers are “exercis(ing) .. the rights granted … in a manner that is primarily … directed toward … private monetary compensation”. There not volunteers. They aren’t teaching to raise money for charity. Money is changing hands, the materials are being reproduced, incorporated, and distributed. It is assumed they are enhancing the service being provided. As such… commercial.

            There is a reason that Creative Commons licenses come in several flavors. The only aspect that is not optional is “BY”. The licensor is free to opt for SA, ND, & NC. They don’t have to include NC. By not including NC they make everything easier for everyone. If they really want other teachers to benefit, then they should stop sitting on the fence, encouraging people to ignore the terms of the license they’ve chosen. They should simply choose a license that is in alignment with their intentions, rather than precipitate debates about what constitutes “non-commercial”. Simply remove “non-commercial” from the equation.

            If your interested reading more on why NC may not align with one’s intentions/values have a look at:
            http://creativecommons.org/weblog/entry/8051
            Cheers,
            Chris

            • Hi again Chris,

              “If you read further in the FAQ you’ve mentioned you’ll see that the CC people admit it is hard to say what exactly counts as non-commercial.”

              Yes, I agree. The prevailing view though as I understand it seems to be that in cases where no money is directly made from using someone’s work, then that is classed as non-commercial usage. Certainly that is the interpretation that I’ve seen pretty widely applied to it. Creative Commons are in the process of changing their licences, so hopefully CC version 4.0 will make things a lot clearer.

              “The definition “does not turn on the type of user”

              Agree with you on this point, too.

              “I assume they are using materials, because it makes it easier to do their jobs… It is assumed they are enhancing the service being provided.”

              Perhaps so, although those who prefer to teach unplugged might argue otherwise… 😉

              However, providing an enhanced service still does not automatically equate to using materials commercially. If they didn’t use the materials and delivered the lesson without them, or used other materials to deliver it, then their employer would still pay them exactly the same wage for their contracted hours. If no money changes hands as a direct result of using said materials, then no financial advantage has been gained from using them.

              “They’re automatically exempt if they aren’t getting paid.”

              Hmm… I’m not too sure about that one myself. I can think of ways in which people who aren’t getting paid might infringe non-commercial CC licences using the model that you have put forward, although I’m not going to complicate things further by going into them! I think it’s probably best if we just agree to disagree on this particular point.

              “They should simply choose a license that is in alignment with their intentions, rather than precipitate debates about what constitutes “non-commercial”.”

              As I’ve already said, I don’t think it’s possible to second guess other people’s intentions. Personally, I think the debate about what constitutes “non-commercial” is an important one which needs to be thrashed out, until such point that things are clarified one way or another.

      • Thanks, Anthony.

        Agree that CC is murky, which is why I don’t tend to use it much myself aside from the kind of articles you’ve linked to here, or if I’m building on other people’s content that already has a Creative Commons licence.

        Personally, I think traditional copyright with a terms of use rider that spells out what exactly people can do with a resource (i.e. a custom licence you draw up yourself) is a better option at the moment than Creative Commons licencing, given the confusion that surrounds it. No different to Creative Commons licencing in essence, really, other than it is a customised licence. See the terms of use on my website here, for an example: http://www.esolcourses.com/t&c/t&c.html

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s