 The title of my session is a typo on it, and there really should have been the tension between the user and the instructor. So I apologize for that. I'm here today to... This was really supposed to be a questioning assumption session. So this is all the visual I have. I'm not going to march everybody through a deck. And I really want this to be a dialogue. Because this is kind of a philosophical question I've been wrestling with since I've been doing this for a living. And to me, I've always sort of flailed about like it's a Zen comb, like what's the sound of one hand clapping. Because it's a dilemma in what we do at MIT OpenCourseWare. And so I have to believe that others of you are dealing with this as well. You have in your institutions, if you're doing an OpenCourseWare, you've got material from instructors that you want to help to get online in an open environment. Instructors will use third-party materials in their teaching. Because that's how academia works. So in getting those third-party materials that are vital to their teaching, sometimes you can license them openly from the copyright holders and sometimes you can't. So you end up with this polarization where you've got an open educational resource that is totally and completely portable. You can reuse, remix whatever the license terms under which you publish enable you to do. But there are some holes in it. So you end up with a resource like CC ShareLots. Or you make some choices to keep that stuff in using a fair use claim, for example, or some other alternative that you have. But you end up with an object that has to stop at the border. I can share everything but these small little bits and pieces. And we have some kind of anecdotal feedback from our users around the impact of those choices on our content. But I really want to hear from other people that wrestle with this stuff every day, what are the pros and cons as you experience them to these sorts of choices? Do you end up going the total open license as much as you can and put as much in the comments as you can knowing that you have to sacrifice some things? Or do you sort of go the more conservative route and keep stuff in as much as possible knowing that it's not all portable, it's not all reusable? Is there a place where you could go and say, I don't know if this is this, but a place where you could go and say, hey, open community, I need an image of this, or I have this whole, does anybody have something that would fill that in? Flickr. If you go on to Flickr and you want to find images that are totally compatible with your license, your publishing license, you can plug in the elements of the CC license that you use and it will return back images that match that. If there's a hole, then if you don't get a response in Flickr, if there was a place that you could go and say, does anybody else have this huge community? Does anyone, I don't have an answer to that. Google. You go to Google and type the license you want and then it'll show you. But again, you go to Google and you can't find that picture that you want. You can't find something that will substitute for that. So what I'm wondering is if there's a way to put that request out there to the community, or maybe somebody would build it, maybe somebody would have pieces that they could donate so that you can create that resource. The only thing I know of is OER Africa has a sort of request facility where you can request OER to build out 30 minutes, but it's not like an individual initiative and sort of pieces of it. I was going to suggest we can mediate comments. I don't know if they have a request feature built in, but there's certainly a huge database of what this work is. So these are all really good resources. I think the challenge of those is finding exactly the right image that you want. And that's an option that we take at MIT OCW where we go out and we find open-licensed alternatives, or we have a graphic designer to recreate an open version of the original. But one instructor said to me once, well, I chose that image because it exactly demonstrates the point I'm trying to make here. And I know I can have alternatives, but they're just not quite right. At Johns Hopkins, we started out by doing almost exclusively slides without audio. And then as we started adding audio to our open courseware, we made the content more rich by doing that, but then we also made it much harder to deal with these situations because when you have a company in audio, if the instructor is talking about something that's supposed to be there and it's not there or it's been replaced by something that's suitable but the colors don't match up or it's not precisely the right match, it gets even more complicated. So by enriching the content in one way, we're actually creating a condition where we have to drop more stuff out because we can't find the exact match to avoid some sort of cognitive dissonance where they're hearing the instructor say one thing and they're seeing something else on the slide. At the other university, we had a system of identifying things that we can't clear the rights for, how to clear the rights for, who it was, and then replacing them if we can. But sometimes you can't replace them at all. I think that part of this discussion is about who's doing the effort in sharing because if we're talking about funding projects, then maybe there are people there who are going to do this activity. You're talking about an individual who's educated, who's got resources, they're keen to share. Are they expected to go through and do all of this? So maybe in fact, what you do is you put a blank space and say, this had an image of this sort of thing. I'd love you to find one because the chances are somebody out there might go and find something that you don't know about or even make something to share. I brought with me some of our very rich and well-argued user feedback in reaction to our issues, people that face the slide on the right. I think that the extent of your copyright deletions are excessive. John Lippman class of 1976. And that's a short one. I got a long one. It goes on and on and on and on and on. They understand intellectual property and liability concerns, but the frequency of image removed due to copyright is very disheartening, especially when the image is central to the lesson item. It compromises the entire learning experience and renders some entire lessons useless. He's right. He's absolutely right. But it's the very imperfect system we got. Why can't we have both? Well, we do have both at MIT and we put out stuff like that on the left, but it's less portable. Is that what you mean by both? No, I mean both. Why don't you put out both? Why don't you have a fully clear copy that might have deletions, but it's fully portable and then you've got a more comprehensive sort of... Where do you keep the integrity of the lesson? Well, I think I can answer for our shop and it goes back to our mandate when we first published, which was to publish everything, absolutely everything under one license. The Hewlett Foundation said, you must put it all out under one license, even if it means you end up with holes like that because they wanted no ambiguity about the portability of our content. They wanted to enable accessibility and reusability as much as possible. So when we adopted the fair use code and started doing what you see on the left, that was really controversial and had to be approved by committee and everyone had to bring their hands over it and think about it and are you sure it's going to be okay and will the users accept this? There's been no difference really in user feedback, so our silent majority of users continue to do what they do, which in the back of my mind makes me think they don't care what our license says or just behave as they always have been. This just makes it a little more transparent about what our intentions are. But as to why we don't have two parallel products, two parallel versions of the same course, labor, it's really just the work involved. That would probably be the most practical reason why. We were dealing with a very similar project where we were dealing with an architecture that was extraordinarily well connected so we were able to get that precise image of that building that it illustrated in every institution we gave. It was horrible. It completely misses the point, same building, same facade, slightly different lighting conditions, useless image. So what we ended up doing was we realized that as we whipped through more and more of that the course was not so much about the building, it's about his take on the building. So our asset became, we've ended up flipping the video frame to make it very much Jeff kept this lecture again and then up in the corner, under the pixel count that falls under fair use guidelines according to our lawyers is every image that we got. But the pixel count, we had it clear from Fair Use that this is small enough you can't say we're degrading the commercial value of the image, you can't push early, so we'll back you if you get sued. So we whipped that and that was a really nice process because that enabled us to abandon the clarity for structure and put the focus on this isn't about the building, this is about come see this critic talking and it's that performance that we're showing and Jeff owns this performance. When we do include things under Fair Use, I don't know if that reads real correctly and well, we put this up, it's hard to read I know but it's a source unknown, all rights reserved this content is excluded from our Creative Commons license and then we went back to our policy that explains our utilization of Fair Use to include certain things. But it's very clear here here's the item that we chose not to request permission for because we evaluated it and met the Fair Use argument. I'm going to stretch. But there it is right there you can't take it with you. If you want to reuse this you've got to make that call yourself as to whether you think your use is fair. I don't know if that's what the user of an OER wants to have to do. So we've given you something where you totally get the point of this slide you totally get the message the instructor is trying to convey but you can't reuse that unless you figure out whether you can and a lot of people don't want to put that much thought into it and I don't blame them. I wouldn't want to. So I was thinking about one of the Venn diagrams that Josh Jarrett put up yesterday quality and impact usage and distribution and sustainability. And focusing on the quality impact and usage distribution circles right here and how those are always sort of intentioned with each other. If you have a really complete rich product publication that you will be sacrificing some usability because of the realities of copyright law and the CC licensing infrastructure and there are parties out there that simply will not grant us the terms we're asking for. So what would happen if I'm sorry. I was thinking of the other supplement I noticed you always said because what was mentioned this morning was that I have a basket of cars people talking about OER sources. So we're talking about some sort of legacy problem where you didn't have OER sources didn't have them looking to choose or you've seen any change in where people are going or you're encouraging them to pass in the future. And MIT that's a really big part of the conversations we have with faculty because they hold the copyright to their teaching materials and they're the ones who decide what secondary resources they're going to use in their content. We can encourage and point them to as many openly licensed content as possible but some of you are instructors here and it's really annoying if people like us came and told you what to do and what to put into your teaching content so that gets some traction and we've certainly had some members of our faculty over the eight years we've been doing this get hit to it but certainly not on a critical mass where it's really radically changing how we're able to publish their content. Yeah. Can we just make you cheat a little bit I mean do you do a full alt description or type description of what's there when you can't see it? We do alt text and accessibility tagging for stuff that is the instructor's material. For third party things like these images that belong to third parties we don't. Yeah I was I just was wondering I think it would be really nice if there was a maybe even a partnership with some of these design I mean the things that they were talking about yesterday these students are going out and they're creating all this really cool stuff if you really need it there's a place where you can say hey here's an image that I'm interested in having an open copy of and it's somebody who will need to make it for me and you know there's students out there who would definitely benefit but then you need a place and I don't know where that play like where you take that image to have it Yeah like a who was it Jacques de Plessis was talking yesterday about the pantry I knew it was in his in his speech where you really need to pay careful attention to that model is that you have to have subject matter experts as the people that are generating these alternative images because you can't have you know a watercolor painter mock up you know a turbine engine that's going to exactly meet the needs of that maybe you could but you wouldn't go to that person first you would go to someone who's working in that field so it's a great idea there's probably a lot there but even an interaction between the requester and the person who's delivering the product you know there would be a lot of learning that would go on for the person who's delivering the product about turbines and whatever else but if you had a model that you were going on that's part of the process that we do at MIT with our author team there's a group of graphic artists that make our commissions for us you know we'll say we've got this diagram of a cell for example and it's got these attributes can you make a new diagram of a cell that has these attributes and very often there's three or four rounds of back and forth over email about no it's not quite right could you change this could you add that this needs some texture it's very communications intensive so it's not impossible but it's a lot of work we do end up with a much more complete resource when we go that route but there are significant costs with that approach as well so one question I have is like can you describe the kind of mention that I don't really throw up copyrighted most of the time like it's free right so like the open community we're very interested in like you know reused, revised and things like what you need open license to do but like what could be possible if we just maybe focus on just like as much free high quality content as possible it's widely available and like you don't care so much about the reused, revised and mixed what's your take on that that would be a horrible thing well it depends institutionally under the CC by NCSA license so everything we put out has to follow that licensing structure but also the ethos behind it and that's our we're constrained by our institutional setting to do that but there's a lot of other activity in this space that isn't constrained by that really rigid infrastructure around it where they can take a much more progressive approach and you know get much more creative with how they're putting things together and I don't think it's the right solution for us because of who we are but as individuals as individual educators or people that are creating content to be consumed in this space we've got a much wider range plan to have a plan on it so that makes me think that for institutional OCW producers like your shop and my shop and a few others in this room that we really need to focus on enriching the comments because otherwise the people who do have the freedom without as much institutional restraint as we have to practice we're providing raw materials that they can use and the more we clutter up our raw materials with stuff that they can't do anything with and that they might be confused about what they can do with it or they might not have as much confidence about using then we're doing them a disservice we can't necessarily do all the cool stuff but we can give you something to do cool stuff with I'll tell you a story about something that happened a few years back where we came up with a blanket agreement with Elsevier we we had an agreement where we're able to use up there's a cap of a limit of 3 figures per article or 100 words per article from journals that we were licensing from them when they appear in our courses under our Creative Commons license and now that's been a huge boon to us in our publication because we haven't had to pull out all the little journal articles our libraries weren't really happening with that deal when they heard about it because they said why would you license this stuff it's completely available to you under the terms of fair use and this really strange moment of you're absolutely right fair use is a completely viable alternative for us except we with this license can now put these little graphs and tables and excerpts of text into the Commons so we've taken completely locked down proprietary content and put it into the Commons but from the library's perspective that didn't really count as much now we all have valid arguments for and against this agreement but it's an example of how we took something put it in the Commons and we thought it was a good deal question back here point about fair use it's not the same around the world so the idea of trying to get something into Creative Commons is a perfect argument for your library it's not serious about getting stuff but the other argument and I can see from the American point of view is you're creating a precedent of you're saying that this isn't fair use by getting a license from them you're admitting that you believe that this isn't I can't do this by fair use and then both are right you're absolutely right in another jurisdiction the fair dealing in this is different but for the context to give in on that principle is a big mistake I think the librarians are right and sort of even worse a number of those images are like graphs they're very basic data representations that aren't actually covered by copyright in the US law and so attaching a CC license to it is in effect acting as though it even has copyright and in effect it is taking something out of the public domain and putting it behind a very open and transparent fence but a fence never let us so this was not without controversy and what are the statutory advantages in the US if somebody gets to you I don't think they ever have at least $150,000 yes so that's why I know in the new copyright building Canada it's gone down to $2,500 for instance and at $2,500 my guess is take the whole rare and take the risk $150,000 a time you might be a bit more cautious it also depends on who you are so like I'm at University of Michigan which is a public institution so we're protected by the state and so people can't actually see us from there it's in the state but they can't see the state from money just jumping through well then you take the whole there's a huge gray area huge gray area take it why university librarians think that their officers are enforcing the copyright of the publishers I don't know why they would think that they're paid by the university okay we have one to have one last question quick fall how many people in this room for copyright so why are we talking about this can I stick up my hand as somebody who used to get complaints about copyright misuse in an institution but it does happen do you seem to spend their time trolling for instances of their diagram having been misused but it's complaints it's complaints not stories it's complaints well we haven't used their dive we pay a lot of complications that the individual could have seen as well as the institution as well as whoever provided the system it's just a really horrible civil criminal thing alright the time is up so I'd be happy to talk to anybody about this who likes to wrestle in the gray philosophical space like I do thank you very much