Friday, January 13, 2012

Open Content

(c) Express Syndication LTD, British Cartoon Archive, University of Kent, carl Gile, Daily Express, 1981.
In my last post, I said that the power of the Creative Commons licensing was it's simplicity of use for the creator and re-user of a work.  While this is true in some instances, challenges still abound.  One issue is that educational resources rarely exist in a vacuum. I recently attended a workshop on Open Educational Resources for Higher Education and one of the presentations was about a University that had received grant money to license some of their courses as OER using creative commons.  What they found was that it took a tremendous amount of work to check each and every aspect of the course to make sure it could actually be licensed this way.  In many cased there were questions about photos or graphics used in presentations.  Questions arose about the ownership of work done by academic staff. They needed buy-in at every level of the institution to succeed.

One issue arises from the fact that teaching already uses all kinds of content is already considered free or open in some form or fashion.  There are a lot of cases that could be considered grey or fuzzy about what a license actually allows, especially when it comes to non-commercial, educational use, not to mention fair use in the US. Don't think that you can clear this up by asking a lawyer either, the IP lawyer in attendance at the workshop was practically reduced to speaking in riddle.

David Wiley calls material that is in allowed to re-used to some degree Open Content and that is one of the topics covered in the Introduction to Openness in Education course that has just started.

In practice, what it comes down to is that if someone wants to stop you from using their copyrighted material, they will take (or more likely start by threatening to take) legal action against you. In my opinion, this puts the burden on us all to exercise our rights if for no other reason than to map these legal boundaries. There are clearly some cases that are morally wrong- to profit from someone else's work to their detriment is a clear example.  For non-commercial use, it's hard to see the harm and for educational use it easy to see some good. The question becomes about risk and, unfortunately, Universities are likely to be very risk averse.

One other consideration in an educational setting is modelling behaviour for the students.  However, I think this applies both to a respect for the law as well as need to civically engage, exercise rights and challenge unjust and unfair law.

So, a real world example is the cartoon above which is copyrighted but has been cleared for educational use by the British Cartoon Archive.  The fuzzy area is when you try to determine exactly how educational use is defined. Think about these examples of use and try to figure out where to draw the educational use line:

  • a teacher shows the cartoon to a class during a lecture
  • that lecture is put on the VLE for the students to download
  • the lecture is recorded and the video is put onto Itunes U. or Youtube Ed
  • the cartoon is posted on the schools public website
  • The instructor's presentation is put onto slideshare
  • a student uses the cartoon the in their own blog (which is about their studies and even part of an assessed project)
The biggest issue would seem to come down to possible commercial use of the photo. I'm the student in the last example, and I'm relatively certain that this is an appropriate use (especially given the nature of the comic!) but it is certainly possible that Express Syndication LTD could disagree.

There are plenty of really interesting dimensions of these issue to explore such as the history and purpose of copyright in the first place, the way the issue is impacting the music, film, and publishing industries, the tension between artists rights and corporations who often hold the copyrights of the artists work, and other examples of strange enforcement and challenge of it.  For now, I want to just give one more example that follows very nicely along the theme of the cartoon.

No image uploaded here, just using a url
Just in case you live under a rock, the Far Side is a comic strip created by Gary Larson and which, according to wikipedia, "was carried by more than 1,900 daily newspapers, translated into 17 languages, and collected into calendars and 22 compilation books.[1]"

First off, let me say that Larson is a hero and has probably brought as many smiles and laughs into this world as is humanly possible. For over a decade you could barely find a school hallway or refrigerator that wasn't adorned by his fabulous work.

Wikipedia also says "It is difficult to find many Far Side cartoons online, since Larson, his publishers, and lawyers have successfully persuaded people not to infringe on his copyright." Which is absolute rubbish since if you do a google image search for the farside, almost all the images that come up for first several pages are his comics, and even on page 20 it's still about half and half. The persuasion bit refers to the following letter:
I'm walking a fine line here.

On the one hand, I confess to finding it quite flattering that some of my fans have created web sites displaying and / or distributing my work on the Internet. And, on the other, I'm struggling to find the words that convincingly but sensitively persuade these Far Side enthusiasts to "cease and desist" before they have to read these words from some lawyer.

What impact this unauthorized use has had (and is having) in tangible terms is, naturally, of great concern to my publishers and therefore to me -- but it's not the focus of this letter. My effort here is to try and speak to the intangible impact, the emotional cost to me, personally, of seeing my work collected, digitized, and offered up in cyberspace beyond my control.

Years ago I was having lunch one day with the cartoonist Richard Guindon, and the subject came up how neither one of us ever solicited or accepted ideas from others. But, until Richard summed it up quite neatly, I never really understood my own aversions to doing this: ''It's like having someone else write in your diary, he said. And how true that statement rang with me . In effect, we drew cartoons that we hoped would be entertaining or, at the very least, not boring; but regardless, they would always come from an intensely personal, and therefore original perspective.

To attempt to be "funny" is a very scary, risk-laden proposition. (Ask any stand-up comic who has ever "bombed" on stage.) But if there was ever an axiom to follow in this business, it would be this: be honest to yourself and -- most important -- respect your audience.

So, in a nutshell (probably an unfortunate choice of words for me), I only ask that this respect be returned, and the way for anyone to do that is to please, please refrain from putting The Far Side out on the Internet. These cartoons are my "children," of sorts, and like a parent, I'm concerned about where they go at night without telling me. And, seeing them at someone's web site is like getting the call at 2:00 a.m. that goes, "Uh, Dad, you're not going to like this much, but guess where I am."

I hope my explanation helps you to understand the importance this has for me, personally, and why I'm making this request.

Please send my "kids" home. I'll be eternally grateful. 

Most respectfully, 
Gary Larson

While extremely persuasive, I do have some issuess with what he is saying. After his hard work creating these cartoons, I imagine, as it should be, that he is still earning money from that work. I do think, as did the original writers of the copyright laws, that there should be a reasonable limit on how long his exclusive ownership of that work should last, but he makes it clear that this letter is not about financial harm from copying.  His concern is re-use of his cartoons on the internet and he eludes that it's about how they might be used.

It's easy to come up with some very disturbing scenarios for re-use such as an interpretation of a cartoon that supports some heinous viewpoint like white supremacy or even someone actually modifying a cartoon to totally reinterpret it's meaning.  The part I don't get is how this is any different from all the pre-internet use of his comics.  As I mentioned above, they were widely clipped and displayed from the newspapers he published them in.  Anyone could have taken a marker and drawn a moustache on one of his characters or pencilled in their own caption.

He says that for him to use someone else's idea would feel to him like having them write in his personal diary but this dosen't necessarily extend to activity other than being a cartoon artist.  Not every "diary" is personal and not everyone else feels the same way he does about using and sharing other's ideas.  His art has passed into the collective conciousness just as previous artist's work before him have.  Clearly he does not have a problem riffing off their work, as the cartoon above clearly demonstrates.

In any case, I found this an interesting intersection of the theory/idea of copyright and the reality.  I have emailed Gary Larson to invite his response, as only seems fair. If we could persuade him to change his mind I can imagine a flood of  ds106 remashes emerging.  I look forward to hearing comments from any other visitors as well.

Information on UK Copyright Fair Dealing


  1. I can confirm that the letter was really written by Gary Larson as I received an auto-reply after emailing him which very clearly stated his policy not to distribute any of his work online and included this link to letter, as quoted above:

  2. As a grandparent I can tell Gary that there comes a time when your children go out into the world to be reshaped and transformed by others. And at some point beyond that they are reproduced into a form that looks like them but isn't quite them. It would be better for everyone, including himself, if he just let go of his children and let them grow.

    Ironically, in "Forever minus a day? Some theory and empirics of optimal copyright." Pollock (2007) thinks this should happen somewhere between 15 and 30 years.

  3. 'Just using a link' might still be considered an infringement of copyright no?