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Intellectual property and MyTESOL lounge

  • 1.  Intellectual property and MyTESOL lounge

    Posted 10-02-2022 02:03 AM
    Hello everyone,

    Yes, the stories posted recently would appear to be very valuable for discussion with our learners, but unfortunately, some of them appear to violate the rights of the authors and/or publishers.

    The story Mother Tongue by Amy Tan, for instance, has a very clear disclaimer at the bottom which could result in the poster, or TESOL, getting sued. Was permission received before the article was posted?
    Copyright violation




    ------------------------------
    Thomas Robb
    Professor Emeritus, Kyoto Sangyo U.
    Past Chair, RV-IS
    Japan
    tomrobb@gmail.com
    ------------------------------


  • 2.  RE: Intellectual property and MyTESOL lounge

    Posted 10-02-2022 08:32 AM
    Please clarify Amy Tan's disclaimer.  This is quite confusing to me - that an author would not want her books or stories shared and discussed by people around the world? Or in schools?  Or in book clubs?

    ------------------------------
    Allison Widmann
    ESL Teacher
    Language and Literacy, LLC
    United States
    ------------------------------



  • 3.  RE: Intellectual property and MyTESOL lounge

    Posted 14-02-2022 08:11 PM
    On 2022/02/10 at 01:31pm, Allison Widmann via TESOL International Association wrote:

    > Please clarify Amy Tan's disclaimer.? This is quite confusing to me -
    > that an author would not want her books or stories shared and
    > discussed by people around the world? Or in schools?? Or in book
    > clubs?

    I believe the inelegant disclaimer at the end of the Amy Tan reading was
    inserted by someone else, not Amy Tan. Perhaps it the publishers of this
    periodical (??), READ, or perhaps it was the teacher of a course, adding
    a copyright disclaimer for a pdf they were sharing with students.

    Understand, the author's desires are rarely the issue, especially with
    regard to content from the days before open content licenses. Publishers
    usually own the copyright, and they are in the business of selling
    access. They would likely prefer that every member of the book club buy
    the book.

    That said, the Venn diagram of copyright and education is blurry with
    some parts of the circles missing as well.

    --
    Chris Spackman (he / him)

    ESL Coordinator, The Graham Family of Schools
    ESL Educator, Columbus State Community College

    Japan Exchange and Teaching Program (Wajima, Ishikawa 1995-1998)
    Linux user since 1998
    Linux User #137532




  • 4.  RE: Intellectual property and MyTESOL lounge

    Posted 11-02-2022 04:38 AM
    Edited by Rob Sheppard 11-02-2022 05:10 AM
    Hi there,

    Thankfully for us as teachers, this piece of copyright law has been examined repeatedly in the time of the internet and file-sharing! Linking to content hosted on another website doesn't create copyright concerns for TESOL or the person sharing the link. If there is a copyright issue, it's the person who uploaded the content or possibly the institution hosting that content that needs to worry about it.

    ------------------------------
    Rob Sheppard
    TESOL AEIS Past Co-Chair
    Academic Director
    Temple University Center for American Language and Culture (TCALC)
    United States
    ------------------------------



  • 5.  RE: Intellectual property and MyTESOL lounge

    Posted 12-02-2022 09:36 AM
    Copyright and the "educational exemption" (by whatever name) are very much misunderstood. Despite the fact is that this not settled law in the US (similar in most other countries), there is a sort of working understanding that 10% of less of any "text" may be reproduced for personal studies, but not for public sharing (or classroom use). Essentially it comes down to prosecution by copyright owners, and lack thereof. (Of course copyright owners may waive their rights, such as through Creative Commons licensing.) In the present case (Amy Tan article), the original website set clear terms for use, as Thomas Robb has pointed out. Because something is "on the internet" does not change copyright laws, just like an unlocked door is not an open invitation for anyone to sleep in your house while you aren't looking. And websites and even servers for multiple personal websites are now being prosecuted for assisting in the publication of copyrighted materials.


    ------------------------------
    Rob Dickey
    Keimyung University
    Daegu, S. Korea
    ------------------------------



  • 6.  RE: Intellectual property and MyTESOL lounge

    Posted 14-02-2022 10:51 PM
    On 2022/02/12 at 02:36pm, Robert Dickey via TESOL International Association wrote:

    > Despite the fact is that this not settled law in the US (similar in
    > most other countries), there is a sort of working understanding that
    > 10% of less of any "text" may be reproduced for personal studies, but
    > not for public sharing (or classroom use).

    I'm not sure how accurate this is, with regard to the situation in the
    USA, at least. I've not heard of any "personal studies" use exemption,
    and educational use is specifically understood as being different from
    public sharing - assuming the teacher can prove a valid educational
    use. But, as you say, it is all very murky and confusing, and every
    country has their own twists on it.

    I am not a lawyer. My best understanding is "be prepared to prove it to
    the judge and / or jury".

    > (Of course copyright owners may waive their rights, such as through
    > Creative Commons licensing.)

    I would like to clear up this a bit. Creative Commons licensing does NOT
    involve waiving your rights. Works published under Creative Commons (or
    similarly open) licenses are still copyrighted.** The licensing is
    layered ON TOP OF existing copyright. If someone breaks the terms of the
    license, the license "disappears" and that someone is left having
    violated the author's copyright. They may end up in legal difficulties.

    ** The exception being the explicit "public domain" licenses, I
    believe.

    I support copyright laws that I don't agree with because I publish under
    Creative Commons licenses. Those ridiculous copyright laws protect my
    content - and people's freedom to use my content - by being the stick
    (enforcement) to the CC license's carrot (freedom to use), if you will.

    > In the present case (Amy Tan article), the original website set clear
    > terms for use, as Thomas Robb has pointed out. Because something is
    > "on the internet" does not change copyright laws, just like an
    > unlocked door is not an open invitation for anyone to sleep in your
    > house while you aren't looking.

    True, although I'm not sure it's exactly clear what the original site
    is. Also not sure exactly what the situation is with that linked
    file. It looks like a teacher maybe made the file available for a class,
    but the server is not set up to require a username and password to
    access it. My understanding is username & password or otherwise
    restricting access is a current "best practice" for sharing copyrighted
    materials in an educational environment.

    > And websites and even servers for multiple personal websites are now
    > being prosecuted for assisting in the publication of copyrighted
    > materials.

    I would love to see links for this. I've not followed piracy /
    copyright court sagas much since the original Napster and bittorrent
    days, but I was under the impression that there was much less suing and
    prosecuting going on these days.

    That said, this example is not in education, but educators could be
    impacted by copyleft trolls exploiting a "bug" in early Creative Commons
    licenses. Cory Doctorow explains it here:

    https://doctorow.medium.com/a-bug-in-early-creative-commons-licenses-has-enabled-a-new-breed-of-superpredator-5f6360713299

    (Avoid these trolls by only using CC 4.0 or newer licenses.)

    Here is an education related example. A school district had to pay more
    than 9 million USA dollars for willfully ignoring copyright. Note that
    it was a district doing the infringing, not just a couple of teachers.

    https://marketbrief.edweek.org/marketplace-k-12/houston-district-hit-with-penalty-over-illicit-copying-of-companys-materials

    These seem, to me, to be more the exception than the rule, however.

    --
    Chris Spackman (he / him)

    ESOL Coordinator, The Graham Family of Schools
    ESL Educator, Columbus State Community College

    Japan Exchange and Teaching Program (Wajima, Ishikawa 1995-1998)
    Linux user since 1998
    Linux User #137532




  • 7.  RE: Intellectual property and MyTESOL lounge

    Posted 14-02-2022 11:53 PM
    Hi Chris and all,
    Chris makes some fair points. Let me respond to some of these.
    Because teachers should be aware of the risks of their activities.

    "once upon a time I was a law professional in USA, law school graduate, appeared before the courts, and all that."
    I am no longer (I because I'm outside of US now, no need to pay malpractice insurance, expenses of staying current, etc.)
    So take this message with the appropriate grains of salt...

    The often-claimed educational exemption to copyright (under "fair use") actually has several branches, one being "classroom use" (such exemption doesn't actually exist), and "personal studies" (which is basically copying key pages of a book while in the library, and this was often claimed as "up to 10% of the text"). Various US courts have treated claims like these in different ways, it is very much NOT settled law.

    Creative Commons is a special form of copyright claim, and depending on which version you choose, it can effectively become a waiver of rights beyond being recognized as the author of the works. I don't closely monitor the online copyright law issue (this page summarizes), and so don't keep record of what I've seen in the past, thus I'm not able to produce a history of websites challenged for improper use (actually, "not willing to produce" because it would be too much work). We can observe that commercial entities cannot claim fair use of webpages -- see Google's use of newspaper stories in a number of countries! School districts, likewise, cannot claim fair use (else schoobook publishers would go bankrupt!). What an individual classroom teacher does inside individual classes, I don't that this has ever been to court (which is not the same as saying "it's legal").

    As for the copying claim on the page that started this thread, I understood that to be a claim by the website (owner) -- in terms of our "law" discussion, I'm not really interested in the website's rights to Amy Tan's works (that's their problem) but our (teachers') rights to make use of a webpage or its text/image(s).

    Because it's on the web doesn't mean I can print it out and hand it to students. It is common practice to show webpages (and youtube videos) in class, and while connected to the internet that's probably fine. But to be clear, even after 30 years of WWW in the classroom, things are still unresolved in the US, and similarly in many other countries.

    OK, we've probably already talked enough on this topic, and perhaps less than a handful of folks are actually interested. So I'll cease and desist here.
    ;)

    ------------------------------
    Rob Dickey
    Keimyung University
    Daegu, S. Korea
    ------------------------------



  • 8.  RE: Intellectual property and MyTESOL lounge

    Posted 15-02-2022 08:44 AM
    I'm one of those people who are still interested in the topic, but still confused.

    A teacher wants to assign a book to her/his students to read and discuss in class. The school system approves it.  The school buys the books for the students or the students buy the book themselves.  The author gets the royalities off the purchase of the books.  The students do not learn "for profit"; they are learning for their own personal education, and the school system does not profit in any way.

    Why is this a problem?


    ------------------------------
    Allison Widmann
    ESL Teacher
    Language and Literacy, LLC
    United States
    ------------------------------



  • 9.  RE: Intellectual property and MyTESOL lounge

    Posted 15-02-2022 08:50 AM
    I believe folks are referring to situations in which the school does not buy copies of the book for each student, but either photocopy materials or use digital copies to distribute a text to their students.

    ------------------------------
    Rob Sheppard
    TESOL AEIS Past Co-Chair
    Academic Director
    Temple University Center for American Language and Culture (TCALC)
    United States
    ------------------------------



  • 10.  RE: Intellectual property and MyTESOL lounge

    Posted 15-02-2022 08:52 AM
    Thank you for that clarification. I agree it is wrong if a school system simply photocopies a book or does a digital distribution.





  • 11.  RE: Intellectual property and MyTESOL lounge

    Posted 15-02-2022 11:38 AM
    I would like to respond to a number of issues in this discussion.
    1. It doesn't matter whether something is published online or in print. For copyright purposes, they are the same. However, at the same time, US and a few other countries have the concept of fair use, which is not a law but differentiates between intellectual property, such as a story, and physical property such as a house. We can thank Thomas Jefferson, whether you still like him or not, for adding this distinction to our Constitution.. Other countries have what is called fair dealing, which is similar although they don't have a constitution. Fair use, which differentiates between education and commercial usage, is not a law but an argument for whether a given usage is legal. For example, if you are not charging the students for the article, you can consider it fair use; if Weekly reader can argue it is losing money, then they may have an argument. I had a professor who left all the readings on her desk as a way of getting around the one area that has been clearly defined: course packs. I don't know if what she did was legal but we didn't have to buy the course pack.
    2. The "10%" rule was never a law an agreement between publishers and librarians that is you distribute a certain amount, perhaps once, you won't be sued. It can be used in legal judgments but it was devised outside the legal system.  I think that many schools have adopted learning management systems, despite their limited pedagogical value, because by limiting who can access course materials, they can make a better argument for fair use. The recent Georgia State University case was based because of a flaw in the lms. It should be noted that the publisher lost the case, which may be closer to the use of an Amy Tan story. Weekly Reader can sue but it doesn't mean they are right; they just have higher-priced
    3. "Murky" is a good description for describing this situation. I think that is why Creative Commons was created. It allows for copyright to cover the different uses for educational intellectual property. You can retain your copyright, as you would without it (again you automatically get copyright unless you are Gucci, for anything put in a fixed medium), you can completely relinquish it or a number of areas in between such as modifying the work
    4. In sum, using the Amy Tan story may be legal but it places you within the legal system where anything may happen.

    I am not a lawyer but a retired composition teacher and therefore this information is for informational purposes only.. Therefore, everything is just my opinion and should not be used to make decisions. I think all teachers need to understand these issues since they come up in many areas of teaching.

    ------------------------------
    Joel Bloch
    Ohio State University
    United States
    ------------------------------



  • 12.  RE: Intellectual property and MyTESOL lounge

    Posted 15-02-2022 05:46 PM
    On 2022/02/15 at 04:53am, Robert Dickey via TESOL International Association wrote:

    > Chris makes some fair points Let me respond to some of these.
    > Because teachers should be aware of the risks of their activities.

    Totally agree. I hope nothing I said made anyone think that I was
    advocating for ignoring copyright laws or infringing on anyone's
    copyright. Please, be aware of what is legal to use and what is not.

    > "personal studies" (which is basically copying key pages of a book
    > while in the library, and this was often claimed as "up to 10% of the
    > text").

    Thank you for clarifying that. I had honestly totally forgotten about
    all the time I spent in front of copy machines in the 1980s and 1990s.

    > Creative Commons <https: creativecommons.org/faq/=""> is a special form
    > of copyright claim, and depending on which version you choose
    > <https: creativecommons.org/choose/="">,

    I hope this does not come across as pedantic, but CC licenses are not
    the product of any sort of law making by legislators. Copyright
    is. Copyright is specifically described in laws. Creative Commons
    licenses are not. Perhaps "copyright claim" covers this, but I want to
    be sure everyone understands it, because many valuable resources that
    are available are published under CC licenses, backed up by copyright.

    > School districts, likewise, cannot claim fair use (else
    > schoobook publishers would go bankrupt!). What an individual classroom
    > teacher does inside individual classes, I don't that this has ever
    > been to court (which is not the same as saying "it's legal").

    I'm not sure if the district in the EdWeek article I linked to tried to
    claim fair use or not, but they certainly did damage to the business
    whose materials they shared.

    "A jury has awarded an education publisher $9.2 million in damages
    stemming from a lawsuit that accused the Houston school district of
    allowing the illicit copying and posting of the company???s materials
    online, despite repeated warnings to stop.

    "Jurors in a federal court in Houston made the award after hearing the
    publisher DynaStudy argue that the district???s actions violated
    copyright laws and resulted in lost sales and a devaluing of the
    organization???s work."

    The article also mentions that:

    - one teacher posted the materials with the copyright notices removed

    - some of the shared files were then used by at least 6 other school
    districts in the state

    These were materials specifically made to help students in their studies
    (unlike the Amy Tan reading that started this thread). It is hard to
    argue that the teachers and district didn't know that they were hurting
    the company.

    > Because it's on the web doesn't mean I can print it out and hand it to
    > students.

    More teachers and students need to understand this. Probably everyone in
    k-12 has had students answer "I got it from Google" when asked where an
    image some text is from. I've heard that from plenty of teachers also.

    For educators wondering "well, what can I use?" I suggest starting with
    Wikipedia and its sibling sites. WikiCommons, Wiktionary,
    etc. WikiCommons is especially good for finding images and other
    graphics.

    As an ESOL teaching in USA k-12, I often use the sites below for
    materials that I know I can modify and share without worrying about
    copyright issues.

    Images: https://commons.wikimedia.org/wiki/Main_Page

    => if you find SVG files, you can modify them in Inkscape
    (https://inkscape.org/) without loss of quality

    Definitions: https://www.wiktionary.org/

    Simple definitions:
    https://simple.wiktionary.org/wiki/Wiktionary:Main_Page

    => this is great for when you want to make materials for less advanced
    English Learners and don't already have set definitions that you
    have to use.

    Simple articles for content area topics:
    https://simple.wikipedia.org/wiki/Main_Page

    And, of course, Wikipedia is available in many languages.

    Many people say "oh, but Wikipedia isn't a reliable source". As an ESOL
    teacher, I'm not worried about reliable sources. I can double check the
    info with the class textbook (which is probably written at too high a
    reading level).

    What I am worried about is finding a content area article that I can
    modify for my students' needs. I build background knowledge by modifying
    a reading to be easier for students to access - I'm okay with "i-1" (for
    example) when I'm trying to help students understand content area
    content.

    As an example, I've attached a 1 page reading I made for a junior level
    chemistry class (11th grade; next to last year of USA high school;
    roughly 17 yo students). It is based on a simple wikipedia article, and
    I tweaked it for the students I had that year. I couldn't legally do
    that with the textbook materials the teacher was using, but I could with
    wikipedia articles and other Creative Commons licensed materials.

    Putting the many modified readings I've made onto my web site one day is
    on my list - maybe next summer. (If a k-12 teacher wants one, please
    email me.)

    > OK, we've probably already talked enough on this topic, and perhaps
    > less than a handful of folks are actually interested. So I'll cease
    > and desist here.

    I apologize for not being able to cease and desist quite yet. Because of
    the penalties involved, and the options available, I think it is
    important for educators to be aware of copyright laws and the limits of
    fair use.

    Thank you very much for your insights on this topic.

    --
    Chris Spackman (he / him)

    ESL Coordinator, The Graham Family of Schools
    ESL Educator, Columbus State Community College

    Japan Exchange and Teaching Program (Wajima, Ishikawa 1995-1998)
    Linux user since 1998
    Linux User #137532




  • 13.  RE: Intellectual property and MyTESOL lounge

    Posted 15-02-2022 05:47 PM
      |   view attached
    And I forgot to attach the reading.

    Modified chemistry reading (mentioned in my email from about 1 minute
    earlier) attached.

    --
    Chris Spackman (he / him)

    ESL Coordinator, The Graham Family of Schools
    ESL Educator, Columbus State Community College

    Japan Exchange and Teaching Program (Wajima, Ishikawa 1995-1998)
    Linux user since 1998
    Linux User #137532


    Attachment(s)



  • 14.  RE: Intellectual property and MyTESOL lounge

    Posted 16-02-2022 08:53 AM
    Thanks so much, Chris, for your contribution as well as "not being able to cease and desist..." ! Precisely so, because the issue IS important for all educators, and I like the reading you shared as an example of the way you work. 
        As I often adapt such materials myself, totally agree: 
       i) such sites are very useful to make ANY content area sources (not only textbooks) easier to study for English learners- particularly IF you as a teacher and materials writer DOUBLE CHECK the information provided there; and
       ii) this kind of modifying any materials is a good way for EFL teachers to do without any infringing on anyone's copyright. 
       Exactly as you said. 
       Thanks so much again for sharing! 
       
       Lala Sadykhova, PhD 
       Moscow, Russia


    ------------------------------
    Lala Sadykhova
    Russian Federation
    ------------------------------