GEORGE SIEMENS: So one of the challenges that educators face relates to copyright. And copyright has-- it varies region to region around the world, which makes it very difficult to talk about it in a global sense. I have a colleague at Athabasca, Rory McGreal, who is quite actively involved in seeing what's transpiring in different parts of the world around content licensing.
So it's a huge bear to tackle and take apart. You can't talk about copyright in a generalized way. There have been some initiatives with Creative Commons, for example, that are more global in scope and reach in terms of content licensing. So why don't we just take a small step back and look a little bit at what is copyright, and what was it intended to do.
DAVID WILEY: That is a complicated question, and it varies in really fundamental ways region by region. So there are some parts of the world where copyright is a natural property right, the same way where, if you walked out into the woods, cut down trees, built a log cabin with your own hands-- that would belong to you because you had created it. You would own it. You'd be able to pass it on to your heirs forever in perpetuity. And there are some places where copyright is thought about in that kind of way.
In the US and other jurisdictions like ours, we think about it in a very different way. We think about it as trying to strike a balance between providing incentives to creators to engage in creative activity. And as an incentive, we give them a limited monopoly on the commercial exploitation of whatever they've created with the understanding that, at the end of that limited time, whatever they've done is going to pass back into the public domain and be broadly, freely, openly available to everyone. And so, in places like the US, questions of copyright become questions of-- how do we strike the right balance? How much protection is enough protection to incentivize the kind of activities that we want to see?
GEORGE SIEMENS: What does that look like practically? And I know a common example. I know Lawrence Lessig has argued this right up the pipeline. Disney is commonly cited as an example, you know, the Mickey Mouse factor. Can you talk a little bit about what that is? And particularly, why is that relevant for us as educators? So the challenge with Mickey Mouse is obviously he hasn't moved into the public domain in a set period of time. There continue to be commercial interests.
I think one of things that might be fascinating, just to step back a little bit and say initially, the idea of copyright was-- if I, as an author, produce a book, then it's my creative work. And I should be able to receive commercial value for that work. Now, after I die, in a more traditional way, because that copyright was fixed to an individual, then it would move into a public space. Which is why a publisher today can publish the works of Thomas Hardy, for example. And so now today, though, the copyright is attached, in many instances, to a corporate entity. And corporations don't die necessarily the same way that a human being might. What does that look like in the case of Mickey Mouse?
DAVID WILEY: Well, in the case of Mickey Mouse, it looks particularly problematic, because every time the copyright is about to expire on Mickey Mouse, Congress extends the term of copyright another 20 years. And we saw this recently with Eldred versus Ashcroft, where Larry Lessig went to the Supreme Court and argued that, if we're just going to keep extending copyright 20 years every time it's about to expire, that's not limited times. And limited times is the language used by the Constitution. So we can't just keep playing this game forever. And unfortunately, the court came back and said, hey, they only extended it 20 years. 20 years is a limited time. Strictly speaking we're still within the confines of how that's supposed to operate.
But when you think about it in an educational context, there are more complications. There are several layers of additional complications, right? Because on the one hand, where you have things like Fair Use or Fair Dealing that are exemptions, that exempt some kinds of educational activity, those exemptions almost always operate in not open contexts. So for me to want to reproduce something copyrighted and use it in an educational way, normally I have to be either behind a password, or behind a closed door, or the exposure has to be very limited in scope.
But if, in the age of the internet, if I want to participate in a broad, global, collaborative, open co-creation, kind of activity, I can't say well, I'm going to do that by falling back on Fair Use or Fair Dealing, or in the US the TEACH Act or something like that. And I need works that I have permissions to be able to share, to make changes to, to translate into other languages, to localize for my learners. And as all of us are collaborating around a certain set of knowledge artifacts, and we want to improve those and update them over time, we have to have permission to engage in those kinds of activities. And where you might be able to argue that, under copyright exemptions like Fair Use or Fair Dealing, I, as an individual, could do that inside my classroom behind a closed door, that's not what the knowledge society is about. It's not about individual actors locked away doing things in secret.
So copyright, as it continues to grow in scope and get longer and longer, and as we move from an opt in copyright system to now a system where everything is copyrighted by default, and you essentially have to opt out if you want to share--
GEORGE SIEMENS: So you're saying if I sit in a restaurant, and I take a back of a napkin, and I draw a diagram. That creative act is copyrighted.
DAVID WILEY: Right. Everything now is fully copyrighted from the moment that it's fixed in some kind of tangible form so that an elaborate napkin doodle that you would make enjoys the same level of copyright protection as Star Wars The Force Awakens. And so it used to be that, if you wanted to protect that, and you had an interest in commercializing it, that you would go register that copyright, and draw a little C with a circle around it, and do a couple of things.
But as part of some international copyright harmonization work, basically all countries now have moved to everything is copyrighted fully, to the full extent of the law, at the point of creation. And if we want to share with each other, now we have to go out of our way to find mechanisms to express to each other, in legal terms, I hereby grant you permission to do these interesting things with this work.
GEORGE SIEMENS: So from an educational setting, the real question-- because everything is technically copyrightable. So the content that we use in a classroom, the resources that we might use from a publisher. So today we have curriculum copyrighted, scholarship copyrighted, which I want to get into in a little bit. Even specific teaching practices that have been instantiated in some kind of a form, copyrighted. What's not copyrighted that happens in our classrooms?
DAVID WILEY: Yes, so anything that's fixed in a tangible form is potentially copyrightable. And when you're teaching in a technology mediated context where everything is digital, every answer that you provide, every discussion post, every answer or question in a forum, every video response-- everything that you're doing is captured and posted online and made available. So it really does put us in this scenario where, when you make the choice to teach in a technology mediated setting, and you're using these traditionally copyrighted materials, you set up this tension where the internet-- well, the internet has been called a copying machine. Its purpose is, essentially as we talked about earlier, to make free copies that are perfect instantaneously and move them around the globe essentially for free.
And so when that kind of technical capability runs up against this copyright regime that's ever expanding, copyrighting everything, kind of copyright eating the world-- you do, as an educator, start to feel like you're in a situation where, on the one hand, I have this huge technical capability of things that I could do, that I could do with my students, that I could ask my students to do, individually or with each other. Or with, in the case of open online courses, with a broad group of people across the globe. But actually this law over here prohibits me from engaging in any of these capabilities that the technology makes available to me. So that tension is a really-- I think it's a productive space for inquiry. But it can feel really trapping.