17 USC § 106 and 17 USC § 106A

Copyright Perils and the Worth of Due Diligence

Diagram of Copyright (Erik J. Heels, 2007)

Diagram of Copyright (Erik J. Heels, 2007)

Courseware design is enormously complicated business and, to a pedagogical extent orders of magnitude more intense than in residential education, every aspect of an online course depends upon every other: assessment must be based on content available, available content must be easy to access and accessible to consume, discussion must be directed but open to individuation, et cetera. Like any other aspect of the course “A Global History of Architecture: Part 1,” recorded lecture content needs to be executed to the highest standard of completion so that all other aspects can proceed smoothly. A student cannot start to understand, say, the geometry Hagia Sophia, if they are denied illustrations of it; if they can’t understand the material, they can’t discuss it or be tested on it, and if neither of these things occur, a requisite part of our course remains incomplete and subsequent material building off it will be compromised. To these ends the use of images in xMOOCs deserves serious and thoughtful consideration.

The internet is a vibrant and broad resource for image content, and the unprecedented availability of photographs online today deserves to be integrated into the production of online education software. It is also true that much of the content available online exists under the copyright protection of its owners or original producers, and these rights deserve respect. In the spirit of resolution and forwarding the development of best practices for course development at MIT and elsewhere, I’d like to take this opportunity to explain our methodology for image due diligence at 4.605x, and highlight areas where I think subsequent courses could stand to improve upon what we have done.

Our ability to use many images, for which copyright has been claimed, without compensation, comes from the Copyright Act of 1976, 17 U.S.C. § 107, which states:

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for or value of the copyrighted work.

Following these guidelines, the use of images in 4.605x can be summarized as follows:

  • The purpose and character of our image use is not for profit, and educational
  • We draw almost exclusively upon objective, fact based photography
  • We only use as many images as are needed to adequately depict what is being discussed, without utilizing substantial portions of individual bodies of work
  • Images are not distributed in their original form or in an easily usable format (they are downsized for video; image files are not distributed), and the nature of their use has been recontextualized such that our use of the image will not impact their potential market value.

Based on these qualifications, our use of copyrighted material in 4.605x can be viewed as falling under the category of “Fair Use,” under U.S. law. In other words: since our use of photography, drawings, diagrams, and architectural documentation in lecture videos for our online course satisfies the four factors for Fair Use outlined by 17 U.S.C. § 106 and 17 U.S.C. § 106A, our use of such imagery without notice or compensation to copyright holders can be assumed to be legally justifiable.*

To substantiate this claim, and to ease dealings with claims against it should they arise, myself and my colleagues at 4.605x have devoted a substantial amount of our time to performing “due diligence” on our image assets. Due diligence is a form of investigation performed certain actions, to ensure that risk undertaken is minimized. In our case, due diligence has been performed so that we are aware of the source and licensing of each image related to our course, and so that we can identify it quickly should a dispute arise.

Here is an abbreviated summary of how our due diligence is performed:

Recall that our course is constructed around recorded lectures. During the lectures recorded, images were projected onto a screen, and changed according to the need of the person lecturing. For this, Professor Jarzombek and invited lecturers Vikram Prakash (U. Washington) and Ana Maria Leon (MIT) developed PPT files. Every image within these files has been researched by the 4.605x team for provenance (its source) and its intellectual property categorization: Open Content (in the public domain, or licensed with a Creative Commons license which allows our use of the image in this context), Faculty Content (for which the copyright is owned or managed by a lecturer for 4.605x), and Fair Use (whereby our use of the image is justified only under 17 U.S.C. § 106 and 17 U.S.C. § 106A).

Each lecture contains approximately 150 images, and information for each will be entered into a database. Sometimes, this can be accomplished with information provided; in 30-50% of cases, images are uploaded to Google Image Search and source-identified from there.

This process takes 3-10 minutes per image; some lectures have taken two days or more to complete research. This amount of time is equal to the sum total of all steps required to take the same lecture from raw recording to edited courseware, including writing HTML overview and instructions, approving video and its transcription, uploading review questions, and creating directed discussion prompts. As you can imagine, it can be frustrating to devote so much time to one aspect  of our development process, when other steps more directly applicable to user experience are achievable in so much less time.

In cases where information cannot be identified by the course team, I have consulted with lecturers–about 2 hours with Ana Maria Leon, and 10-12 with Professor Jarzombek, much of which is spent going through images individually, and waiting  until information can be found. Some images have required extensive  research and utilization of resources, including one which necessitated the mailing of three separate volumes, from other university libraries, to us, so that we could attempt to locate its source. Since Professor Jarzombek and Ana Maria Leon’s time is very limited, and their input to the course so valuable, I regret that so much of our interaction is dedicated to intellectual property tedia.

Intellectual Property Database for 4.605x (screenshot)

Intellectual Property Database for 4.605x (screenshot)

Despite my frustration with this aspect of our process, I think it is the most important and I am proud of the amount of time (about a quarter of the total work-hours) that we have devoted to it.

Art history pedagogy, of which architectural history teaching is often a subset, relies heavily on the use of images: it is generally thought that to learn about art, or buildings, one must see them. Buildings are usually depicted to students with optically projected imagery. Up until recently, images were (re)produced by using film slides. Professors would pride themselves on their slide libraries, and a crucial part of teaching architectural history was first visiting the sites to be discussed, and gathering images for oneself. Now, thanks to the internet, many images that once required travel can be accessed in seconds. Not only are images easier to get, but there are more of them, now, too: In one of our meetings, Professor Jarzombek mentioned that for many of his sites up on until a few years ago it would be difficult to find images online; now for even the most obscure there are often hundreds; more popular sites are depicted in thousands of different images. Putting aside questions of expertise and training what this means is that the effective barrier to entry for teaching global architectural history has been reduced by orders of magnitude: rather than travel, all one needs now is an internet connection.

As an architectural historian of my decidedly pragmatist disciplinary politics, I praise any effort to make architectural history easier to teach and therefore available to more people. At the same time I also keenly aware of the fact that with ease of access comes new concerns about intellectual property. Resources like Google Image Search make it very easy to access content owned by private individuals, which was not intended for distribution such as its use in an MIT architectural history lecture. Case in point: there are more than a few people out there whose summer vacation photos have ended up in an experimental online course from a well-known university, who probably didn’t foresee this eventuality.

The question I have wrangled with most frequently as a member of the 4.605x course team is whether or not our continued use of images for which copyright is claimed and our use may be seen to violate that claim is ethical, and what to do about that.

It first has to be recognized that 4.605x is a derivative product: everything we have done builds off of a course offered at MIT, and therefore involves the adaptation of material which was never originally intended for use in a massive, open, online context. It is also true that because we use recorded videos that were recorded for that class, that images which were appropriate for depiction there but might violate copyright when included our MOOC will find their way into our courseware. Because imagery is such a crucial pedagogical tool–you really need to see the Friday Mosque to understand the form of its crenellations, for example–and because resources do not exist to replace image assets for which copyright might become an issue, the most reasonable approach is to do everything possible to ensure that our course understands its liability. By identifying the source and licensing of all of our images, we ensure that we are utilizing image content in a responsible manner. By utilizing content responsibly, we ensure that should a challenge to our use occur we can respond to it quickly. While ideally our course would only use images without copyright limitations, our due diligence ensures that 4.605x students can take advantage of the pedagogical opportunities made possible by contemporary information technology, without undue limitations.

— Samuel Ray Jacobson, MITx Fellow


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