What are some examples of conflicting statements in the Terms of Use?

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There are many ways to state Terms of Use that are problematic or otherwise conflict with the standardized licenses that are used (where applicable). Two of the most confusing and common statements were those regarding “educational” and “personal” use. A great deal of sites restricted use of certain works to “educational” or “personal” purposes only. We examine both the “educational” and “personal” restrictions below, along with some other conflicting statements that we have observed.

Brief analysis of the “educational use” restriction.

First, we consider the “educational” restriction. Sites often specify that resources can be used “for educational use”, “for educational purposes”, or “in an educational setting”. Variations thereof include the additional caveat “for educational….only”. All of these constraints are confusing because the term “educational” is itself inherently unclear. What does “educational” mean exactly? When you think about it, most anything can be construed as educational. One possibility is that the copyright holder meant to limit the work to classroom use. With the more restrictive caveat of “only”, users may assume the most closed interpretation and think that they can only use the work in the classroom. They may be led to believe that they cannot share the work with their peers on the Internet, nor derive it for research or a publication. Confusion causes doubt, and when in doubt, people may not even use your material at all, but seek out resources that are more clearly open. To illustrate, consider the following examples.

Example 1: A graduate student of Theology and comes across old photographs of certain spiritual figures. She decides to make a collage out of these photographs and republish them in a study. This study is picked up by a publisher who wants to sell copies to colleges and universities. Is this still “educational” use?

Yes: Its main aim is to spread the knowledge that the Theology student gained and reinterpreted in a set form.

No: Selling copies, even to colleges and universities, is a commercial enterprise. Its main aim is to make a profit, not to educate. Use should be restricted to non-commercial activities only.

Example 2: 
A High School teacher shares a lesson plan online, specifying that its use for “educational purposes” only. A band decides to take the lesson plan and convert it into a song, reposting their performance on YouTube. Is this educational use?

Yes: The rock’s band rendition of the lesson plan is edifying, and an interesting twist to a conventional teaching method.

No: The rock band’s use of the material is for entertainment purposes. At worst, they are making fun of education.

Example 3: A filmmaker makes a video about the constitution. He posts it on his site, stating that it should only be played publicly in “educational settings”; otherwise, he requires payment for its broadcast. A nonprofit researching the Constitution decides to broadcast it at a conference to show people the different kinds of media being made about the Constitution. Is this an “educational setting”?

Yes: The purpose of showing the film is to edify its audience; therefore, the setting is educational.

No: By “educational setting”, the filmmaker obviously meant the classroom or some other formal institutional setting.

As you can see from the above examples, there are many ways to construe the term “educational”. Therefore, making your own custom license, and specifying terms like “educational”, only complicates existing copyright. Especially since “all rights reserved” (ARR) copyright already provides exceptions for certain educational uses. Section 107 of the U.S. Copyright Act (the “Act”) defines fair use, and Sections 108-122 include the bulk of the other exceptions and limitations on the reach of copyright protection in the US. Some of these exceptions pertain to certain educational uses, but even here there is no black and white answer as to what is or is not educational as “educational” is not defined in that Act. But because fair use exceptions already address educational use, adding the term yourself is unnecessary, not to mention confusing. 
In brief, the lack of clarity is evident with the term “educational”. Without one universal definition on which everyone agrees—a consensus that is unlikely to be reached in this internet age of learners and thinkers—additional terms such as “educational” only serve to confuse and not to clarify.

Brief analysis of the “personal use” restriction.

Many sites specify that you can access resources for your own “personal” use. However, the term “personal” is problematic for a number of reasons. As with “educational”, “personal” can be construed in a variety of ways. Does personal use limit me to simply viewing the resource online by myself? Am I only allowed to download one copy, for myself, personally? Or can I distribute a “few” copies to my personal friends? Are my coworkers considered part of my personal circle? Consider the same examples above, but with “personal” use specified instead.

Example 1: The graduate student of Theology makes her study available online for personal use only. A professor at another college finds the study and prints out copies for himself and his colleagues. Is this still “personal” use?

Yes: The professor is using the study for himself and his inner circle of colleagues. There is no public resharing of the material online.

No: The professor is not allowed to distribute copies to others. His other colleagues must go directly to the site to obtain the same information.

Example 2: The High School teacher shares a lesson plan online, specifying that its use for “personal use” only. A band decides to take the lesson plan and convert it into a song, and they later upload their performance to YouTube, citing the teacher as the author of the non-musical content. Is this personal use?

Yes: The band’s musical endeavor is personal; they wanted to make a musical composition based on writing and they did it. They also cited the teacher so she would get credit. What’s the problem?

No: Personal use dictates that they should have stopped at making the song, or asked the teacher for permission to share it. They are not allowed to share what they did because that immediately makes it public and impersonal.

Example 3: The filmmaker posts his video on the Constitution on his site, specifying free “personal” uses only; he requires payment for any other use. A government teacher decides to show it to her class. Is this personal use?

Yes: The class is within the bounds of the teacher’s personal life.

No: The classroom is a public setting.

As you can see, much of the conclusions above are glaringly amiss. How can sharing a video about the Constitution with students be violating copyright law? Well in actuality, it’s not. Personal use, understood in certain ways, are more restrictive than the standard exceptions and limitations granted to “all rights reserved” copyrighted works. But this makes no sense! ARR copyright allows for more than personal use via fair use and educational exceptions, which allows uses for a variety of purposes, including news reporting, criticism, satire, and research. The term, “personal use”, is misleading, as one cannot increase the restrictions already imposed by ARR copyright.

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