I got some good advice from a fellow grad student in response to my last post (thanks, Bettie). She noted that I had failed to state any research questions in there, and was stuck on method (which I did acknowledge in the post). Excellent points. I spent quite a bit of time trying to learn how to generate research questions during the last year of classes. I never quite got beyond the point where it seemed like an artificial process because I had always been starting from the point of wanting to explore some phenomenon very generally. My "real" research question was merely, "what's up with that?" And therein lies the reason that ethnography appeals to me so much: that's precisely what it's about -- what's up with that. But she convinced me that continuing to look at research questions as an afterthought is not going to work. Merely explaining some phenomenon is not going to work. I need to start with questions, not tack them on at the end.
So, I'm going to expand on idea number 3 from the last post: Ethnography of the process of creating Best Practices for Fair Use in Education (a Berkman Center project I just learned about).
Strip out the ethnography pre-condition and I have a phenomenon, the phenomenon of generating best practices. Now I'm going to have a little talk with Bettie (a pretend talk) about this idea.
Bettie asks, "what do you want to know about generating best practices?"
Me: Well, I want to know if they work.
Bettie: What does "work" mean?
Me: Work means that they change perceptions or they change behaviors, or both.
Bettie: Whose perceptions and behaviors?
Me: For starters, the people they are created for, in the case of Harvard's Berkman Center fair use project, teachers. But second, I wonder if they change perceptions and behaviors of people who have traditionally wanted to limit or even marginalize educational fair uses, the copyright owner community. In the Center for Social Media's first set of best practices, the documentary filmmakers were on both sides of the debate, both users and owners of copyrights, so there was less a sense of imbalance, of power versus powerlessness. In educational environments, teachers, rightly I think, tend to view themselves as vulnerable and powerless in the face of possible allegations of infringement and the resulting liability that can ruin their lives.
Bettie: There are a lot of questions in there. List them out.
Me: Do teachers feel more comfortable relying on fair use after they learn about normative best practices documented by prestigious research institutions? Do teachers actually rely on fair use more after they learn about normative best practices blah, blah, blah? Do copyright owners accept and express support for statements of best practices to which they did not contribute? Ultimately, the question is, does the best practices process increase reasonable reliance on fair use when compared to guidelines?
Bettie: What are guidelines?
Me: Well, they are statements about the scope of fair use that are "negotiated" between the content owners and educators, and as such, they tend to be skewed towards the interests of the more powerful of the negotiators and thus, quite narrow in their interpretations of what is acceptable. While colleagues might disagree about how narrow and whether or to what extent they are useful, it seems that it would be possible to determine to what extent they are used and relied upon, and compare that to the extent of use and reliance on a similar best practices document that did not involve the "negotiation" among grossly unequal bargainers, by not including input from the copyright owner community at all. That seems to be the core question.
Bettie: OK. You have a question now. How would you go about answering it?
Me: EEK. It seems to require some big-time surveys of lots and lots of teachers regarding their comfort levels with relying on fair use in their teaching, whether they know about and if they do, how they use existing guidelines, and then some surveys of teachers after the best practices are published, to see if attitudes change. I wonder if it would have to be the same teachers, a longitudinal study? And the Berkman Center estimates its project will take 3-4 years. EEK again. I don't think this is doable.
Bettie: Try another question.
Me: But that's what I want to know about. Are they effective? Why put a lot of energy and time into a process that is going to be, in the end, a waste of time? Again, folks can disagree with me about this, but I would *never* become involved in a guidelines negotiation again because I think they are a huge waste of time. The whole concept of the "negotiation" is flawed. And yet, this is a common practice, not just in this context, but in life in general. We reach compromise.
But if the guidelines compromises have been on the whole not very useful (and I could find out how useful or not useful they have been), why do we think that best practices will be any better when we are leaving one side out of the discussion? What is it about this process that we think will satisfy and calm the excluded interest? Or is it that we are just giving up on caring about what they think?
I know how I reacted to the statement on a group of STM publishers' websites of what they considered best practices for researching orphan works status, which clearly did not involve any normal people (non-publishers). I thought the effort was designed for other publishers and of no relevance for regular people at all. You'd have to have a commercial motive in planning to use the orphan work, and the money to back up your plans with very expensive research to satisfy their best practice document. Sort of like the slant of the most recent orphan works bills. But I digress. But only a little.
I guess I really want to know if this is different and if it will be a more productive use of time, money and energy. Ultimately, if it is effective and productive, I would like to see best practice documents for librarians about how to select analog materials for digitizing, online materials for archiving, etc., taking the copyright caselaw and statutes into account, but relying more on actual best practices, and without undertaking the largely futile attempt we saw in the Section 108 study group, to obtain buy-in for what publisher participants seemed to feel are monstrously threatening actions, that are in reality, very important and useful library functions of archiving and providing public access (I hear the screams -- access!!!!!! oh, my god no, not that...). In truth, I don't think a substantial number of publishers will be able to accept any risk to their current business models until more of them have managed to move beyond those models, and who knows when that will be. Thankfully there is progress here, including notable efforts by many scholarly publishers to experiment with new business models. But it is very slow-going, and while the majority of publishers is figuring out that easily accessible and freely usable digital copies are their friends, libraries still need to make decisions about what to save and who to let see what. Best practices might help. Might not. Wouldn't it be useful to know something about how they are created and how they are used? Or not?
Next time: uh, oh, what about theory? Am I just too practical? Is all I care about what works, efficiency, and getting results for effort? Damn. I'll never be an academic. Must... drag... self.... to... ivory... tower... Oh, who am I kidding?
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