For some time professional image suppliers and many educational publishers have been at odds over unlicensed use of images. Image creators and suppliers claim they have not been properly compensated for the use of some images while publishers either try to hide the unauthorized uses or argue that what they have done is not copyright infringement.
Now, in a case in the United States District Court for the Southern District of New York publishers and image creators are on the same side against alleged infringer
Boundless Learning, and by extension many of the participants in the Open Education Resources (OER) movement. Boundless Learning, a Boston-based start-up that has raised roughly $10 million in initial capital and aims to make physical textbooks obsolete.
As the school year is about to begin Boundless has released FREE course materials in seven subjects — biology, economics, psychology, sociology, anatomy & physiology, history and writing. Boundless says they have worked with academic experts to craft an "online experiences" that aims to convey all the information the student would find in a typical textbook, but in a more engaging manner. Boundless advertises its materials as an alternative to traditional textbooks and creates the impression that the Boundless version is a virtual copy of the original.
The materials are optimized for use on tablet computers such as the iPad. CEO and co-founder Ariel Diaz says the company is focused on offering a free product, but plans to test some premium paid features during the semester.
The publishers pursuing this action are Pearson Education, Inc., Cengage Learning, Inc., and Bedford, Freeman & Worth Publishing Group. They say Boundless has copied the format of their popular text and used much of the same information. For a more complete explanation of the positions of both sides see
here.
The problem publisher’s face is that educational principles as well as the facts and ideas that underlie a work are not copyrightable. The law says, "the facts contained in existing works may be freely copied because copyright protects only the elements that owe their origin to the compiler — the selection, coordination and arrangement of the facts." Feist, 499 U.S. at 359. Thus, if the facts are worded or organized in a slightly different way there is no infringement.
However, if the same graphs or photos are used without separate licensing that would be an infringement. The publishers intend to emphasize this type of use in their case.
What To Do?
If you have images in the principle texts involved in the case -- "Biology, 9th Edition," by Neil Campbell; "Principles of Economics, 6th Edition," by N. Gregory Mankiw; and "Psychology, 9th Edition," by David Myers – it might be worth determining if those same images are included in the Boundless Learning version of the text and if they were licensed separately.
In addition, it is important to be aware of how the Open Education Resources business is growing and consider how this FREE information is likely to change the demand for educational images in the future. There is an explosion of free material coming from the local and regional level. Many of the available lessons have been prepared by educators at various schools or state school systems around the country.
In theory this may open up a whole new market. But, how will these buyers find the images they need? Will they have the sophistication to find Getty Images, Corbis or the specialist agencies that license such images? Or will they go to Google or Flickr and grab whatever image they can find assuming they have the right to use it?
To get sense of the digital materials that are currently available and can be freely re-used by anyone for teaching, learning, research and more check out
iTunesU and search for various subject.