The Lord of the Copyright: An IP Fable
Department of English,
In an office on a quad there lived a professor. Not a crowded, dusty office, filled with stacks of ungraded papers and the smell of stale coffee, nor yet a TA cubicle with nothing in it to sit down on save mismatched chairs from the surplus warehouse. It was the office of a tenured full professor, and that means comfort.
Visiting that office just now was the Dean of the College. With his piercing eyes, bristling eyebrows, tangled hair, and long beard, he looked a lot like Gandalf (or like Dumbledore, but fortunately for J.K. Rowling, you can't copyright the Idea-Of-A-Wizard). "You are certain that this is Fair Use?" the Dean said worriedly, looking over the previous paragraph.
"I hope so," the Tenured Full Professor said. "I have repurposed the paragraph, and surely no one can say that I am profiting from it—it will not add one penny to the stipend I receive from Picturesque State University. Moreover, I have made very little use of the original in comparison to the totality of the work, and my piffling paragraph is unlikely to eat into future sales of The Hobbit."
"You have tried to pass the Four-Prongs Test, then," said the Dean. Yet he was still uneasy. His unease was quite understandable, for when it came to the subject of intellectual property, Picturesque State University was finding itself beset on all sides.
First there had been the matter of students' unauthorized downloading of copyrighted material. In response, Picturesque State had tried to educate its students but had also crafted a policy forbidding the use of university resources for the downloading of copyrighted material without the copyright owner's authorization. Probation, suspension, even dismissal: these would be the fates of students who were egregious or repeat violators of this policy.
Next, Picturesque State realized that its policies governing faculty copyright were written for an earlier Age. For a hundred years faculty had been publishing poetry and prose, and during all that time the University had paid little attention to the issue of the “ownership” of these texts. But now the world had changed. Faculty were creating genres and using tools and media not in existence when the first intellectual property policy had been written. The university's Intellectual Property Committee began holding meetings, each as long as the Council of Elrond, in which language like that of the Black Speech of Mordor was uttered for the first time. What happens when a faculty member creates something that can be “monetized”? When is a faculty member’s creation considered to be a “work for hire”? What is a "shop right"? If a substantial investment on the part of the university entitles it to reap profits from something created by a faculty member, how is "substantial" to be defined?
The IP Committee wondered in particular about the ownership of elements of online courses. An instructor developing such a course creates content and integrates it into a platform, perhaps to the extent of designing the framework in which the content will be embedded. The effort spent integrating exercises, quizzes, and exams; audio and video podcasts; discussion boards and blogs; case studies and simulations—this effort would have to be duplicated if the faculty member left the university and laid claim to either the content or design of the course. An empty or broken shell, the course might cease to exist in any meaningful way until such time as a new framework could be erected and repopulated. To what extent, if any, did the university have an ownership claim to either the content or the framework of a course built by a faculty member using tools provided by the university? This matter and many such others troubled the Councils of the Wise.
Troubled, too, was the Head Librarian. For the convenience of faculty and students, the library had long offered "electronic reserves." But word had reached Picturesque State University that another institution was being accused of abusing its electronic reserves by posting copyrighted material in such quantities and with such frequency that the owners arguably had been deprived of revenue. Hearing of this dispute, the Head Librarian decided to phase out the electronic reserves. Faculty instead were directed to post material via their web sites or via the Learning Management System to which Picturesque State subscribes.
Of course, posting material elsewhere might still lead to problems if that material were under copyright. A few weeks after the Head Librarian announced the elimination of the electronic reserves, faculty were notified that automated Trolls that sniff out unauthorized use of copyrighted material had located two such instances at Picturesque State University. In the Halls, faculty gathered in knots to debate what might and might not be posted on Learning Management Systems and on personal and university web sites. In the course of the discussion, faculty were surprised to learn that as authors they might become copyright violators by the mere act of posting their own writing online, for some faculty had unwittingly signed away full or partial ownership of their articles, essays, short stories, and poems as the price of publication.
Hemmed in on every side by questions of intellectual property, it was thus no wonder that the Tenured Full Professor and the Dean found themselves debating whether or not to retain the opening paragraph of this parable. “Context is all,” argued the Tenured Full Professor. “Consider that the nature and the purpose of this article are entirely different from the work upon which the opening paragraph is modeled. Moreover, is it not Fair Use to use a source in order to discuss whether the use of the source is Fair Use?”
“Yes, and how much wood would a woodchuck chuck if a woodchuck would chuck wood?” grumbled the Dean, who was not fond of meta-commentary. “If a student had written that first paragraph,” he continued, “I should have pointed out that the sentence structure is plagiarized, and I should have cried, ‘You shall not pass!’” (The Dean had been looking for an excuse to use that line.)
Nevertheless, in the end the Dean conceded that it was likelier than not that the paragraph could be defended as an example of Fair Use. “Although,” he complained, “it is a pity that this sort of thing has to be worked out on a case-by-case basis. Your editor is going to be very unhappy if you are wrong about that paragraph. But I suppose that that is part of your point: sorting out an issue of intellectual property is a complicated matter.”
The Dean was of course correct in his conclusion: intellectual property issues can be complicated. His university is typical of most educational institutions in the way that it has had to face continuing (and often rapid) developments in this area. At his university and others, faculty and administrators have been designing and redesigning programs and policies that ensure that students stay within legal and ethical bounds in their use of the intellectual property of others but at the same time succeed in drawing upon those copyrighted creations in order to grow as readers, writers, and thinkers. Simultaneously, faculty and administrators are continually searching for ways to safeguard faculty rights to their creations while acknowledging and accommodating the vested interests that universities and colleges may have in those same creations. The process involves a never-ending series of conversations, one that is sometimes illuminated by court judgments and regulatory rulings such as those periodically issued as part of the implementation of the Digital Millennium Copyright Act.
Taking part in the conversation are two groups with connections to the Conference on College Composition and Communication (CCCC). One is the Intellectual Property Committee of the CCCC (http://www.ncte.org/cccc/committees/ip) and the other is the CCCC-Intellectual Property Caucus (http://groups.google.com/group/intellectual-property-caucus).The IP Caucus maintains a mailing list. If you would like to join in the conversation or receive notices of programs sponsored by the Caucus or of opportunities to submit articles either to this column or to the annual report on intellectual property issues, please contact email@example.com.
CCCC IP Committee Website
The CCCC-IP Annual: Top Intellectual Property Developments of 2011
An Invitation to a Series of Discussions on Intellectual Property
Another (Short) Tale of Open Access: The HathiTrust Case
'Hacktivist' or Thief?: What the Aaron Swartz Case Means to the Open Access Movement
Making Textbooks Afforadable and Open
IP Caucus Roundtable: Students’ Rights to Their Writing and to the Writing of Others
Who Owns Your Digital Fingerprint?: Negotiating an Answer to the Question
Who Owns Your Digital Fingerprint?
Update on Google Book Settlement: What Can Your Students Access?
Report of the Meeting of the Annual CCCC Intellectual Property Caucus
IP Caucus to Meet April 6 in Atlanta
Part Two: What Teachers Can Learn about Fair Use in Remix Writing from the US Copyright Office
Celebrate the Public Domain
Think Locally, Act Globally: Taking US Copyright Reform to a World Stage
Fair Use for Researchers in Communication: A Resource
Part One: The New DMCA Exemption for College Teachers and Students
Understanding Fair Use in the Classroom: A Resource
What? You want to copyright your comic!!?
New Copyright “Combat” Regulations For Colleges and Universities Go Into Effect July 1
Stake Your Claim: What’s at Stake in the Ownership of Lesson Plans?
Report on the March 2010 CCCC-Intellectual Property Caucus Annual Meeting, Louisville, Kentucky
The Times, They Are Remixin’: Indaba Music, Creative Commons, and the Digital Collaboration Frontier
The Rhetoric of Intellectual Property: Copyright Law and the Regulation of Digital Culture (Routledge, 2010)
Data Privacy Day 2010 Celebrated January 28
Transforming Our Understanding of Copyright and Fair Use
CCCC’s Intellectual Property Caucus Member, Martine Courant Rife of Lansing Community College, testifies at the DMCA hearings at the Library of Congress
Plagiarism Detection Services: Unsettled Questions
New Edited Collection from IP Caucus member just published: Composition and Copyright
The Google Book Settlement: Implications for Educators and Librarians
July IP Report: “What’s Fair is Foul?”: Understanding Fair Use in the Classroom
Top Intellectual Property Development Annual Series
Introducing NCTE-CCCC's Intellectual Property Committee and Intellectual Property Caucus