PART 5
The Issues


“In truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.” 
(Emerson v. Davies, 8 F.Cas. 615, 619; No. 4,436, CCD Mass. 1845)

“Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain... Overprotection stifles the very creative forces it’s supposed to nurture.”
(Kozinski, dissenting: White v. Samsung Elec. Am., Inc., 989 F.2d 1512 9th Cir. 1993)

“If we are serious about teaching with networked computers as the default composing space, then we clearly have an obligation to teach copyright. The potential of digital media is overwhelming expansive, and tremendously exciting. The chief limiting factor on this potential is copyright. But these limits are often invisible to our students.” (John Logie)

“Our pedagogy and curriculum choices and our students’ writing practices are shaped by a legal infrastructure that includes the fair use doctrine. Our understanding and knowledge of the fair use doctrine should become second nature to us. Teaching students how to navigate the fair use doctrine helps make visible the legal infrastructure that shapes writing practices.” (Martine Rife)

In the November 2005 Council Chronicle, there was an article titled “Teaching about Plagiarism in a Digital Age: Students Listen When Teachers Discuss the Issues.” “Students need to be particularly vigilant when using audio, video, and graphics from the Web that may be protected under copyright law. It is usually no problem for them to use any sources they like for a project that will only be viewed by the teacher and other class members. But once a student project goes public on the Web, there are many more laws and issues that must be considered” (Day, Council Chronicle, November 2005).

Monica “Corton says students need to obtain permission to use copyrighted materials in their multimedia presentations that might include music, writing, and video elements. Because it’s an educational use, she says students would most likely be granted a gratis license allowing them to use the material for free.” (Corton, vice president of creative affairs and licensing at Next Decade Entertainment, Inc., in Council Chronicle, November 2005).

We think it's dangerous to buy into arguments that claim that students will have an easy time getting permission to use copyright-protected work, especially if that work is produced and protected, for instance, under the RIAA, which distributes 90% of all recorded music in the United States. It is phenomenally difficult—and deliberately so—to, first, find out who actually holds the copyright to a work (the singer? a representative? the record company?) and even more difficult to contact that copyright holder to secure permission to reproduce work.

And even if students' work or our own work does fall squarely under Fair Use, most often their request will be denied. Because groups like the RIAA and MPAA have more of a vested interest in continuing their hold on copyright than they do in facilitating Fair Use and fostering the type of creative public commons that Lessig and others champion.

There’s a rich history of folks studying intellectual property issues, including those in computers and writing, technical communication, communications, library sciences, and other fields. We don’t have time to review all this important work, so instead we want to point you toward the bibliography available from the web page on which this presentation is hosted.

We do want to draw upon this past work as a backdrop to introduce a set of questions we feel are raised by Sue’s work and are critical for the field to consider; these questions include, but are of course not limited to:

* How can we continue to situate ourselves as technorhetoricians in a multimedia culture in which media converge and the “writing” we ask students to do bumps up—more and more—against intellectual property?

* What are our roles and responsibilities in this context? How can we situate ourselves in our classrooms, our institutions, and our field?

* How can we attend to our tradition of negotiating issues of authorship and ownership, and also chart new territory in a world where remix and convergence are primary production paradigms?

* How can technorhetoricians play a larger role in shaping intellectual property understandings, approaches, and legislation? 

* In what ways can the conversations occurring in other fields and professions—for instance, digital rights management—inform our understandings? In what ways can the work of technorhetoricians help to inform other fields’ understandings?

In light of these questions and in the midst of this property-obsessed cultural moment, we do have a powerful tool at our disposal.

That tool is fair use. Work for which copyright has expired, or work produced by any branch of the U.S. government is in the public domain, and is not copyright-protected.

Fair use allows for work that is still copyright-protected to be used for the purposes of criticism, commentary, news reporting, teaching, scholarship, and research.

So, for instance, much of the work done by Adbusters, especially their “spoof ads” series; the popular Shining Redux video; and JibJab’s “This Land is Our Land” are all protected by fair use.

There are four factors to be considered in determining whether or not a particular use is fair:

*the purpose and character of the use, including whether the use is of 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.

As the courts have summarized, one must: 1. look to the nature and objects of the selections made; 2. the quantity and value of the materials used; 3. and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.

There are a lot of rumors floating around telling us that 4 seconds of a song or 10 seconds of a video clip are fair use. In truth, there are no such government guidelines. Rather, fair use is determined on a case-by-case basis using the four-factor test. This is a powerful tool for us to apply and to protect.

The rules, ethics, and practices of copyright pertain in fundamental ways to how writing is produced and to how writing is distributed

Copyright law is in flux (and under duress)—and the fair use and the public domain are under attack

What gets decided about DIGITAL copyright will influence PRINT production/distribution as well as digital

(Jim Porter and Heidi McKee)


So how, then, do we negotiate copyright if we recognize that discussions of intellectual property have a role in our classrooms, especially for courses in which we’re asking students to craft multi-genre and multi-modal work.

How do we help students to understand copyright within academia, and their rights as fair users of media for educational purposes? Likewise, how do we help students understand how those uses change shape when they leave academia, and the products they produce are no longer created in an educational setting, but instead in a corporate context?

How do we address citation practices? How do we talk about giving credit where credit is due, in ways that perhaps explode the MLA guidelines? How do we help students to recognize and remediate citation practices they see in other media? How do we help students to recognize the value placed on citing sources in academia, and the importance of giving credit in other contexts?

And, finally, how do we help students understand their own agency, authorship, and ownership of texts in a copy-and-paste, filesharing sort of world?

We offer three suggestions…

1. Talk with students about practices and implications

2. Help students deeply understand the contexts of composing and delivering information

3. Invite students to articulate their beliefs about intellectual property, authorship, and ownership

We are not pirates; we are not thieves. 

We have to recognize that there are implications for our actions in digital space, but at the same time we must be bold, experimental, creative, progressive, and generative.

We must give credit where credit is due, using whatever modes and tools are available within digital realms. 

We must foster open communities dedicated to collaborative and creative processes; we must educate members of our own communities of the dangers facing digital authorship. 

We must understand the implications of legislation passed against our practices, and why communities of digital authors are necessary for our work.

We must engage ourselves in the legislative process as an avenue of working against harmful legislation that does not reflect appropriately complex and fair understandings of digital authorship.