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Of Icebergs and Ownership: A Common-Sense Approach to Intellectual Property

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Architetture glaciali - Glaciar Upsala” by Piero; CC BY-NC 2.0

Recently, my colleague and Hybrid Pedagogy co-conspirator, Pete Rorabaugh, and I spoke at the Emory Symposium on Digital Publication, Undergraduate Research, and Writing. Over the course of two days of discussion, it became clear that, in order to realize the full potential of digital publication initiatives like the Domain of One’s Own project at the University of Mary Washington, we need to work with our students to create an institutional environment where they are seen as owners and producers–not just users and consumers–of intellectual property. Unfortunately, institutions attempting to chart a safe course through treacherous regulatory seas too often take an approach that positions faculty and students as passengers along for the ride, rather than co-pilots or fellow travelers capable of plotting a course of their own.

Instead of taking decisions out of the hands of students by establishing bright lines about what they may and may not do with their own and others’ work, we should instead concentrate on the pedagogical goal of helping them hone their rhetorical awareness. As a general rule, addressing intellectual property issues as part of the rhetorical context within which students are working can help them cultivate a better understanding of discipline-specific attitudes towards ownership, sharing, and attribution. Rather than focusing on regulatory compliance, classroom discussions of copyright and intellectual property should center around ethos and the implicit and explicit obligations professional communities impose upon their members and “outsiders” who wish to communicate effectively within them.

As I emphasized in a previous articlecopyright in general and fair use in particular are difficult and unwieldy. Perhaps the single most important factor contributing to the difficulty we have with applying the law to our pedagogy is the tendency of commonplace terms to acquire highly specialized meanings in legal discourse. So, for example, the issue of “publication” comes up over and over again in our ongoing discussions about scholarly communication and the propriety of tweeting and live-blogging at professional conferences. I think many within the academic community would agree giving a paper in a public venue fits our common-sense understanding of what it means to “publish” a work. In copyright law, however, largely because the common law and previous iterations of the statute provided copyright was forfeit in works first published without “notice,” public performance alone has never constituted “publication” in the legal sense. Thus, the 11th Circuit Court of Appeals could hold Martin Luther King’s delivery of the “I Have a Dream” speech, on August 28, 1963, to a rapt audience of thousands on the Mall in Washington, DC, did not amount to “publication” of the work under the copyright law.

Even the words “intellectual property” themselves have acquired a specialized legal meaning that often diverges markedly from how we use them within our various disciplines and especially in our conversations about plagiarism and attribution. “Ideas” alone have never fallen within the subject matter of federal copyright law. Professional convention, however, requires most of us to provide attribution whenever we use the ideas of our colleagues in our own work. A failure to cite our sources appropriately may not ever give rise to a viable claim of copyright infringement. Nevertheless, such behavior, when discovered, can damage and even destroy professional reputations.

If we visualize intellectual property as an iceberg, the law describes only the tip of the iceberg. Because the potential penalties for legal violations are so big and scary, and because liability for infringement has the potential to spread like a virus from students or instructors to the schools where they work, institutional discussions about intellectual property tend to focus largely on that one tiny part of the whole that everyone can see. But, to extend my maritime analogy just a bit further, navigating discursive waters safely requires that we steer around the whole iceberg, not just the tip. And, charting a course around the whole is generally (because sometimes the law does seem to describe an alternative universe where even the physics are different) a good strategy for avoiding that small part we can see.

So, what do we tell our students about fair use and its application to the work they do in our classes? When I first explored potential answers to this question in a presentation I gave last Fall, I hedged a bit in outlining an ethical decision-making framework. Technical communication classes, particularly those classes in which students do “real” work for “real” clients, presented a special challenge, I thought. A number of the tech comm experts in the audience, however, managed to persuade me the approach was flexible enough to accommodate even the client-based classroom. Consequently, rather than presenting two alternative frameworks as I did in that presentation, here, I present one general framework and then some additional advice about how it might be instantiated in a client-based or service learning class.

While I do think students need to be aware of the copyright basics, with my students, I try to emphasize my primary concern is helping them understand how they can ethically and responsibly use and build upon the work of others in their own work. Thus, in my conversations with them about intellectual property, I focus on disciplinary ethics and conventions, and the purposes and policies behind them. Students are often surprised to learn how attitudes towards originality, authorship, and borrowing have evolved historically, and how they vary depending upon context. I try to teach my students both when giving credit to another is expected and when it is due. We also examine together the question of what constitutes acceptable and unacceptable reuse of pre-existing work, and how the answers to that question evolve to fit particular situations. We have productive conversations, for example, about why strategies that were appropriate for Chaucer and Shakespeare might amount to plagiarism or copyright infringement in a contemporary context. I also try to help them understand how the mechanics of citation arise from a genealogical impulse, that is the need to connect one’s own work to the broader conversation going on within the field. And finally, I advise them to only take as much as they need and to make it count; the audience should understand they’ve used only what is necessary and that they used it for a good, ethical reason.

Within the specific context of a client-based technical communication course (or a service-learning course), this general approach translates into a number of guidelines for syllabus and assignment design. First, if possible, involve professionals from the non-academic workplace and the field or fields in which students will be working in class discussions about professional ethics and standards. Second, consider integrating an exploration of the law and ethics applicable to the rhetorical situation as part of the composition process. For example, we might ask students to collaboratively research and draft a memo or whitepaper on the most important legal issues connected to their work on a project. Finally, when it comes to reuse and remix, explain the essential proprietary differences between copyright and copyleft licenses. Advise students to use open source and Creative Commons licensed materials whenever possible, and encourage them to contribute their own work to these important shared resources.

Rather than setting them adrift in the murky waters of the law or establishing barriers to keep them from venturing out from the shallows, I try to provide my students with ethical tools that will help them successfully navigate the seas of professional discourse. The ethical approach to fair use analysis emphasizes their rhetorical, moral, and social agency, instead of positioning them as the hapless victims of arcane rules and increasingly obscure vocabularies. As written in US copyright law, the fair use provision itself attempts to do something very similar, providing judges with a flexible analytical framework, rather than a set and static body of rules. The ethical approach also reconnects the conversation about copyrights, trademarks, and patents to the policies and social values that should motivate lawmaking and legal decision-making in the first instance.

Disciplinary ideas about intellectual property tend to be more expansive than legal definitions. Discussions about rhetorical purpose and context necessarily engage students in a consideration of what they are borrowing, and why, and what effect it will have on their potential audiences, which usually include the original authors upon whose work they have drawn. For all of these reasons, subsuming the issue of fair use within the pedagogical conversation about communication and rhetoric is ultimately more effective than compartmentalizing it as a separate concern. Stories like the battle over the popular YouTube mashup “Buffy vs. Edward: Twilight Remixed” certainly provide cautionary lessons about the practical obstacles that might arise when students are encouraged to reuse and remix pre-existing work. They also, though, offer a wealth of plans and strategies students can use to navigate those obstacles successfully.

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