Issues of Intellectual Property & Copyright for Educators

Arguments in Favor of Greater Freedom
Arguments in Favor of Greater Protection
The Impact of Technology on Copyright Law
Ethical Considerations for Educators


 "There's a real question as to whether our current social structures can accommodate [the Internet]. As this century closes and we enter the first computational millennium, one of the great conflicts in civilization will be the attempt to reorder society, culture and government in a manner that exploits this digital bonanza yet prevents it from running roughshod over the checks and balances so delicately constructed in those palmy pre-computer years."

Steven Levy (Newsweek Magazine, Feb. 27, 1995)

 

The concept of intellectual property having monetary value, and even the concept that authors have the right to attribution, are relatively new. Our civilization began with oral information being spread through storytelling. One very rarely got credit for creating a story- consider the story of Cinderella. (See http://www.acs.ucalgary.ca/~dkbrown/cinderella.html for a variety of books containing different versions of the Cinderella story). The name and a few details may be changed, but this tale is a fable shared among many diverse cultures. The Brothers Grimm- known for their collection of fairy tales, did not actually author the famous tales. They merely collected the tales, primarily from peasants in the German town of Hesse.

Even when attribution became more widespread, there was little direct financial reward. The whole sense of information for information's sake was widespread. We do not know exactly when or who began the revolution in thinking of intellectual property, but as Gregory Grozdits succinctly phrased it "most likely it came from whomever was intelligent enough to not share their information."

The world view of the individual was changing even as Gutenberg invented the printing press. Information was becoming widespread and available to the common man- and common men were starting to think of themselves as having value. The notion of royalty and privilege was gradually changing, and with it the system of patronage- with a composer or author creating works to be rewarded by a person of royalty and substance. The concept of intellectual property began to be recognized by various governments as a valuable resource to reward and cultivate. Laws gradually took shape protecting works for creators.

The age of digital technology and the greater ease of reproduction has increased the cry for modifications in intellectual property practices. Views on intellectual property range from the concept that ideas should be completely free -unprotected and unrestricted, to the belief that intellectual property should be highly protected.

 

Arguments in Favor of Greater Freedom

Ownership--Are Ideas Property?

 

Information wants to be free

This rather cryptic thought is generally attributed to Stewart Brand, and often quoted by academicians and philosophers scrutinizing the relationship between intellectual property and technology. It may be worth noting that "free" has several meanings- Webster includes:

  • not subject to the control or domination of another
  • not determined by anything beyond its own nature or being
  • not bound, confined, or detained by force
  • not subject to restriction or official control
  • not obstructed or impeded
  • not costing or charging anything

There is quite a lot of variation here- perhaps Brand meant to encompass all of the meanings when he made that statement. Certainly each usage adds a new facet to the statement. Consider the change in nuance -Information wants to be not subject to restriction or official control. Information wants to be unbound and not confined. Information does not want to be obstructed. Information does not want to be impeded. Information wants to be cost-free. Certainly information is hard to not set free- a secret isn't fun unless it is shared, and distribution of information is a particularly strong human trait.

Information isn't information unless it is shared

What is information? Interestingly enough, the word's history correlates with the Gutenberg's invention of the printing press in the 1400's. (14th century) It is defined as the communication or reception of knowledge or intelligence (WWWebster Dictionary [http://www.m-w.com/mw/Dictionary.htm]). Information is meaningless without being used and spread among people. Our culture is made of the information we have collected and retold because we feel that it has relevance- worth. We share history, arts, and a common body of knowledge and lore. Humanity's greatness is the continuous building of this bank of knowledge- of thoughts passed down through the centuries, refined, discussed, and utilized.

Societal interests in unrestricted dissemination of thought outweigh interests of the individual/corporate owner

Tobacco companies suppressed scientific data that indicated cigarette smoking causes cancer. The demise of these large and powerful corporations due to staggering lawsuit judgments may hinge on the fact that they knowingly kept this information from the public.

Courts have recognized that manufacturers or others must, under certain circumstances share information about dangers or risks of using a product. Persons responsible for selling or making products have been forced to pay damages on the grounds that they negligently failed to inform those harmed by using the product. For a discussion of the "duty to warn" in the context of a judicial opinion, please refer to Benedi v. McNeil-P.P.C., Incorporated. [http://www.law.emory.edu/4circuit/oct95/942596.p.html]

The sharing of information has enabled the medical community to advance the treatment of practically every disorder. The most recent illustration is the U.S. Human Genome Project--a consortium of medical researchers combining to map of human DNA. This group's goal is to analyze the structure, map the location of each of the approximately 80,000 genes that make up human DNA,and determine the sequence of the 3 billion DNA sub-units. The intent of the group is to make this public and accessible this information. The general consensus was that this information is too vital and essential to all medical researchers for use in the prevention and treatment of medical disorders to be kept by one group.

Another example is the invention of obstetric forceps . They are considered to be an important innovation in medicine- used when there is a problem with labor. The number of babies and mothers that have been saved by this invention is fewer than it should be. For years this was kept a secret by the inventor and surgeon to Queen Anne, Peter Chamberlen (1601-1683). It is believed that only by accident were they discovered and the design circulated.

With every new discovery in medicine- antisepsis, antibiotics , vaccines- countless people live longer lives due to the circulation of knowledge.

 

Are Copyright Laws defective?

Creators do not make much of the profit- publishers profit

Just as instinctively as we tend to want authors to be compensated for work, we scorn a corporation getting rich off of someone else's hard work. Michael Jackson owns the rights to many of the Beatles' early works. The composer of the musical "Oliver' recently died practically penniless after foolishly selling the rights in order to raise funds for another, but not successful, musical. (Of course, Dickens himself didn't make money from the musical- would it be unreasonable that his heirs saw some recompense from the work that their ancestor created?)

There were no precise figures for the ratio of money earned from a work going to the publisher or author, but several businesses indicated the following percentages:

"In fact, most copyrights today are held by corporations. In order to get your work published, you sign the "rights" over to the publisher. If you are a famous author, the contract you sign gives you a nice percentage of the sales and lets you make money off any new editions or reprints of your work. If you are a regular, non-famous author, the contract essentially gives you a small percentage of the sales and you lose any rights to any future use of the work - or else you don't get published. Many digital compilations of works that were originally issued in print, like the many online databases of journal articles, are not returning any money to the original authors.
So when we talk about copyright we need to remember that we aren't talking about authors vs. Readers. We're talking about the interests of corporations versus the interests of the public."

Karen Coyle, Copyright in the Digital Age [http://www.kcoyle.net/sfpltalk.html]

 

A self- publishing company estimated profits could reach 75%- possibly higher.

". . .[C]onsider what you lose . . . your copyright and creative control! Traditional publishing houses pay you from 4% to 5?% in the non fiction categories, take the copyright, and keep control..."

Writers Resource Group

 

"Why is it so difficult to make a living as a writer? There are a lot of reasons, but the main one is that we publishers don't pay a lot for writer's works. Our company pays (monthly) 15% of cash received, but I think we are the exception. Bottom line, I think publishers should pay writers 20 or 25%, maybe even 30%. They are the creators..."

Alan N Canton from Saturday Rants [http://www.headley1.demon.co.uk/r970621a.htm]

 

"Some electronic publishers are pushing for content creators to share 10% of the retail price of digital product on the same terms as print works. This is not acceptable as a standard arrangement....here an on-line publisher simply facilitates work on disk onto the network, their return should be a small percentage of the fee for use (say 10% to the publisher and 90% to the copyright owner). The basic 10% to the publisher increases with the value it adds or provides."

Lynne Spender Electronic/ Digital Rights A Handbook for Authors [http://asauthors.org/edr/edr1001.html]

 

"These companies do own big music publishing companies as separate fields of business - and
this is where most of the profit comes from, because in this field the profits are usually more then 50% of "sales" - since a publisher has no manufacturing costs and the promotion and marketing costs are mainly the responsibility of the record companies."

Alex Merck Music Industry Economic Situation 1996 [http://www.mebis.com/INTERPR.htm]

 

Concept of originality--How many ideas are so truly original that they merit legal protection as a form of property?

"There is nothing new except what is forgotten."

Attributed to Mademoiselle Bertin, milliner to Marie Antoinette [c. 1785]

The knowledge we have in our individual minds is a combination and reconstruction of the vast amount of information to which we have been exposed since infancy. It would be hard to dissect an 'original' idea into what is completely unprecedented, and what is just regurgitated and reformed data gleaned from other sources. How many new inventions are really modifications of someone else's idea? How many 'new' and "original' styles are variations of something popular in the distant past?

 

Arguments in Favor of Greater Protection

 

Creator should have moral rights to control work

A list of the rights of authors has been compiled. While it has no legal basis in the United States, it contains many rights bestowed by governments upon creators in other domains.

  • The right of integrity
  • The right of withdrawing a work from publication
  • The right to decide if and when a work will be published
  • The right of attribution

Among the most violated of these right is of integrity. A creator has an idea, a message to share with an audience. The advertisement industry perpetually degrades musical works in the public domain. Examples include the William Tell Overture by Rossini, eternally linked to the Lone Ranger by generations of television, radio, and movie patrons, and the theme from the fourth movement of Beethoven's Ninth Symphony, in a current incarnation as a jingle for Ted Turner's Movie Channel.

Creator should be compensated for work

The term "starving artist' is a cliché, but there is a history of great people contributing great works- without getting enough compensation to survive to advanced age. This creates the tragedy of "what if"- think of the great works that were not created. Mozart is the best example of this. His talent for composition is considered to be the greatest ever in existence, but his lack of financial and political skills placed him into virtual poverty. He died at the age of thirty six, from what is believed to be a combination of kidney disease and overwork. He constantly had to worry about money- in part because of his frivolous lifestyle, but primarily because he did not have the temperament to cultivate the rich benefactors that were the mainstay of a composer of the times. Would Mozart have lived longer had copyright law existed? It is conjecture, but given the fact that the rich generally do live longer due to better nutrition, medical care, and less stress, it is safe to guess that he might have.

Incidentally, John Perry Barlow, in "The Economy of Ideas" suggests that due to the impact of technology on copyright and reproduction, we may be headed back to this type of benevolent benefactor(s).

"In fact, until the late 18th century this model was applied to much of what is now copyrighted. Before the industrialization of creation, writers, composers, artists, and the like produced their products in the private service of patrons. Without objects to distribute in a mass market, creative people will return to a condition somewhat like this, except that they will serve many patrons, rather than one."

John Perry Barlow, The Economy of Ideas WIRED Online [http://www.ifla.org/documents/infopol/copyright/jpbarlow.htm]

There is argument to be made that art that appeals to a wider audience is better art, and that conversely art that is only created for one person's taste may be not as accessible or as 'good'. It is safe to say that either system changes the formation and distribution of works of art. The current media mega corporations are beginning to be challenged by Internet releases of popular music, and may finally be the best system of music and literature being spread throughout the population.

Compensation will foster a creative society

Creating new works takes time. In our culture, time is money- so it only follows that creating new works takes time which should equal money. Few people have the luxury of an undemanding government job, as Franz Kafka did-- it is believed that he did much of his writing there. Some of humanity's loftiest achievements are in the arts- either the government should sponsor works, as is done in many countries, and to some degree in the United States through grants and the National Endowment for the Arts, or, at the least, offer legal protections to creators. The United States government is constitutionally committed to protect the property rights of its citizens in their creations.

"The primary objective of copyright is not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts." To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art."
-- Justice Sandra Day O'Connor (Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340, 349(1991) [http://arl.cni.org/scomm/copyright/uses.html]

Article One, Section Eight,Clause 8, of the United States Constitution reads as follows:

[The Congress shall have Power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Sometimes, compensation fosters creativity in ways that are less than obvious. Consider the following discussion of sampling as used in the recently developed art form of rap.

"Take for example, sampling: Using inexpensive digital technology, a generation of inner-city rappers turned fragments of old R&B records into the most influential pop music of the '80s. Sampled rap could almost be viewed as a kind of folk music, in which the past creativity of the community is incorporated into new creative work. But the record companies who held the copyrights to those old records objected. Michael Ashburne is an Oakland attorney who specializes in representing young rappers.
(Ashburne) "If you look at the old R&B artists whose work was sampled for a number of years, they got no credit on the record, they got no money, they got no respect--the kids were just taking their material, putting it on their record, and selling the hell out of it, and they were left holding the bag."
(narrator) Under legal threat from the major labels, rappers now have to pay
to play--license fees and royalties for those borrowed fragments.
The sums involved are substantial.
(Ashburne) "It costs between 30 and 40 thousand dollars for a record that utilizes sampling extensively."
(narrator) For an art form of the inner city, fees like these are a discouraging barrier.
(Ashburne) "I'm finding that amongst my clients, when it comes time to do the second album, there are much fewer samples on the second album."

[http://www.eff.org/IP/art_and_music_sampling.paper]

Telecommunications Radio Project
Program #5-93: "Art and Music Sampling: The Death of Creativity"
KPFA Radio - December 1, 1993
Panelists: Bruce Hartford, Bob Haslam, Don Joyce
Project Director and Host: Jude Thilman

While these people were generally leaning toward restricting copyright protection, one must notice that a case for creativity is also made. The rappers may initially achieve fame and financial benefits through others' work- but when they realize that some of the money is going to the original author, their second effort contains more original work. One might contend that it is somewhat detestable that these artists must launch their careers using other peoples material. Others might argue that they are doing nothing different from any other composer- using the pool of previously created music fragments to create a collage constituting a new original work.

Creators ethically deserve reward for their contribution to society

Great works of art- literature, music, and visual art- define historical periods. We honor great inventors, composers, artists, and authors. These individuals are always included whenever a list of great individuals for a decade, century, or millennium is compiled. We build statues for them, and put their works into museums. We include their names in our history books. A person that creates something original is properly held in high regard- admired for their ingenuity and talent

Creators deserve attribution. Most of our world's societies share a basic code of ethics that allow people to live together in a general sense of peace. Laws and religious edicts alike direct us to not steal other people's property, not to cheat, not to lie. A contempt for cheaters is either taught or ingrained into our psyche.

 

The Impact of Technology on Copyright Law

 

Has the concept of ownership been made obsolete?

Information transmittal has increased exponentially through technology developed in the past century. Radio, television, telephones, and now computers are rushing the flow of information through our minds. It is increasingly difficult to come up with novel ideas that don't owe at least some credit to other sources.

Several writers indicate that computers especially have grayed the idea of ownership due to the nonphysical nature of the medium- but radio and television really introduced this idea of free transmission of intellectual property. Computers have increased this flow of and scope of information- instead of music, we now have text documents, graphics, and software being spread around freely. When no one owns the medium, it is extremely easy to forget, or to disregard the fact that the information itself may belong to someone.

Protection has been made impossible due to easy reproduction

The Gutenberg printing press is often portrayed as the major catalyst in the evolution of intellectual property, with xerography depicted as the next significant development. More recent additions include the audio tape recorder and the VCR. The same items would be mentioned in a list of assaults on intellectual property rights. Computers have become the preeminent reproduction machine- they can reproduce sound, text, and visual images with facility, in great quantities,quickly, inexpensively, and then disseminate it to potentially millions of people in a matter of seconds.

Printing presses and copy machines use paper as the medium to carry information. VCRs and tape machine require audio and video tape, which require a tangible means of a cassette tape to carry the information. These machines call for materials that cost money and effort to carry the information- a tangible medium that could only be transferred from one person to another (think book, magazine, CD). As John Perry Barlow said "the value was in the conveyance and not in the thought conveyed." The computer has the capacity to carry information without the hindrance of a concrete vehicle (and you know how much faster and easier and farther you can travel electromagnetically, than in a concrete vehicle!)

Computer reproduction is not only faster and cheaper, but digitization enables computers to make practically perfect copies. The older methods of reproduction invariably lost quality with each generation of copies. Computers also facilitate plagiarism and distortions of works.

Another aspect of digitization that benefits the user over the copyright holder is the ease with which works may be altered. Digitization allows a user to easily remove an author's name from a work, substituting his own name, another's, or none at all. It allows a user to alter text, insert words, delete paragraphs, etc. Other mediums, such as pictures, music and motion pictures can also be modified. This makes it much easier for users to create their "own" works, using other people's creations as a jumping off point. It is debatable whether these new works are truly creative or valuable, but there are many who would argue that they are. However, they are also very likely to violate both the copyright holder's right to prepare derivative works and the author's moral right of integrity. The potential for harm to an author's moral rights with this new technology is tremendous. No longer will technical difficulties discourage people from appropriating and "improving," or even destroying another person's work. Once the changes have been made, the mutilated work can be sent out to millions of people with a few key strokes, "published" for the world to see.

Anne K. Fujita, The Great Internet Panic: How Digitization is Deforming Copyright Law, 2 J.TECH. L. & POL'Y 1, <http://journal.law.ufl.edu/~techlaw/2/fujita.html> (1996).

 

There are future innovations on the horizon that will only create new challenges for intellectual property law. MP3, the current favorite compression format for saving and sending music files on the Internet, is concerning publishers and musicians alike. This differs from other, more cumbersome formats in that a portable player has also been invented- the Rio. This means that a sound files can be downloaded rapidly and at no charge from the Internet. The Rio is weighs a little over 2 ounces. It can play back CD quality music, saved on a 60 minute flash ROM card. A single AA battery can deliver about 12 hours of playback time. It currently costs around $200.

Traditional copyright law imposed criminal penalties only if an intent to profit could be proved- posting on the Internet is the antithesis of intent to profit

Pre-computer copyright infringement cases almost exclusively dealt with people breaking the law in order to profit- criminally if the intent was to defraud the author of income. Sometimes there was unintentional copyright infringement, but always with the end result of the law breaker saving money by not paying compensation to the authors. Policy makers are facing a major paradigm shift in dealing with the mind set of the Cyberspace community. This culture has developed an alternative view of intellectual property , a much more altruistic attitude in the sharing freely of information and ideas on the computer. Perhaps this correlates with the pioneer spirit that many of the vanguards of the early cyberspace colonists shared and imparted to the Internet - - a true sense of camaraderie-- of helpfulness and self-governance that is rarely encountered in the real world.

A somewhat more insidious mentality has begun to pervade the Internet- a sense of autonomy almost to the point of anarchy. Hackers, software pirates, and intellectual property defrauders have discovered that this "Information wants to be free" philosophy, in combination with the easy reproduction function of the computer, has made the Internet easy pickings for profit.

Difficulty in prosecution of law breakers

There are several impediments to the enforcement of copyright law. The sheer number of violators of Intellectual Property laws make the enforcement of current laws ineffective. There are issues of jurisdiction and venue. There are few laws regulating Cyberspace- there is no one country that controls it or can force their intellectual property laws on it. The Berne convention tried to merge copyright doctrine in the digital age for many nations, but enforcement is another matter. Currently many nations do not recognize or enforce intellectual property laws.

The United States law as it stands gives protection to authors and rights holders, but a law that cannot and is not being enforced does little good. There are services and technological advances- sites which detect plagiarism, law offices and others that will surf the web searching for authors for unauthorized use of intellectual property, in intellectual infringement detection, but even these can not keep up with the vast amount of information that is constantly flowing and changing on the Internet.

"To help musicians safeguard their work in the digital age, Liquid Audio tucks inaudible copyright and licensing data into recorded music, a process called "digital watermarking." .....Such schemes (more than a dozen companies are developing them) may make illicit copies of watermarked works easy to identify, but copyright owners will have to sieve the Internet to find them. In a pilot effort Broadcast Music, Inc. (BMI), one of the major music-rights agencies, has begun sending out "spider" programs that crawl from Web site to Web site, cataloging sound files in a search for copyright infringers. Digimarc, a photo-watermarking company in Portland, Oregon, has a spider that combs cyberspace on Playboy's behalf for unauthorized copies of Miss November. Similar spiders have been used for several years to construct Internet indexes such as AltaVista, HotBot, and Lycos. But the Web is so large that even the busiest spiders can barely catalogue half of it. Copyright owners will thus be condemned to play an eternal game of catch-up, according to Mark Stefik, a researcher at Xerox PARC, the editor of Internet Dreams,
and the author of the forthcoming The Internet Edge."

 

Charles Mann Who Will Own Your Next Good Idea? from The Atlantic Monthly [http://www.theatlantic.com/issues/98sep/copy2.htm]

 

Ethical Considerations for Educators

An informal (and anonymous) survey was taken of teachers from four Springfield, Illinois elementary (kindergarten through sixth grade) schools. The results demonstrate the dichotomy in both attitudes and actions of a group of approximately 75 teachers. Obviously teachers think one way, and act another--and feel justified in doing so.

1) Do you have a basic knowledge of copyright law? Yes 74% No 26%

2) Have you ever knowingly broken copyright law? Yes 64% No 36%

3) Have you ever copied something that you thought shouldn't have been, but weren't sure? Yes 89% No 11%

4) Do you think that copyright law should be changed? Yes 75% No 25%

5) Do you think that teachers should set a good example fro their students by strictly adhering to copyright laws? Yes 70% No 30%

6) Do you think that school and teachers should not have to follow copyright laws as much as the general public, since we are nonprofit, and underfunded? Yes 78% No 22%

7) Have you had any instruction in how copyright law affects the Internet? Yes 4% No 96%

8) Do you think that teachers should receive more education about ethics and laws in college? Yes 74% No 26%

9) Have you heard of a school or teacher being prosecuted for copyright infringement? Yes 9% No 91% ( Most of the "Yes" clarified that it was a church )

10) Have you ever copied software instead of purchasing it? Yes 46% No 54%

Many teachers rationalize their misuse of copyrighted material. After all, schools are underfunded. Teachers are not making money off of the copied materials- they are using them for their students. If there was a budget for new materials, there would be no need to "borrow" it. Ultimately- it doesn't look as if anyone ever gets caught- so why not make copies for classroom use? After all, it is for the greater good of the students.

The words 'Information' and 'Communication' are closely associated. Communication comes from the Latin communicatus- past participle of communicare, which means to impart- "to transmit information, thought, or feeling so that it is satisfactorily received or understood" (from WWWebster Dictionary [http://www.m-w.com/mw/Dictionary.htm] ). Teachers are transmitters of information. It is our calling, our profession- to pass on knowledge to our students.

Yet, teachers are also role models for their students. They should lead by example, and thus must follow the laws that are in effect. At the same time, they have some obligation to teach that unquestioning adherence to laws can be a problem as well. The sources we have reviewed tend to indicate that current law is not reflective of current mainstream thought and practice. This has created an ethical paradox that teachers feel unprepared to address. On the basis of our survey and research, it would appear that those responsible for developing educational curricula at the university level should consider enhancing current studies with materials that explore the legal, moral, and ethical issues necessary to properly utilize intellectual property in the classroom.

Back to Title Page
To Implications for Educators


Donna Lerch
8/99

Edited 6/02
Dia Langellier

 

Sources:

Cinderella Stories from The Children's Literature Web Guide
[http://www.acs.ucalgary.ca/~dkbrown/cinderella.html]

Copyright in the Digital Age by Karen Coyle
[http://www.kcoyle.net/sfpltalk.html]

from Saturday Rants by Alan N Canton
[http://www.headley1.demon.co.uk/r970621a.htm]

Electronic/ Digital Rights A Handbook for Authors by Lynne Spender
[http://asauthors.org/edr/edr1001.html]

The Economy of Ideas by John Perry Barlow from WIRED Online
[http://www.ifla.org/documents/infopol/copyright/jpbarlow.htm]

Telecommunications Radio Project
Program #5-93: "Art and Music Sampling: The Death of Creativity"
KPFA Radio - December 1, 1993
Panelists: Bruce Hartford, Bob Haslam, Don Joyce
Project Director and Host: Jude Thilman
[http://www.eff.org/IP/art_and_music_sampling.paper]

The Great Internet Panic: How Digitization is Deforming Copyright Law, by Anne K. Fujita
2 J. TECH. L. & POL'Y 1, [http://journal.law.ufl.edu/~techlaw/2/fujita.html] (1996).

Who Will Own Your Next Good Idea? by Charles Mann from The Atlantic Monthly
[http://www.theatlantic.com/issues/98sep/copy2.htm]