Clancy Ratliff, Assistant Professor of Rhetoric and Composition, Department of English, East Carolina University
In August of 2006, law professors William W. Fisher and William McGeveran of the Berkman Center for Internet and Society, Harvard Law School, published “The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age,” a white paper based on their research and two all-day workshops in which librarians, teachers, lawyers, and scholars gathered to discuss their encounters with copyright law. Their collective efforts and the publication of this white paper constitute one of the top intellectual property developments of 2006 because they have revealed and clarified four central problems related to the intersections among digital media, education, and copyright law:
- Unclear or inadequate copyright law relating to crucial provisions such as fair use and educational use;
- Extensive adoption of ‘digital rights management’ technology to lock up content;
- Practical difficulties obtaining rights to use content when licenses are necessary;
- Undue caution by gatekeepers such as publishers or educational administrators.
To illustrate these problems, Fisher and McGeveran present four case studies of digital educational endeavors that were delayed or jeopardized by copyright law. These include: 1.) a proposal to create a network for social studies teachers to share teaching materials; 2.) the use of movie scenes on DVD in film studies courses; 3.) the Database for Recorded American Music (DRAM), a repository of obscure music; and 4.) the conflict that arises when public broadcasters, who are allowed to use some third-party content in their programs, make programming available on the Web. In this review of Fisher and McGeveran’s white paper, I make connections between their case studies and situations faced in rhetoric and composition pedagogy, and I explain what composition scholars can do to help protect teachers’ rights to use third-party content for noncommercial, educational purposes.
Copyright: Common Ground Shared Among Rhetoric and Composition, Film Studies, Music, and K-12 History
Material from the first three case studies is particularly relevant for rhetoric and composition scholars who do work with digital media, and I focus on those three cases in my review. The first case is a proposed project by George Mason University’s Center for History and New Media called the History Teacher Network. The network, modeled on social software, was to be designed as a place where K-12 teachers can upload and share the learning materials they create, such as PowerPoint presentations or online modules. From the perspective of copyright law, the problem was that some of the learning materials may feature copyrighted third-party content: photographs, music, or video clips. That George Mason University would risk secondary liability for hosting these materials and enabling their distribution constituted an insurmountable obstacle, and the Center for History and New Media “has been forced to curtail its plans for a resource exchange component of the network because of the risk of secondary liability for copyright infringement” (Fisher and McGeveran 20). In rhetoric and composition studies, scholars have proposed similar networks for sharing teaching materials. In April of 2006, I attended a meeting in Los Angeles for Next/Text, a project of the Institute for the Future of the Book. The meeting was devoted to discussion of what rhetoric and writing textbooks could become if their authors used digital technologies creatively and innovatively. We imagined just such a network, composed of materials from teachers; textbooks could be curated by users’ creating various collections and arrangements of these materials. They could be tagged with categories of the users’ choosing, and they could be linked through a system similar to Amazon.com’s recommendations based on users’ tastes. We hadn’t gotten so far as to propose potential hosting sites for the network (though futureofthebook.org, the Institute’s domain, would have been an intuitive first choice), but a network of teaching materials in rhetoric and composition studies would almost certainly face the same secondary liability issues that thwarted the History Teacher Network.
In their second case study, Fisher and McGeveran explain the pedagogical and legal dilemma faced by film studies teachers. In order to illustrate and teach techniques such as jump cutting, mise en scene, wipes, and split screen, they must be able to show scenes from films. A teacher may, for example, want to create a montage of scenes from eight to ten films to show the evolution of special effects over time. If she wants to do that, or if she wants to make a scene or two available to students for a homework assignment, she must circumvent copy protection technology on the DVDs she uses. Otherwise, she and the students must waste class time sitting through “forced watching,” as Fisher and McGeveran put it – previews, advertisements, and copyright warnings. Such circumvention constitutes a violation of DRM, or Digital Rights Management, even though the teacher’s use of the content falls under fair use.
The result is what Fisher and McGeveran call an “uneasy equilibrium” in the violation of the Digital Millennium Copyright Act. Rhetoric and composition teachers may face the same dilemma as more rhetoricians – Joyce Irene Middleton’s work is one example – study film as rhetorical text, or when composition teachers wish to use film clips to illustrate issues of representation, including race and sexuality. In order to settle the dilemma for film teachers, Fisher and McGeveran argue that “[t]here should be no penalty under the DMCA when DRM systems are circumvented purely to enable uses of content that are educational, legally permitted, and noncommercial – perhaps with a proviso that reasonable efforts are made to avoid subsequent leakage of the content” (97). While their suggestion would relieve film teachers’ concerns about copyright law, it still does not address another major problem with copyright law: its labyrinthine complexity. Scholars such as law professor Jessica Litman have argued that copyright law should be easier for the general public to understand, which would cohere with copyright law’s ostensible concern for the public interest and help the public to respect it and take it seriously.
The third case study Fisher and McGeveran present is an effort by NewYork University and New World Records, a nonprofit record company, to create DRAM, or the Database for Recorded American Music. The database is devoted to obscure music and “underrecognized composers” (31), so the administrators of DRAM prioritized good financial compensation for the artists. Despite New World Records’ and NYU’s commitment to fair compensation, as well as the nonprofit educational nature of the use of the music, the rights clearance process proved to consume a prohibitive amount of money and time. Fisher and McGeveran report, “All told, rights clearance for DRAM consumed several years and enormous amounts of staff effort and expense. The small scale and nonprofit status of the initiative often made rightsholders or their intermediaries less interested in responding to those efforts” (34). The content industries had little to gain from DRAM, it seems. At least one project in rhetoric similar to DRAM exists: AmericanRhetoric.com, a repository of audio, video, and text transcripts of famous speeches. While much of the content on AmericanRhetoric.com consists of presidential and senatorial speeches, which are considered government documents and therefore are public domain, the site does feature some copyrighted content. The site has a fair use statement, an excerpt of which reads:
AmericanRhetoric.com contains copyrighted materials (html/pdf/flash text, audio, video, digital images), the use of which in many cases has not been specifically authorized by the copyright owner(s). These materials include all of the artifacts in the “Movie Speeches” site area as well as various artifacts in the “Top 100 Speeches” and “Speech Bank” site areas. […]
The site is making such material available in the effort to advance understanding of political, social, and religious issues as they relate to the study and practice of rhetoric and public address deemed relevant to the public interest and the promotion of civic discourse.
AmericanRhetoric.com believes that the nature and use of the artifacts on this site not in the public domain or not the property of the owner of this site constitutes “fair use” of any such material as provided for in section 107 of the U.S. Copyright Act. The material on this site is intended primarily for research and educational purposes, has been previously published, and is distributed without profit.
I do not know whether Michael E. Eidenmuller, the owner of AmericanRhetoric.com, has received cease-and-desist letters for his inclusion of copyrighted content, but I am speculating that the resource he has created has gone unchallenged due mainly to the fact that he maintains it individually and does not seem to have the endorsement of his institution, the University of Texas at Tyler. He features ads on the site, presumably to help cover hosting costs and domain name registration.
The Classroom Use Exception, the TEACH Act, and Digital Media
Each of these three cases has implications for projects proposed or already underway by scholars in rhetoric and composition. From their case studies, Fisher and McGeveran articulate several “obstacles to digital learning” (42). They explain the classroom use exception to fair use, which gives teachers additional freedom beyond fair use to make use of third-party content in classrooms for educational purposes. We’ve all, for example, probably heard about a loophole in copyright law that permits the photocopying of an article if the teacher is struck with inspiration to use it right before the class meeting. This understanding is correct; a spontaneity exception does exist, but the use of third-party content for digital materials — blogs, wikis, web-based class projects is more legally fraught, even if the digital materials were only available to the students enrolled in the course.
The classroom use exception is intended for face-to-face teaching that takes place within the walls of classrooms, not necessarily for hybrid courses, online courses, or homework assignments for a face-to-face course. The TEACH Act of 2001 addressed the incompatibility of the classroom use exception by no longer requiring students to be in the same location to use third-party content distributed by teachers. However, the act stipulated that the content must be integral to the course objectives, and that only accredited, nonprofit institutions were covered. Fisher and McGeveran critique the boundaries of the freedoms (47):
This bias excludes, for example, an adult education class offered by a nonprofit but unaccredited institution; asynchronous instruction and discussion that occurs outside of class sessions at preset uniform times; and even access to material by students in other related classes at the same institution.
Also, Fisher and McGeveran suggest, it would seem that DRM and the DMCA would supersede the TEACH Act, which says that teachers have to make sure the content isn’t available after the class session, thereby preventing it from being disseminated, which is not architecturally possible to do in online environments. Fisher and McGeveran conclude that as far as the TEACH Act is concerned:
Congress might well need to start from scratch. In particular, the across-the-board exclusion of asynchronous teaching and learning sacrifices one of the principal benefits of digital technology. Likewise, the limited conceptualization of education as tied closely to highly traditional academic institutions limits the statute’s effectiveness in the decentralized digital environment (96).
I agree that education ought not be bound up with institutions, and their observation certainly acknowledges some of the educational efforts online, such as academic weblogs and wikis created by individuals or groups not affiliated with one particular university.
Libraries and Rights Clearance
The white paper also takes up the copyright issues associated with libraries and archives. Fisher and McGeveran identify statutory and actual damages as problems faced by libraries. It costs nearly one million dollars to defend a copyright case, and that cost may only cover the statutory damages (the pre-established charges that come in to play when calculating exact damages proves difficult). Actual damages, if awarded, could be even higher. Additionally, the copyright holder might seek a trial by jury – which may result in more money being awarded in damages – instead of a hearing before a judge. The prohibitive cost of copyright infringement lawsuits has several consequences for libraries and universities, not to mention the collections of archives online that function as libraries but are not recognized as such: Educators often ask for licenses, or permission to use content, even when it is not legally necessary because their use would be protected under fair use. Because universities do not want to risk lawsuits (a risk aversion that Fisher and McGeveran feel may be unwarranted by actual lawsuit occurrence), they are “overly cautious” (85). They sink time and labor into a cumbersome rights clearance process to find that content industries don’t have any incentive to provide differential licensing of content for the benefit of educational institutions, teachers, and most important of all, students. They use closed content management systems for courseware, such as Blackboard and WebCT, instead of open access courseware. They institute and abide by university photocopying policies that are more stringent than the 1976 Guidelines for Classroom Copying. In other words, the law is actually more lenient than the universities.
The rights clearance process is made even more difficult by digital technology. For the Copyright Clearance Center and other intermediaries, there are strikingly different processes for comparable actions, like making thirty copies of a print article for classroom use as opposed to making a digital copy available on an intranet site for 30 days (80). Permission costs, or royalties, can be costly, as anyone who has created a course pack for a composition course knows, but most rightsholders still do not see education as an important market or source of revenue. Thus, they don’t offer discounts, or reduced royalty fees, especially for digital content. Fisher and McGeveran argue that “many rightsholders are unsure about digital distribution formats, and their uncertainty translates into higher fees” (84). In the end, Fisher and McGeveran recommend a broadening of the definition of libraries and archives, so that “untraditional noncommercial entities and ‘virtual’ collections available online” may also be protected by the libraries and archives exceptions to copyright law. They also argue that the libraries and archives exceptions could be revised, particularly in light of digital technology, to address the “number of copies” limitation (94).” Fisher and McGeveran suggest two other measures to make the rights clearance process less arduous. First, they recommend the creation of a technological tool that would help to figure out whether or not permission to use the work is necessary. If it turned out that permission was needed, the software would search for licenses the institution has already secured and currently uses, such as blanket licenses and library consortia agreements, and it would search for similar material that was already cleared – Creative Commons licensed material, for example. Second, they recommend that universities and K-12 teachers get together and come up with a list of best practices – for figuring out whether something is fair use or not, for licensing negotiations, and deployment of DRM systems – all of these with specific illustrative cases that model the best practices.
Conclusion: How You Can Contribute to the Open Access Effort
Fisher and McGeveran conclude their white paper with several suggestions for what scholars can do to help bring about copyright reform, some of which connect to the work that the CCCC Intellectual Property Caucus is doing. Scholars in our field can contribute to open access by doing research about it. Fisher and McGeveran point to several areas for future research, and I have highlighted three that may be of particular interest to scholars in rhetoric and composition:
- Documenting how often educational users of content in fact are threatened with copyright infringement suits, and how often such suits are filed (the dearth of judicially decided cases in this area suggests that these numbers may turn out to be surprisingly low).
- Analyzing how frequently rightsholders decline permission for educational uses of content and the typical reasons for such refusal.
- Updating empirical data concerning policies and guidelines adopted by universities and school districts concerning educational use of content.
These projects would make excellent master’s theses and dissertations for rhetoric researchers interested in legal discourse. Fisher and McGeveran also offer a series of recommendations for what kinds of action we can take to help the open access movement, and I end with these (quotations from pages 107-108 of the white paper are in italics):
1. The “some rights reserved” licensing schemes promoted by Creative Commons and Science Commons, which can be easily customized at their web sites.
Rhetoric and composition studies scholars are already using Creative Commons licenses on their weblogs, and several journals, including Kairos, Lore, The Writing Instructor, and Computers and Composition Online, allow authors to use Creative Commons licenses. Scholar and Feminist Online, while not a rhetoric journal, also allows Creative Commons licensing. Admittedly, these are all online journals and, as the common argument goes, they have nothing to lose by making this an option for authors. However, Parlor Press, which publishes print monographs, also has allowed for Creative Commons licensing. The move to license more scholarship under a some-rights-reserved model is still new, and it needs leadership within the discipline. Specifically, junior faculty and graduate students may be especially loath to ask publishers to give copyright back to them after a period of a few years, or to give them permission to archive a copy of the article or book on their personal web sites, or to use a Creative Commons license for the work. Junior scholars are in a position of vulnerability with publishers, which is why it is particularly important for senior colleagues in rhetoric and composition (as well as other fields) to publish their work in open-access journals that allow Creative Commons licenses and to state openly that access and copyright reform efforts led them to choose to publish in these journals.
Also, scholars can use the Author’s Addendum, published by the Scholarly Publishing and Academic Resources Coalition of the Association of Research Libraries, during copyright negotiations with publishers. The addendum is available at http://www.arl.org/sparc/author/addendum.html.
2. The Free Software Foundation’s GNU Free Documentation License, intended for use in “textbooks and teaching materials for all topics” and used as the license for Wikipedia entries;
In rhetoric and composition studies, Matt Barton’s open-access textbook comes to mind. He and students at St. Cloud State University co-wrote a rhetoric and composition textbook and published it at Wikibooks, and they continue to update it. The textbook is licensed under a GNU Free Documentation License. I would like to see more projects such as this one.
3. Numerous open access journals, such as those sponsored by the Public Library of Science (PLoS) (a list can be found at the Directory of Open Access Journals);
Open access journals in rhetoric and composition include Kairos, Enculturation, The Writing Instructor, Lore, Composition Forum, Across the Disciplines, and more. Support these journals by submitting work to them, reading them, linking to the articles on your weblogs, and citing their articles in your own work if applicable.
4. Efforts by universities, including the University of California and Harvard, to require their faculty to make copies of their scholarly articles available in open access repositories, and to provide the faculty technical assistance in doing so;
The University of Kansas has also joined the open access project with KU ScholarWorks, which “makes important research available to a wider audience and helps assure its long-term preservation” (online). The university passed a Resolution on Access to Scholarly Information in early 2005, and they strongly encourage faculty to keep copies of their publications in the repository.
5. Increased self-archiving by professors and other educators on personal or institutional web sites;
Several rhetoric and composition scholars already archive their publications on their personal sites; especially impressive examples are archives by Carolyn Miller, Charles Bazerman, and Michael Day. I would add that journal publisher Elsevier (whose general policies I am not endorsing) now allows authors to make and distribute copies of articles published in their journal for classroom use and for research colleagues. They also allow authors to post preprint copies of articles on their personal web sites, and they allow authors to post revised copies of articles on personal web sites as long as they are accompanied by a link to Elsevier’s web site. Authors have these rights automatically without having to ask Elsevier for them.
6. Multiple initiatives to make curricular materials, syllabi, and other educational content accessible to the general public, including Connexions, LionShare, MIT OpenCourseware, and the Berkman Center’s own H2O project;
These initiatives are best carried out at the university level rather than the level of the discipline. However, rhetoric and composition scholars can contribute to this effort by serving on faculty senate and other university-level committees to set policy related to open access teaching materials.
7. Increased discussion of legal mandates for open access to research funded by government grants – effectively including most major biomedical research in the United States and Europe.
I would add that the Petition for Public Access to Publicly Funded Research in the United States, which would require open-access publication of all articles or books funded by the U.S. Federal Government, would help to create an archive of research available to the public. Over 24,000 people have signed the petition, available at http://publicaccesstoresearch.org.
“Author Rights: Using the SPARC Author Addendum to Secure Your Rights as the Author of a Journal Article.” 27 Apr. 2007 <http://www.arl.org/sparc/author/addendum.html>.
“Authors – Elsevier.” 27 Apr. 2007 <http://www.elsevier.com/wps/find/authorsview.authors/copyright#whatrights>.
Bazerman, Charles. “Charles Bazerman | UCSB | Homepage.” 27 Apr. 2007 <http://education.ucsb.edu/~bazerman/>.
Day, Michael. “Michael Day: Selected Webbed Publications.” 27 Apr. 2007 <http://www3.niu.edu/~tb0mxd1/pubs.html>.
Eidenmuller, Michael E. “American Rhetoric: Copyright Information.” 27 Apr. 2007 <http://americanrhetoric.com/copyrightinformation.htm>.
Fisher, William W., and William McGeveran. “The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age.” 27 Apr. 2007 <http://cyber.law.harvard.edu/home/uploads/823/BerkmanWhitePaper_08-10-2006.pdf>.
“KU ScholarWorks: Home.” 27 Apr. 2007 <https://kuscholarworks.ku.edu/dspace/>.
Miller, Carolyn R. “Carolyn R. Miller: Publications.” 27 Apr. 2007 <http://www4.ncsu.edu/~crm/publications.htm>
“Petition for Public Access to Publicly Funded Research in the United States.” 27 Apr. 2007 <http://www.publicaccesstoresearch.org/>.
Reyman, Jessica. “Copyright, Distance Education, and the TEACH Act: Implications for Teaching Writing.” CCC 58:1 (2006): 30-45.
“Rhetoric and Composition – Wikibooks, Collection of Open-Content Textbooks.” 27 Apr. 2007 <http://en.wikibooks.org/wiki/Rhetoric_and_Composition>.