Author: ksuchor

So, here’s the deal. The rules of this game are actually up to you. This is not a world made up of passive consumers anymore. That era is over. This world is made up of collaborators. We can create and share. We can change laws and act.

Brett Gaylor,  RiP! A Remix Manifesto

In this year’s “Greetings from the Program Chair,” Gwendolyn Pough quoted Brett Gaylor to open the 61st Annual Conference on College Composition and Communication (CCCC), the apt theme of which is “The Remix: Revisit, Rethink, Revise, Renew.”  Pough’s choice is a brilliantly salient one: this single quote represents the promise of the new millennium and the project that lies ahead, as we navigate these first few months of the new decade.  And the theme of this year’s conference urges us to act — to revisit, rethink, revise, and renew our understanding of “remix” – so that’s where this update will begin (and end).

Revisit

In 2001, Creative Commons (CC) was founded with support from Duke University Law School’s Center for the Public Domain and with the solid leadership of its founding board members. One of its most outspoken founders is Lawrence Lessig, Professor of Law at Stanford University, founder of its Center for Internet and Society, and commons defender extraordinaire.  Creative Commons is a nonprofit organization that “works to increase the amount of creativity (cultural, educational, and scientific) in ‘the commons’ – the body of work that is available to the public for free and legal sharing, use, repurposing, and remixing.”   CC does its vital work, in part by offering legal alternatives to the current “one-size fits all” copyright.  Content creators, from individuals to corporations, can elect a “some rights reserved” copyright (allowing for a wider range of content use, while still protecting copyright) or a “no rights reserved” copyright (which allows content to be used freely, without the constraints of any copyright protection).  Since its inception, approximately 130 million works have been licensed and ported to over 50 international jurisdictions.1  In fact, Brett Gaylor licensed his collaborative website “Open Source Cinema” under a CC license; this website was then created to produce the documentary film RiP! A Remix Manifesto.  The film was created over a period of six years using the work of hundreds of people who contributed to the Open Source Cinema website.  This collaboration resulted in what Gaylor would call “the world’s first open source documentary,” a documentary that would eventually inspire Gwendolyn Pough to quote from it to open this year’s CCCCs.   And a documentary which would feature an appearance by Lawrence Lessig, one of the founders of Creative Commons, under which license the Open Source Cinema website was made a reality.2

Rethink

Though Lessig stepped down as CEO of CC in 2008, he has remained a forthright voice for copyright reform.  His most recent book, Remix: Making Art and Commerce Thrive in the Hybrid Economy (2008) will, like his other books, be CC licensed and made available to the public for free.  But, unlike his launching of the other books, Lessig was invited to be a guest on the January 8, 2009 Colbert Report and (re)mix it up with the feisty Colbert who, appropriately, called the whole remix idea  “artistic socialism.”  During the approximately six minute debate, Colbert stopped to explicitly issue a challenge to the audience:

Nobody should take my work and do anything with it that is not approved! Never ever never ever take anything of mine and remix it! For instance, I will be very angry and possibly litigious if anyone out there takes this interview right here and remixes it with some great dance beat. And it starts showing up in clubs across America.3

What followed, of course, was brilliantly (and hilariously) inevitable.

Revise

On his January 21, 2009 show, Colbert issued a new warning: to those “DJ Jazzy Jerks” who, within 24 hours of the Lessig appearance, had flooded the internet with remixes of the interview “appallingly set to the very dance beats [Colbert] had clearly prohibited.”  He then offered his own retort in the form of a music video (that remixed himself) and followed it up with another challenge: “Let me be very clear.  Stephen does not — not — want you to take his interview with Lawrence Lessig and remix it with a pumping k-hole groove.”4

But the remixing was already in full force.  After the Lessig interview, the audio from the show was posted in a public session on indabamusic.com, where more than 150 collaborators created over 50 remixes of the show.  As was the plan, Colbert’s second challenge did not stay the tide of remixes; the Indaba community persisted until Colbert “was forced to recognize the power of the remixing community.”5  On February 4, 2009, Indaba co-founder Daniel Zaccagnino was the guest on the Colbert Report.6  Daniel, and Indaba’s co-founder Matthew Siegel, wrote of the experience in “Commoner Letter #5” (letters from users/supporters of CC): “it was great fun and a wonderful example of how everyone can benefit from being open with their content – from Colbert generating an incredible viral marketing campaign, to Indaba getting exposure, to a few select musicians who had their music played on national TV.”7  In short, this is a wonderful example of remix.  Indaba music’s remix presence also illustrates what Lawrence Lessig means by the term “hybrid economy”:  an economy where “commercial entities leverage value from sharing economies.”  “That future.” Lessig asserts, “will benefit both commerce and community. If the lawyers could get out of the way, it could be a future we could celebrate.”8

Renew

Indaba is a Zulu word that celebrates “the spirit of collaboration and community…a gathering or forum for sharing ideas” concepts that drive the mission of Indaba Music.9  The co-founders, Dan and Matt, sowed the seeds for this project in college, starting it first as a nonprofit student record label.  Currently, Indaba Music is a community of over 350,000 musicians from 185 countries who create music together in online recording sessions, using Indaba’s free Java-based mixing platform or their own audio software.  These online collaborative projects – from the individual tracks to the final song they create – can be licensed under a CC license so that musicians can specify control over the use of their tracks in the larger collaborative work.  The site regularly runs collaborative contests which allow the Indaba community to “remix and re-imagine” the work of current artists.  Last year, Indaba music members competed to remix the entire Marcy Playground album Leaving Wonderland…In a Fit of Rage.  “All of the remixes are CC licensed and winners will actually get royalties on the sale of a remix CD that will hit the airwaves early next year.”10  And Wired.com did a story on an even more high profile Indaba remix contest: one “where anyone, even beginners, [got to] remix tracks by a wide-selection of high profile artists…heavy-hitters like Kanye West, David Byrne, Chuck D, RZA, The Cool Kids, Ol’Dirty Bastard, Tom Waits, DJ AM, KRS-One, Ghostface Killah, Method Man, Lykke Si, Santogold, George Clinton, Scarface, and M.I.A.  Working so closely with all of these artists’ voices and beats would normally get you sued.  Instead you could net a thousand dollars and a new career as a remix artist.”11

The Remix (a Reprise)

So, here’s the deal. The rules of this game are actually up to you. This is not a world made up of passive consumers anymore. That era is over. This world is made up of collaborators. We can create and share. We can change laws and act.

Brett Gaylor,  RiP! A Remix Manifesto

We may not be the next Lawrence Lessig, Brett Gaylor, Dan Zaccagnino, or Matt Siegel.  We may never be invited to appear on the Colbert Report.  We may never be the next DJ Girl Talk.   But we can create and share.  We can change laws and act.  And we can participate in creating the rules that allow these kinds of exciting remixes to happen.

Get Involved with CCCC-IP

/cccc/committees/ip

Support CC

https://support.creativecommons.org/donate

Submitted by Traci Zimmerman – Associate Professor – The School of Writing, Rhetoric, and Technical Communication
James Madison University
Junior Chair; CCCC-IP Caucus

*****

1. http://creativecommons.org/
2. http://www.opensourcecinema.org/
3. http://www.colbertnation.com/the-colbert-report-videos/215454/january-08-2009/lawrence-lessig
4. http://www.colbertnation.com/the-colbert-report-videos/216595/january-21-2009/stephen-s-remix-challenge
5. http://www.indabamusic.com/featured_programs/show/colbert
6. http://www.colbertnation.com/the-colbert-report-videos/217342/february-02-2009/dan-zaccagnino
7. http://creativecommons.org/weblog/entry/19365
8. http://remix.lessig.org/
9. http://www.indabamusic.com/api/corporate/about
10. http://creativecommons.org/weblog/entry/19365
11. http://www.wired.com/epicenter/2009/10/indaba-online-remix-contest-lets-crowd-work-with-celebs/

 

Intellectual Property Reports Main Page

 

Excerpt of a March 8, 2010 video interview with Gwen Pough, CCCC Officer/2010 Program Chair and Associate Professor of Writing, Rhetoric, and Women’s and Gender Studies.  Interviewed by Eileen Schell, Chair of the CCCC Committee on the Status of Women in the Profession and Chair and Director of the Writing Program at Syracuse University, and Collette Caton, Doctoral Student in the Composition and Cultural Rhetoric Doctoral Program at Syracuse University.

Kristin Bivens Self-Interview (Word Document)

Kristin Bivens joined the Committee on the Status of Women in the Profession in 2007.  She is currently a tenure-track instructor at Harold Washington College, one of the City Colleges of Chicago.  Currently, her research interests include: contrapower harassment at two-year institutions and post-Katrina New Orleans (and Gulf Coast).

Start-up Kit for Women’s Lives in the Profession Project (Word Document)

The “Women’s Lives in the Profession Project” builds on the work of feminist scholars Theresa Enos Gender Roles and Faculty Lives (1996) and Women’s Ways of Making It in Rhetoric and Composition (Mountford, Ballif, and Davis).  The Project is intended to cast a wide net to capture the diversity and true spectrum of women’s lives in the profession:  the working lives of women teaching at a variety of institutions and in a variety of different work arrangements; tenure track, non-tenure-track/contingent, administrative appointments, online teaching, TAships, and more.  The Women’s Lives in the Profession subcommittee of the Committee on the Status of Women in the Profession invites women teaching in the field of rhetoric and composition to help us demonstrate the diversity of our work in the field.
 
Our goals for collecting this information are two-fold:

• As per the AAUP call, we want to counter the stereotypical images of professors, in particular the perceptions of the masculine heroic quest narrative that linger despite our field’s critique and attention to it (Brannon, “M[other]:  Lives on the Outside”).
• Moreover, we want to highlight the different options and choices that are available to women and to ask these women themselves–ourselves–to narrate the possibilities and pitfalls of these choices.  Future scholars can find paths to research and learn about here in these narratives, but also learn about patterns of work and productivity from a wide range of institutions.  This work will also give us a clearer picture of the range and variety of women’s work lives in our profession.

Start-up Kit for Women’s Lives in the Profession Project (Word Document)

Carol Mohrbacher, St. Cloud State University

In 2001, the Creative Commons (CC) officially began offering a free set of author-controlled copyright licenses.  These licenses were and are available at the Creative Commons online site.  The Creative Commons originated at Stanford University, although it is now established in Massachusetts.  Lawrence Lessig, one of CC’s founders, describes its purpose as “to build a reasonable [author’s italics] copyright on top of the extremes that now reign” (282).  The “extremes” Lessig refers to resulted from the passage of the 1998 Digital Millennium Copyright Act, which added an additional 20 years to the term of copyright and tightened controls on works of digital production.  Fair Use was no longer guaranteed under the newest copyright code, and the public commons was thus undermined.

CC licenses have spread worldwide, and by 2009, an estimated 130 million CC licenses had been issued (“About History”).  One of the most vigorous examples of this growth comes out of Australia.   The Australian Research Centre and Queensland University of Technology (QUT), under the direction of Professor Stuart Cunningham, began collecting case studies of institutions using CC licenses on the Creative Commons Case Studies Wiki.  The book, Building an Australasian Commons, documents those case studies and is available in pdf format for download on the wiki.  The work sorts case studies into seven areas: sound, democratic change, moving images, visual arts, governmental institutions, the written word, and education and research.  Because my interest lies in the area of digital copyright and its effects on academic authorship I examine the area concerning education and research in determining the level of control the Creative Commons license exerts.

Layers for Analysis

Professor Yochai Benkler’s communication theory of layers provides an effective approach to analysis because it addresses the physical infrastructure, the logical and the content layers in communication.  Examining the three layers will provide insight into the flexibility of CC license with regard to academic authorship.  Benkler describes the layers in the following:

The physical layer refers to the material things used to connect human beings to each other.  These include the computers, phones, handhelds, wires, wireless links, and the like.  The content layer . . . . includes the actual utterances and the mechanisms, to the extent that they are based on human communication rather than mechanical processing for filtering, accreditation, and interpretation.  The logical [or code] layer represents the algorithms, standards, ways of translating human meaning into something that machines can transmit.  (392)

Take a presentation at a CCCC conference, for example.  The physical layer would include the room in which that presentation takes place and the computer and screen on which information is projected that supports the presentation.  The content layer is the presentation itself including the words, ideas, and images that communicate the ideas.  The language spoken is the logical or code language, as is the binary system that is the language of the computer which projects the PowerPoint.  Any one of the three layers may be controlled and may affect the other two layers. The following section uses the layered approach to examine three cases studies in the section, “Beyond the Classroom: Education and Research Case Studies,” in Building an Australasian Commons.  Each selected case study uses a different version of Creative Commons license.

Case 1

The first case concerns the licensing practice of Queensland University of Technology (QUT), specifically the Faculty of Law in Brisbane.  QUT is the home of the ccClinic, the research arm of the Creative Commons in Australia.  This organization acts as an information and research site for the campus community, as well as the Australian community at large.  The Clinic also acts as a site that fosters “a more traditional research stream” (167).  Two works produced by the facility are covered by different versions of the 2.5 Creative Commons license.  The anthology titled, Open Content Licensing: Cultivating the Creative Commons, published online is covered by the CC Attribution-Noncommercial-No Derivative Works 2.5 Australian license.  The CC Attribution 2.5 license protects the second work, the online report, Unlocking the Potential through Creative Commons: an Industry Engagement and Action Agenda.

For the online anthology, the CC Attribution, Noncommercial-No Derivative Works is restrictive at two layers. At the physical infrastructure layer, no restriction exists.  Anyone who has a computer may access the online book.  At the content level both commercial and non-commercial users have access to the content, but are restricted from altering the work in any way.  For commercial users, content also may not be used for profit.  Yochai Benkler explains that the logical or code layer “represents the algorithms, standards, ways of translating human meaning into something that machines can transmit, store or compute, and something that machines process into communications meaningful to human beings” (392).  Therefore, one might also argue that that a derivation might include, for example, a translation into another computer language, with firewall or cut and paste prevention code added.  The license restricts such derivation.

The online report is covered by the much less restrictive CC Attribution 2.5 license.  This type of license allows both commercial and non-commercial users to use the works for profit or not, as long as the creator is credited.  Users may also create derivations of the original work.

In other words, both the physical infrastructure and the logical layer are uncontrolled.  However, the mandatory author attribution restricts the content area to a small degree.

Case 2

IMERSD (Intermedia, Music, Education, and Research) is a project of the Conservatorium of Music at Griffith University in Brisbane, Australia.  IMERSD is wide ranging, including, but not limited to film school and music partnerships, broadcasting projects, CD and DVD recording, and other interdisciplinary and industry collaborations. The creative products of IMERSD are licensed under the Attribution–NonCommercial-NonDerivatives 2.5 Australian Creative Commons License.  This means that the creative work protected by this license can be copied, distributed and transmitted, as long as the work is not altered or transformed in any way and  as long as the work is attributed to the author.  In addition the work can only be used for non-commercial purposes.

The license provides little control at the physical infrastructure level. Because the works are limited to non-commercial purposes, some venues, like a neighborhood movie theater for example, are prevented from using the works for profit.  At the content level, manipulation of the work is prohibited, so some control is also exercised.  For example, creating a mash-up with bits of  licensed IMERSD music or film, is not allowed.    However, use of the whole and unmanipulated work is allowed, as long as authorship is attributed.  At the logical layer, again the user may reproduce the code, as long as it is not changed, added to or manipulated.  The license overall opens up access for free academic authorship, but the work cannot be altered in any way.

Case 3

Otago Polytechnic’s CC licensing exerts even less control over the use of its creative products than IMERSD.  Otago provides technical and vocational training to residents of New Zealand.  Their goal in choosing a New Zealand Creative Commons 3.0 license was “to ensure maximum amount of freedom and flexibility to itself and to people and organisations sampling its content” (Cobcroft 177).  Unlike IMERSD, Otago allows commercial use of creative products.  Also, unlike other universities’ work for hire policies, Otago’s policy encourages faculty to own and license their original educational works.  A New Zealand 3.0 CC license also allows the users to adapt or remix the work for their own use.  The only rule is that the work be attributed to the original creator.  This license is identical in its restrictions to the Australian Attribution 2.5 license.

This license provides no control at the physical infrastructure level.  Users are welcome to profit from the borrowed work.  At the content level, the work may be altered in any way, provided that the author is credited.  At the logical or code level, no restrictions exist.  All software is open and its code also maybe be altered for use, provided the creator is attributed.

Final Thoughts

Volume 1 of Building an Australasian Commons: Creative Commons Case Studies provides thumbnail sketches of licensing across professions and disciplines.  Each case study provides an overview of each institution’s creative products and the institution’s motivation for choosing Creative Commons copyright protection.  The Creative Commons wiki, from which the cases are taken, is a necessary companion to  the volume because it supplies license descriptions and a Creative Commons history that enriches the reader’s understanding of the Creative Commons movement.  The book, edited by Rachel Cobcroft provides useful examples to any creator who wants a less restrictive and more flexible option to traditional copyright protection.

In 2001, the same year that the Creative Commons was born, Lawrence Lessig’s book, The Future of Ideas: the Fate of the Commons in a Connected World, was published. In the book, Lessig made a strong case for copyright reform because of what he saw as a shrinking free public commons and increasingly regulated digital technology.  He warned that “We move through this moment of an architecture of innovation to, once again, embrace an architecture of control—without noticing, without resistance, without so much as a question” (268).   Thanks to Lawrence Lessig, Yochai Benkler, Australia’s Brian Fitzgerald and others, we now notice, resist, and question traditional controls and this books illustrates that we have other options.

Works Cited

“About History.”  Creative Commons.  Wiki. 15 Feb. 2010. Web.

Benkler, Yochai.  The Wealth of Networks: How Social Production Transforms Markets and Freedom.  New Haven:  Yale UP, 2006. Print.

Cobcroft, Rachel, ed.  Building an Australasian Commons: Creative Commons Case Studies. Vol. 1.  5 Jan. 2010. Web.

Lessig, Lawrence.  Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity.  New York: Penguin, 2004. Print.

—.  The Future of Ideas: The Fate of the Commons in a Connected World.  New York: Random House, 2001.  Print.

Charles Lowe, Grand Valley State University

Introduction

For those of us interested in creating and sharing open education resources such as course syllabi, assignments, or instructional readings, an important consideration is how to license the content for use by students and other teachers. Copyright, even with fair use determinations (which, as most teachers are aware, can be difficult to know when and how to apply), grants few rights to others for using a work. For most educators, the “flexible copyright” of Creative Commons (CC) licenses is undoubtedly the easiest way to extend copyright privileges. A CC license can allow the user to copy, to redistribute, and—if the content creator desires—to transform or modify the work. Interested in licensing something you have created? Visit the CC “License Your Work” web page, and it will ask you a series of questions about how you might like others to be able to use your work. CC then recommends one of a set of licenses they have created that gives those permissions.  Because a legal license can be difficult to read and understand, CC also provides a human-readable deed to attach with the work or provide a link to which clearly defines the usage rights.

Or, at least, that’s the principle behind the deed. One of the most popular restrictions included with CC licenses is a Non-Commercial (NC) clause.  The deed vaguely defines non-commerical as, “You may not use this work for commercial purposes” (“Attribution-Noncommercial 3.0 Unported”). Does this mean that the character of the use cannot be commercial (e.g., selling the work for profit)? Or is it that a company or other commercial entity cannot use the work at all? Can a non-commercial organization, such as college or university, profit from the work? What about recovering costs of producing a copy of a work to redistribute it even when profit will not be made? While the legal code in the license itself is a little more specific, it does not assist much in defining what is a non-commercial use:

You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. (“Attribution-Noncommercial 3.0 Unported”)

Regardless of whether or not content users try to read the legal code (we can imagine that the average Internet user is unlikely to do so) or simply follow the deed, non-commercial can obviously be interpreted in many ways. In order to gain insight into what creators of NC licensed works and users of those works believe constitutes non-commercial use, CC commissioned an in-depth research study. They then reported their findings in September of 2009 in “Defining ‘Noncommercial’: A Study of How the Online Population Understands ‘Noncommercial Use.’” Because many educators may want to choose the NC restriction when licensing content, the following will briefly provide some of the details of CC’s study and discuss how those findings might influence how and when educators choose to use the CC NC clause.

Highlights of the Study

In 2008, CC hired “Netpop Research, LLC, a market research firm” to conduct the study (20) using funding provided by the Andrew W. Mellon Foundation (8). CC had “two main goals” for this project:

1. “to undertake an empirical study that would survey variations in the online U.S. general population’s understanding of the terms ‘commercial use’ and ‘noncommercial use,’ when used in the context of the wide variety of copyrighted works and content made available on the Internet; and
2. to provide information and analysis that would be useful to Creative Commons and to others in understanding the points of connection and potential disconnection between creators and users of works licensed under Creative Commons ‘NC’ or other public copyright licenses prohibiting commercial use” (18).

To achieve these goals, Netpop conducted an empirical study of a targeted sample of ninety content creators and content users in the U.S. using focus groups and surveys, and more informally, collected additional information through a self-selected public Internet poll of 3,337 creators and 437 users in the CC global community  (23-27).

In the empirical study, the qualitative data collected in the focus groups was used to construct the surveys given to the target sample group and the CC global community. To do so, the focus groups created a list of factors by which they would evaluate whether or not a use was non-commercial. Focus groups of content creators came up with the following list, which was then discussed and approved in the content user focus groups without amendment:

• “Perceived economic value of the content
• The status of the user as an individual, an amateur or professional, a for profit or not-for-profit organization, etc.
• Whether the use makes money (and if so, whether revenues are profit or recovery of costs associated with use)
• Whether the use generates promotional value for the creator or the user
• Whether the use is personal or private
• Whether the use is for a charitable purpose or other social or public good
• Whether the use is supported by advertising or not
• Whether the content is used in part or in whole
• Whether the use has an impact on the market or is by a competitor” (31).

If one were to use this list of factors, determining whether a use is non-commercial would appear to be no easier than applying the four-factor fair use test for determining copyright infringement. To better understand how content creators and users would apply these factors of non-commercial use in specific “use scenarios,” participants in both the target sample group and the CC online community completed a survey in which they answered questions to provide profile data, evaluated “possible gatekeeping factor” statements, and completed anchor point exercises (52-55). While the surveys given to all participants were similar, some questions were changed to explore the different experiences of creators and users, as well as the depth of understanding of CC itself and the NC license text by the CC online community (27).

Surprisingly, the findings indicate many similarities between how creators and users understand noncommercial use. For example,

creators and users generally consider uses that earn users money or involve online advertising to be commercial, while uses by organizations, by individuals, or for charitable purposes are less commercial but not decidedly noncommercial. Similarly, uses by for-profit companies are typically considered more commercial. (11)

When money is not a factor, both groups had more trouble determining whether or not the use was noncommercial. Where the groups did differ is their particular leaning toward commercial or non-commercial. Content creators were more likely to view a use as non-commercial than users were. Except in the case of “uses by individuals that are personal or private in nature. Here, it is users (not creators) who believe such uses are less commercial” (11).

Implications for Using the Non-Commercial Clause

While intellectual property scholars will certainly find much more in the report to review—including a few specific results related to education —what should the educator-as-content-creator/user take away from this study for her understanding of when and how to use the NC clause in CC licenses? CC suggests that, because the findings are inconclusive due to the sample sets, the best use of the results is as a “rule of thumb” (79). When licensing a text with the NC clause, be prepared that not all users will follow a strict “conservative definition of noncommercial,” and when it’s not clear if using an NC licensed text will be used in a non-commercial way, “find a work to use that unambiguously allows commercial use (e.g., licensed under CC BY, CC BY-SA, or in the public domain), or ask the licensor for specific permission” (79).

That is reasonable advice, but something that probably could have been surmised prior to the study. And it does not address the potential consequences of the ambiguity of the term non-commercial. One of the most vocal critics of the NC clause is David Wiley, a leading expert on licensing educational content . In his fictional history, “2005-2012: The Open CourseWars,”   Wiley describes the major discrepancy in the license: is the use constraint defined by the character of the use or the user (248-249)? In Wiley’s narrative, commercial publishers play upon this issue by anthologizing NC licensed educational content, and when sued in court, they counter sue and have the NC clause invalidated (249-250). As Wiley explains, CC licenses are written such that a ruling eliminating one clause would not invalidate the whole license; nevertheless, every NC licensed work would be instantaneously available for all types of commercial use (250).

Now, Wiley could potentially have a bias against the NC clause because of his executive position with Flat World Knowledge, a commercial organization specializing in the production of open textbooks (“Our Team”). But let’s assume his prediction is possible. How should that influence our choices about selecting CC licenses? Wiley recommends that educators could best protect their content by using the Share-Alike (SA) clause (251). The SA CC licenses are a type of copyleft license. Copyleft allows derivative works, yet also require anyone that modifies and/or redistributes the work to include the same license. This is similar to the GNU General Public License used by many open source software projects, including the operating system Linux. With a copyleft license, the potential commercial exploitation of intellectual property is much less; anyone who legally obtains the software or text can modify or it or give it away themselves. Profit has to be made, then, off the services sold in association with the item, not the item itself, because the work can be given away for free by the first person that purchases it. Even with or without the inclusion of an NC clause, many open education advocates recommend SA over other CC licenses which forbid derivative works because re-purposing the content can be helpful to education. Selecting this license would, for instance, allow the content to be redesigned with different formatting or modes and/or translated into different languages.

Finally, one other consideration for NC license adoption could be for the content creator to provide written clarification. MIT’s OpenCourseWare project includes an addendum to the CC license on their “Privacy and Terms of Use” web page. The document specifies that “determination . . . is based on the use, not the user;” it forbids users to “directly sell or profit;” and it allows for the “recover[y] of reasonable reproduction costs.” Perhaps this is a good strategy for large projects sponsored by institutions and organizations. But most individual content creators—including educators—choose Creative Commons licenses because the licenses are easy to implement, and because they don’t know how to write up clear—and legal—conditions of use.

One Final Consideration

Given the potential disparity between how a content creator might want non-commercial to be defined, and then how the user defines it and uses the work, it is worth considering CC’s advice in their report that the creator evaluate “the potential societal costs of a decision to restrict commercial use” (79). The use of the NC clause may discourage people from using the work in a way that the creator had intended it to be used, resulting in what CC describes as “failed sharing” (79). And it is also worth noting that there are no open source software licenses with a non-commercial clause. One can argue that open source software projects are successful because they are maximally “open,” and an NC clause with an open source license would reduce that. Linux certainly owes much of its success to commercial support from companies such as IBM, RedHat, and Novell, to name a few. Perhaps open education might enjoy similar success when the textbook publishers and other media providers are no longer our competitors, but our fellow collaborators.

Works Cited

“Attribution-Noncommercial 3.0 Unported.” Creative Commons. Web. 1 March 2009.

Creative Commons. “Defining ‘Noncommercial’: A Study of How the Online Population Understands ‘Noncommercial Use.’” Creative  Commons Wiki, 2008. Web. 1 March 2009.

“License Your Work.” Creative Commons. Web. 1 March 2009.

“Our Team.” Flat World Knowledge. Web. 2 March 2009.

“Privacy and Terms of Use.” MIT OpenCourseWare. Web. 1 March 2009.

Wiley, David. “2005-2012: The Open CourseWars.” Opening Up Education: The Collective Advancement of Education through Open Technology, Open Content, and Open Knowledge. Eds. Toru Iiyoshi and M. S. Vijay Kumar. Cambridge: MIT Press, 2008. 245-259. Print.

*****

1 The various licenses are described at http://creativecommons.org/about/licenses/.

2 CC explains that “approximately two-thirds of all Creative Commons licenses associated with works available on the Internet include the NC term” (17).

3 The report refers to the online community group as Creative Commons Friends and Family (CCFF) (27).

4 For example, distribution of “free educational materials” by a “for-profit company” is seen as more commercial than a “public, not-for-profit school use for fund raising” (Appendix 5.6-61).

5 Wiley created an Open Content license in 1998 prior to the existence of Creative Commons (the license has since been “retired” by Wiley in favor of using Creative Commons licensing).  The license can be viewed at http://opencontent.org/opl.shtml.

6 Wiley’s chapter is freely available online at http://mitpress.mit.edu/books/chapters/0262033712chap16.pdf.

In early May, 2009, Martine Courant Rife, JD, PhD, a writing professor at Lansing Community College, a recent graduate of the Doctoral Program in Rhetoric and Writing at Michigan State University, and an active member of the CCCC’s IP Caucus, flew to Washington D.C. to testify in the DMCA (Digital Millennium Copyright Act) tri-annual rulemaking hearings. In her testimony, Rife drew on the study she’d recently completed which examined the ways in which copyright law did/did not influence digital composing practices. She specifically looked at whether copyright law chilled the speech of U.S. writing students and their teachers. In her D.C. testimony, Rife requested from the copyright office, an exemption from the anti-circumvention provisions of the DMCA for educators and their students, specifically composition teachers and students. The exemption Rife outlined for the rulemaking panel, would permit both writing teachers and their students to circumvent the CSS encryption that comes standard with most DVD discs. Circumvention would allow teachers and students to take clips of popular movies and other media in order to teach, and create remix writing such as cultural critiques via the montage or remix. Many other educational stakeholders appeared at the hearings and in support of an educational exemption, as did many representatives of corporate media stakeholders such as the MPAA (Motion Picture Association of America) and the RIAA (Recording Industry Association of America). Corporate media stakeholders offered counter-arguments to the educational community’s request for an educational exemption.

A existing educational exemption is set to expire once the Register of Copyright’s final recommendations are issued this year. At the 2006 hearings, University of Pennsylvania film studies Prof. Pete DeCherney successfully argued for the adoption of the following exemption, specific only to “film studies” teachers:

“Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.”

Rife and a number of other educational stakeholders argued for an expansion of DeCherney’s 2006 exemption.

The D.C. hearings endured for three days and were followed by an extended written question and answer period during the summer months. Hearings were also held in Palo Alto, California.

While the Register of Copyright’s formal Recommendations for possible educational exemptions to the DMCA’s anti-circumvention provisions were due at the end of October, 2009, the U.S. Copyright Office announced that it was taking an extension in making its final decision. The recommendations, which will determine whether or not an exemption for educators from the harsh anti-circumvention provisions of the DMCA will be permitted, should be issued any day. Please watch the Inbox postings for further information on this issue.

For information in general on the DMCA hearings, or to review Rife’s testimony or her filed responses, please visit http://www.copyright.gov/1201/. Any additional questions can be directed to Dr. Rife.

Intellectual Property Reports Main Page

 

This statement provides the resolution on language, affirming students’ right to “their own patterns and varieties of language — the dialects of their nurture or whatever dialects in which they find their own identity and style” that was first adopted in 1974.  The statement also includes as explanation of research on dialects and usage that supports the resolution, and a bibliography that gives sources of some of the ideas presented in the background statement; besides offering those interested in the subject of language some suggested references for further reading. The publication of this controversial statement climaxed two years of work, by dedicated members of CCCC, toward a position statement on a major problem confronting teachers of composition and communication: how to respond to the variety in their students’ dialects.

Read the full statement, Students’ Right to Their Own Language (April 1974, reaffirmed November 2003, annotated bibliograhy added August 2006, reaffirmed November 2014)

You may not employ the term “fair use” very often but, if you are a communication, English, or writing teacher, you probably engage or enable it on a regular basis.  Never before have copyright and Intellectual Property laws been so much a part of our classrooms and the writing lives of our students.  And no wonder.  When copyright terms go up 11 times in 40 years – without any real movement forward in our understanding of “authorship” and how technology affects it – we have a difficult problem to address: infinite possibilities to create, but seemingly limited permission to do so.

Turning to the words of existing copyright law brings no real comfort.  In fact, if you read the most recent iteration of the Copyright Office’s definition of “Fair Use,” you may be tempted to claim that fair is foul:

The distinction between fair use and infringement may be unclear and not easily defined.  There is no specific number of words, lines, or notes that may safely be taken without permission.  http://www.copyright.gov/fls/fl102.html

Is it precisely this kind of language that can hinder the kind of creative remix that helps us to be generators of knowledge rather than passive consumers of information.  Lawrence Lessig has called this the battle between “read-write” culture and “read only” culture, and it is a battle fought daily in our classrooms.  As educators, and as creators of knowledge through writing, we need to find a way to “hover through the fog and filthy air” of copyright law and understand fair use in a way that catalyzes creativity and “promotes the progress of science and useful arts,” which is precisely what the creation of copyright was designed to do.

But the purpose of this month’s IP report is not to bemoan the state of what Lessig calls “federal culture policy” and call for its deregulation.  Instead it is a place to find resources and current research on “fair use” that will help you as educators and scholars.  What follows here is a short list of current resources that will help you better understand and use (instead of being used by) “Fair Use.”  We hope you will find them useful.

• Renee Hobbs’ article “Best Practices Help End Copyright Confusion” in the March 2009 Council Chronicle is what inspired this IP report.  In it, she highlights the vast amount of research she has done on copyright and media literacy and, most importantly, she shows how we can use the research she has done to better “unleash the creative power of digital media for teaching and learning.”
• The Code of Best Practices in Fair Use for Media Literacy Education was adopted by the NCTE Executive Committee in November of 2008 and was created by The National Association for Media Literacy Education (NAMLE), The Student Television Network (STN), The Media Commission of NCTE, The Action Coalition for Media Education (ACME) and the Visual Communication Division of the International Communication Association (ICA).  The Code provides comprehensive information without creating confusion and addresses the more complex pedagogical and philosophical questions of fair use in very practical terms.  As Renee Hobbs notes in “Best Practices”, “the Code helps educators to gain the confidence needed to make their own careful assessments of fair use. [This, in turn, can help] students make such determinations for themselves when they use copyrighted materials in their own creative work.”
• Want to take a break from reading for a while?  Check out the archived NCTE Web Seminar You Can Use Copyrighted Materials: Conquering Copyright Confusion which is available for purchase from the NCTE On Demand webpage.  This seminar addresses key questions about copyright by highlighting ways to use The Code of Best Practices for Fair Use in Media Literacy Education.
• http://www.centerforsocialmedia.org/resources/fair_use
  Don’t let this single link fool you.  You are only one click away from a treasure trove of resources, courtesy of The Center for Social Media in the School of Communication at American University.  You can listen to the director, Pat Aufderheide, discuss the issues surrounding fair use; you can browse the linked publications (which includes a link to The Code of Best Practices for Media Literacy Education); you can check out the “Fair Use Classroom Tools” section for some ideas about how to incorporate fair use scenarios into your classroom or how to include fair use language in your course syllabi; and, if that isn’t enough, you can choose from a variety of additional resources for more information, including a wide variety of videos.  An amazing one-stop-shop for fair use queries.

Submitted by Traci Zimmerman – Associate Professor
The School of Writing, Rhetoric, and Technical Communication; James Madison University
Junior Chair; IP Caucus

Intellectual Property Reports Main Page

Traci A. Zimmerman, James Madison University

Writing with any measure of clarity (or certainty) about current copyright law presents quite a challenge because it is a moving target.  Copyright terms have gone up eleven times in the past 40 years: existing copyrights were extended by 19 years in 1976 (The Copyright Act), and both existing and future copyrights were extended by 20 years in 1998 (The Sonny Bono Copyright Act).  What is interesting is that copyright regulation has grown stronger in an age where digital technology would challenge and radically redefine what a “copy” can mean.  I think it appropriate that Shakespeare would write his famous line “What’s past is prologue…” in a play focused on the “tempest” of the New World.  Our copyright past is only a prologue to the digital frontier, and the degree to which it foretells plight or possibility may lie in our own hands.

What is an Orphan Work?

An “Orphan Work” is a copyrighted work (book, film, photograph, music, record, etc) whose author/owner is unknown.  The Orphan Work problem is the logical product of an “opt-out” system of copyright.  Lawrence Lessig, in his Google video posting “Against the Current ‘Orphan Works’ Proposals”ⁱ explains the orphan works problem as one that necessarily occurs in the “radical” shift from the “opt in” system of copyright first articulated in 1790 to the “opt-out” system that was ushered in with the 1976 Copyright Act.   Before 1976, copyright was an “opt in” system: if you wanted copyright protection, you registered for it.  With the 1976 Copyright Act, the law was changed to an “opt-out” system: as soon as you create an “original, fixed” work, you get copyright protection automatically, even if you don’t necessarily need or want it, which lasts (effectively) “forever.”  This is more than just a change in law, it is a change in the way we understand the Public Domain: the 1976 act “flipped us from an environment in which most works defaulted to the public domain to one in which all [works] were born copyrighted.”ⁱⁱ

The Orphan Works Problem and Its Implications

On March 13, 2008, Marybeth Peters, the Register of Copyrights, appeared before the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property to identify the scope of the Orphan Works problem.  Her information came from a comprehensive investigation conducted by the Copyright Office in 2005; this investigation invited feedback from “average citizens” to “scholars” and was compiled in a study entitled Report on Orphan Works published in 2006.  This report “documents the nature of the Orphan Works problem as synthesized from the more than 850 written comments…and the various accounts brought to [the attention of the Copyright office] during three public roundtables and numerous other meetings and discussions.”ⁱⁱⁱ

What is striking about the findings of the Copyright Office reports how far the Orphan Works problem extends.  Peters notes that the Copyright Office heard from “average citizens who wished to have old photos retouched or repaired, but were denied service by photo shops [because]…under the current law, the photographer, not the customer, holds the copyright in the photograph [and] of course the customer has no idea who the photographer at his parents’ wedding was.”^iv  This very localized problem becomes nationalized when “museums who want to use images in their archival collections [or] documentary filmmakers who want to use old footage” are denied access on similar grounds.  But the problem of Orphan Works extends even into projects that do not yet exist:

When a copyright owner cannot be identified or is unlocatable, potential users abandon important, productive projects, many of which would be beneficial to our national heritage.  Scholars cannot use the important letters, images, and manuscripts they search out in archives or private homes….Publishers cannot recirculate works or publish obscure materials that have been all but lost to the world.  Museums are stymied in their creation of exhibitions, books, websites, and other educational programs, particularly when the project would include the use of multiple works.  Archives cannot make rare footage available to wider audiences.  Documentary filmmakers must exclude certain manuscripts, images, sound recordings, and other important source material from their films.^v

What is lost here is completely antithetical to the original aims of copyright.  Lawrence Lessig reminds us (as he so often and aptly does) that the framers of the Constitution advocated that by “securing for limited times to authors and inventors the exclusive right to their respective writings and inventions” we could “promote the progress of science and useful arts.”^vi  The ultimate goal of copyright protection is to encourage innovation to promote progress; that is, by giving creators “exclusive rights” for a “limited time,” both the creator and the country would benefit from their labors.  The Orphan Works problem illuminates the problems that come with a copyright system that has grown far beyond its original “limited time, exclusive right” protection and now serves to protect the millions of copyright ownerswho may never have wanted protection in the first place.  As Peters emphatically notes in her report to the House subcommittee, “if there is no copyright owner, there is no beneficiary of the copyright term and it is an enormous waste.”^vii

Possible Solutions?

The problem of Orphan Works is not a new problem, it just gained a new sense of urgency.  The Copyright Office’s request for feedback about Orphan Works in 2005 catalyzed many detailed reports from those most affected by the problem, such as the College Art Association, the Library Copyright Alliance, and the Duke Center for the Study of the Public Domain (who wrote a report about the problem of access to Orphan Films).^viii  But other reports emerged as well.  From NPR stories, and Op-Eds in the New York Times, to blog postings and YouTube rants; there was no shortage of opinions about what should (and shouldn’t) be done to solve the problem.  And after the Report on Orphan Works was published in January of 2006, the debate about possible solutions to this problem was well underway. 

Part of the reason for the urgency is that on September 27, 2008, the Senate unanimously passed S. 2913 — The Shawn Bentley Orphan Works Act of 2008 — a bill designed to “provide a limitation on judicial remedies in copyright infringement cases involving orphan works.”^ix  In brief, the bill “attempts to create a system where new creators can use old works without fear of massive lawsuits, provided that a good faith effort has been made to find out if the work in question is copyrighted [and, if so, to obtain permission to use the work].^x

To some, the solutions contained in this bill were important first steps to solving the problem of orphan works; to others, the bill represented a more sinister purpose.  The fact that the bill was named after a former aide to Senator Orrin Hatch who helped write major IP bills (like the Digital Millennium Copyright Act) and then left to become Time Warner’s Vice President of Intellectual Property and Global Public Policy can seem a salient fact when coupled with the observation that the bill seems to shift the “burden” of proving copyright to the owner, instead of the infringer (not a problem for large corporations, to be sure, but a real problem for everyone else). 

But aside from symbolic conspiracy theories and devil-in-the details wrangling with the mess that is our current copyright law, there are some profound philosophical questions that need to be addressed. How much of our current (mis)understanding of Intellectual Property comes from “our cultural shift from an understanding of creativity as something indelibly individual…to the post-modern sense of a more collective creativity”?^xi  Can we solve the Orphan Works problem the same way it was created: with additional government regulations?  

Mark Dery sums up the practical problems of the Orphan Works Act in an end of the year article for Print magazine:

As written, the OWA won’t solve anything.  With its impossibly vague talk of “reasonable compensation” and “diligent” searches, its fundamentalist faith in the private sector (commercial registries) and technological quick-fixes (image-search technologies), the OWA is, as Lessig argued on his blog, a bill that both “goes too far, and not far enough.” Too far because the weasel phrase “reasonably diligent search” will provide legal cover for unwitting—as well as willful—infringers of copyrighted works that have washed up on the web without identifying information, yet are not listed in commercial registries. Not far enough because the line the OWA draws in the sand between a good-faith effort to determine the copyright status of a putatively orphaned work and intentional infringement is, in Lessig’s wonderfully pungent phrase, “just mush.”^xii

And “mush” it is.  The Orphan Works act was referred to the House on September 27, 2008, but because the House had much bigger, much more urgent National problems to address, no action was taken on H.R. 5889.  It has effectively become an orphan work of the 110thCongress.  In many ways, the Orphan Works Act of 2008 is a true Intellectual Property “development”, not in the sense of coming to any conclusions, but as a prologue to a much larger conversation, one that we should be inclined to join.

_____________________________________________________________________

ⁱ  Lawrence Lessig.  “Against the Current ‘Orphan Works’ Proposals.” Google Video Post.  2007. http://video.google.com/videosearch?hl=en&rls=com.microsoft:enus&q=lessig%20and%20orphan%20works&um=1&ie=UTF-8&sa=N&tab=wv#

ⁱⁱ  Siva Vaidhyanathan.  Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. QTD in MarkDery’s “Does the Orphan Works Bill Mean Copyright Chaos?”  Print: Design, Culture Comment.  December 2008.   http://www.printmag.com/design_articles/orphan_works/tabid/419/Default.aspx

ⁱⁱⁱ  Statement of Marybeth Peters, The Register of Copyrights, before the Subcommittee on Courts, the Internet, and Intellectual Property, Committee on the Judiciary.  United States House of Representatives, 110th Congress, 2ndSession.  March 13, 2008.  “The ‘Orphan Works’ Problem and Proposed Legislation. http://www.copyright.gov.docs/regstat031308.html

^iv  Marybeth Peters.  Page 1.
 
^v  Marybeth Peters.  Page 1-2.
 
^vi  The United States Constitution.  Article I. Section8. 8. http://www.usconstitution.net/const.html#A1Sec8

^vii  Peters. Page 2.
 
^viii  The full reports mentioned here can be accessed as follows:
College Art Association  http://www.collegeart.org/pdf/caa_orphan_letter.pdf
Library Copyright Alliance  http://www.copyright.gov/orphan/comments/OW0658-LCA.pdf
Center for the Study of the Public Domain, Duke Law, “Access to Orphan Films”  http://www.copyright.gov/orphan/comments/OW0658-LCA.pdf

^ix  S. 2913 “The Shawn Bentley Orphan Works Act.” http://www.govtrack.us/congress/bill.xpd?bill=s110-2913

^x  Nate Anderson.  “New Orphaned Works Act Would Limit Copyright Availability.”  Ars Technica.  April 25, 2008.http://arstechnica.com/tech-policy/news/2008/04/new-orphaned-works-act-would-limit-copyright-liability.ars

^xi  Mark Dery’s “Does the Orphan Works Bill Mean Copyright Chaos?”  Print: Design, Culture Comment.  December 2008. http://www.printmag.com/design_articles/orphan_works/tabid/419/Default.aspx
 
^xii  Dery. Page 3.

Additional References:

Lessig, Lawrence.  “Copyright Policy: Orphan Works Reform” Blog Post, February 7, 2007.
http://www.lessig.org/blog/2007/02/copyright_policy_orphan_works.html

—** “Little Orphan Artworks” The New York Times, Op-Ed, May 20, 2008.
http://www.nytimes.com/2008/05/20/opinion/20lessig.html?_r=1&pagewanted=print

Orphan Works Opposition Headquarters.  www.owoh.org

Peters, Marybeth.  “The Importance of Orphan Works Legislation.”  September 25, 2008. http://www.copyright.gov/orphan

Prager, Nancy.  “Fundamentals of Copyright and the Problem with Lost Owners: Unintended Consequences.”  Blog Post, May 27, 2008.
 http://nancyprager.wordpress.com/2008/05/27/fundamentals-of-copyright-and-the-problem-with-lost-owners-unintended-consequences-part-two/

Ross, Patrick.  “How Long is Long Enough? Copyright Term Extensions and the Berne Convention.”
 Progress on Point.  The Progress and Freedom Foundation.  Release 13.15 June 2006.
 http://www.pff.org/issues-pubs/pops/pop13.15copyright_term_lengths.pdf

Scafidi, Susan.  “Orphan Works and the Adoption Process.” Counterfeit Chic. http://www.counterfeitchic.com/2008/06/post_16.php

Sohn, Gigi.  “The Orphan Works Act of 2008: Copyright Reform Takes Its First Steps.”  Speech presented to the 8th Annual Intellectual Property Symposium, University of Maryland, May 29, 2008. http://www.publicknowledge.org/node/1594

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