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By Kim D. Gainer, Radford University, Radford VA

Educators and public librarians may want to carefully watch the progress of the Google Book Settlement. This agreement between Google and two groups of publishers and authors will govern the public’s access to the millions of books that have been digitized by Google in cooperation with several publishers and major research libraries. If the settlement is approved in its current form, public libraries and certain institutions of higher education will be eligible to apply for subscriptions to a free Public Access Service that allows students and library patrons broader use of Google’s book database than will be permitted to individuals searching the database through private connections. Those with access to the licensed service will be able to read the full texts of books that are under copyright but not in print; individuals who instead search the database through unaffiliated web browsers will only be able to view short passages of such books. This free Public Access Service will be made available to one computer station in each separate building in any public library system in the United States that requests it. At not-for-profit two-year colleges, the service may be accessed via one computer station per 4,000 students. At other not-for-profit colleges and universities, access will be allowed via one computer station per 10,000 students. (The settlement does not extend to for-profit colleges and universities.)

The Public Access Service does have certain limitations. Although patrons may print pages for a per sheet fee, they may not electronically copy or annotate books. Libraries and colleges may purchase an Institutional Subscription that removes some of the restrictions. At subscribing institutions, patrons may electronically annotate books, may print up to twenty pages of a book at a time, and may copy and paste up to four consecutive pages at a time. In addition, books in the Institutional Subscription Database may be made available via e-reserves or as part of course management systems, providing that the intended users would be authorized to use the Institutional Subscription itself.

The settlement as proposed does not specify a procedure for librarians and university officials to follow in order to request the free Public Access Service for their institutions. Nor does the language of the settlement require Google to notify colleges and libraries that they may be eligible for this service. If the settlement is approved with the provisions described above, presumably more information will be forthcoming, and the NCTE Intellectual Property Caucus and Intellectual Property Committee will share that information with you. A final hearing on the settlement has been scheduled for October 7, 2009, in the United States District Court for the Southern District of New York, and a decision should be announced several months later.

For further information, please contact the author, Kim Gainer.

 

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Traci Zimmerman
Associate Professor
School of Writing, Rhetoric, and Technical Communication
James Madison University

In September of 2011, just two months after Aaron Swartz was arrested for his open-access hacktivism, a lawsuit was brought against the HathiTrust digital repository and five universities: Cornell University, Indiana University, the University of California, the University of Wisconsin, and HathiTrust’s host institution, The University of Michigan at Ann Arbor. The suit was brought by the Authors Guild, along with The Australian Society of Authors, the Quebec writers’ union, and a small number of individual authors. The substance of their claim is not as interesting as the source of their anxiety: in its filing “the Authors Guild expressed deep concern about what would happen if the millions of scanned texts in the HathiTrust repository—files created largely with the help of Google’s book-scanning project—got loose on the Internet.”¹

It is certainly not surprising that the Authors Guild, which brought suit against Google in 2005, would be interested in this repository, since it was (at least in part) made possible by Google. And with all of the recent focus on large scale digitizing projects, whether for open access or commercial success, it is easy for the individual author to get lost in the digital wilderness, or to feel as if they are “little more than cogs in the vast content machine.”² Up until now, libraries and universities were not counted as part of this “machine”; under this lawsuit, however, they seem to be lumped in with their for-profit counterparts.

HathiTrust is a large-scale digital repository that partners with over 50 institutions to digitize and preserve books and other materials.³ The suit claims that the defendants have engaged in the “systematic, concerted, widespread, and unauthorized reproduction and distribution” of approximately seven million copyrighted works.⁴ It asks that the court restrict “all unauthorized digital copies” currently held by the defendants and that it prevent the defendants from giving Google permission to scan additional works.⁵ Coming just two months after Aaron Swartz’s very public arrest for making “locked up” JSTOR content public, this lawsuit reflects a real anxiety for the security (or lack thereof) of their clients’ intellectual property. Scott Turow, the President of the Authors Guild, went so far as to claim that “these books, because of the universities’ and Google’s unlawful actions, are now at needless, intolerable digital risk.”⁶  Whether the digitizing of books is a “needless” act is quite debatable; as to the “intolerable risk” about which Turow speaks, it stems from the fact that these works are held by universities that “can’t be sued for damages because as state institutions they enjoy sovereign-immunity protection from prosecution.”⁷ This is why the lawsuit does not seek monetary damages, only that the files be seized and future scanning stopped. Paul Aiken, Executive Director of the Authors Guild, noted that suing libraries is not a great way to win friends or influence people: “believe me,” he says, “this is not a lawsuit that anyone looks forward to bringing, but these are real property rights that real authors have. It’s their hard work, and even an institution with the best of intentions that loses seven million unencrypted PDF’s of the world’s greatest literature can do a huge amount of damage to the value of those works.”⁸

Kara Novak of Public Knowledge begs to differ with the position brought by the Authors Guild.  She writes in a blog post about the case: “Instead of fighting for copyright protection where none exists, the Authors Guild should work with the technology that quickly disseminates authors’ works and create new business models that will bring in money earned from digital book sales.  It is time for the Authors Guild to focus less on litigation to impound its works under top security and turn its attention to creating the artistic work it claims to protect.”⁹

Ironically, in a suit that claims to be focused on the rights of individual authors and scholars, the focus is squarely on libraries, and “how far the scope of an academic library goes.”¹⁰  “It’s a very curious suit,” claims Jonathan Band, a copyright lawyer who works a great deal with libraries, because “from the substantive point of view, the legal position of the libraries is extremely strong.”¹¹

This is indeed a case to be curious about. The court has set a deadline of May 20, 2012 for the discovery phase to conclude; a trial will commence in November if the case is not settled or dismissed by then.

¹Jennifer Howard “HathiTrust Case Highlights Authors’ Fears about Fate of their Work Online.”  In October 2, 2011 Chronicle Online.  http://chronicle.com/article/Hot-Type-HathiTrust-Lawsuit/129241/
²Qtd, in Howard, 10/2/11.
³Jennifer Howard.  “In Authors’ Suit Against Libraries, an Attempt to Wrest Back Some Control Over Digitized Works.” In September 14, 2011 Chronicle Online. http://chronicle.com/article/In-Authors-Suit-Against/128973/
⁴Qtd in Howard, 9/14/11.
⁵Qtd in Howard, 9/14/11.
⁶Qtd in Howard, 9/14/11.
⁷Ibid.
⁸Ibid.
⁹Qtd in Howard, 10/2/2011.
¹⁰Qtd in Howard 9/14/11.
¹¹Ibid.

This column is sponsored by the Intellectual Property Committee of the CCCC and the CCCC-Intellectual Property Caucus. The IP Caucus maintains a mailing list. If you would like to receive notices of programs sponsored by the Caucus or of opportunities to submit articles to either this column or to an annual report on intellectual property issues, please contact kgainer@radford.edu.

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Kim Gainer
Department of English,
Radford University

In an office on a quad there lived a professor. Not a crowded, dusty office, filled with stacks of ungraded papers and the smell of stale coffee, nor yet a TA cubicle with nothing in it to sit down on save mismatched chairs from the surplus warehouse. It was the office of a tenured full professor, and that means comfort.

Visiting that office just now was the Dean of the College. With his piercing eyes, bristling eyebrows, tangled hair, and long beard, he looked a lot like Gandalf (or like Dumbledore, but fortunately for J.K. Rowling, you can’t copyright the Idea-Of-A-Wizard). “You are certain that this is Fair Use?” the Dean said worriedly, looking over the previous paragraph.

“I hope so,” the Tenured Full Professor said. “I have repurposed the paragraph, and surely no one can say that I am profiting from it—it will not add one penny to the stipend I receive from Picturesque State University. Moreover, I have made very little use of the original in comparison to the totality of the work, and my piffling paragraph is unlikely to eat into future sales of The Hobbit.”

“You have tried to pass the Four-Prongs Test, then,” said the Dean. Yet he was still uneasy. His unease was quite understandable, for when it came to the subject of intellectual property, Picturesque State University was finding itself beset on all sides.

First there had been the matter of students’ unauthorized downloading of copyrighted material. In response, Picturesque State had tried to educate its students but had also crafted a policy forbidding the use of university resources for the downloading of copyrighted material without the copyright owner’s authorization. Probation, suspension, even dismissal: these would be the fates of students who were egregious or repeat violators of this policy.

Next, Picturesque State realized that its policies governing faculty copyright were written for an earlier Age. For a hundred years faculty had been publishing poetry and prose, and during all that time the University had paid little attention to the issue of the “ownership” of these texts. But now the world had changed. Faculty were creating genres and using tools and media not in existence when the first intellectual property policy had been written. The university’s Intellectual Property Committee began holding meetings, each as long as the Council of Elrond, in which language like that of the Black Speech of Mordor was uttered for the first time. What happens when a faculty member creates something that can be “monetized”? When is a faculty member’s creation considered to be a “work for hire”? What is a “shop right”? If a substantial investment on the part of the university entitles it to reap profits from something created by a faculty member, how is “substantial” to be defined?

The IP Committee wondered in particular about the ownership of elements of online courses. An instructor developing such a course creates content and integrates it into a platform, perhaps to the extent of designing the framework in which the content will be embedded. The effort spent integrating exercises, quizzes, and exams; audio and video podcasts; discussion boards and blogs; case studies and simulations—this effort would have to be duplicated if the faculty member left the university and laid claim to either the content or design of the course. An empty or broken shell, the course might cease to exist in any meaningful way until such time as a new framework could be erected and repopulated. To what extent, if any, did the university have an ownership claim to either the content or the framework of a course built by a faculty member using tools provided by the university? This matter and many such others troubled the Councils of the Wise.

Troubled, too, was the Head Librarian. For the convenience of faculty and students, the library had long offered “electronic reserves.” But word had reached Picturesque State University that another institution was being accused of abusing its electronic reserves by posting copyrighted material in such quantities and with such frequency that the owners arguably had been deprived of revenue. Hearing of this dispute, the Head Librarian decided to phase out the electronic reserves. Faculty instead were directed to post material via their web sites or via the Learning Management System to which Picturesque State subscribes.

Of course, posting material elsewhere might still lead to problems if that material were under copyright. A few weeks after the Head Librarian announced the elimination of the electronic reserves, faculty were notified that automated Trolls that sniff out unauthorized use of copyrighted material had located two such instances at Picturesque State University. In the Halls, faculty gathered in knots to debate what might and might not be posted on Learning Management Systems and on personal and university web sites. In the course of the discussion, faculty were surprised to learn that as authors they might become copyright violators by the mere act of posting their own writing online, for some faculty had unwittingly signed away full or partial ownership of their articles, essays, short stories, and poems as the price of publication.

Hemmed in on every side by questions of intellectual property, it was thus no wonder that the Tenured Full Professor and the Dean found themselves debating whether or not to retain the opening paragraph of this parable. “Context is all,” argued the Tenured Full Professor. “Consider that the nature and the purpose of this article are entirely different from the work upon which the opening paragraph is modeled. Moreover, is it not Fair Use to use a source in order to discuss whether the use of the source is Fair Use?”

“Yes, and how much wood would a woodchuck chuck if a woodchuck would chuck wood?” grumbled the Dean, who was not fond of meta-commentary. “If a student had written that first paragraph,” he continued, “I should have pointed out that the sentence structure is plagiarized, and I should have cried, ‘You shall not pass!’” (The Dean had been looking for an excuse to use that line.)

Nevertheless, in the end the Dean conceded that it was likelier than not that the paragraph could be defended as an example of Fair Use. “Although,” he complained, “it is a pity that this sort of thing has to be worked out on a case-by-case basis. Your editor is going to be very unhappy if you are wrong about that paragraph. But I suppose that that is part of your point: sorting out an issue of intellectual property is a complicated matter.”

The Dean was of course correct in his conclusion: intellectual property issues can be complicated. His university is typical of most educational institutions in the way that it has had to face continuing (and often rapid) developments in this area. At his university and others, faculty and administrators have been designing and redesigning programs and policies that ensure that students stay within legal and ethical bounds in their use of the intellectual property of others but at the same time succeed in drawing upon those copyrighted creations in order to grow as readers, writers, and thinkers. Simultaneously, faculty and administrators are continually searching for ways to safeguard faculty rights to their creations while acknowledging and accommodating the vested interests that universities and colleges may have in those same creations. The process involves a never-ending series of conversations, one that is sometimes illuminated by court judgments and regulatory rulings such as those periodically issued as part of the implementation of the Digital Millennium Copyright Act.

Taking part in the conversation are two groups with connections to the Conference on College Composition and Communication (CCCC). One is the Intellectual Property Committee of the CCCC and the other is the CCCC-Intellectual Property Caucus. The IP Caucus maintains a mailing list. If you would like to join in the conversation or receive notices of programs sponsored by the Caucus or of opportunities to submit articles either to this column or to the annual report on intellectual property issues, please contact kgainer@radford.edu.

 

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Teachers of language and literature need to be mindful of fair use in the classroom, but they also may need to be mindful of fair use in their capacities as researchers and scholars. One organization that tries to provide guidance to educators as they confront fair use issues as both teachers and scholars is the Center for Social Media, an institute sponsored by the School of Communication at American University. Among the resources the Center provides is a web page with links to codes of best practices developed by professional and scholarly associations whose members are especially likely to confront fair use issues. The teacher-scholar may find especially useful a recently added link that takes the reader to a Code of Best Practices in Fair Use for Scholarly Research in Communication. Developed by the International Communication Association’s Ad Hoc Committee on Fair Use and Academic Freedom, this Code articulates the fair use standards applicable in four situations commonly confronted by researchers who are working with copyrighted materials. This Code, according to its authors, represents the “current consensus within the community of communication scholars about acceptable practices for the fair use of copyrighted materials” in the four situations under discussion.

Communication is a diverse field, encompassing a wide variety of media, including newspaper articles, radio and television commercials and programs, video games, and computer software. When this “raw material” is in the form of copyrighted content, confusion on the part of both publishers and scholars over what is and is not fair use may hobble research programs. According to the authors, currently “[g]raduate students are being asked by advisors to pick other topics; librarians doubt whether they can archive electronic theses that include illustrative material that is copyrighted; publishers discourage inclusion of evidence that involves copyrighted material.”  The Code is an attempt to address this confusion, at least on the part of researchers and scholars.

Fair use (Section 107, Title 17) is often discussed with reference to the following four factors: “the nature of the use, the nature of the work used, the extent of the use, and its economic effect.” These four factors underpin two questions that determine the outcomes of most fair use litigation:  “Did the unlicensed use ‘transform’ the copyrighted material by using it for a different purpose than that of the original, rather than just repeating the work for the same intent and value as the original?” and “Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?” These two questions largely inform the authors’ discussion of best practices for communication scholars.

The first scenario addressed by the Code is that of the scholar who wishes to comment upon, analyze, or critique a copyrighted work. Such commentary, analysis, or criticism will be most effective if the work in question is reproduced, perhaps even in its entirety, depending upon the medium and upon the nature of the analysis. This reproduction of as much of the copyrighted material as is necessary for commentary, criticism, or analysis is a repurposing of that material. Therefore, in spite of the attempt of copyright owners to obstruct or control such use, “scholars may confidently invoke fair use” when reproducing copyrighted works for the purposes of analysis or criticism.

The second scenario is the reproduction of copyrighted material for the purpose of illustrating “economic, social, or cultural phenomenon.”  As in the case of analysis or criticism, copyrighted material may be reproduced in whole or in part depending upon the nature of the “illustrative context.”  And, again, this use represents a repurposing, for

[…] such uses transform the material reproduced by putting it in an entirely new context; thus, a music video clip used to illustrate trends in editing technique or attitudes about race and gender is being employed for a purpose entirely distinct from that of the original, and is typically directed to an entirely distinct audience from that for which it originally was intended.  This is true even in situations where the media object in question is not subjected to specific analysis, criticism, or commentary.

The next scenario addresses the reproduction of copyrighted material in studies in which scholars expose subjects to media in order to collect data on their responses. Such data may be collected in experiments or via surveys or focus groups or observation. In this scenario, researchers may “us[e] copyrighted material either to elicit a discussion or a response or to analyze discussions or responses occurring in that environment.”  Once again the use is transformative, as this type of research focuses on how the copyright material is received rather than on the content per se.

The last research scenario involving fair use arises from the fact that scholars may not only need to make copies of copyrighted works but may need to retain those copies for a period of time—perhaps even indefinitely—as they continue to pursue their research interests. Again key to fair use is the transformative repurposing involved in the creation of an archive. Since each scholar is creating a “research corpus,” the purpose of the materials in question is “new and fundamentally different.” Given that materials that are being used fairly may be disseminated to others, such personal archives can be shared with others. Other researchers may consult the recordings of audio or video broadcasts, the screen captures of web pages, the photocopies of newspaper articles that one scholar has assembled.

The latter point is applicable to all four scenarios. The authors of the Code observe that “[i]f a use is fair in the course of scholarship, then it is fair in the publication and distribution of that scholarship by any means, including publishing and media distribution, and in the archiving of that scholarship.” Thus, for example, the reproduction of copyrighted material, if fair use in a presentation, is also fair use in an article or a book, or, indeed, in any medium.

Other Fair Use Codes accessible via the website of the Center for Social Media:

• Best Practices in Fair Use of Dance-related Materials, a code created by the Dance Heritage Coalition.
• The Code of Best Practices in Fair Use for Media Literacy Education, endorsed by the NCTE, the Action Coalition for Media Education, the Media Education Foundation, the National Association for Media Literacy Education, and the Visual Communication Studies Division of the International Communication Association.
• Code of Best Practices in Fair Use for Online Video, developed by the Center for Social Media’s Future of Public Media Project.
• Documentary Filmmakers’ Statement of Best Practices in Fair Use, a guide that has the imprimatur of the Association of Independent Video and Filmmakers, the Independent Feature Project, the International Documentary Association, the National Alliance for Media Arts and Culture, and the Washington, D.C., chapter of Women in Film & Video.
• Statement of Fair Use Best Practices for Media Studies Publishing and Statement of Best Practices in Fair Use in Teaching for Film and Media Educators, codes developed by the Society for Cinema and Media Studies.

Submitted by
Kim D. Gainer
Department of English
Radford University

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Timothy R. Amidon, Graduate Assistant, University of Rhode Island

This article is continued from the previous month’s IP Report.

Last month I described texts that are created within electronically networked, socially constructed environments. While these ‘little texts’ may be hosted on sites controlled by well-heeled corporations—think Facebook—they have been authored, sometimes collaboratively, by the users of the technology. That fact led me to pose the following question: who has access to, and thus de-facto ownership and stewardship for, this vast sea of information, these giant data-sets?

Put differently, should we conceive of meta-text and spimes as intellectual property? Under Title 17 of U.S.C.—Copyright Law of the United States of America—should these data-units be considered copyrightable works? Section 103(b) states the following about derivative works:

The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

By analogy with the above, a contributor to a metatext/spime could be considered to have a status comparable to that of a contributor to a compilation or a derivative work.

Metatexts/spimes, currently, do not seem to be explicitly considered copyrightable texts and works in and of themselves—if they are, it is beyond my scope of knowledge about copyright and Intellectual Property law. I’m not a lawyer; I’m a writing teacher. But, as a writing teacher I am concerned that spimes have been legally conceived of as byproducts yielded by the interaction that occurs at a point of interface by at least two distinct parties. In other words, historically it seems these ‘byproducts’ have been considered proprietary data that should be assigned to the companies/makers of technologies themselves. I want to interrupt that assumption. Are banks allowed to collect and distribute information about your purchasing habits? Are libraries? I don’t think they can, and I also think there are reasons why that is so.

Let us imagine, then, that the spimes and metatexts we author may be considered “derivative works.” If so, how should the authorship/ownership be assigned if each individual spime/metatext is the result of a complex interaction between technology user and technology provider? Moreover, what about the massive data-sets that are assembled, mined, and analyzed by technology providers? Consider section 101 of the Copyright Law, which provides a legal definition of “collective work”:

A “collective work” is a work, such a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.

There is, no doubt, a significant difference between a D.J.’s remix and a spime—between a periodical and a set of spimes. Further, it is not my intent to claim that spimes or metatexts should be considered “derivative works” or “collective works”—although I think that in some cases this may be the appropriate way to approach things.

The point is that we, stewards in the social negotiation of composing in a digital era, should be having conversations about what is being done with these “texts.” The point is that U.S. Copyright Law, as a system that was built to respond to analog views of authorship and textuality, can no longer adequately address the complexity of authorship and textuality that comes with the hybrid system we now inhabit. The point is that Copyright as a system needs significant overhaul to make sense. As Lawrence Lessig and others have been arguing for quite some time, the balance between individual right and collective good is a bit off kilter. This isn’t just a case of music and movies being pirated; there are other complications that are associated with communication in a digital world, and those who promulgate culture at corporate levels are just one of the parties who are feeling the effects of the digital transition.

In close, independent users of new media technologies ‘co-create’ spimes and metatexts using computers and other new media tools. These spimes and metatexts are often gathered in real time, collected and grouped into databases. As Johnson-Eilola and others have noted, spimes and metatexts can be used for both good and bad purposes. Moreover, a technology user is always a co-author at the interface, and, as a result, of the metatexts, the spimes, that detail the interaction. Metatexts and spimes add value to technologies, but do end-users who do a lion-share of the authoring of that value have access to that information? In most cases, the answer is no. I find this a dilemma for which I have no immediate answer—no immediate response. Perhaps, we place too much trust in the technologies we use; perhaps, we haven’t adequately criticized the economies of interaction associated with technology use. It is time we do so.

Ultimately, in my eyes, there is a significant distinction between a program/netservice’s proprietary code and the by-products of the use of a digital space. There is a distinction between tool and tool in use. It makes sense to me that the informational byproducts of use should be in some cases assigned to a company, but in other cases perhaps they should be kept private or disclosed as part of the public record. Nevertheless, I am concerned that there is neither greater public discussion nor greater public concern about who does claim ownership of, let alone who ought to claim ownership to, the metatexts/spimes that are created by a collective body of technology users. As a discipline, we might help begin that conversation through our research, publishing, and teaching practices.

Works Cited

Johnson Eilola, Johndan. “Among Texts.” Rhetorics and Technologies: New Directions in  Writing and Communication. Ed. Stuart A. Selber. U of Southern Carolina P, 2011. Print.

Lessig, Lawrence. Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. New York: Penguin, 2004. Web. 15 June 2011.

This column is sponsored by the Intellectual Property Committee of the CCCC and the CCCC-Intellectual Property Caucus. The IP Caucus maintains a mailing list. If you would like to receive notices of programs sponsored by the Caucus or of opportunities to submit articles to either this column or to an annual report on intellectual property issues, please contact kgainer@radford.edu.

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Over the past few decades, the technology of writing has been changing at an unprecedented pace, and intellectual property law has been struggling to keep up with these changes. As online courses proliferate and blogs enter the classroom, the growing tensions between writing and law have become increasingly relevant to daily educational practices. Since the founding of the Conference on College Composition and Communication’s Intellectual Property Caucus (IPC) in 1994, questions of fair use and copyright in one capacity or another have begun to define a significant subject of scholarly inquiry. Those of us who teach text-making—particularly new media composition—often find ourselves encountering specific areas of focus: whether we are determining how to advise students when they want to appropriate and incorporate images from the internet, or wondering who may claim legal ownership of the teaching and research materials we produce for our employing institutions, we always want to keep our text-writing goals working within the legal parameters.

Composition and Copyright: Perspectives on Teaching, Text-making, and Fair Use (Edited by Steve Westbrook, Suny Press, 2009), the first book collection to emerge from the IPC’s conversations, offers a thorough investigation of how copyright law is currently influencing processes of teaching and writing within the university. Drawing connections between legal developments, new media technologies, and educational practices, the volume’s contributors explore the law’s theoretical premises, applications to traditional and online writing classrooms, and larger effects on culture and literacy. Central to the volume is the question of what may constitute “infringement” or “fair use” and how the very definition of these terms may permit or prohibit specific writing or teaching activities.

Divided into three sections, Composition and Copyright offers a diversity of perspectives from writing teachers, legal experts, and industry professionals. It includes contributions from Jessica Reyman, Sohui Lee, Clancy Ratliff, Brian D. Ballentine, Steve Westbrook, Lisa Dush, Martine Courant Rife, TyAnna Herrington, John Logie, and Jeffrey R. Galin. In the first section, “Defining Cases and Concepts,” contributors draw connections between legislative developments, precedent-setting legal cases, and educational practices, examining, for instance, the implications of the Digital Millennium Copyright Act and MGM Studios v. Grokster for teachers and students of new media composition. The second section, “Teaching the Conflicts,” focuses pointedly on how writing teachers address problems of copyright pedagogically. Contributors to this section analyze the ways in which textbooks frame discussions of fair use, explore students’ understanding of legal and illegal textual practices, and offer strategies for discussing questions of appropriation in blogs and visual texts. Contributors to the book’s final section, “Concluding Polemics,” argue for increased awareness and activism on the part of faculty members; pointing to the restrictive and censorial capacities of copyright law, they suggest that writing teachers take proactive roles to protect writers’ freedoms. As a collection, Composition and Copyright provides an excellent resource for teachers and students working in the fields of composition-rhetoric, professional and technical writing, communications, and jurisprudence.

 

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Imagine this:

You assign a mixed/multimedia writing assignment for the students in your course. One of the students decides that she will create a comic strip with an accompanying reflection that meets the assignment’s requirements. When she turns in the comic, she’s developed two characters, a brown and white wolf, and a blue dog. These characters interact with each other over various everyday topics. Both are her original creations as is the comic strip itself. Over the semester, the student continues developing these characters and the comic strip, and on her own time, outside your course, she acquires webspace where she starts publishing the weekly comic. After the semester, she continues to stay with this project and develops a readership of about 1000 hits per week.

You might ask yourself if this scenario could really happen, and while I cannot provide data on exactly how often this type of thing happens, this particular instance is from a real-life event. This particular student (not my student but someone else’s) is going to be a college senior next year, and is exploring the possibilities of continuing to work on the comic strip in graduate school. The student’s experienced success with something that began as a relatively insignificant course project – but could grow to be much more – the basis for a career and scholarly study. The research I conducted back in 2007 in a different setting (See “Copyright Law,” http://techcomm.stc.org/journals/february-2010-issue-57-number-1/) – clearly pointed out that due to the affordances of digital, networked writing, the “class assignment” can indeed travel through space and time in amazing ways – in other words, webwriting can have a sort of permanence that perhaps the paper essay did/does not.

But what the comic strip scenario offers, I think, is a really good rationale for why a student, teacher, or writer might actually want to copyright his/her own creations. I know that among writing teachers we do focus a great deal on fair use and the sharing of materials, but along with that conversation it’s always good to remember that we can also take steps to make sure our own creations aren’t exploited in preventable ways. A famous case that some might recall, is the one around the issue of the creation of the Taco Bell Chihuahua. In this particular case, litigation involving sums towards $50 million dollars were at stake over the issue of who created and was compensated for the idea of the dog. Wikipedia outlines some of the issues and provides citations to articles on this particular litigation (See http://en.wikipedia.org/wiki/Taco_Bell_chihuahua — the use of the dog by Taco Bell eventually ended). This is just one (of many) examples. More recently, litigation has ensued on allegations around appropriation by J.K. Rowling of other author’s materials (See “Harry Potter’s US Publisher Faces Breach of Copyright Charges” http://southern-courier.whereilive.com.au/lifestyle/story/harry-potters-us-publisher-faces-breach-of-copyright-charges/). In other words, while we don’t know how likely it might be for a student or teacher to have their creative expressions appropriated in a way that’s possibly exploitive, it’s always good to be aware that if a writer continues moving forward with a comic or cartoon that seems to “catch-on” or acquire a large following – it might be wise to get that formal copyright protection. While fees are always subject to change, at this writing a basic online registration is only $35.00 (See http://www.copyright.gov/docs/fees.html).

For teachers and students interested in learning more about copyright in general, the U.S. Copyright Office has a recently updated resource page with readable pdfs on every imaginable copyright topic – including “Cartoons and Comic Strips” (See http://www.copyright.gov/circs/ and specifically http://www.copyright.gov/circs/circ44.pdf). While original, fixed creations are automatically copyright protected even without formal registration, registration can provide clear evidence – a “public record” (p. 1) that a particular author has created a particular character or comic at a particular moment in time. In the event a creator ever needed to begin an infringement lawsuit to protect his/her (U.S. originating) creation, formal registration with the copyright office is required. There are different categories to submit a work for formal copyright registration – and the U.S. Copyright Office guideline suggests that a comic should be submitted as a visual art work unless the textual elements are “preponderant,” in which case the work can be submitted as a literary work (p. 1). The office further lists three options for registration: online, using “fill-in Form CO” – which uses barcode scanning technology, and finally the more traditional paper form submission (this last form has to be requested by mail through the copyright office). While a theme or “general idea or name for characters depicted” cannot be protected (because copyright only protects expression and not ideas), the comic as “drawing, picture, depiction, or written description” including those descriptions of the characters themselves can indeed be protected through copyright (p. 1). Comics can be copyrighted in a variety of unit sizes (a strip, book, organized collection, and so on – See pages 2-3 for details).

This particular U.S. Copyright Office publication is a good reminder that a lot of different kinds of texts are copyright protected – and with the advent of the graphic novel (The New York Times currently lists the top ranked graphic books – See http://www.nytimes.com/2010/07/25/books/bestseller/bestgraphicbooks.html?_r=1&ref=bestseller), it is no longer uncommon for writing students or their teachers to explore writing in these genres. When a creation goes digital and establishes a substantial readership – it just might be time to consider formal copyright protection.

Submitted by:
Martine Courant Rife, JD, PhD
Junior Chair CCCC IP Caucus
Lansing Community College
martinerife@gmail.com

Intellectual Property Reports Main Page

Since 1994, the Caucus on Intellectual Property and Composition/Communication Studies (CCCC-IP) has sponsored explorations of intellectual property issues pertinent to teachers, scholars, and students. Our meeting is open to those interested in these explorations. 

Meeting in roundtables, participants discuss topics such as plagiarism and authorship, student and teacher IP rights, open access and open source policies, and best practices in teaching students and instructors about IP. Roundtable speakers provide overviews of their topics, and participants then create action plans, develop lobbying strategies, or produce documents for political, professional, and pedagogical use. At the end of the workshop, participants reconvene to share their plans and recommendations for future action.

The CCCC-IP Caucus meeting will take place on Wednesday, April 6 from 2:00-5:30pm; we are listed as follows in the program catalog under Wednesday workshops:

Intellectual Property in Composition Studies
Room M301, Marquis Level
2:00–5:30 p.m.

We have a number of exciting roundtable topics this year.  The IP Caucus meeting is a great way to kick off the convention, especially one dedicated to exploring the “relations” of contested knowledge and space.  Come join us! 

Roundtable 1: Implications of the DMCA for Teaching and Learning
Since its passage in 1998, the Digital Millennium Copyright Act, which criminalizes the circumvention of Digital Rights Management and seeks to restrict the use of copyrighted material on the Internet, has been invoked in ways that go beyond the legitimate protection of intellectual property rights. The default setting, as it were, is to bar all use, regardless of whether it is fair use. As documented by the Electronic Freedom Foundation, the DMCA has been used as a way of stifling critique and as a tool that companies can wield against competitors. Such outcomes may not have been intended by the framers of the DMCA, but their existence has implications for students and educators, whether on the K-12 or college level. This roundtable will survey recent developments in the realm of DMCA as they affect education, with an eye toward proposing actions that the caucus can take to ameliorate the impact of the act.

Roundtable 2: Students’ Rights to Their Own Writing—and the Writing of Others
This roundtable will focus on how new media technologies complicate traditional conceptualizations and definitions of intellectual property. Students use listservs, blogs, wikis, and social networking sites more frequently as both venues and source material for their texts, often copying and pasting the material of others into their own work without attribution. Additionally, the traditional concept of ownership becomes fuzzy when a number of (unrelated) individuals contribute to an electronic document that continually undergoes revision. Participants will discuss how the refiguring of textual creation necessitates new methods of conceiving of and teaching about intellectual property.

Roundtable 3: Current Research and Publications on Intellectual Property Issues.
This roundtable will discuss studies currently being conducted by members of the IP caucus; special issues of journals that focus on IP, such as TCQ, Technical Communication, and Computers and Composition; edited collections created by IP caucus members; new curricular developments; and new books or books in progress. Roundtable participants will also formulate a plan-of-action for future studies, research, curriculum, and publications.

Roundtable 4: Teaching IP with RiP!
This roundtable will ultimately seek to identify some “best practices” of teaching students about IP by using Brett Gaylor’s RiP! A Remix Manifesto in the classroom.  Often, plagiarism, fair use, and remix are introduced as restrictions in a writing classroom, rather than as concepts to be explored and understood.  Following the theme of the conference, roundtable participants will formulate strategies to help student composers (and teachers of composition) identify these “contested spaces” and “contested knowledge” in the classroom so that they can create (rather than feel constrained) within those spaces.

Roundtable 5: Tracking Open Access/Fair Use Court Cases and Legislation
Recent legislative acts (e.g., NIH Public Access, 2008) and court cases (e.g., Salinger et al. v. John Doe et al., 2009) are redefining open access and fair use.  This roundtable will update participants about the latest developments in legal and legislative venues, and will discuss ways the IP Caucus/IP Committee may contribute to these processes.

This month’s report is submitted by:
Traci A. Zimmerman Ph.D., Chair, Intellectual Property Caucus
Associate Professor
School of Writing, Rhetoric & Technical Communication
James Madison University

Intellectual Property Reports Main Page

Jeffrey R. Galin
Florida Atlantic University
jgalin@fau.edy

The recent decision and order by Judge Evans in favor of Georgia State University is arguably the most significant fair use case to be settled since the 1976 Copyright law was enacted. Unlike the two often-cited cases that settled copyright law for course packs produced by for-profit copy centers (Basic Books, Inc. v. Kinko’s Graphics Corp. and Princeton University Press v. Michigan Document Services, Inc.), Cambridge UP v. Patton et al directly addresses the substance of fair use for non-commercial purposes and provides university libraries and professors specific methods for determining fair use for copyrighted works in online reserves. Cambridge, Oxford, and Sage publishers had sued Georgia State University representatives over faculty use of articles and chapters placed in the University online reserve and course management systems.

The outcome of this case is not surprising to those of us who have been following it carefully since it was filed in April 2008. Judge Evans has provided a set of thoughtful and measured decisions that will likely hold up under appeal. While the case has binding authority only in the state of Georgia, it has set a powerful precedent that will likely stand for years to come. This short report introduces the fundamental questions raised by the case, offers a short review of important decisions that led to its findings, and ends by noting several important additional outcomes from the penalty phase.

The fundamental question of this case is whether university faculty have the right to supplement their course reading list with online reserve articles and chapters without paying licensing fees for these materials. The ostensible answer is yes as long as the online reserve articles and chapters meet the fair use criteria within newly defined parameters as set forth in this case.

First and foremost, the judge states that all copyrighted excerpts were supplemental to the classes that used them. That is, course syllabi reflect that students were required to purchase one or more books for their courses in addition to the online readings. While the judge does not directly state that faculty should not assign exclusively readings posted in online reserve or course management system, she implies that doing so could be problematic. Since the Georgia State case does not address this issue, there is no clear determination to follow; however, it makes good common sense to avoid assigning only readings from unpaid online copies. A good rule of thumb to avoid copyright violations is to assign primary texts and supplement them with additional online unpaid readings that all meet the four factor fair use test as set forth in the Copyright Act of 1976, described below.

These fair use factors concern the character of the work (non-commercial uses that transform original uses are most favored), nature of the work (factual is favored over creative), amount used from the work (typically a chapter or equivalent is favored), and the impact that unpaid use has on the potential market for the work (unavailable licenses for digital works are most favored). Details of fair use factors are provided in GSU’s Copyright Website, a short, effective, and informative resource that also provides a Fair Use Checklist that faculty complete to make fair use decisions. This case resulted in several new qualifications in fair use case law, particularly for factors three and four.

Factor three witnessed the most significant changes. Whereas past cases dealing with fair use and copyright typically avoided identifying fixed amounts that might be considered a kind of bright line rule for the amount one can take from a book, this court drew explicit lines that, while not absolutely binding, were used to determine overuse of works. Judge Evans held that: “Where a book is not divided into chapters or contains fewer than ten chapters, unpaid copying of no more than 10% of the pages in the book is permissible under factor three” (88). This rule effectively allows for “about one chapter or its equivalent” from a given source. Where a book contains ten or more chapters, the unpaid copying of up to but no more than one chapter (or its equivalent) will be permissible under fair use factor three.” Furthermore, excerpts will be limited to “students who are enrolled in the course in question, and then only for the term of the course.” Students also must be reminded that they may not share their copies with others (95). And the excerpts must serve a “legitimate purpose in the course” and must be “tailored to accomplish that purpose.” These qualifications are the most explicit metrics ever to be articulated in case law concerning fair use, coming as close to “bright-line rules” as possible without contradicting the Supreme Court affirmation in Campbell v Acuff-Rose Music, 510 U.S. 569, 590 (1993) that each violation must be analyzed on a case-by-case basis.

The other substantial change that the Court introduced appears in factor four, impact on current and potential markets for the work. Typically, this factor will weigh against fair use when “harm is significant” (Campbell v Acuff-Rose Music, Inc.). Yet, to “prevail on factor four, Defendants have the burden of proving that any harm from the infringing use is insubstantial.” Despite this framework, Judge Evans found that the Plaintiffs also had obligations. Because the publishers claimed that “availability of licenses [ostensibly from the Copyright Clearance Center] shifts factor four fair use analysis in their favor, the judge reasoned that “it is appropriate for them to be called upon to show that CCC provided in 2009 reasonably efficient, reasonably priced, convenient access to the particular excerpts which are in question in this case” (83). This distinction became important in the case because only 13 excerpts of 46 from Oxford and Cambridge Presses were found to have licenses for digital distribution. This important point meant that 33 works were deemed to have met the burden of the fourth fair use factor because they were not able to “command permission fees” in 2009, and works were maintained in password protected systems and then removed from the systems after the term was over. Thus there was “little risk of widespread market substitution of the Defendants’ copy for the Plaintiffs’ original” (79). This case makes clear that if licenses are readily available, then factor four weighs heavily in favor of copyright holders. If licenses are not readily available, then the last factor weighs in favor of the professors who would use the works (87).

Four additional contributions of this case may be found in Judge Evans’ ruling for Declaratory relief: 1) that the “decidedly small excerpts” for factor three favor Defendants when the amount includes “the aggregate of all excerpts from a book” in a given term. In other words, faculty cannot offer one excerpt, take it down and offer another from the same sources if it amounts to more than the chapter equivalent; 2) These proceedings do not apply to “books intended solely for instruction of students” in a class, or textbooks. The judge implies that textbooks would be less likely candidates for a fair use defense. Similarly, creative works would likely fail a fair use test as well because of their higher level of protection in factor two. This means that works of fiction, poetry, drama, film, and other creative forms would be more protected and would likely require paid licenses for copies; 3) management of student access to these copyrighted materials must be strictly enforced as described in Factor four above; and 4) It may be possible to assign more than the typical chapter or 10% of a text for which there is not a digital license available. While there is technically no clear upper limit of the acceptable amount, Judge Evans states that an example of 18.5% that was found fair use in this case “likely is close to loss of fair use protection” (10). It is important to note that if the “heart of the book” has been excerpted, it could weigh against fair use, Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 565 (1985).

A few final thoughts on this case are worth mentioning. In her December 28, 2012 Order granting Defendants summary judgment on direct and vicarious copyright infringement, Judge Evans makes a definitive case against comparing online reserves with course packs from commercial copy shops, which proved decisive for the outcome of the case. (I discuss this issue further in “Online Course Reserves on Trial.”) Furthermore, Plaintiffs in this case were rebuffed numerous times for demanding remedies well beyond what was warranted to maintain effective fair use practices. The court ruled in the May 11, 2012 Judgment that while publishers have rights to publish entire edited collections, they may not claim greater protection for chapters that were originally written as separate works. She writes that the only incentive publishers have to control works in this way is “to choke out nonprofit educational use of the chapter as a fair use” (69).

Perhaps the most striking outcome of this case came in the final penalty phase. While the Plaintiffs prevailed in five cases of infringement, three from a single text, the Judge named the Defendants as the prevailing party and awarded them “reasonable attorney fees” of nearly $4 million. The message from the four years of proceedings in this case is clear. Fair use holds up against direct and unrelenting challenges. It is unlikely that publishers will sue universities over fair use practices again anytime soon. Universities and faculty must take care to manage their course materials responsibly and diligently, and the publishing industry for academic works must take note that academic uses of certain kinds of works will continue to be upheld. If the decision is not overturned, it has provided clear guidelines for online reserves and management of copyrighted works in course management software like Blackboard.

Works Cited

Cambridge University Press v. Mark P. Becker et al. Civil Action No. 1: O8-CV-1425-ODE U.S District Northern District of Georgia. 30 Sept. 2012. Justia.com. Docket 463. Web. 14 Oct. 2012.

Cambridge University Press v. Mark P. Becker et al. Civil Action No. 1: O8-CV-1425-ODE U.S District Northern District of Georgia. 10 Aug. 2012. Justia.com. Docket 441. Web. 14 Oct. 2012.

Cambridge University Press v. Mark P. Becker et al. Civil Action No. 1: O8-CV-1425-ODE U.S District Northern District of Georgia. 30 Sept. 2010. Justia.com. Docket 235. Web. 7 Mar. 2011.

Cambridge University Press v. Carl V. Patton et al. Civil Action No. 1: O8-CV-1425-ODE U.S District Northern District of Georgia. 15 Apr. 2008. Justia.com. Docket 1. Web. 11 Mar. 2011.

Copyright, Permissions and Policy. Georgia State University, 2009. Web. 14 Oct. 2012.

 

Intellectual Property Reports Main Page

Introduction to the 2015 CCCC-IP Annual

by Clancy Ratliff

• Downloadable PDF of the report.
• Downloadable Word Document of the report.
• Table of Contents

I remember being in John Logie’s rhetoric and intellectual property seminar at the University of Minnesota in 2003.

From my personal archives: a photo of the course syllabus.

He would often ask us to find news stories about, to use his phrase, the IP landscape, and in class we would juxtapose our discussions of critical theory of authorship and complex analysis of copyright law with current news about intellectual property issues. This began a habit of mind for me, which after about a decade I have systematized: all through the year, I see interesting stories in my social media feeds and my other reading, and I paste those URLs into a TextEdit document (and I’m increasingly doing screen capturing to augment this), which I turn into a CFP around the end of each year – a wish list of topics I hope people will want to write about, and they do, and very well.

In the 2015 Caucus meeting, we decided to start including a dedicated pedagogy section in the Annual. All the articles have had connections to rhetoric and composition in some way, but the three articles in the Pedagogy section this year are more explicitly directed toward classroom application and reflections on teaching writing. Kristi Murray Costello’s excellent analysis of the FI (failure for cheating or plagiarism) course grade is the first scholarly examination in our field of this new institutional development. Steven Engel gives us several clever classroom activities about the misattributed quotation on the Maya Angelou postage stamp that help students better understand authorship. Kathrin Kottemann helps us reflect on what we’re asking students to do as authors; through her research about catfishing, an online dating phenomenon, she raises the question: are we asking our students to be catfish? To pretend to be someone else?  In future years, we hope to have not only pieces such as these, but other teaching genres as well: syllabuses for new courses on IP issues, lesson plans, assignment descriptions, and curated lists of resources for teaching about copyright and authorship.

After the section of articles that are closely related to pedagogy is the section I’m calling Copyright and Authorship in Culture. The six articles in this section all look at 2015 events in the IP landscape and situate them in rhetoric and composition broadly. Matthew Teutsch illustrates the stakes of appropriation in his analysis of a political cartoon on Twitter that perhaps some of us saw: the lowering of the Confederate flag followed by the raising of the LGBT pride flag, a visual comment on two of the most important (and in one case, tragic) historical moments of the year. Craig A. Meyer writes about an artist who enlarged and printed Instagram photos of members of SuicideGirls, an adult lifestyle brand, as they describe themselves online. I will admit that I found the moving of the Instagram images across contexts to large gallery-quality prints to be an inventive and chic stylizing. However, the artist did not inform anyone in SuicideGirls that he intended to do this, and he sold the images for $90,000 each. Meyer’s analysis of this case is insightful.

William Duffy provides an impressively thorough explanation of the complexities and stakes of the “defeat devices” in Volkswagens: software that reported false data about emissions. Freedom to tinker in this case has implications for the environment, road safety, and much more. Wendy Warren Austin has taken the news story about the emergence of the kilo-author – which is exactly what it sounds like: 1000 or more co-authors – and made a substantial contribution to composition scholarship in her analysis of authorship in the sciences.

Laurie Cubbison continues her tracking of Taylor Swift’s copyright advocacy, which began in the last CCCC-IP Annual with a report about Swift’s decision to pull her album from Spotify. This year, Cubbison analyzes Swift’s argument to Apple: she pulled her album from the Apple Music streaming service because artists would not be paid for songs streamed during the free trial period for users, and Apple reacted by agreeing to pay the royalties. Kim Gainer reports on the most recent legal developments involving the status of the song “Happy Birthday,” a song that should have been in the public domain already but has not been. Now, however, those wanting to use “Happy Birthday” in audio or video compositions may do so without worry – though specific performances of the song may still be protected by copyright, of course.

The CCCC-IP Annual has always featured thoughtful and critical reviews of longer texts about copyright and intellectual property, particularly white papers from other organizations such as Creative Commons and the Electronic Frontier Foundation. Traci Zimmerman continues this tradition with a review of a new handbook from the Authors Alliance, Understanding Open Access: When, Why, & How to Make Your Work Openly Accessible.

In sum, I’ve learned a lot from reading this year’s Annual articles, and I hope you do too. If you assign any of them in your classes (they would work so well not only in composition classes, but in technical writing and literature courses also), please contact me and let me know how it went.

Table of Contents
1	Introduction to the 2015 Annual Clancy Ratliff
Pedagogy
4	Who’s Failing Who? Six Questions to Consider Before Adopting the FI Grade Kristi Murray Costello
12	Stamp of Authenticity: Using The Maya Angelou Forever Stamp to Explore Quotation and Authorship Steven Engel
17	Catfishing, Authorship, and Plagiarism in First-Year Writing Kathrin Kottemann
Copyright and Authorship in Culture
20	Cultural Commentary and Fair Use: Bob Englehart, the Southern Poverty Law Center, and Two Flags Matthew Teutsch
28	A Prince, Some Girls, and the Terms: A Canary in the Cave? Craig A. Meyer
33	Defeat Devices as Intellectual Property: A Retrospective Assessment from the DMCA Rulemaking William Duffy
47	How Does the Rise of the ‘Kilo-Author’ Affect the Field of Composition and Rhetoric? Wendy Warren Austin
54	All She Had to Do Was Stay: How Apple Music Got Taylor Swift and Avoided Bad Blood Laurie Cubbison
58	A Copyright Ruling Puts the “Happy” Back in Happy Birthday (and Brings an End to the Mortification of Restaurant Servers and Patrons) Kim Dian Gainer
Review
67	Understanding Open Access: When, Why & How to Make Your Work Openly Accessible Traci Zimmerman
73	Contributors