The Effects of Intellectual Property Law in Writing Studies

Ethics, Sponsors, and Academic Knowledge-Making

Karen J. Lunsford,James P. Purdy

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351015172
• Edition: 1
• Topic: Languages & Linguistics
• Subtopic: Creative Writing
• Index: Languages & Linguistics

This book documents the intellectual property experiences of writing studies scholars and challenges naturalized ways of responding to intellectual property concerns.

Analyzing results of a nationwide survey and semi-structured interviews to examine ways decisions about intellectual property (IP) during academic knowledge-making are mediated by histories of enculturation, ethical lenses, and IP sponsors, the book:

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• Identifies and illustrates a range of ethical stances that academics might adopt in regard to IP and the range of human, institutional, and technological sponsors that can mediate IP decisions;

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• Provides evidence that IP affects all of the processes of academic knowledge-making, not just the final product;

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• Offers heuristic questions that academics can and should ask throughout their teaching, research, and editing to make proactive IP decisions.

The book is an essential read for academics working in writing studies and the humanities as well as those interested in IP. This text could also be used in graduate student training in writing studies and related disciplines.

1 Introduction

I see IP related issues as inherently fused into the core of our work—what is it to write, [. . .] the role of originality, authorship, etc. Although my experience with the legalistic side of IP is (thankfully) limited, I cannot overstate the importance of such issues to rhet/comp.

—(Question 20, Response 13)

The Pervasiveness of Intellectual Property Issues in Academic Life

In Invention, Copyright, and Digital Writing, intellectual property scholar Martine Courant Rife reflects on her interviews with seven Web designers, each of whom articulates a different account of how copyright law applies to their work. In response to these differences, Rife argues,

Misunderstanding and confusion are productive. Misunderstanding is more than just “being wrong.” [. . .] Copyright law in all its complexities, and as an interjector in the composing process, likewise begs for misunderstanding and confusion. And to overcome this, participants create stories of the law. Among the interviewees, the proximate law is their story of the law and not really the actual law; it is a story of the law that makes sense to the writer.

(136)

Our book is about such stories of copyright law, including the “[m]isunderstanding and confusion” that emerge surrounding the law, as well as about the influence of intellectual property on academic work in writing studies¹ more generally. By intellectual property (IP), we mean the creations that people can protect with copyrights, patents, trademarks, and trade secrets/proprietary knowledge. In this book, we document reflections of writing studies practitioners² about the ways in which IP issues have influenced their work. These reflections illustrate the enculturated practices surrounding IP that have become normalized and show the range of moments in which IP shapes the teaching, research, and editorial work of writing studies professionals—rhetorical moments that recur over and over across colleges and universities. Readers might recognize themselves, their students, their colleagues, or a “friend of a friend” in the following vignettes that represent these moments:

• Vignette #1: An advanced graduate student has just received the publication contract for her first article. She treats it like a click-through license on a piece of software: She skims it, signs and dates the appropriate lines, and sends it back to the publisher.
• Vignette #2: A new faculty member requests copies of documents from a museum archive for a research project and is given a virtually incomprehensible licensing form in return. Noting the irony of having to agree to license materials taken from his own indigenous culture, but needing the materials to do research to achieve tenure, he signs it.
• Vignette #3: The campus librarians sponsor a new event to talk about open-access (OA) clauses in publication contracts, but they cannot recommend a source of funding for humanities scholars to accommodate the high fees publishers now charge to include such OA clauses.
• Vignette #4: A newly hired adjunct is given an employment contract to sign, a contract that includes work-for-hire claims over teaching materials, including materials for online courses.
• Vignette #5: An instructor receives a forwarded email from a student. The email is from an online source that claims a copyright violation because the student has posted a music clip to a website designed for the class. The student’s final project—a remixed visual essay analyzing a current political movement—has been removed by an outside entity.
• Vignette #6: A faculty member is considering whether to publish a textbook. On one hand, they³ need the financial boost (and CV line for promotion) that a successful textbook would provide. On the other hand, their materials were inspired by documents openly shared by colleagues in their program. They debate about their responsibilities to those who have developed materials before them.

As former chairs of the Conference on College Composition and Communication (CCCC) IP Caucus and members of the CCCC IP committee, we have heard such stories about how IP decisions affect the work of teacher-scholars in writing studies. By IP decisions we mean choices such as whether to publish an article with an OA journal, whether to pursue a research project based on whether a desired archive of materials is accessible, whether to ask students to publish their course projects on YouTube, whether to post articles to a course management site, and so forth. Fellow writing studies scholars Heidi A. McKee and James E. Porter provide the following examples of IP decisions for Internet researchers: “whenever a researcher downloads an online journal article, or quotes excerpts from subjects’ writings, or captures screen shots of their web sites, or reproduces their avatar from Second Life or their game character from World of Warcraft” (Ethics 56). Stories about these IP decisions are what led to this project. We sought to gather and systemically document these stories through an anonymous nationwide survey and a series of retrospective interviews. When we were initially conceptualizing this research project, we expected horror stories similar to those we had already been told as CCCC representatives: For instance, one researcher shared that a university press refused to publish his print journal article until he removed the one-sentence epigraph. Another researcher explained that a museum archive withheld permissions to reproduce photographs because she planned to submit a copy of her publication to an OA archive. A third researcher reported he had collaborated with an agency to generate survey questions for a study, but he had not anticipated that agency officials would then deem the survey as their proprietary knowledge (i.e., owned by them). Yet another researcher related her saga of receiving permissions from an author to reproduce portions of his rough drafts, only to have the family estate revoke those permissions after he died. Not least, other faculty reported concerns about the Fair Use⁴ of instructional materials and the protection of students’ rights to engage in critical commentary on texts, multimedia, and cultural artifacts.

While we certainly received some similar stories of specific decisions and events, including, to return to Rife’s language, “stor[ies] of the law,” our survey and interviews yielded much more, including:

• Discussions of what practitioners might now do differently
• Histories of the evolution of IP (both in terms of changes in IP laws and in terms of changes in personal attitudes towards them)
• Desired past and future developments (i.e., should-have-beens and wished-fors)
• Commentaries on/stances toward IP (both the law and stories of the law)
• Advice about how to approach particular IP issues (e.g., copyright, Fair Use)

When we use the term reflection throughout this book, then, we seek to encompass this range. This range of responses speaks not only to the richness of our study participants’ experiences, but also to the varied ways in which IP has affected them and influences the broader work of teaching and researching writing.

We next offer one more vignette, with a real name and dates, that hints at this broad impact of and interest in IP issues: In 2015 Creative Commons creator and perhaps the world’s best known copyleft advocate, Lawrence Lessig, ran for president of the United States. Focused primarily on campaign finance and gerrymandering reforms, his platform also articulated an “Innovation Policy” that proposed to create two commissions to write new copyright and patent laws to accommodate new technologies and to reinstate more equitable access to innovations (Lessig “Innovation”). One might argue that it was Lessig’s well-known reputation as an IP scholar that scaffolded his presidential bid. We speculate that he might not have reached the fundraising goal that precipitated his run—one million US dollars by Labor Day 2015 from many individual donors (Lessig “Why I Want”; Merica)⁵—were it not for the popularity of his longtime and well-known challenges to prevailing thinking about copyright.⁶

We end this opening section with this vignette because we find Lessig’s candidacy in the US presidential election striking. Lessig is an attorney, a scholar, and a university faculty member, not a politician. Even though his campaign lasted only two months (Lessig “Why I Dropped”; Weigel), Lessig’s successful bid to have a presence in the election speaks to the currency and urgency of IP issues today. These issues, we argue, are especially pressing for those who both create and teach about IP: members of college and university communities. Moreover, these issues are particularly pertinent to writing studies practitioners, who teach and research major foci of IP: written texts, multimodal compositions, digital webtexts, and multimedia productions. We echo Steve Westbrook’s assertion that “copyright law’s effects on composition has become a rather exigent matter in our professional lives” (“Introduction” 2). As a field, we have done much work to reflect on pedagogical and research methods, but we have done comparatively little work reflecting on how the IP infrastructure shapes our day-to-day lives as academics in writing studies. Given the larger turn toward metacognition in writing studies (and in higher education more broadly) (McClure and Purdy, Yancey), such reflection is long overdue.

Lessig aside, too few academics are conversant with—much less involved in creating—the IP legislation, policies, and practices that affect their teaching, research, and editing. We invite readers to engage in and influence these conversations about IP. However, we suggest doing so not by memorizing convoluted laws and precedents, but by analyzing reflections like those we share in this book, including stories that writing studies practitioners tell about their IP experiences. In this sense, our book answers Ben McCorkle’s call to “create scholarship [. . .] that increases the visibility of intellectual property issues in contexts other than legal discourse” (62). By reporting data from surveys and interviews of writing studies practitioners, as well as offering extended analyses of particular interviews, it also responds to Jessica Reyman’s affirmation that “it is only by talking to creators, composers, and authors who rely on digital technologies that we can better understand the need to move beyond considering [the] seemingly universal rule of ‘do not steal’ to more context-contingent applications of norms” (“Property” 26). Ultimately, writing studies practitioners may (and perhaps should) influence IP law, but first they must understand what ethical lenses writing studies professionals bring to bear on IP situations, who the more proximate sponsors of IP knowledge are, and how IP issues shape our entire knowledge-creating enterprise.

The Need to Document IP's Influence in Writing Studies

Lessig’s call for revamping IP, especially copyright, laws in the United States (Free, Future, Remix) encapsulates a theme that academics, including those in writing studies, have been hearing for some time: the need to simplify a set of legal concepts that has tremendous influence over the valued products of the information age. The last two decades have witnessed extensive and rapid changes to IP laws and policies in the United States. For those of us in academia, and writing studies in particular, the passage of the Digital Millennium Copyright Act (DMCA), legal cases over peer-to-peer file sharing, the lawsuit at Georgia State over library course reserves, and moves toward open-access (OA) publishing have been notable events. In addition to Lessig, IP scholars such as Heather Joseph, Peter Suber, and John Willinsky have likewise pointed out broad IP trends, such as the erosion of Fair Use and the public domain. They have noted the particular bind for academics, as creators of IP who must participate in a knowledge economy with limited resources, including insufficient knowledge of IP.

Intellectual work has been driving a complex global economy fueled by the online technologies, autonomous vehicles, and handheld devices of the computer industries as well as the texts, music, videos, and movies of the entertainment industries. Intellectual work likewise supports the vaccines, medications, and devices of the medical industries as well as the genetically modified organisms (GMOs), pesticides, and pinpoint machinery of the agricultural industries. Underlying many of these initiatives, of course, is the instruction of new minds, the research, and the intra- and inter-institutional collaborations provided by academia. All of these intellectual areas have to deal with a concept given governmental force some 300 years ago,⁷ the idea that products of intellectual labor can, and should, be considered property. Even more, they deal with the idea that intellectual products can, and should, be considered property of individual creators, even though those creators might be employees of large corporations or educational institutions. These assumptions about IP were developed in Anglo-American and Continental contexts, but they also influence, and sometimes dictate, relationships with countries across the world.

Given the range of intellectual work involved, and given 300 years to evolve, it is not surprising that IP laws, processes, and practices appear today to be extraordinarily complex—or, as IP experts in writing studies (e.g., Logie, Reyman, Rife) alongside Lessig have argued, broken. Repeatedly, stakeholders have called for simplified versions of IP to inform (and control) the general public, as when the entertainment industries commissioned public service announcements against peer-to-peer file sharing (see DeVoss and Porter 182–85), or when the US government in collaboration with academic service providers created the Copyright Clearance Center (see Armstrong). Particularly relevant for our project is that teachers and students are two populations especially targeted by messages emphasizing restrictions on sharing materials. For example, the Internet Scout Research Group released a special issue of its Internet Scout Report on March 18, 2016, that compiles, with annotations, instructional resources in two categories: US Copyright, and Intellectual Property and Licensing. The report was published in response to teachers faced with legislation across states echoing a 2006 California Bill (Assembly Bill 307), which mandated that schools receiving funding for technology must also follow and teach “appropriate and ethical use of information technology in the classroom.”⁸ As we have worked on this research project, we also have been asked—by interviewees, by colleagues, by reviewers—to provide an instructional answer to copyright issues: a handout, a flowchart, a website, something simple to give to academics, especially to undergraduate and graduate students.⁹

However, as the previous vignettes illustrate, writing studies professionals, and academics more generally, are faced with complex decisions about their own and others’ IP, and these complex decisions are not reducible to a flowchart or checklist, as much as we might understandably want them to be. Indeed, we would characterize IP decisions as, to borrow a term from design studies, “wicked problems.” The notion of wicked problems was advanced by design theorists Horst W.J. Rittel and Melvin M. Webber and subsequently taken up in writing studies. For instance, Richard Marback defines “wicked problems” as problems without a single, knowable solution that are ambiguous, contextual, and iterative and, therefore, must be solved over and over again (W399). Carrie S. Leverenz explains, “By eschewing easy or obvious solutions, wicked problems require us to think creatively about the problem as well as the solution” (7) (see also Purdy “What”). From this perspective, we would argue that the US Constitution, in presenting copyright as both “promot[ing] the Progress of Science and useful Arts” and “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (Article I, § 8, Clause 8), sets up IP as a wicked problem that requires negotiating and balancing competing interests.

The authors of the Constitution might have been more specific and directive, but they recognized the complexities of IP issues. These complexities are sometimes wrapped up in documents, such as contracts and licenses, that attempt to simplify decisions by articulating the responsibilities that different parties have in relation to IP. That effort to simplify, though, often leads to further Byzantine mazes, as stakeholders argue over their relative responsibilities and rights or are unsure what these responsibilities and rights are in the first place. Moreover, the rules and practices that seem to apply in one situation typically do not transfer to others; to deal with IP issues is to deal with a moving target. As many researchers, particularly writing studies IP scholars Jessica Reyman (Rhetoric) and Rife (Invention) have attested, this approach to IP, one that focuses on how end products are controlled, is neither simple nor has it been attuned to the needs of academics. Fair Use in the United States is one notable example that we discuss in the next chapter.

As academics, and particularly as scholars in writing studies, we must assume a different mindset for handling IP issues—whether these issues are our own, those of our students, or those of the institutions where we work. We argue that instead of a simple flowchart, we need ways of recognizing the different ethical models available to us, the proximate sponsors that so often attempt to define IP on our behalf, the multiple stakeholders involved, and the often tacit or unreported processes by which academics come to resolve IP conflicts. In short, we need critical reflections, including stories of lived experiences. Only through such reflections do we see how someone navigates...