Composition Pedagogy

In August of 2006, law professors William W. Fisher and William McGeveran of the Berkman Center for Internet and Society, Harvard Law School, published "The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age," a white paper based on their research and two all-day workshops in which librarians, teachers, lawyers, and scholars gathered to discuss their encounters with copyright law. Their collective efforts and the publication of this white paper constitute one of the top intellectual property developments of 2006 because revealed and clarified four central problems related to the intersection among digital media, education, and copyright law:

• Unclear or inadequate copyright law relating to crucial provisions such as fair use and educational use;
• Extensive adoption of 'digital rights management' technology to lock up content;
• Practical difficulties obtaining rights to use content when licenses are necessary;
• Undue caution by gatekeepers such as publishers or educational administrators.

To illustrate these problems, Fisher and McGeveran present four case studies of digital educational endeavors that were delayed or jeopardized by copyright law. These include: 1.) a proposal to create a network for social studies teachers share teaching materials; 2.) the use of movie scenes on DVD in film studies courses; 3.) the Database for Recorded American Music (DRAM), a repository of obscure music; and 4.) the conflict that arises when public broadcasters, who are allowed to use some third-party content in their programs, make programming available on the Web. In this review of Fisher and McGeveran's white paper, I make connections between their case studies and the situations faced in rhetoric and composition pedagogy, and I explain what composition scholars can do to help protect teachers' rights to use third-party content for noncommercial, educational purposes.

“Author Rights: Using the SPARC Author Addendum to Secure Your Rights as the Author of a Journal Article.” 27 Apr. 2007 http://www.arl.org/sparc/author/addendum.html.

“Authors – Elsevier.” 27 Apr. 2007 http://www.elsevier.com/wps/find/authorsview.authors/copyright#whatrights.

Bazerman, Charles. “Charles Bazerman | UCSB | Homepage.” 27 Apr. 2007 http://education.ucsb.edu/~bazerman/.

Day, Michael. “Michael Day: Selected Webbed Publications.” 27 Apr. 2007 http://www3.niu.edu/~tb0mxd1/pubs.html.

Eidenmuller, Michael E. “American Rhetoric: Copyright Information.” 27 Apr. 2007 http://americanrhetoric.com/copyrightinformation.htm.

Fisher, William W., and William McGeveran. "The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age." 27 Apr. 2007 http://cyber.law.harvard.edu/home/uploads/823/BerkmanWhitePaper_08-10-2006.pdf.

“KU ScholarWorks: Home.” 27 Apr. 2007 https://kuscholarworks.ku.edu/dspace/.

Miller, Carolyn R. “Carolyn R. Miller: Publications.” 27 Apr. 2007 http://www4.ncsu.edu/~crm/publications.htm

“Petition for Public Access to Publicly Funded Research in the United States.” 27 Apr. 2007 http://www.publicaccesstoresearch.org/.

Reyman, Jessica. “Copyright, Distance Education, and the TEACH Act: Implications for Teaching Writing.” CCC 58:1 (2006): 30-45.

“Rhetoric and Composition – Wikibooks, Collection of Open-Content Textbooks.” 27 Apr. 2007 http://en.wikibooks.org/wiki/Rhetoric_and_Composition.

Fisher and McGeveran conclude their white paper with several suggestions for what scholars can do to help bring about copyright reform, some of which connect to the work that the CCCC Intellectual Property Caucus is doing. Scholars in our field can contribute to open access by doing research about it. Fisher and McGeveran point to several areas for future research, and I have highlighted the ones that may be of interest to rhetoric and composition:

• An attempt to document how often educational users of content in fact are threatened with copyright infringement suits, and how often such suits are filed (the dearth of judicially decided cases in this area suggests that these numbers may turn out to be surprisingly low);
• Analysis of how frequently rightsholders decline permission for educational uses of content and the typical reasons for such refusal;
• Updated empirical data concerning policies and guidelines adopted by universities and school districts concerning educational use of content;

These projects would make excellent master's theses and dissertations for rhetoric researchers interested in legal discourse. Fisher and McGeveran also offer a series of recommendations for what kinds of action we can take to help the open access movement, and I end with these (quotations from pages 107-108 of the white paper are in italics):

1. The “some rights reserved” licensing schemes promoted by Creative Commons and Science Commons, which can be easily customized at their web sites.

   Rhetoric and composition studies scholars are already using Creative Commons licenses on their weblogs, and several journals, including Kairos, Lore, The Writing Instructor, and Computers and Composition Online, allow authors to use Creative Commons licenses. I will attest that Scholar and Feminist Online, while not a rhetoric journal, also allows Creative Commons licensing. Admittedly, these are all online journals and, as the common argument goes, they have nothing to lose by making this an option for authors. However, Parlor Press, which publishes print monographs, also allows Creative Commons licensing. The move to license more scholarship under a some-rights-reserved model is still new, and it needs leadership within the discipline. Specifically, junior faculty and graduate students may be especially loath to ask publishers to give copyright back to them after a period of a few years, or to give them permission to archive a copy of the article or book on their personal web sites, or to use a Creative Commons license for the work. Junior scholars are in a position of vulnerability with publishers, which is why it is particularly important for senior colleagues in rhetoric and composition (as well as other fields) to publish their work in open-access journals that allow Creative Commons licenses and to state openly that access and copyright reform efforts led them to choose to publish in these journals.

   Also, scholars can use the Author's Addendum, published by the Scholarly Publishing and Academic Resources Coalition of the Association of Research Libraries, during copyright negotiations with publishers. The addendum is available at http://www.arl.org/sparc/author/addendum.html.

2. The Free Software Foundation’s GNU Free Documentation License, intended for use in “textbooks and teaching materials for all topics” and used as the license for Wikipedia entries;

   In rhetoric and composition studies, Matt Barton's open-access textbook comes to mind. He and students at St. Cloud State University co-wrote a rhetoric and composition textbook and published it at Wikibooks, and they continue to update it. The textbook is licensed under a GNU Free Documentation License. I would like to see more projects such as this one.

3. Numerous open access journals, such as those sponsored by the Public Library of Science (PLoS) (a list can be found at the Directory of Open Access Journals);

   Open access journals in rhetoric and composition include KairosEnculturation, The Writing Instructor, Lore, Composition Forum, Across the Disciplines, and more. Support these journals by submitting work to them, reading them, linking to the articles on your weblogs, and citing their articles in your own work if applicable.

4. Efforts by universities, including the University of California and Harvard, to require their faculty to make copies of their scholarly articles available in open access repositories, and to provide the faculty technical assistance in doing so;

   The University of Kansas has also joined the open access project with KU ScholarWorks, which “makes important research available to a wider audience and helps assure its long-term preservation” (online). The university passed a Resolution on Access to Scholarly Information in early 2005, and they strongly encourage faculty to keep copies of their publications in the repository.

5. Increased self-archiving by professors and other educators on personal or institutional web sites;

   Several rhetoric and composition scholars already archive their publications on their personal sites; especially impressive examples are archives by Carolyn Miller, Charles Bazerman, and Michael Day. I would add that journal publisher Elsevier (whose general policies I am not endorsing) now allows authors to make and distribute copies of articles published in their journal for classroom use and for research colleagues. They also allow authors to post preprint copies of articles on their personal web sites, and they allow authors to post revised copies of articles on personal web sites as long as they are accompanied by a link to Elsevier's web site. Authors have these rights automatically without having to ask Elsevier for them.

6. Multiple initiatives to make curricular materials, syllabi, and other educational content accessible to the general public, including Connexions, LionShare, MIT OpenCourseware, and the Berkman Center’s own H2O project;

   These initiatives are best carried out at the university level rather than the level of the discipline. However, rhetoric and composition scholars can contribute to this effort by serving on faculty senate and other university-level committees to set policy related to open access teaching materials.

7. Increased discussion of legal mandates for open access to research funded by government grants – effectively including most major biomedical research in the United States and Europe.

   I would add that the Petition for Public Access to Publicly Funded Research in the United States, which would require open-access publication of all articles or books funded by the U.S. Federal Government, would help to create an archive of research available to the public. Over 24,000 people have signed the petition, available at http://publicaccesstoresearch.org.

The white paper also takes up the copyright issues associated with libraries and archives. Fisher and McGeveran identify statutory and actual damages as problems faced by libraries. It costs nearly one million dollars to defend a copyright case, and that cost may only cover the statutory damages, meaning the work involved to detect copyright infringement. Actual damages may be higher. Additionally, the copyright holder might seek a trial by jury – which may result in more money being awarded in damages – instead of a hearing before a judge. The prohibitive cost of copyright infringement lawsuits has several consequences for libraries and universities, not to mention the collections of archives online that function as libraries but are not recognized as such: Educators often ask for licenses, or permission to use content, even when it is not legally necessary because their use would be protected under fair use. Because universities do not want to risk lawsuits (a risk aversion that Fisher and McGeveran feel may be unwarranted by actual lawsuit occurrence), they are “overly cautious” (85). They sink time and labor into a cumbersome rights clearance process to find that content industries don’t have any incentive to provide differential licensing of content for the benefit of educational institutions, teachers, and most important of all, students. They use closed content management systems for courseware, such as Blackboard and WebCT, instead of open access courseware. They institute and abide by university photocopying policies that are more stringent than the 1976 Guidelines for Classroom Copying. In other words, the law is actually more lenient than the universities.

The rights clearance process is made even more difficult by digital technology. For the Copyright Clearance Center and other intermediaries, there is a different process for making thirty copies of a print article and making a digital copy available on an intranet site for 30 days (80). Also, intermediaries may not have access to “the 'long tail' of content, including much specialized academic material” (81). Permission costs, or royalties, can be costly, as anyone who has created a course pack for a composition course knows, but most rightsholders still do not see education as an important market or source of revenue. Thus, they don't offer discounts, or reduced royalty fees, especially for digital content. Fisher and McGeveran argue that “many rightsholders are unsure about digital distribution formats, and their uncertainty translates into higher fees” (84). In the end, Fisher and McGeveran recommend a broadening of the definition of libraries and archives, so that “untraditional noncommercial entities and 'virtual' collections available online” may also be protected by the libraries and archives exceptions to copyright law. They also argue that the libraries and archives exceptions could be revised, particularly in light of digital technology, to address the “number of copies” limitation (94).” Fisher and McGeveran suggest two other measures to make the rights clearance process less arduous. First, they recommend the creation of a technological tool that would help to figure out whether or not permission to use the work is necessary. If it turned out that permission was needed, the software would search for licenses the institution has already secured and currently uses, such as blanket licenses and library consortia agreements, and it would search for similar material that was already cleared – Creative Commons licensed material, for example. Second, they recommend that universities and K-12 teachers get together and come up with a list of best practices – for figuring out whether something is fair use or not, for licensing negotiations, and deployment of DRM systems – all of these with specific illustrative cases that model the best practices.