Intellectual Property

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.

Each of these three cases has ties to projects proposed or already underway by scholars in rhetoric and composition. From their case studies, Fisher and McGeveran articulate several “obstacles to digital learning” (42). They explain the classroom use exception to fair use, which gives teachers additional freedom beyond fair use to use third-party content in classrooms for educational purposes. We've all, for example, probably heard that story about some loophole in copyright law that permits the photocopying of an article if the teacher is struck with inspiration to use it right before the class meeting. This understanding is correct; a spontaneity exception does exist, but the use of third-party content for digital materials -- blogs, wikis, web-based class projects -- is more legally fraught, even if the digital materials were only available to the students enrolled in the course. The classroom use exception is intended for face-to-face teaching which takes place within the walls of classrooms, not necessarily for hybrid courses, online courses, or homework assignments for a face-to-face course. The TEACH Act of 2001 addressed the incompatibility of the classroom use exception by no longer requiring students to be in the same location to use third-party content distributed by teachers. However, the act stipulated that the content must be integral to the course objectives, and that only accredited, nonprofit institutions were covered. Fisher and McGeveran critique the boundaries of the freedoms (47):

This bias excludes, for example, an adult education class offered by a nonprofit but unaccredited institution; asynchronous instruction and discussion that occurs outside of class sessions at preset uniform times; and even access to material by students in other related classes at the same institution.

Also, Fisher and McGeveran suggest, it would seem that DRM and the DMCA would supersede the TEACH Act, which says that teachers have to make sure the content isn’t available after the class session, thereby preventing it from being disseminated, which is not architecturally possible to do in online environments. Fisher and McGeveran conclude that as far as the TEACH Act is concerned:

Congress might well need to start from scratch. In particular, the across-the-board exclusion of asynchronous teaching and learning sacrifices one of the principal benefits of digital technology. Likewise, the limited conceptualization of education as tied closely to highly traditional academic institutions limits the statute’s effectiveness in the decentralized digital environment(96).

I agree that education ought not be bound up with institutions, and their observation certainly acknowledges some of the educational efforts online, such as academic weblogs and wikis created by individuals or groups not affiliated with one particular university.

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Material from the first three case studies is particularly relevant for rhetoric and composition scholars who do work with digital media, and I focus on those three cases in my review. The first case is a proposed project by George Mason University's Center for History and New Media called the History Teacher Network. The network, modeled on social software, was to be designed as a place where K-12 teachers can upload and share the learning materials they create, such as PowerPoint presentations or online modules. From the perspective of copyright law, the problem was that some of the learning materials may feature copyrighted third-party content: photographs, music, or video clips. That George Mason University would risk secondary liability for hosting these materials and enabling their distribution constituted an insurmountable obstacle, and the Center for History and New Media “has been forced to curtail its plans for a resource exchange component of the network because of the risk of secondary liability for copyright infringement” (Fisher and McGeveran 20). In rhetoric and composition studies, scholars have proposed similar networks for sharing teaching materials. In April of 2006, I attended a meeting in Los Angeles for Next/Text, a project of the Institute for the Future of the Book. The meeting was devoted to discussion of what rhetoric and writing textbooks could become if their authors used digital technologies creatively and innovatively. We imagined just such a network, composed of materials from teachers; textbooks could be curated by users' creating various collections and arrangements of these materials. They could be tagged with categories of the users' choosing, and they could be linked through a system similar to Amazon.com's recommendations based on users' tastes. We hadn't gotten so far as to propose potential hosting sites for the network (though futureofthebook.org, the Institute's domain, would have been an intuitive first choice), but a network of teaching materials in rhetoric and composition studies would almost certainly face the same secondary liability issues that thwarted the History Teacher Network.

In their second case study, Fisher and McGeveran explain the pedagogical and legal dilemma faced by film studies teachers. In order to illustrate and teach techniques such as jump cutting, mise en scene, wipes, and split screen, they must be able to show scenes from films. A teacher may, for example, want to create a montage of scenes from eight to ten films to show the evolution of special effects over time. If she wants to do that, or if she wants to make a scene or two available to students for a homework assignment, she must circumvent copy protection technology on the DVDs she uses. Otherwise, she and the students must waste class time sitting through “forced watching,” as Fisher and McGeveran put it – previews, advertisements, and copyright warnings. Such circumvention constitutes a violation of DRM, or Digital Rights Management, even though the teacher's use of the content falls under fair use.

The result is what Fisher and McGeveran call an “uneasy equilibrium” in the violation of the Digital Millennium Copyright Act. Rhetoric and composition teachers may face the same dilemma as more rhetoricians – Joyce Irene Middleton's work is one example – study film as rhetorical text, or when composition teachers wish to use film clips to illustrate issues of representation, including race and sexuality. In order to settle the dilemma for film teachers, Fisher and McGeveran argue that “[t]here should be no penalty under the DMCA when DRM systems are circumvented purely to enable uses of content that are educational, legally permitted, and noncommercial – perhaps with a proviso that reasonable efforts are made to avoid subsequent leakage of the content” (97). While their suggestion would relieve film teachers' concerns about copyright law, it still does not address another major problem with copyright law: its labyrinthine complexity. Scholars such as law professor Jessica Litman have argued that copyright law should be easier for the general public to understand, which would cohere with copyright law's ostensible concern for the public interest and help the public to respect it and take it seriously.

The third case study Fisher and McGeveran present is an effort by New York University and New World Records, a nonprofit record company, to create DRAM, or the Database for Recorded American Music. The database is devoted to obscure music and “underrecognized composers” (31), so the administrators of DRAM prioritized good financial compensation for the artists. Despite New World Records' and NYU's commitment to fair compensation, as well as the nonprofit educational nature of the use of the music, the rights clearance process proved to consume a prohibitive amount of money and time. Fisher and McGeveran report, “All told, rights clearance for DRAM consumed several years and enormous amounts of staff effort and expense. The small scale and nonprofit status of the initiative often made rightsholders or their intermediaries less interested in responding to those efforts” (34). The content industries had little to gain from DRAM, it seems. At least one project in rhetoric similar to DRAM exists: AmericanRhetoric.com, a repository of audio, video, and text transcripts of famous speeches. While much of the content on AmericanRhetoric.com consists of presidential and senatorial speeches, which are considered government documents and therefore are public domain, the site does feature some copyrighted content. The site has a fair use statement, an excerpt of which reads:

AmericanRhetoric.com contains copyrighted materials (html/pdf/flash text, audio, video, digital images), the use of which in many cases has not been specifically authorized by the copyright owner(s). These materials include all of the artifacts in the "Movie Speeches" site area as well as various artifacts in the "Top 100 Speeches" and "Speech Bank" site areas. [...] The site is making such material available in the effort to advance understanding of political, social, and religious issues as they relate to the study and practice of rhetoric and public address deemed relevant to the public interest and the promotion of civic discourse.

AmericanRhetoric.com believes that the nature and use of the artifacts on this site not in the public domain or not the property of the owner of this site constitutes “fair use” of any such material as provided for in section 107 of the U.S. Copyright Act. The material on this site is intended primarily for research and educational purposes, has been previously published, and is distributed without profit.

I do not know whether Michael E. Eidenmuller, the owner of AmericanRhetoric.com, has received cease-and-desist letters for his inclusion of copyrighted content, but I am speculating that the resource he has created has gone unchallenged due mainly to the fact that he maintains it individually and does not seem to have the endorsement of his institution, the University of Texas at Tyler. He features ads on the site, presumably to help cover hosting costs and domain name registration.