ATD LogoCopyright, Access and Digital Texts

Charles Lowe · 9 December 2003

Table of Contents
"If our objective is to maximize economic growth, are we striking the right balance in our protection of intellectual property rights? Are the protections sufficiently broad to encourage innovation but not so broad as to shut down follow-on innovation?"

Escaping the Future through Legislative Action

The previously discussed effects of recent legislation, new technology measures, and some recent trends should indicate that, if big business has its way, The Right Read predicts the future better than any altruistic visions of a global electronic village sharing content.

So how do teachers insure an escape from a society in which content will be pay-for-use and where the body of ideas freely available in the public commons becomes an increasingly distant memory?

Educators could build a large political movement, focusing not just on better fair use policies, but also changes that represent a rethinking of copyright. We cannot choose only to resist the more limiting definitions of fair use for education created by the courts, such as with Basic Books v. Kinko's of 1991. Fighting for fair use alone has not and will not be enough.

In Digital Copyright, an examination of intellectual property history in light of the digital text, Jessica Litman makes clear how difficult this task would be. Since the beginning of this century, copyright legislation has been drafted by the competing concerns of the major players in the content industries. Once those major influences arrive at a decision which sufficiently mediates their differences, Congress turns their compromise into law. This is important. In intellectual property negotiations which led to the legislation passed by the Clinton administration, education was unrepresented in those discussions except by the library lobby. Depending on the library lobby was ineffective since, as Litman points out, when their interests "diverge" with that of everyone else, "the libraries will look out for themselves" (127). And who can blame them given the singularity of their voice during the negotiation process?

Sadly, only unified, aggressive political action from across education would likely influence any contemporary or future debates.

But What about the TEACH Act?

Some educators point to the 2002 Technology, Education and Copyright Harmonization Act, or TEACH Act, as a positive example of extending fair use to the digital domain and an instance of effective political action on the part of education. They claim that education can initiate change through legislation.

While it is true that the TEACH Act makes allowances for using digital intellectual property in online courses, the conditions of use accompanying the TEACH Act seem less than "fair." When considered more closely, they are best viewed as minimal concessions, tidbits to pacify teachers upset by the absence of fair use provisions in the CTEA and DMCA. As a matter of fact, note that the TEACH Act only addresses fair use for distance education. It does not provide expanded fair use definitions for using digital media in the traditional classroom. Furthermore,

  • The Consortium of College and University Media Centers has expressed concern that the TEACH Act is in conflict with the DMCA because copyright protection circumvention is prohibited by law.
  • Can individual teachers, even if legally allowed, circumvent DRM? Since the software to override DRM is illegal, the means to do so will have to come from the content industry themselves. They will most likely only be placing that capability into the hands of institutional technical support or distance education departments, not every teacher.
  • Even when teachers do have the capability of overriding DRM, the TEACH Act still requires that it be delivered in an unsaveable format. This leaves most teachers dependent upon IT professionals to prepare the digital texts, and in the case of audio and video, make them available in a streaming format.
  • The TEACH Act also requires that
    1. The college must have an internal policy on use of copyrighted material and on copyright law.
    2. The college must provide printed or online resources for faculty members that describe their rights and responsibilities under copyright law.
    3. The college must inform students that the material may be protected by copyright law (from The Chronicle of Higher Education).
    These policies will say to students and teachers alike, "These are the rules laid out by the academy. Follow them. They are ethically and legally right." The danger is that the mantra of ownership without question, such as in the previously mentioned The Code of the Web site, will cause teachers and students to gradually accept the property metaphor as a necessary status quo.

Economic Considerations of the Current IP Model

Given that educators' concerns about fair use were not met by the TEACH Act, the most useful strategy will be to expand our discourse and engage directly with the entire intellectual property metaphor of property and ownership. We should not simply lobby for specific needs in education. Problematizing intellectual property within economic theory, after all, can be useful for persuading a capitalist society.

Some economic theorists have expressed concern about the state of the public commons. Federal Reserve Board Chairman Alan Greenspan suggests,

If our objective is to maximize economic growth, are we striking the right balance in our protection of intellectual property rights? Are the protections sufficiently broad to encourage innovation but not so broad as to shut down follow-on innovation? Are such protections so vague that they produce uncertainties that raise risk premiums and the cost of capital? How appropriate is our current system--developed for a world in which physical assets predominated--for an economy in which value increasingly is embodied in ideas rather than tangible capital?

Writing teachers understand much about creativity and how texts are constructed on the canon of texts that precede them. Compositionists can begin to study where the public commons intersects with our culture and support observations by economists. Texts like Marjorie Heins's speech to the Colorado Association of Libraries and David Bollier's Reclaiming the Commons suggest directions to be taken in research about the public commons.

Nevertheless, I doubt these efforts will be sufficient. Education needs popular support from the American public. NCTE and other educational organizations--even when working with other groups fighting for reform, such as the Electronic Freedom Foundation--will have insufficient funds to lobby against the likes of Disney, the Recording Industry Association of America (RIAA), the MPAA and Microsoft. Congressional representatives will also need to feel pressure from their constituents. However, current copyright laws and conceptions of intellectual property are difficult to understand; creating awareness in the average American will be a lengthy, arduous task.

Next, even if educators join with economic theorists, the software, entertainment and publishing industries are unlikely to respond well to changes in copyright and patent law that facilitate innovation. Shorter copyright terms and additional freedoms of use for consumers could open the market to new competitors; they would prefer to keep the playing field as is. Nor are they inclined to accept the value of the public commons. To do so requires considerably more vision than the level of shortsightedness demonstrated by the RIAA's prosecution of file traders or Microsoft's stubbornness at complying with standards.

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