Jan 15, 2001
Aloha from the Big Island of Hawaii: I am another one who has been lurking on the edges of this list silently for months. I am jumping in here to respond to Stephen Downes' interpretation of copyright law. I have done extensive research on this topic "Survey of Intellectual Property Issues for Distance Eucatiors and Online Teachers" and wanted to provide a link to a fairly thorough explanation of the related copyright issues written cooperatively by myself and a colleage in Alaska. It can be viewed at: http://homepages.go.com/~hiprimo/primoles.htm If anyone is interested, it also has a hot-linked bibliography/ webography, which points to law schools and organizations which are dealing with some of these controversies.
Heidi Primo and Teresa Lesage's article, cited above, is a good overview of copyright as it relates to distance learning and is supported with an excellent list of references. It provides a clear, concise statement of one side of the issue.
I would like to offer an account of the other side; Primo and Lesage offer a useful platform.
Intellectual Property is the original product of our own experiences and thoughts. How can we put a price-tag on it? How can we market it, license it, box it and put it on a shelf?
One of my major criticisms of the pro-copyright lobby is that nobody questions this assumption. Indeed, Primo and Lesage offer this as the starting point for their essay. But they do not consider whether it is appropriate to box knowledge and put it on the shelf.
Consider, for example, the argument that university professors are, for the most part, already paid to produce intellectual value for society. What reason is there, therefore, to charge society again for the use of learning they have already paid for?
Indeed, the entire question of whether knowledge and information ought to be a commodity ought to be challenged. One could certainly advance the argument that much knowledge - basic mathematics, for example, the priniples of reasoning, government and legal information, and more, ought to be in the public domain, and ought not, therefore, be boxed and shelved.
Primo and Lesage continue,
One of the rationales for the existence of copyright law is to encourage and promote creativity, which ultimately can only benefit society. The protection of the law acts an incentive to artists and publishers to invest time and money in artistic enterprises.
There is no doubt that this is one of the major arguments advanced in favour of strong copyright protection. Scott Adams has made this point in a number of recent Dilbert cartoons, and SF writer Spider Robinson made the same argument in a recent issue of Canada's National Post newspaper. They are only the latest of dozens.
It is, however, an argument which withstands not even the slightest scrutiny. The idea, of course, is that people will not create great works unless they are paid to do so. But that begs several questions:
First, is this this even true? Many of the great works of recent years were produced with no regard to financial award: the Linux operating system, the Apache Web Server, the World Wide Web. Thousands and thousands of articles appear daily whereby the writer received not one cent. Even academic authors, who write important papers for respected journals, are not paid money for these efforts. No, the creative process will continue, and even great works will continue to be produced, even is the creators are not paid directly for this work.
Second, it begs the question of whether copyright is the only means through which authors may be compensated for creating original work. The concept of royalties is recent; academics and artists historically worked under the patronage of nobles and kings. Nothing prevents academics and artists from being paid on this model, and indeed, it was this model which spawned the development of publicly funded universities in the first place.
Third, it is not clear that copyright law even works as intended. As Courtney Love made scathingly clear in her recent defense of Napster, artists are not the primary recipient of the benefits of copyright law at all; indeed, she describes the very real scenario in which a band can sell a million records and lose money in the deal. It is arguable that the lion's share of the profits from copyright legislation benefit the copyright owner, who is very frequently not the producer of the original work.
The distance learning community especially should be wary of recent initiatives on the part of the American government to extend the provisions of WIPO to include a "presumption" that work perfomed by contract is "work for hire," that is, that unless the contract states explicitly otherwise, the work is considered to be owned for the company which paid for the work rather than the person who perfomed it. Academics should also be concerned about efforts to abrogate "moral rights" (the right to preserve the integrity of a work).
Primo and Lesage comment,
According to this definition, then, every part of an American Distance Learning application would be logically protected under U.S. law. So then, would the resources, documents, readings and contributions, which make up the classes.
Academics ought to consider this very carefully. If indeed the presumption is that teaching a class is work for hire, and if indeed the presumption is that the company which pays for the work owns the rights, then under existing and proposed legislation, the employer (i.e., the university) owns the "contents" of a class, online or not, and not the professor. In a more competitive academic environment, one could easily imagine a professor being prohibited from giving "performances" of a class at one university the contents of which were in large part developed while working at another university. One could also imagine - and it is already happening with companies like UNext and Hungry Minds - a university selling the sole and exclusive right to certain "performances" to a private provider, this forcing the professor into an exclusive (and one sided) arrangement with a corporate entity.
Copyright protection - as authors and musicians have already discovered - is very much a two edged sword, one edge of which appears considerably sharper than the other.
I won't analyse every statement in the essay, but you can see where the general tenor of my remarks is heading.
Primo and Lesage wrap up their argument with the following observation:
Without the support and confidence of distance educators in their ability to protect their rights after publishing on the Internet, asynchronous learning and web-based classes will not flourish.
Where is the evidence for this? The evidence seems, indeed, to be contrary: that learning on the internet has flourished just because of the absence of rights restrictions. Where before the internet came on to the scene, the domain of knowledge was reserved for a privileged few, but today it is accessible to the masses. No wonder the monopolists are threatened.
I think that academics should think very carefully the implications of a transforming of what they do from a *service* to a *product*. They should ponder the implications of what happens what what they do in their day to day lives can be packaged and sold. They should be wary about what will happen should they ever lose the right to perform this service without the permission of various copyright holders.
Academics should be aware: the vast majority of writers and musicians is dirt poor, while the vast majority of university professors is relatively well off. And they should not be so eager to join the ranks of the creatively underpaid.