Note: This essay began life
as a talk delivered at several American campuses during my 2001-02 year as a Phi
Beta Kappa Visiting Scholar. I have revised and expanded it for publication
I ought to warn you up front that this essay is a one-trick pony: I make only one point. It is not hard to understand but has not been widely understood.
The One Trick
The transfer of information from the printed page to the digital screen has changed the meaning of ownership and authorship in perplexing ways. Our students face these perplexities every day of their learning and working lives—and not only if they use Napster or its epigones to download pop songs. I suggest that we should prepare them, in some formal way, for the intellectual property questions which are now an ordinary part of their lives. A course in copyright—we can call it "Copyright 101â€? —would be a good place to begin. I offer some suggestions about how such a course might develop.
An Establishing Shot
Let me begin with an "establishing shot,â€? as they say in the movies, to explain how an English professor comes to make this suggestion. I have worked for the past 35 years, off and on, as an expert witness in copyright cases. It has been an ideal moonlight job—clean, inside work with no heavy lifting. And it certainly paid better than teaching in Extension.
This work let me glance at how film and TV popular culture is created and forced me to do something I would otherwise never have done—examine closely major monuments of this culture. I would never have seen, much less analyzed, movies like King Kong, Earthquake, Jaws, Shampoo, Star Wars, or Superman. I would never have become the world's authority, as I surely was for a brief time, on the television soap opera Falcon Crest. Nor would I have come to think about literary illusions as "properties.â€?
This work has opened my eyes to a lot of things I had been missing and made me a less insufferable culture snob than I used to be. It also has brought one other clear benefit. I have spent most of my scholarly life (in one way or another) studying rhetoric. Litigation is rhetoric at the sharp end. Writing a short entry in my Handlist of Rhetorical Terms on dissoi logoi (two-sided argument) is one thing; seeing how it plays out in a courtroom quite another. Litigation has also sharpened my thinking about literary criticism, what it is and what it does. If you think you really know what a literary critic does for a living, you ought to try being cross-examined about it by Melvin Belli & Associates.
I always kept this moonlight job separate from my "seriousâ€? work. I never lectured about it or wrote about it. In the last dozen years, though, moonlight job and day job have come together. I began to see that copyright law—which is based on print—was on a collision course with the electronic texts that I have been trying to understand in my scholarly life. The collision has now occurred; fundamental issues of ownership and authorship are debated daily on the front page. And so I have been trying to unite and reconcile moonlight job and day job. This essay comes from that effort.
Copyright Law was a creation of the age of print. It came into being formally with the Statute of Anne at the beginning of the 18th century to safeguard the intellectual property which inhered in printed books. The property in question—literary text—had a fixed physical substrate. Books were "stuffâ€? and could be made, shipped, stored, bought and sold as such. All our deep-seated feelings about possession and possessions applied to books as well. They contained intellectual property but they were physical property, stuff. The stuffness of books lent a clarity, often specious, to thinking about intellectual property.
When intellectual property expressed in images and sounds came along later, the law, as the law always does, adapted old concepts to new situations. As Justice Holmes says famously at the beginning of The Common Law: "The life of the law has not been logic: it has been experience. The felt necessities of the time...have had a good deal more to do than the syllogism in determining the rules by which men should be governed.â€?1
But, after working on sixty or so cases involving films and TV shows, I have concluded that the adaptation the law has made as it moved from print to image and sound under "the felt necessities of the timeâ€? has always been a kluge. I do not know what legal theorists have said, outside of the case law I have read about this topic, but in the courtroom, gross misunderstandings still prevail about what intellectual property amounts to. When the time comes to compare a novel with a movie, or a movie with a script from which a movie might have been made, or one soundtrack or set of special effects with another, there is no consistent body of formal critical thinking about how to do it. We still have not gotten beyond Justice Holmes's thinking in the famous case, Bleistein v. Donaldson Lithographing: "Personality always contains something unique.â€?2 True, maybe, but not much help. When we transgress the boundaries of print on page, we really do not know what "intellectual propertyâ€? amounts to. We have to work it out, case by case, in the courtroom. Thus, even before the digital revolution, "intellectual propertyâ€? was not a clear and specific opposite to physical property. The formidable body of legal, economic and political thinking about physical property did not easily transfer to intellectual property. And intellectual property in words did not easily compare to intellectual property in images or in sounds.
Now, in the digital expressive space, things have gotten even more confusing. There is no physical object to own, no book on a shelf, only a digital code which can generate words, sounds, or images, or sometimes, and with some fiddling, all three from the same code. Such codes are property only potentially, protein structures which can generate life. They are often interchangeable, that is to say, without having become more comparable. And the digital code is like knowledge itself. You can give it away and still keep it, with both parties to the transaction often the wiser for it. What does "ownershipâ€? mean when you can give away the property and still own it? When there is no physical substrate to return to? When the distribution costs approach zero? When making an exact copy is a trivial and daily undertaking? Digital expression would seem to cut the ground with equal severity from under the Left and the Right. The Left has always followed Prud'hon in thinking that property is theft. But if you can take it from somebody and yet leave them with it, this is clearly not your old Dad's kind of theft. The Right argues that property is the basis of political freedom, but if this new kind of property is spread around more evenly and speedily than the old kind, does it not enhance freedom rather than detract from it?
The Napster case revealed the deep psychological difference between the two kinds of property, between stuff and electronic information. People just do not feel the same way about "stealingâ€? when the person stolen from still has the "property.â€? Whatever the outraged music-industry lawyers say about how "private property is private property,â€? this distinction runs very deep. But the music and movie lawyers continue to ignore it. A recent Wall Street Journal carried an indignant op-ed piece by an attorney for these interests insisting that intellectual property is identical to physical property and digital expression has made no difference at all.3 No argument that ignores the fundamental differences between the two kinds of property, and between fixed and digital expression, can prevail in the long run. But how long this run will be makes for a fascinating story that will continue to be breaking news for a long time. It would be lots of fun for undergraduates to track such a story. Its social and political implications run deep.
After all, we are taught that the free exchange of information is part of what makes us free. Digital expression seems finally to supply information, intellectual property, with its condign container, one that perfectly suits its nature. Yet the need to protect the products of the human imagination which prompted copyright law in the first place continues in force. It is not just students who are confused by this confrontation. And, to make matters worse, beneath the confusion lies a different kind of economics, one they, and we, need to understand.
The Economics of Attention
This change in property comes as part of a profound change in the kind of economy we live in. We are told we live in an "Information Economyâ€? and that this economy has replaced the "goodsâ€? economy. But economics is the science which studies the allocation of scarce commodities, and information is not in short supply. We are drowning in it. What is in short supply is the human attention needed to make sense of it. We live in an economy of attention and this economy is pulling our thinking about property—certainly about intellectual property—in two opposite directions.
On the one hand, the attention economy, in its pure state, is the Internet, an expressive space that dominated not by ownership but by the medieval concept of usufruct. That ancient concept granted not ownership in a piece of property but its use for a specific purpose, fruit-picking rights in an orchard for example. Part of the concept has lived on into our time as "licensingâ€? and "fair useâ€? but I am talking about something deeper, about some fundamental, perhaps I might be permitted to call it Christian, ethic of human fairness. Digital information really is a miracle which suspends the laws of time, space, and physicality. In more than a manner of speaking, it abolishes scarcity, supplies loaves and fishes at a keystroke. We deeply want it to be a fructifying miracle, to show us a different way to think about how we share what we have with one another.
On the other hand, claims to absolute property are being made where formerly they did not exist, or at least were not contested. Since the information economy is really an economics of attention, value tends to move from the object to the object's image. The brand name is worth more than the stuff branded. The movie star's image is worth more than her acting. Broad claims are being laid to "rights of imageâ€? because that is where the "propertyâ€? inheres.
The cultural conversation proceeds by means of these images. Claims are thus being laid to broad areas of the cultural conversation. If value inheres in how people pay attention, and what they pay attention to, then people who own the images which animate that conversation come to think they own the conversation too. If you have tried recently to get permission to quote from, or reproduce an image from, any aspect of popular culture, you may well have found that it was much harder to do than you expected, or much more expensive, or simply—because you could not track down the rights holder— impossible. The cultural conversation is already seriously obstructed and the obstruction will only get worse. Each day's newspaper brings a new claim of ownership. Recently, a practitioner of yoga has claimed that he owns some of the basic routines of this 2,000-year-old exercise program, and that others will have to license them from him. The claims filed in the name of patent law are even more outrageous and rapacious than those of copyright law, starting with chunks of the human genetic code itself.
This conflict between the need for a more relaxed form of ownership and the drive toward a more intensified form, has been examined in two interesting recent studies which illustrate how widely the conflict extends over the cultural landscape.
My friend David Nimmer has recently written a long study of copyright issues in the Dead Sea Scrolls and their publication. He discusses the struggle for access to these vital religious documents and the lawsuit which resulted when they were published without the authorization of the scholars who had been sitting on them for fifty years. The crux of his argument is a case in which he was himself involved, Qimron v. Shanks. There, a scholar who spent years trying to assemble fragments of a crucial religious text sued the man who finally published the scrolls which a small group of scholars had been keeping to themselves. Nimmer asks first, who is the author of such works, and then whether a small group of scholars had a right to monopolize these texts for so long. Who "ownsâ€? Biblical texts found in a desert cave by an Arab boy, which finally are put in trust to a group of scholars who will not let other scholars see them, much less publish them? Especially if the text exists in fragments and these are assembled by a scholar who then claims ownership in the resulting text? Should any private person or body "ownâ€? scriptural texts and the cultural conversation that flows from them? Suppose another wandering Arab boy found a predecessor to the ten commandments and sold them to someone who claimed ownership of them? Claims equally absurd are being made every day. At what point do we declare a text to be "scripturalâ€? rather than "apocryphal,â€? and what kind of property inheres in them once we so decide?
Joseph Sax, in a book with the wonderful title Playing Darts with a Rembrandt, advances a secular version of this same question. When does a cultural artifact (painting, literary manuscript, sculpture, building) become a cultural icon, so central to our debate about who we are that we feel it to be the common human property of us all? Sax asks these questions across a much broader cultural canvas discussing such topics as "artists' rights and public rights,â€? public access to historical papers, literary and judicial, and the trade in antiquities. Did Martha Washington, to take a real example, do right in burning the letters of her husband after his death? If not, by what "rightâ€? might she have been forced to publish them? Sax argues for usufruct (though he does not use the term) instead of ownership for such priceless cultural resources, and thus extends the "Internetâ€? kind of ownership across the whole cultural landscape.
The movement from fixed print to the volatile medium of the electronic screen has changed authorship as well as ownership. Let me just enumerate what have become the prevailing clichÃ©s. Electronic text undermines authorial authority, since the text is open to reader emendation. It moves much textual communication from formal scholarly publication (journals) to less formal and more first-drafty electronic distribution (blogs). Text on the screen is immersed in a mutational bath of hypertextual reference. And, of course, behind the digital change, literary theory some time ago abolished the author altogether, a serious inconvenience for copyright law, which has to have an author in order to proceed. Popular songs, perhaps we should no longer call them melodies, can be cut up in little bits and the bits rearranged into new agglomerations. Images can be "shopped,â€? that is to say metamorphosed by the popular image-manipulation program "Photoshopâ€? into new sizes, shapes, and colors. At what point, in any of these metamorphoses, does the author's authorship etiolate into the ether, leaving not a trace behind?
We are not talking, in such magical transformations, about work at a professional level on expensive professional machines, as was true when I bought my first computer in 1981. Now, anyone can do much more than could be done by anyone then, however fancy their equipment.
Intellectual Property as an Undergraduate Study
Until very recently, the only education undergraduates received in authorship and ownership—intellectual property—was an afternoon presentation, usually by a librarian, on "plagiarism.â€? And that, plus a set of rules posted above the copy machine, is still where things are on most campuses. Yet students confront these changes in ownership and authorship every day. Group work is becoming more common for undergraduates. Student work is being "publishedâ€? on course websites. Information of various sorts, words, images and sounds, are there for the taking on the internet. The reliability of such information varies widely, and often the original sources are obscured by linkages. And on practically every campus undergraduates now have access to software which allows them to manipulate sounds and images for use in their own work. The manipulation often changes the original source beyond recognition. What becomes of authorship and ownership in such cases is seldom clear, and how to recognize "prior art,â€? to borrow a term of art from copyright law, often impossible.
And, a great big "of course,â€? words can be manipulated in obvious ways in order to plagiarize. Undergraduate papers have never been easier to find, cheaper to buy, or harder to expose as plagiarism. But plagiarism, widespread and heartbreaking as it is, forms only part of this broader pattern of change and perplexity I have been trying to sketch.
Undergraduates, then, face complex intellectual property issues every day. I think they need a better education than they are getting today about what "intellectual propertyâ€? means. Let me suggest that many interesting questions would be posed, and undergraduate attention effectively engaged, if the issues of ownership and authorship now in public discussion were to find a place somewhere in the humanities curriculum. How might we go about making such a place?
First, I think we should recognize that we made a serious mistake when, about 100 years ago, we reached a tacit agreement in American higher education that the study of law was exclusively a graduate discipline, the property of law schools. This professionalization of legal training, symbolized and largely created by the founding of the Harvard Law School and by its famous dean, Christopher Columbus Langdell, at the end of the 19th century, has removed the subject from a context where it can yield rich meaning: the context of humanistic inquiry broadly defined. Copyright law could provide a challenging and fascinating undergraduate introduction to the law itself which, like copyright law, seeks finally to balance private interests and public benefits.
Second, I think we should stop assuming, as we often do, that only lawyers can make the law back into a humanistic inquiry. There are many arguments against this assumption but let me stick to the ones that bear on my subject—intellectual property and the economics of attention in which it now exists. You do not need to go to law school to master the basics of copyright law. You could do it in a summer to prepare for a course in the fall. Of course you could spend a lifetime in such a study, as copyright lawyers do, but most of us have taught subjects in which we were not trained in graduate school and to which we have not subsequently devoted a lifetime of specialized study. And often we have been the better for it.
To "masterâ€? the clichÃ©s in the field, you do not need to read the latest books on the subject, either, of which there are a great and increasing number. For historical background, Lyman Ray Patterson's Copyright in Historical Perspective can start you off, as can Mark Rose's more recent Authors and Owners: The Invention of Copyright, and Joseph Loewenstein's The Author's Due: Printing and the Prehistory of Copyright. For an introduction to the basic issues, Benjamin Kaplan's An Unhurried View of Copyright does just fine. For a discussion of plagiarism, Alexander Lindey's Plagiarism and Originality offers a good starting point; the reader can have fun reflecting on what changes the computer has wrought since then, and what fundamental truths it has not altered.
The early history of copyright law is not obscure and the basic principles easy to grasp. Copyright begins in England, whence the American tradition comes, with a technological revolution - the invention of printing. The state wanted to control the flow of information for religious and political purposes. In 1557 Queen Mary made a deal with the Stationers' Company: they would have a monopoly on the printing of books, in return for which they would censor the press as the state wished. A stationer who had the right to print a book was said to possess the "copyâ€? of the book. Hence "copyright.â€? The book did not have to be original and the author had no rights in it. If the book was new, the author sold his right for a lump sum to the printer. In a notorious instance, Milton sold the copyright of Paradise Lost for Â£10. (No royalties, no paperback rights, no translation deals, no audiobook contracts, no TV documentary offers.) This system expired in 1695 when the last act renewing this system of monopoly failed to be renewed. Authors gained what we would call "copyrightâ€? in 1710, with the famous Statute of Anne. It granted an author copyright for a period of 14 years, with a renewal period of 14 more if he was still alive. The Statute of Anne made possible a career as a professional writer and hence, per ambages, the interpretive bureaucracy which today we call "the humanities.â€?
The copyright story begins in the United States with article I, section 8, clause 8, of the Constitution: "The Congress shall have Power ...To promote the Progress of Science and the Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.â€? This power was embodied in the first national copyright act, one very like the Statute of Anne, which President Washington signed on 31 May 1790.
The basic confrontation has not changed. One the one side, we have the public interest, served by "the progress of science and the useful arts.â€? On the other, we have the need to encourage this progress by rewarding the authors and inventors who create it. In the current scene, at one extreme the piratical digital duplication common in the third world; at the other, the steadily increasing ownership of the cultural conversation in the U.S. One can imagine a course which traces the development of copyright in England and America as an exercise in political, or social, or intellectual history. Or literary history: it would be an interesting voyage to trace the effect of copyright on ownership in England and America; stop with the invention of the rotary press in the 19th century, and the scale would be manageable. All the central issues of intellectual property would emerge from such an inquiry.
Copyright law overflows with interesting stories, stories that undergraduates would have fun pursuing and discussing. For a compendium of modern instances, Thomas Mallon's Stolen Words: Forays into the Origins and Ravages of Plagiarism is an easy and amusing read, no law degree required. (Full disclosure requires me to say that I was involved in one of the cases he discusses.) Although encased in a more forbidding legal context, Melville B. Nimmer's casebook tells some of the basic copyright stories. And more of them turn up every day. The front page of a recent Wall Street Journal recounts the struggle for property rights in a long-lost photograph of the blues singer Robert Johnson.4 The dispute over the photograph forms part of a 15-year struggle for the property rights of this black blues singer who died, penniless and without a will, in 1938. A dramatic trial; the history of a generation of black blues singers; the current revival of that kind of music through new recordings; the question of what restitution, if any, society owes to the families of neglected artists; how neglected music re-enters the cultural conversation (CBS had put a record of Johnson's music on the shelf for 15 years, fearing legal complications); the complex patterns of consanguinity that such cases often involve, and the "rightsâ€? that the contentious heirs claim—it all adds up to a fascinating story and a wonderful undergraduate research paper. Or, since it is about music and images as well as words, assign a multi-media project. What kinds of permissions would an undergraduate need to create such a project, or "publishâ€? it on the class website? What would the campus lawyers say? All of this would be an education in itself, especially if you plan to be an author. You could choose half a dozen famous copyright cases, if you wanted to be more historical, and examine what the issues were in each. Removed from the forbidding quizzing of legal casebooks, they provide fascinating stories and, in many instances, obvious opportunities to pursue them further.
Often, copyright stories suggest lines of inquiry beyond the limits of the trial. Take, for example, the case of Oscar Wilde's photograph. When the Gilbert and Sullivan producer Richard D'Oyly Carte brought a production of the G&S opera Patience to New York in 1881, he also imported one of the main targets of the opera's satire, Oscar Wilde, to do a lecture tour to flak the opera. Wilde was photographed by a New York photographer named Joseph Saxony, and one of those photographs became "theâ€? photograph of Wilde. But soon after it was taken, it was used in an ad for hats by a New York department store. Saxony sued and the case went all the way to the Supreme Court. The tale is briefly told in a nice piece by Mitch Tuchman which appeared in the Smithsonian Magazine in May, 2004. But think of where the story leads. What kind of parody of the aesthetic movement does Patience really create? How did Wilde, at an early age, become the symbol of the movement? A good topic for a literature course and one in music history. And what about Gilbert and Sullivan's attempts to open shows simultaneously in England and America to prevent Americans from ripping them off? History students can pursue that story in Gayden Wren's A Most Ingenious Paradox: The Art of Gilbert and Sullivan. It was common practice for American producers to ignore European property rights, in much the same way that today the Chinese copy CDs and DVDs. That is an interesting story in itself, a wonderful term paper topic. What was the subsequent influence of this famous photograph? Where did it appear? What was it used for? And what became of the other less famous photographs of Wilde that were taken that day? And who owned the rights to them until they came into the public domain? These are all interesting questions that undergraduate students could pursue, in a history of photography course perhaps, or one in English or media history.
Saxony was one of the first photographers to see that big money was to be made from celebrity photographs and he paid the celebrities well for outright ownership of them. The history of celebrity photographs and their uses continues to this day, with many beguiling turnings and twistings, not least Andy Warhol's clever exploitation of the celebrities' lust for fame. And what of the brisk, and seemingly illegal, trade in such images on the internet? And should celebrity images, so central a part of our common popular culture, be private property and thus denied to the cultural conversation without paying an entrance fee? What neat topics for an undergraduate course in film or popular culture.
I have worked on over sixty copyright cases and there was an interesting story behind each one and sometimes—as in the Barbie case—a whole chapter in intellectual history.5 The repository of "copyright storiesâ€? is enormous, and enormously rich, and —so far as I know— almost totally unexplored as an area of undergraduate teaching and learning. The stories begin in specific arguments but very soon involve fundamental issues. And yet the theoretical issues cannot just float off into the ether because there is a case to decide, a verdict to be rendered... and, subsequently, questioned.
No one, in such adventures as these, should be afraid of the notoriously obscure language of the law. If you are under any illusion that it constitutes a coherent and sensible professional vocabulary, a reading of David Mellinkoff's classic, The Language of the Law will put that illusion to rest. It will also make you acquainted with one of the great books about professional languages of any kind. If you are suffering under another common illusion, that the law constitutes a coherent and sensible body of principles offering a ready and easy way to adjudicate life's inevitable differences of opinion, Fred Rodell's old reliable, Woe Unto You, Lawyers, will alleviate your suffering: "For the Law, as you may have heard before, is entirely made up of abstract general principles. None of those principles has any real or necessary relation to the solid substance of human affairs. All of them are so ambiguous and many of them are so contradictory that it is literally impossible to find a definite and sure solution . . . to the simplest, smallest practical problem anywhere in the mass of principles that compose The Law.â€?6 A useful lesson for undergraduates to learn.
Legal language itself could constitute a fresh approach to prose composition. There are several guides to legal writing, Richard Wydick's Plain English for Lawyers and David Mellinkoff's Legal Writing: Sense and Nonsense at the head of my personal list. There is no reason why undergraduates could not put one of them in action on a specimen statute or opinion. It would be the kind of prose translation, Latin to English and back, that Elizabethan schoolboys thrived on. David Mellinkoff's The Language of the Law really began the "plain language movementâ€? in the law, where the government has begun to require that legal writings intended for popular understanding be written so ordinary people can understand them. Plain language law, in all its aspects, stimulates thought in many directions that undergraduates might profitably pursue. One can hardly imagine a better "pre-lawâ€? course than one in legal language. Students learn how to write it in law school; they could learn how to analyze it as a style as undergraduates. This approach would be much more fun. Copyright cases not only offer many instances of legal writing, from dense legal language to Justice Holmes' magisterial opinions; they also bring up the question of what kind of "propertyâ€? inheres in legal documents to which the public has a right to access and must understand.
When I started working on copyright cases 35 years ago, it was not a popular field for law students and young lawyers. Right now it is red hot. Why the change? To explain it we have to consult, first and most obviously, the history of private property, both real and virtual. Why did the invention of printing lead to copyright laws in England? How did these laws gradually come to create a new kind of property and conception of it? How has that conception changed in the digital world? Why? What changes in an economics of attention? Interesting undergraduate courses could be built around each of these questions.
Copyright lawyers argue that ever-stricter laws are needed to protect intellectual creations, lest the impulse to create them should die out. But art and literature flourished for millennia without copyright protection. How were creators rewarded then? If they were paid in fame rather than money, how has that traditional tradeoff changed over time? Intellectual property in antiquity, in the Middle Ages, as manuscript culture gave way to print, all these would provide protein course themes. They would, as they used to say in show business, "have legs.â€?
And how does the question of intellectual property play out in the underdeveloped world? As Tom Bethell has pointed out in his history of private property, The Noblest Triumph, private property has had surprisingly few defenders in our time. Yet students of third-world economics have agreed that it forms one of the foundation-stones for economic progress. At the same time, it is argued that poor countries cannot afford the products covered by Western copyright and patent law, be they drugs or movies, and should be allowed access to them in the name of the world's cultural conversation. The other side, the intellectual property owners, argue that digital "piracyâ€? threatens a major segment of world trade. The United States has from its beginnings shown itself willing to confront piracy of the usual shipboard type, and other piratical interferences in its trade, in a most contumacious way. What about digital piracy? It would be interesting to pick an area, or a country, and see how this seeming contradiction is being played out. The questions fairly pour out: for example, might one not argue that all the pirated movies in China are creating a market which, when China joins the world of nations in protecting intellectual property, as surely it will do sooner or later, will prove a rich market indeed?
From popular discussion, student plagiarism seems to have increased in the last decade (I have not come across any numbers which measure the increase, if such it be). It is being widely discussed and it should be, and as part of an undergraduate course. After all, we are talking about how we train students to take part in the cultural conversation. But we are beginning to discuss notable instances of faculty plagiarism as well. Harvard law professor Laurence Tribe's use in his God Save this Honorable Court of Henry J. Abraham's Justices and Presidents provides one notorious instance. (Start with the Harvard Plagiarism Archive: http:authorskeptics.blogspot.com, or just Google "Laurence Tribe plagiarismâ€?). The historian Peter Charles Hoffer has written a thoughtful study of the case of Doris Kearns Goodwin and several others, Past Imperfect; it provides a deep background against which to start thinking about these issues. A course which contrasted student plagiarism with faculty plagiarism would prove illuminating for both parties. It would not lack for material.
I cite these stories and themes and books, among very many others I might have, just as instances of ways into the subject. They are intended as tokens of the rich hoard awaiting humanist scholars who take an interest in the venerable, and now vital, field of intellectual property. It is not necessary to be a lawyer to work with students through the fundamental issues of intellectual property. I would myself go further. It is better, for a humanistic approach to the subject, if you are not a lawyer. Don't be frightened, don't be nervous, don't be scared. Just, as always when you are teaching a new course, Be Prepared. (I have just, in my phrasing, echoed lines from a familiar but copyrighted Tom Lehrer song. Does it fall under the "Fair Useâ€? clause? Should it be in quotation marks? Should I have gotten permission nevertheless, and maybe paid a $200 permission fee? Interesting questions for an undergraduate course to rehearse.)
American higher education has, at least since the founding of the land-grant colleges, felt pressured to provide a practical education, one that can lead to gainful employment. Humanists have usually, and to my mind wrongly, resisted this pressure. Whatever one thinks, though, such pressure has never been greater than it is today. How might acquaintance with the law and issues of intellectual property enhance some typical student career paths?
Two general observations:
First the student plagiarism plague is a symptom of a larger problem; how do we train students to take their part in the cultural conversation? If we taught the general rules for joining this conversation— (as well as discussing the difficulties our culture has in sustaining it)—in a methodical way, I think there would be less cheating. A framework would exist within which cheating would be seen for what it is. The internet has provided a publishing channel for students which never existed before. They now can and often do join the conversation, either by posting their work for their student colleagues or by creating websites, joining newsgroups and blogs, etc. Special interest websites (a sixteen-year-old establishing a Harry Potter site, for example) are part of cultural conversation just as much as the New York Review of Books. They do not stand outside the system, as often now they feel they do. They are part of it and should feel responsible for keeping it in good order, which means keeping it, and their contributions to it, honest. I can think of no better way to encourage this than by teaching the history of our culture's efforts to protect originality and at the same time make it available for the general welfare. Many of our students will earn their living in enterprises which require group work. Learning how to credit the contributions of our co-workers provides fundamental training for such work.
Second, plagiarism is created by our demand for, and value of, originality, and it is originality which copyright seeks to protect. But until the invention of printing, originality was not the god-term (Kenneth Burke's phrase) which it has become. For classical writers, the basic stories of the gods and goddesses were public property. Medieval writers like Isadore of Seville borrowed wholesale. Manuscripts were more often compilations of previous work than ab ovo creations. Shakespeare, as students learn to their surprise, was a great borrower of plots, almost never making them up himself. Nimmer's copyright casebook describes the relationship between Shakespeare's Romeo and Juliet and West Side Story, but we could extend the inquiry further back by examining the relationship of Romeo and Juliet and its source, Arthur Brooke's 1562 Tragicall Historye of Romeus and Juliet. Comparing Brooke's endless and tedious poem to Shakespeare's great play would itself be an illuminating undergraduate exercise. It would illustrate, in the clearest way, the crucial distinction copyright law seeks to draw between Idea (property of the cultural conversation) and Expression (what an individual has added to that conversation. The key goal in a copyright case is to find "substantial similarity.â€? Never was concept woollier; indeed one legal scholar has called it "meaningless.â€? But, whatever it may mean, Shakespeare's play is certainly substantially similar to Brooke's poem: characters and their names, plot, theme. Yet if ever originality meant anything, Shakespeare's play has it. A nice paradox. You could build a paper topic, or a course, around it. Plagiarism, Originality, Idea and Expression, Substantial Similarity; they all part belong in the same discussion. That discussion ought to occur somewhere in the undergraduate curriculum.
Now let us explore how "Copyright 101â€? might benefit students in particular career paths.
Law: No gloss needed here. If the center of gravity of the law is shifting from real property to intellectual property, an understanding of this shift would be the best general preparation for a law career one might well have. And if it included a course in legal language, that would not hurt.
Business. The change from an economy of stuff to an economy of attention stands behind the current fundamental changes in business enterprise. Understanding what that shift is all about, and the law of intellectual property which underlies it, would provide a framework for business enterprises of all sorts.
Accounting. Here, for sure, is a profession in need of general guidelines. One of the problems it faces is how to account for non-physical assets, intellectual property and the advantages which accrue to it. General reflections on intellectual property would seem a good place to begin solving this accounting problem.
Banking. Always the same problem; to whom do you lend money? How bankable are "brand assets,â€? the intellectual properties owned by a business, after the accounting profession figures out how to book them?
Advertising. The ownership of brands, and the protection of them, is at the center of intellectual property thinking. There could not be a stronger connection.
The Physical Sciences. Who will own the knowledge you discover under university or corporate sponsorship? What scholarly journals will you publish in? The ones owned by big media conglomerates who get their material free from scholars, copyright it, and then sell it back at extortionate rates to scholarly libraries? One of the new electronic publications which seek to avoid this kind of learned shakedown? What is implied by the ownership of scientific discoveries? You will face all these issues from the get-go in a scientific career.
Publishing. Publishing is increasingly a business centered in intellectual property rights management, not simply making printed books. The more you know about intellectual property, the more clearly you can see this fundamental fact about the business.
Librarianship/Information Science. Librarians are caught in the middle of all the big conflicts about intellectual property and are the ones who have to make decisions first. A vital discipline; perhaps an undergraduate course in intellectual property could encourage more students to enter the field.
Medicine. Price of drugs; ownership of the human genome; who has rights of "ownershipâ€? in a human fetus? Privacy issues in medical records.
International Relations. The central concerns here are all about global trade, and intellectual property issues form an increasing part of that trade.
Anthropology. Ownership of folkways, folk artifacts, and folk literature in third-world countries. Tourism is now the biggest business in the world and ownership of strange and foreign folkways a growing part of that business.
Design. As a designer, your first business will be to develop an original design "signatureâ€? or style, and your second will be to keep other people from, as it will seem to you, stealing it. A knowledge of "originalityâ€? from a general point of view would be an immense help in understanding your predicament.
Media personality. What every ambitious student wants to be, surely, is a TV anchor person or reporter if not an actor. If you do, you will want to own your personality; it is, after all, your professional stock-in-trade. You will face the same problems designers do.
Well, enough of this. You can perhaps get the idea: the study of a specific body of knowledge can be done in a variety of contexts and as preparation for a variety of careers. Let me close with one more example.
Humanist. An economy of stuff extracts materials from the earth's crust and makes things out of them. The people who do this stand at the center of the economy. People in the arts and letters stand at the periphery, feeling like ornaments, however tirelessly we insist that we are not. But when the economy becomes an economy of attention, we really do stand at the center of things. Humanists are the economists in an attention economy. I am not at all sure the humanities will be comfortable in this role; they have been marginal, condescending, and self-pitying for too long. But that is where we now are, and no inquiry makes this clearer that copyright. We all need a course in it.
1. Holmes, The Common Law, in The Collected works of Justice Holmes, p. 115.
2. Posner, The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and other Writings of Oliver Wendell Holmes, Jr., p. 54-55.
3. Theodore B. Olson, "Thou Shalt Not Steal,â€? Editorial, Wall Street Journal, March 23, 2005.
4. Mitchell Pacelle, "Blues Rift: Snapshots of a Music Legend Lead to a Tug of War,â€? Wall Street Journal, March 22, 2005.
5. See, for example, Richard A. Lanham, "Barbie and the Teacher of Righteousness,â€? Houston Law Review 38, no. 2 (2001): 499-540.
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