Paradox land

    

Second image from Eric Faden’s “A Fairy(y) Use Tale” at  Media Education Foundation <http://www.mediaed.org/>

I had started today's post meaning to suggest in a rational, ethical and legally-defensible way how educators should change their approach to both the use of and teaching about intellectual property. Instead, I've gotten caught up thinking about all the paradoxes and contradictions that the last couple of posts have forced me to consider. And regular readers all know how thinking makes my head hurt. Ouch!

Few subjects about which I blog tend to draw more praise, criticism and questions than the topics of intellectual property, copyright, and digital rights management. When a single post draws criticism from both Peter Rock who insists there is no such thing as "intellectual property" and Barbara Braxton who asks "even if the rules/laws don't make sense, or we don't agree with them, does that mean we still have the right to break them when it suits us?", I must be doing something right! Or terribly, terribly wrong.

These are areas where I feel less and less certainty that as a professional I have a firm understanding - or a defensible  philosophy. Increasingly, I feel beset by paradoxes of intellectual property:

• While intellectual property, especially in digital formats, becomes an increasingly important "wealth generator" throughout the world, the laws surrounding it are becoming less understandable, more complex, and less relevant, especially to this generation of re-mixers and content-sharers.
• While today’s students want to use others' digital works, often without regard to the legal protections they may carry, many of these students’ own creative efforts will be the source of their incomes and they will need a means of protecting their own work and want others to respect intellectual property laws.
• While protection of individual property rights is given legal precedence, many argue there is a moral precedent and there may be economic value to placing all intellectual works into the public domain as soon as possible.
• Prohibitions are ubiquitous on media, but the warnings disregard fair use and may not be legal. Case law related to the use of digital media is scarce. Technology changes faster than the legal system can keep up.
  
• While librarians are considered the copyright experts in their buildings, they too often become the copyright “cops” instead. The experts on whom practicing librarians reply give "safe" advice that tends to honor the rights of intellectual property owners, not consumers.
• Thoughtful teachers and librarians be intellectual property use role models by being:
  
• followers of the letter of the law who err on the side of the information producer
  
• or questioners of the legality and ethical value of current law and practices who err of the side of the information consumer
• While intellectual property shares many qualities of physical property, it also has unique properties that many of us still struggle to understand. A physical apple and copyright protected song from Apple both may sell for $.99. Your assignment: Compare and contrast the "unauthorized acquisition"  in financial, moral, and practical terms.
  

The teaching of copyright and other intellectual property issues is overdue for an overhaul in our schools. The mindset that “if we don’t know for sure, don’t do it” does not fit the needs of either students or their teachers. Changes I am thinking about recommending include:

1. Changing the focus of copyright instruction from what is forbidden to what is permitted. (Sneak preview, see Pamela Burke's post here and read “The Cost of Copyright Confusion for Media Literacy.”
   
2. When there is doubt, err on the side of the user. (Are we being "hyper-compliant"?)
   
3. Ask the higher ethical questions when the law seems to make little sense. (Look where it got Socrates. Well, yeah, there was that hemlock bit...)
   
4. Teach copyright from the point of view of the producer, as well as the consumer. (Does having others using your work without authorization or remuneration change your perception of intellectual property issues?)
   

Confused at a higher level? Then my work here is done.
 

Comments

[Peter Rock]

"Peter Rock who insists there is no such thing as "intellectual property""

Just to be clear. There are copyright laws, patent laws, and trademark laws. But there are no "intellectual property" laws. This is in case people interpret Doug's statement to mean, "Peter doesn't think there is such a thing as copyright, patent, or trademark." Lumping all of these laws is stupidity as they all serve different purposes and evolved differently.

The point is, copyright, patent, and trademark laws are what I want to discuss. Not "intellectual property". Nobody can have a meaningful discussion about "intellectual property" - unless that discussion is concerning the absurdity of the term itself.

[Susan Tanner]

Thanks a lot, Doug - I'm preparing to teach a class on Copyright & Intellectual Property for classroom teachers later this very day, and now you've got me re-thinking my outline & content!

Though I am pleased to say that I do try to focus on what is permitted rather than what is forbidden!

:-)

Oh, and thanks for the link to the "Cost of Copyright Confusion..." - hadn't seen it yet and it will definitely be helpful for the class!

All the best -
Sue

[Doug Johnson]

Thank you, Peter, for the clarification. I still find "intellectual property" a useful and meaningful way of talking about a class of product that generates wealth, regardless of the specific laws which protect it.

Peter, I find terms like "stupidity" to be deliberately inflammatory. Let's try to keep the degree of civility high on the Blue Skunk. I appreciate discussing ideas and sharing different opinions, but in atmosphere of respect.

Thanks,

Doug

[Doug Johnson]

Hi Susan,

Sorry. I hate it when people do that to ME!

I had not seen the "Cost of Copyright Confusion" until this week either. I believe it is a document that should be a part of any copyright discussion. Great discussion fodder!

All the best,

Doug

[Peter Rock]

Lumping these laws into an aggregate called "intellectual property" is unproductive and misleading. Therefore, as an educator who wants to promote clear thinking and understanding, what would you call doing so?

You've even demonstrated the result of this, yes, stupidity with the claim that "intellectual property" generates wealth. Trademarks don't generate wealth like "property" as they can't be sold separately. To teach people that trademarks are like "property" to be sold to "generate wealth" is misleading as it is simply wrong.

Are you searching to find something in common with all three? Well, they all spring from the mind and have laws. But that's about where it ends. That doesn't justify lumping them together as "intellectual property". Call it intellectual-something, but not property.

Are you going to justify the term or be overly defensive? I'm not making any generalization about your intelligence, Doug - you're obviously just as sharp as any knife in this drawer. I'm challenging the very term "intellectual property", not you personally. After all, I said "stupidity", not "stupid".

[Doug Johnson]

Hi Peter,

After criticizing you for using the term "stupid," I did a search on the Blue Skunk and found that I had used "stupid" or "stupidity" in 31 entries myself. What's the biblical expression about a "mote one's brother's eye?" Anyway, perhaps I was being overly sensitive. Sorry.

On a purely intellectual level, I understand your dislike of the term "intellectual property." And if eliminating its use is your windmill to tip, who am I to stop you? I do think you have a big job since there are "intellectual property" lawyers, "intellectual property" college classes, and nearly 34,000 hits on Amazon when the term "intellectual property" is searched. For goodness sakes, IP even has its own entry in the ultimate authority - Wikipedia! I feel comfortable using the term to describe a class of "stuff" that has value, is protected by law, and does not exist as a physical object. To me property - something that is owned - is as good a term as any.

Yes, copyrights, trademarks and patents themselves do not generate wealth. They only protect creative or innovative capital for its owners much like a fence protects the apple orchard. The fence itself does not generate wealth, but it protects wealth from being taken or used without authorization.

I really AM trying to understand this, and I think I am more in alignment with yours, Tom Hoffman's, Stephen Downes', and Lawrence Lessig's ideas than you may think. Still thinking on this one.

Thanks, as always, for the discussion.

Doug