IP and academia in the digital environment

This page looks at debate about the basis and management of scholarly intellectual property, in particular copyright.

It covers -

• introduction
• four themes
• the commonwealth of knowledge?
• authors v institutions
• rights and responsibilities
• educational fair use

     introduction

IP within academia - like music - has become the centre of disagreement about the shape of publishing, power and community in the digital environment.

Much of that debate is passionate but ill-founded, with some proponents seeking to use disquiet over IP as a vehicle for overturning the 'new information order' (or merely secure more than 15 seconds of fame).

It has, however, featured some of the most eloquent and incisive arguments about rights, responsibilities and mechanisms. And it serves to illustrate concerns about moral rights issues, such as the nature of attribution online and plagiarism.

     four themes

Four basic themes are discernable in Australia and overseas -

• should intellectual property created within academic/research institutions be placed in the public domain?
• if the property is not placed in the public domain, who should be allowed to exploit it?
• what are the roles of educational bodies in teaching about intellectual property?
• in updating intellectual property legislation and its administration is special provision needed for educational uses, for example through strengthened fair dealing/fair use provisions?

     the commonwealth of knowledge

One of the shibboleths of western scholarship has been the 'commonwealth of knowledge' - the advancement of learning through the free exchange of information regardless of jurisdiction or institutional affiliation. That's been reflected in intellectual property legislation - most notably in copyright law - and practice, with for example provisions for fair dealing/fair use, an emphasis on attribution and an abhorrence of plagiarism.

The notion of scholars and universities as unsullied by commerce or concerns about exploitation of creativity is ahistorical. As Robert Merton's The Sociology of Science: Theoretical & Empirical Investigations (Chicago: Uni of Chicago Press 1973) and Richard Whitley's The Intellectual & Social Organization of the Sciences (Oxford: Clarendon Press 1984) suggest, particularly in the sciences there is a long history of efforts to leverage research. However, since the mid 1970s there has been disquiet about perceived efforts by individual scholars, projects and institutions to restrict access to intellectual property.

In the US much of the angst centres on application by universities of the 1980 Bayh-Dole Act, legislation enabling institutions conducting research for the federal government to own the intellectual property they produce and sell/licence that IP.

More detail is available on the US Council on Government Relations site here, with a discussion by Jonathan Shapiro of Johns Hopkins here and the important Ivory Tower and Industrial Innovation: University-Industry Technology Transfer before and after the Bayh-Dole Act (Stanford: Stanford Uni Press 2004) by David Mowery, Richard Nelson, Bhaven Sampat & Arvids Ziedonis. The latter is complemented by Christopher Newfield's Ivy & Industry: Business and the Making of the American University, 1880-1980 (Durham: Duke Uni Press 2003), Shane's Academic Entrepreneurship: University Spinoffs and Wealth Creation (Cheltenham: Edward Elgar 2004) and other works on the 'university-industry complex highlighted elsewhere on this site,

Australian perspectives are provided in Malcolm Richmond's 2002 Should Australia have a Bayh-Dole Act? paper (PDF) and Tracey Howley's Bayh-Dole Act: The Need to Implement A Similar Act in Australia and in the Same Environment paper (PDF). Context is provided in The Enterprise University: Power, Governance & Reinvention in Australia (Cambridge: Cambridge Uni Press 2000) by Simon Marginson & Mark Considine and Off Course: From Public Place to Marketplace at Melbourne University (Melbourne: Scribe 2004) by John Cain & John Hewitt.

The legislation has been underpinned by employment contracts that transfer IP from faculty to the institutions and is reflected in scholarly publishing contracts - particularly for journals - which transfer economic rights to the publisher.

Figures on the significance of those moves and their impact on scholarship are contentious. In our Publishing guide we've highlighted calls for a revolution in scholarly publishing. The Association of University Technology Managers claims that US university inventions licensed to the private sector under Bayh-Dole since 1980 have resulted in over 2,200 new enterprises that generate around US$30 billion pa. Critics have just as blithely spoken about copyright colonialism and profound impediments to innovation.

For the US three starting points are Corynne McSherry's Who Owns Academic Work?: Battling for Control of Intellectual Property (Cambridge: Harvard Uni Press 2001), Anna Herrington's Controlling Voices: Intellectual Property, Humanistic Studies & The Internet (Carbondale: Southern Illinois Uni Press 2001) and the 340 page report on The Digital Dilemma: Intellectual Property in the Information Age from the US National Academies in 1999. A print version is now available (Washington: National Academies Press 2000).

It is a considered and well-informed document that builds on (and takes issue with) the 1995 Intellectual Property & the National Information Infrastructure report by the federal government's Working Group on Intellectual Property Rights and the 1986 report by the US federal Office of Technology Assessment (OTA) on Intellectual Property Rights in an Age of Electronics & Information, noted earlier in this guide.

A paper by UK guru Charles Oppenheim suggests that universities should seize the day: if you can't beat them, it seems, you should join them. That theme is explored in Intellectual Property In The Age of Universal Access (1999), a delicious collection of papers - featuring Samuelson, Schneier, Neumann and others - from the Association for Computing Machinery (ACM) and in David Noble's Digital Diploma Mills: The Automation of Higher Education (New York: Monthly Review Press 2002). A succinct version of the latter book is available in a paper by Noble, with responses here. perspective in Henry Perritt's paper Should Local Governments Sell Local Spatial Databases Through State Monopolies?.

David Johnson's paper Rewarding Authorship in Cyberspace: Is Intellectual Property the Answer or the Problem? and Clayton Christensen's The Innovator's Dilemma: When New Technologies Cause Great Firms to Fail (Boston: Harvard Business School Press 1997) offer another perspective.

Lawrence Lessig's polemical The Future of Ideas: The Fate of the Commons in a Connected World (New York: Random 2001) questions whether intellectual property law will severely inhibit innovation, a theme of essays in Expanding the Boundaries of Intellectual Property: Innovation Policy for the Knowledge Society (Oxford: Oxford Uni Press 2001) edited by Rochelle Dreyfuss & Diane Zimmerman.

We noted James Boyle's challenging Shamans, Software & Spleen earlier in this guide. His 1997 paper A Politics of Intellectual Property: Environmentalism for the Net is characteristically thoughtful. Eric Schlachter countered with a paper on The Intellectual Property Renaissance in Cyberspace: Why Copyright Law Could Be Unimportant on the Internet. Debora Spar's Ruling the Waves (New York: Harcourt 2001) highlights the value of government intervention.

For a broader historical perspective see Pamela Long's Openness, Secrecy, Authorship: Technical Arts & the Culture of Knowledge From Antiquity to the Renaissance (Baltimore: Johns Hopkins Uni Press 2001) and Forgers & Critics: Creativity & Duplicity In Western Scholarship (Princeton: Princeton Uni Press 1990) by Anthony Grafton.

     authors v institutions

The response of many scholars to 'the great copyright grab' has been underwhelming. In 1999 the Australian National Academies Forum (NAF) held a two-day symposium on Scholarship, Intellectual Ownership & The Law In The Digital Environment. The event was marked by divergent opinions, ranging from laments for the decline of patronage and the rise of digital bugaboos through to hardheaded advice about self-help in the humanities and commercialisation of scientific discoveries.

Examples of UK discontent (over the July 2002 Cambridge Uni report) are here and here.

For US perspectives see Albert Henderson's University Ownership of Faculty Copyrights (Binghamton: Haworth Press 96), papers from the 1999 Pew Who Owns Online Courses and Course Materials? Intellectual Property Policies for a New Learning Environment symposium and Jan Newmarch's Lessons from Open Source: Intellectual Property and Courseware paper

The Intellectual Property Policy & New Media Technologies: A Framework for Policy Development at AAU Institutions report, Dan Burk's crisp 1997 guide Ownership of Electronic Course Materials in Higher Education and William R Bobbitt's Intellectual Property Conflicts between Universities & Faculty Members over ownership of electronic courses (Bowling Green: Bowling Green State Uni Press 1999) may also be of interest.

     rights and responsibilities

For most students intellectual property rights and responsibilities are not part of the curriculum, at best the subject of a cursory and often negative warning about plagiarism. In 2001 we noted hubbub over UK proposals to "bring copyright into the classroom", recognising that schools are a mechanism for encouraging understanding of 'rules of the road' on both the information highway and the concrete-&-carbon variety.

In Australia the Multimedia Law Website (IMLW) is being developed by the IMAGO Multimedia Centre and the Asia Pacific Intellectual Property Law Institute (APIPLI) at Murdoch Universityoffers a resource for tertiary students and multimedia developers. In the visual arts some courses now include a single lecture on authors rights. The Performing Arts Multimedia Library (PAML) was a Commonwealth-State project that explored legal and production aspects of copyright in online performing arts. A Five Step Guide to Contracting and Copyright Management of Digital Recordings for the Live Performing Arts is now available on the PAML website.

David Noble's Digital Diploma Mills (New York: Monthly Review Press 2001) argues that distance education threatens the privacy of students and professors because online class discussions can be monitored in ways that are impossible in traditional classrooms.

Mathieu Deflem led a spirited campaign against online notes businesses in the US. His 2001 paper on Intellectual Property & Online Notes Companies: Teaching Copyright in Cyberspace and 2000 paper on University4Sale.com: The Educational Cost of Free Lecture Notes on the Internet include a discussion of issues, university codes and case law.

A primer by Kenneth Crews on Copyright Law & Graduate Research: New Media, New Rights & Your New Dissertation is online under the auspices of ProQuest (the former University Microfilms) but is US-centric and should be used with caution by Australian, New Zealand and EU readers.

     educational fair use

Anne Fujita's 1996 paper The Great Internet Panic: How Digitization is Deforming Copyright Law is overstated but may encourage thought. More cogently, Jessica Litman's 1994 paper The Exclusive Right To Read was an impassioned plea during the lead-up to the US Digital Millennium Copyright Act.

Her 1996 paper on Innovation and the Information Environment: Revising Copyright Law for the Information Age also explores conceptual challenges, as does the 1997 paper on Copyright Noncompliance (or why we can't "just say yes" to licensing).

For other perspectives on US developments we recommend Leon Seltzer's Exemptions & Fair Use in Copyright: The Exclusive Rights Tensions in the 1976 Copyright Act (Cambridge: Harvard Uni Press 1978), Growing Pains: Adapting Copyright for Libraries, Education & Society (New York: Rothman 1997) edited by Laura Gasaway and Kenneth Crews' Copyright, Fair Use & the Challenge for Universities (Chicago: Uni of Chicago Press 1993) and Siva Vaidhyanathan's impassioned but to us largely unconvincing polemic Copyrights & Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York: New York Uni Press 2001).

Gasaway's 2000 paper Values Conflict in the Digital Environment: Librarians Versus Copyright Holders and 2002 Drafting A Faculty Copyright Ownership Policy article are particularly recommended.



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