“If value, then right”
For the past 163 years the code of “if value, then right” has been used as a defense in providing legal justification for the fair use of copyrighted material. In non-legalese, “if value, then right” means that fair use is permitted if the derivative work (or copy) (1) adds value (i.e. is of public benefit), (2) does not reduce the value of the original work, (3) is not an excessive amount and (4) is not for commercial use. In assessing the applicability of the fair use criteria, we must consider the commercial implications for the original work, the commercial value of the derivative and copy, the amount and substantiality of the portion used, the purpose and character of the use, as well as the purpose and character of the original (copyrighted) work. Under these guidelines, is use of copyrighted material for educational purposes always in the public interest? Many of these assessments require a subjective assessment of commercial impact, purpose and character and public interest. This subjectivity makes the determination of value disputed.
The doctrine of “if value, then right” was established as a result of Judge Story’s controversial judgment in the Folsom v. Marsh case contested in Massachusetts, USA in 1841. Patterson (1998) recognizes the fundamental problem with Judge Story’s judgment. If copyright is recognized as a statutory monopoly right that allows the owner of the copyright exclusive rights then fair use could be defended as a limitation to the monopoly in the public interest. Thus, the monopolist would lose their exclusive rights to the intellectual property because a defendant can make a case for fair use in the public interest. Use of copyrighted material for education is often considered to be protected under the fair use doctrine. However, this only works in theory, because educators have been exposed to litigation as a result of their use of copyrighted material purportedly under the fair use privilege. Patterson also points out that fair use is a natural law defense. Natural Laws are designed to protect innate human needs and are universal. Patterson argues that a natural law defense (for fair use) cannot be used to plead exception for a statutory monopoly (copyright) because fair use is derived from copyright. However, if copyright is treated as a natural law (property) then it comes in conflict with fair use (education, public interest). Natural Laws, by definition, cannot be in conflict.
In Fair Use and Education: The Way Forward, Peter Jaszi discusses a 2012 case where Georgia State University officials were sued for infringement for the posting on electronic course reserve system of unlicensed excerpts from monographs. The court considered arguments for 74 instances of infringement and found that in 70 of the cases, fair use applied as a defense. Despite the success, Jaszi asks some relevant questions about fair use in education: Why was licensing not secured when the University has a licensing budget? The case was judged on economic grounds and Georgia State University prevailed because of its status as a nonprofit educational institution. Should fair use for education cases be judged on economic grounds? Lastly, since the process of securing rights is cumbersome and current litigation does not leave educators with clear guidelines for applying the fair use doctrine, learners are at a disadvantage because educators prefer to forego use of un-cleared but high value material. How can educators receive clear guidance in this area?
Open Access with respect to intellectual property means that the material is open to the public and can be accessed by consumers. Under the gratis open access model, the material is free to read. Under the libre model, the content is available for the consumers to read and create transformative works. Willinsky (2012) calls for improvements in the access and quality of academic research. He is a proponent of open access, but recognizes that open access and quality can be conflicting objectives because open access would reduce the level of vetting and peer review, and also because open access would allow contributors with contentious credentials to contribute academic material of dubious merit. However, he is optimistic that by redirecting funding and establishing a framework of open publishing with appropriate guidelines and technologies, open access can be achieved. Lessig (2004) describes the role of code in regulating online behaviour (including online education). Open Source plays an important role in defining code as law.
“Code is Law”
Imagine yourself driving. The conditions of the road surface, the width of the lanes, the traffic around you, the capabilities of your car and the absence of any signs advertising the speed limit permit you to legally and safely drive at 150 Kmph. Since you want to get to your destination, you drive at the speed permitted – 150 kmph. The drivers around you communicate the norms. The threat of economic cost in the form of a ticket would have communicated the price and the speed limit signs, if they existed would have communicated the law. Lessig (2004) argues that human activities (specifically online activities) are governed by four forces – the norms, the law, the market and the architecture. In the driving analogy, the law and the market were missing and the norms and architecture made driving at 150 kmph possible (and in the absence of law – permissible). If the government installed speed limit signs it would have communicated the law and if it communicated the applicable fines, the market would have been defined as well. We can imagine that other drivers would have also observed the speed limit due to the law and the market and thus the norms would have deterred me from driving at 150 kmph. However, the government could have also made changes in the architecture of the road by installing rumble strips so that driving over 100 kmph would be a very uncomfortable experience. Thus, the government has a few options for influencing my behaviour – change the law or change the architecture. The architecture of the internet is code.
Lessig traces the history of the internet to its birth. The newborn Internet was built on code that would accommodate free sharing of resources by academics and researchers. However, as the internet user base grew, the foundational code still permitted open and free sharing without restrictions. This open and free sharing was checked by the introduction of commercial activity on the Internet – e.g. once subscription based journals were available online, the code had to be modified to permit only authorized use. Similarly, when music and video were available online then the code had to introduce restrictions that did not allow people to copy and share. Technologies such as Digital Rights Management were introduced to regulate the behaviour. Code, therefore, can be used to regulate. In Lessig’s words – code is law.
Similarly, online behaviour is regulated through code. Our behaviour on this discussion board, for example, is regulated by the law (i.e. the code of conduct for UBC, and expectations for this course), norms (behaviour of our colleagues), the market (is academic value the currency of this discussion board) and code – what the software and its settings permit. Changing any of these factors in general can modify behaviour on this board and the online course. However, the most direct impact and effective regulation would be achieved by changing the code.
This is where open source comes in. What if the government introduced secret technology that did not permit drivers to exceed the speed limit? Should I be aware of this “secret technology” and how it works? This “secret technology” would be no different from using software that we use daily. TCP/IP protocols communicate information about our identity, location and activity to servers with vested interests (and ulterior motives). TCP/IP protocols though are open source and I know what information I am sharing with others. Thus, there is an element of choice to my activities. However, Blackboard, which all of us use on a regular basis, is not open source. How do I know that the comments I share on this discussion board (and which tend to run leftist) are not shared with political organizations through the “secret technology” of Blackboard code? If code is law and it is used to regulate behaviour, then users need to be aware of how the code operates, i.e. the technology must be transparent. Code, such as DRM, can also be used to regulate the permissible use of intellectual property.
I completed a MOOC course with courserera last year and I didn’t pay a dime, but does that mean it was free? It was definitely free in the economic sense, but it was regulated through norms, laws, code and the market. Since the Learning Management System imposed the code, I would have preferred an open source Learning Management System. The Blackborg cases demonstrate the kind of market concentration that protectionism can create. If Blackboard, for example, had won its lawsuit against Desire2Learn it would have strengthened its monopolistic power.
Lastly, I wanted to
The Death of the Author, Roland Barthes
“To give a text an Author and assign a single, corresponding interpretation to it is to impose a limit on that text.”
“the author is not an indefinite source of significations that fill a work; the author does not precede the works; he is a certain functional principle by which, in our culture, one limits, excludes, and chooses; in short, by which one impedes the free circulation, the free manipulation, the free composition, decomposition, and recomposition of fiction.”
Barthes, Roland, trans. Richard Miller. S/Z. New York: Hill and Wang, 1974.
Foucault, Michel, trans. Donald F. Bouchard and Sherry Simon. “What is an Author?” in Language, Counter-Memory, Practice. Ed. Donald F. Bouchard. Ithaca, New York: Cornell University Press, 1977. pp. 124-127.
Jaszi, Peter (2013). Fair Use and Education: The Way Forward. Law & Literature, 25:1, 33-49
Lerner, J. & Triole, J. (2005). The economics of technology sharing: Open source and beyond. Journal of Economic Perspectives, 19(2), 99-120.
Lessig, Lawrence (2004). Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (PDF ed.). Available Online: http://www.jus.uio.no/sisu/free_culture.lawrence_lessig/portrait.letter.pdf
Philip, K. (2005). What is a technological author? The pirate function and intellectual property. Postcolonial Studies, 8(2), 199-218.
Rivard, R. (2013, April 25). The world is not flat. Inside Higher Ed, Available online: http://www.insidehighered.com/news/2013/04/25/moocs-may-eye-world-market-does-world-want-them.
Willinsky, John (2002). Democracy and Education: The Missing Link May Be Ours. Harvard Educational Review, 72(3), 367-393