Intellectual Property Protection Online: An Oxymoron?

The Web has made it easier than ever to find ideas and to copy, modify, and redistribute information. These capabilities are wonderful assets for scholarly research, collaborative development of ideas, and joint projects. However, these enhanced assets also bring new intellectual challenges, ethical obligations, and economic complexities.

To encourage faculty to develop online learning activities to supplement traditional courses and to develop fully online courses, colleges and universities provide computers, software, technical support—and Internet access. Hoping to avoid reinventing the wheel, not simply as a shortcut, many faculty will first scan the Web for syllabi, instructional materials, and assignments developed by peers from other institutions. It is becoming easier to find an image on the Web, even a sound bite or a video clip, that nicely illustrates and clarifies a point for tomorrow's lecture. And it is more and more common to have a computer, Web access, and projection equipment in the room where class will meet. What is not so obvious or simple to determine is whether or not the faculty member should obtain permission to show what was found to the class—and if there is time to do so. How often d'es a new syllabus acknowledge the work that has shaped the new course?

As a result of what some see as a form of plagiarism, some faculty members have begun "hiding" or password protecting their syllabi, and some institutions have begun to urge or even require faculty to do so. Many institutions are trying to establish and enforce policies that permit academic administrators to make decisions about the subsequent control and use of these online learning materials—for example, whether to continue using the materials, even after the faculty member who developed them has left the institution. The traditional pattern of allowing faculty complete "ownership" of materials developed for a course, even of a textbook written for and tested in a course, d'es not fully take into account these new conditions.

Development and dissemination of new combinations of technology applications and teaching approach are made available so rapidly on the Web that no individual faculty member, support professional, or administrator can find and evaluate all learning materials relevant for a particular course. In light of this, the need for inter-institutional collaboration is growing, and the tools for making it easier via the Web are improving rapidly. MERLOT and other inter-institutional programs for developing, evaluating, and sharing instructional resources are emerging. New models for governing and managing the balance between those who contribute to these efforts and those who could easily benefit from them are needed.

Prior to the widespread availability of computers and the Internet, it was already difficult to understand and uphold the laws and ethics upon which our intellectual property system was based. Now it is almost impossible. As the underlying technology continues to evolve rapidly, the options for manipulating images, text, sounds, and mixtures of media keep changing.

Below is a set of principles that seem to cover the primary purposes for the laws, regulations, policies, and guidelines for governing transactions associated with creativity and intellectual work. However, many legislators, lobbyists, intellectual property lawyers, university administrators, librarians, publishers, union leaders, and other capable and well-intentioned people have been trying for years to develop an "intellectual property system" that clarifies how these principles should be applied in practice. In an article in Change magazine in the 1980s, Harlan Cleveland said, "Protecting intellectual property is the wrong verb about the wrong noun." The complexity and significance of the conflicts about interpreting the resulting miasma of rules suggest this is a daunting task.

  1. Attribution
    When you use someone else's ideas or information, acknowledge the source. Honor the work on which you're building. You should be able to confirm its validity, explore it more deeply, or examine the thinking behind it more fully. Review the sources and reach your own conclusions—or develop others' further.
  2. Encouragement and Sustenance
    Anyone who is able to develop a new idea or invent a new way to do something should be encouraged to continue doing so. This may involve economic reward or public recognition and respect from acknowledged experts. Creators, developers, and inventors should receive enough payment for their new works to enable them to continue producing work.
  3. Compensation
    The individuals and institutions providing essential tools and resources (including staff) used in the development of new intellectual work need to be compensated. The minimum level is that which would enable the continuation of such support for similar efforts.
  4. Dissemination
    Creators, developers, and inventors should also be strongly encouraged to reveal and disseminate their work as rapidly as possible. The first goal is to maximize the number of people who can appreciate and benefit from the accomplishments, and to minimize the time they must wait to do so. The second goal is to enable other creative individuals or organizations to take the ideas further, to build ever more useful, valuable, or aesthetically advanced contributions.
  5. Control
    Creators, developers, and inventors should also have some say concerning the ways in which their accomplishments are used and acknowledged. The results of someone's creativity and labor should not be allowed to be used for purposes that are morally offensive to that person. While some may prefer something closer to anonymity, others may need the recognition to advance their careers.

I hope this—perhaps oversimplified—set of principles is helpful to those seeking to understand, develop, or improve relevant policies as higher education strives to adjust to the remarkable new options and challenges provided by computers and telecommunications. I welcome additional examples illustrating how these principles may sometimes be in conflict, suggestions for improving the principles, and references to clearer explanation.

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