Copyright Law in the Digital World: Robert A.
Baron Write to The Challenge to Education When Chris Sundt asked me to take Kathy Cohen's place to speak to you about the challenges that copyright law and the proposed CONFU guidelines pose to educators, I said to myself that it will not be easy to fill Kathy's shoes. For quite some time at Cal State San Jose, Kathy has been experimenting with the possibilities of using new media in education. In this, she has involved students in projects that require them to create presences on the web, and to use scholarly and visual information in ways that invite the public to partake in the experience. She has created new media didactic presentations for reuse and for distance learning. In addition, skirting around the ramifications of copyright and fair use, she has managed to create a visual catalogue of public domain and personally owned images of considerable significance to art history, which, in characteristic fashion, she has donated to the web culture. One might say that in these activities copyright has been her constant partner and adversary. Thus, if anyone could speak to you about the trials and tribulations that copyright and CONFU has imposed on the educational use of images, it would be she. Although I have written from time to time on topics regarding the scholarly use of, and access to images in the face of developing technology and evolving copyright laws (See "Digital Fever: A Scholar's Copyright Dilemma," in Museum Management and Curatorship, Vol. 15, No. 1 (March 1996), pp. 49-64), it did not seem to me that I could give you something equivalent to Kathy's experience. While Kathy was sending her forces to the front to claim territory being seized by those who define things intellectual as if they were material properties, I have found my role far from the educational arena. Indeed, I must admit that I haven't been able to call a classroom my own, now, for over twenty years. What could I say to educators today what would be of value to them? Dutifully I drafted a plan that set out, in a rather pedestrian manner (I fear) a number of rather specific issues that I thought educators must face as technology and automated procedures surely and incontrovertibly come to take over their use of resources. I'm not going to read you the whole list I compiled because, much to my surprise, many of the issues I planned to talk about here have ended up as topics for the discussion of guidelines that I'm going to deliver to you this afternoon. Here are some of the former topics for "The Challenge to Education": [Characteristically, they focus on issues concerning acquiring data, not using it.]
There were more of these, but, since you have already, no doubt, encountered these or similar issues in your own realms of experience, I think that forgoing discussion of them will not make you too unhappy. Further, although these topics are real enough to me, I detect an air of hypothetical reality about them. For this session, what I was searching for was something that I could tell you from my own experience as an educator which must have relevance to today's turmoil. And then it came to me: Perhaps mischievous Chris Sundt had it in her mind all along. The challenge to educators today does have something to do with what education was like twenty years ago. Our problems with copyright law today, both pre- and post-CONFU are connected to the tradition of educational culture that we are trying to preserve. If we can figure out what were the expectations, methods and challenges and goals then, and come to understand how they differ from those of today, we might be on the right track. So, I'd like to know if the challenge to educators is about protecting what was considered valuable in the past. Are we being challenged to learn how to maintain our old goals using present ways and holding current values? If education has indeed changed its goals in the last two decades, we'd want to know if these goal changes are due to the shifts in technology that have transformed the ways we communicate. If technology has changed the goals of education, we must ask if it is proper for education to lay claim to the same privileges and rights that it did in its pre-technological age. In other words, can education abdicate and edict, too? Elsewhere, I have written that, today, the rules that we use to regulate the flow of information -- rules defined by our system of copyright and fair use -- do not quite fit the traditions of scholarship and education that were crafted before we learned that copyright extended beyond the business of literature and into the commercial life of the fine arts. In this older tradition the domain of information available to scholars and to education both epistemologically and hierarchically precedes its commercialization and commodification. Our society is more than just ethnically multi-cultural; it is multi-cultural intellectually as well. This is not surprising news, of course, but it should remind us that the culture of education and scholarship and the culture of commodities are co-existing entities. The educational substrata -- if we can call it that -- co-exists with and is seamlessly integrated into the outward, public level of commercial data exchange. Perhaps we should think of the traditions and mores of education as an undercurrent, a powerful deep-sea river, if you will, which sometimes mixes into the ebb and flow of the tides of commerce. This paradigm reminds me of the movie "The Last Wave" by Peter Weir in which an aboriginal civilization practicing its own magic and exerting its own control over its parallel reality, lives within a metropolitan environment built, one thinks, expressly to destroy the older society by integrating it into the newer dominant one. * * * Twenty years ago, as a young assistant professor in art history, I was responsible for creating lectures, finding the appropriate visual documentation and securing the images I needed. Scholarship was king, then, and within the cloistered world of education, the administration of education bowed to education's goals. Even though I hadn't thought of it this way, at that time, I had inherited a culture in which scholarly and educational activities were carried on under a mandate that assumed that education had unique privileges. As a corollary, the world's art, while materially and temporarily belonging to individuals, museums and governments, permanently, intellectually and spiritually belonged to the world at large. Scholars had the right, no, the obligation to find and use whatever resources they thought appropriate to their mission (a right that was parodied in science fiction and in monster movies -- incidentally). Copyright, if the word was used at all, was a legalism that protected the commercial interests of authors and publishers of literature. Scholarly articles appearing in academic settings were thus free to use, to copy, or to distribute as needed to fulfill the scholarly mission. The quest for knowledge may have had to bow to political realities sometimes, but for the most part the scholar's and educator's activities were above politics (or, more accurately, were carried out beneath politics) -- or so we thought. Rephrasing Mario the Postman: "Art belongs to those who need it." In this world students came to educators. As far as I knew then, educators made no effort to acquire students. As passive deities the professors fulfilled the role of great but remote authorities. The rewards of teaching came from those students who found their way to you. Education did not bow to the least common denominator, was not half advertising and was not PR -- anyway we would not have admitted it if it were. Jerry Brown had it right, after all, when he said that teachers were paid in "psychic" bucks. * * * Even then, I should have known that change was in the air, even back in the 1960s, but it was only in retrospect that several events from those days now seem to have ominous tones, setting the stage for the creation of CONFU-style guidelines. The first of these was a lawsuit brought by a private owner of a painting which the owner bought and considered to be by Raphael. Some scholar in some scholarly magazine reattributed the work away from the master. The owner sued the scholar for destroying the worth of his property. I apologize for not remembering the facts of the case, but it is the mythology or symbolic meaning that is most important here. Anyway, I believe the owner lost. Looking at it now, in retrospect, it seems that in this event we were witnessing an early example of the clash that is now playing out between academia and the marketplace in the guise of copyright vs. fair use. The case was not about copyright; but, it was about intellectual property. This issue of copyright, or the right to use intellectual property, is real, but it is also a powerful all-consuming metaphor that marks the role of education in our society. This is not to say that heretofore the world of commerce in art, and the world of scholarship in art were separate and distinct. Stories abound about scholar/dealers whose attributions helped make markets, and who acted as agents for both seller and buyer, collecting commissions from each during a single transaction. But these are stories of conflict of interest. In the case of the said Raphael, there appears to have been a clear separation between the owner and the scholar, and the legal problem concerned the power and influence of information only. To one side, the work of art was a commodity like real estate; to the other side, it was information that floated freely in the scholarly ether, entirely divorced from material and economic concerns -- or so states the mythology. The storm broke when the hot humid air of commerce met the cool dry zone of scholarship -- or was it the other way around? As I remember it, the second case was even more bizarre. In Carmel California, the Pebble Beach Golf Course -- the one everyone knows from its trademarked rendition of its signature tree -- decided to "copyright" the tree. (Recently we have seen a similar effort by Tuscany, to "copyright" its ancient landscape.) For Pebble Beach, the idea was to command every representation of it so that only they could own and control it. Trademark law could protect its use from competing and related businesses, and could protect its significance from being diluted by certain usages, but the tree itself was growing near a semi-public road, so that untold numbers of tourists and professional photographers could and did photograph it -- some perhaps selling their images. Today their efforts appear ridiculous and invite the obvious jokes: Who is the maker of the tree? Does God own the copyright, or is it the uncopyrightable "idea" of the tree that God owns? Whose Ph.D. will be on Copyright and Neoplatonism? Kidding aside, the case illustrates how far commercial motives can reach to grasp something that should belong to us all. And, here, at last, in this, lies what I think is the main challenge to education today. We are living in a world in which most of the materials and resources formerly considered to have no boundaries of spiritual ownership are being staked out for private claim and private gain. As educators we must feel something like the indigenous Native American tribes, who, without thinking of claiming this or that piece of turf, knew beyond the limits of knowledge that the entire domain was theirs in common, only to find settlers coming in and building fences and using the land for their private exclusive good. In the world that built the CONFU guidelines it would seem that the "fair users" are the old order, the bad guys with illegal tendencies and nefarious habits, sometimes stalwart, often whining protectors of a dying and outmoded past. The copyrighters are the good guys in the white hats who stand for the principles of an ordered economically well-oiled society where intellectual properties always reward their inventors and are traded like coins of the realm. As education (the business of education) is taken over by the micro-economics of management principles -- the kind of management that requires creating educational "products" with which to teach current, future and "asynchronous" courses -- I suspect it will become ever more difficult to sustain a value system that works apart from the commodification of intellectual properties. In the end, the pressure from without may be too strong for the education business to resist. Scholars, after all, long ago ceased being drawn from a class of wealthy amateurs capable of sustaining a belief that their work is entirely divorced from the economics of daily life. Indeed, as that class faded from view, and was replaced by "Professional Professors," the material and other cultures of everyday life have been drawn into our educational environment. It stands to reason, doesn't it, that the economic culture that sustains the objects of study should rule the mechanisms of study. The scholar, a sometime Marlow in quest of Kurtz, himself, can be seduced by the cultures he studies, losing his scholarly mission while grasping hold of the economy that created his objects of desire. [See illustration: SIresearch.GIF] When education falls under the influence of "business plans," and information architectures over-rule learning; when "best practices" is considered an ideal to replace idle research and serendipitous discovery; when organizational charts and process flow diagrams take the place of the "true grit" of dangerous inquiry, then humanistic education, itself, will be metamorphosed ever increasingly into "educational engineering." Here education will never be able to lay claim to its ancient privileges. Access to resources must, of necessity, follow the indestructible logic of licensed and contracted properties. As educators, your challenge is to prove the above scenario wrong, that technology can be used to create a vital educational culture which obtains its strength from the old tried-and-true mission. One of your tools is "fair use." I want to leave you with a little story, probably apocryphal. It is not about copyright, but it is about a challenge to education. It is about a major New York museum of art which, in the 1960s, commissioned what was in those days called an "efficiency" study. At one point, one of the "efficiency experts" peeked into the office of one of the curators, and observed him sitting in his chair, feet on the radiator, staring out of the window into the nearby public park. An hour later he came back and noted that the fellow hadn't moved, so he asked the curator what he had accomplished during the last hour, to which the curator responded: "I've been thinking; that's what they pay me for." 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