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date: 20 November 2017

Intellectual Property and Education

Summary and Keywords

Concerns about intellectual property in education typically involve administrative interest in improving institutional compliance with copyright and patent laws. The focus on compliance, rather than on intellectual property as an area of educational inquiry for students raises two questions: Are educational institutions adequately preparing students (a) to participate in a global economy that is increasingly driven by intellectual property and (b) for a future in which the creation and distribution of intellectual property is being reshaped by the emerging digital era? The educational value of intellectual property begins, however, with history of the concept in which learning played a strong role in giving shape to the idea of text as an intangible good associated with distinct properties, rights, and responsibilities, with all of this taking place well before the 18th-century introduction of the modern concepts of copyright and patent law. In light of this history and its contemporary standing, intellectual property has much to offer as a way for students and teachers to gain insight into the nature of creative work in relation to private property and the public domain. While education benefits from exceptions made for “fair use” and other exemptions in copyright law, the digital era has seen the introduction of new intellectual property strategies that support the collective educational enterprise, including Creative Commons licensing, open educational resources, open access to research, and open source software. While intellectual property has played a small part in business education and composition classes in the past, a number of innovative programs now involve students in different approaches to balancing the private and public interests associated with this concept, suggesting the value that intellectual property holds, as a teachable topic, for the curriculum and for thinking, more broadly, about education’s role as a public good.

Keywords: intellectual property, student rights, copyright, patents, law, John Locke, history of education

Intellectual Property’s Standing in Education

Intellectual property stands as education’s ghostwriter, or perhaps more accurately, its ghostly underwriter. It is a constant, but barely visible, presence in education. It is the skipped-over front matter on the way to and from learning. It is integral to the sale and purchase of educational materials, but only comes into view with the occasional, chilling lawsuit over infringement.1 So how is it that this concept, which has everything to do with how people traffic in information, culture, and knowledge, is rarely seen as worth teaching about? This article sets out the why and the what for a greater consideration of intellectual property in educational contexts; it reviews the current state of the topic, the historical concept and principles that bear on education, and more recent developments and related initiatives that suggest the value of giving the concept and workings of intellectual property greater consideration in education today.

Up to this point, intellectual property law has been largely a subject of study for school and college administrators concerned about managing the costs of learning materials and steering clear of infringement suits. These leaders may be advised, to turn to a typical guide, that “intellectual property law will shape the course of knowledge for the foreseeable future,” but they are told that “intellectual property policies and practices at colleges and universities are shaped by the economic, political, and social forces,” effectively setting the topic outside of those institutions’ educational and instructional interests.2 Guidebooks for schoolteachers, such as Carrie Russell’s Complete Copyright for K–12 Librarians and Educators, provide legal counsel on what teachers can and cannot do with other people’s materials.3 The goal of such works is to provide educators with just enough information to keep them out of trouble.4 Less often, they are intended to assist educators in exploiting the new opportunities such as those offered by online learning.5

The assumption is that intellectual property has no place in the curriculum itself, as a topic of educational interest and importance. This effectively keeps teachers and students from realizing the extent to which intellectual property law offers one way of understanding how learning is part of a larger world of economic systems, legal orders, and political regimes. Teachers and students may be spared worries about textbook pricing, digital file sharing, and Shakespearean film rights, but they are missing out on an understanding of how intellectual labor, including their own, is valued, what their information rights and choices are, and how new technologies have thrown the marketplace of ideas into turmoil—in areas of journalism, scholarship, and literature—adding a new set of responsibilities and opportunities to what it means to be a citizen of the digital era. In the meantime, students are directed to write things out in their own words, find pictures to illustrate their work, credit works that back up their claims, and use the library from which works are freely borrowed by all, while generally kept oblivious of how this is all based on an economic and legal system that may well govern much of their work over their lifetime.

It is not as if the young come to school unaware of intellectual property law. They see the FBI warnings about infringement; they agree to app terms; they rip, burn, edit, and DJ files; they dream of making a killing on their own game, movie, music, and app. Studies may show that they have a strong grasp of intellectual property.6 Yet they are given few indications that this has anything to do with education and their preparation for the world of work. More’s the pity, not only because the schools are responsible for preparing the young for a world in which intellectual property plays such a key role, but because of how the history and substance of the concept has much to offer to the educational experience and the students’ understanding of it.

The History of Intellectual Property and Education

Long before intellectual property took its modern legal form in Europe during the early 18th century, the learned had been working with the properties or qualities of texts within institutional settings in the Latin West.7 This began with early medieval monasteries in which nuns and monks toiled away in scriptoriums painstakingly and faithfully copying and sharing works across networks of abbeys. These texts formed part of the communal economy of these religious and learned houses that were sponsored by the local nobility so as to operate at a holy remove from the world.

The monastics developed intellectual property rights not only of access, but of autonomy from the local bishops, which was granted to them by the pope, affording them a certain freedom of inquiry. They exercised these rights in their copies, translations, and compilations, as well as through glosses and commentaries that dwelled on the intellectual properties of these works, including their authorship, origins, and import. The texts on which the monastics worked were treated as highly valued, distinctive intangible goods, in which the learned exercised rights and responsibilities that remain a part of the modern concept of intellectual property. This labor was often justified on grounds of teaching others to quell concerns over the sinful pride and heresy risks of the learned. The Venerable Bede, for example, provided an educational rationale for what might otherwise have been cast as far too presumptive and prideful work for a humble monk to undertake in the north of England during the 8th century: “I have made it my business,” Bede explains, “for my own benefit and that of my brothers, to make brief extracts from the works of the venerable fathers on the holy Scriptures, or to add notes of my own to clarify their sense and interpretation.”8 His many books, from Biblical commentaries to tidal analyses, were intended to instruct others in the glory of God. Learning was at the root of this early formation of an intellectual property economy, based on the beneficence the nobility invested in this devoted labor and a monastic autonomy that enabled the pursuit of learning.

The formation of the medieval universities extended that tradition by making instruction and scholarship their very purpose, with a focus on the classical tradition recently made available through Latin translation of Arabic editions of principally Aristotle, as well as Plato, Galen, and many others, with, no less importantly, the Islamic commentaries on these philosophers that made their work all the more teachable.9 The study of these so-called pagan authors was not without controversy, with the university masters constantly having to defend the rights and value of their intellectual autonomy, access, accreditation, and usage on behalf of learning, even as colleges, students, and libraries continued to depend on the fickle economy of endowments by the wealthy. But then other sorts of intellectual property issues arose, as well. The medieval teaching masters who were charging students for access to what was, after all, a knowledge that came from God, had to come up with various workarounds, with theology faculty receiving gifts for their services. In the early modern period and the age of print—but still well before intellectual property had legal standing—the crown fell into the habit of granting printers monopolies in exchange for their cooperation in censorship, with the universities using their monopolies (to the Bible, for example) to subsidize the printing of learned works.10 If the concept of intellectual property has a prehistory, then education and scholarship were very much a part of that history, just as they continue to have a large stake in current intellectual property issues.

Introduction of Modern Copyright Law

Learning was declared to be, for all intents and purposes, the impetus for modern copyright law. The first law to grant authors control over the right to copy their work, which was the Statute of Anne 1710 passed by the British Parliament, was singularly identified as “An Act for the Encouragement of Learning.” Now it is true that the Stationers’ Company of printers and booksellers was among those who took up learning’s cause, in its efforts to see a restoration of some part of its earlier monopolistic privileges.11 Yet this copyright legislation really did take up the cause of learning. For example, it granted university officials and others the right to roll back excessive book prices, it ensured the deposit of a copy of every new book in the public libraries of the universities, it protected the importing of (learned) books and the printing privileges of the universities, and it limited the author’s print monopoly to fourteen years with a second fourteen on renewal. Another of those lobbying Parliament on learning’s behalf was John Locke, after having done much to make property a matter of natural law and human rights in his Two Treatises of Government published in 1689. Locke’s work on property continues to play a leading role in the scholarship on intellectual property and his principles are worth briefly considering.12

Between his theory of property and lobbying on behalf of learning, he provides no less of a helpful framework for thinking about this concept’s long-standing relation to education. Locke’s first premise is that the world was given to humankind in common, with property rights only arising out of individual necessity and for the benefit of humankind as a whole.13 He may have been defending landowner property rights against the divine right of kings with Two Treatises, but what has stuck is his conviction that each of us has a property in ourself—which forms the basis for democratic rights and intellectual property claims—and that we can extend that property claim to those things over which we labor, be they fields of wheat, in his example, or a project on spiders, as we might think of it among students. Where Locke sought to explain “how any one should ever come to have a property in any thing,” educators desire no less than helping students come to have an intellectual property in any topic. Taking hold of something in this way is not about a selfish and exclusive possession of it; rather such a claim to it, for Locke, “does not lessen, but increase the common stock of mankind.” This is consistent with the Intellectual property law that was originally instituted, which sought to profit and protect the public by providing authors with a limited incentive to continue contributing to that common good, or as the U.S. constitution put it in 1787, such laws are intended “to promote the Progress of Science and useful arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Education’s Place in Intellectual Property Law

Coming out of this history, learning has retained a special place in intellectual property law. Students can also be introduced, for example, to their rights of fair use (or fair dealing in the U.K. and Canada). Here they can see how earnestly the courts and legislators have sought to protect the rights of learners and scholars as a furthering of the public interest. While only formally introduced into U.S. copyright law in 1976 (but upheld by the courts before that), provisions for the fair use of copyrighted work ensures that certain intellectual activities are not unduly restricted by the proprietary rights granted around reproducing work. Thus, U.S. law holds that the “fair use” of a work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright” (USC 17.107). While there are limits to such fairness, such as the amount and purpose of the use, educators would do well to let students consider how the law places the public’s right to these intellectual benefits (as found in works of criticism and research), above those of the property owner, treating such use of others’ work as a necessary public good. Students can be introduced to how the law allows for an ongoing and open debate over what constitutes fair use, especially around the considerations that need to be given to, as the statute puts it, “the effect of the use upon the potential market for or value of the copyrighted work.”

Intellectual property law retains further protections for learning’s special contribution to the common good. Teachers, and more specifically, college faculty, retain control of their own intellectual property (rather than their employers, as in other businesses) through what is known as the academic exception, which further sets apart the world of learning, if not without controversy over the ownership rights of their institution when it comes to patents. This recognition of the educator as a distinctive producer of intellectual property, whose work is most likely destined to be placed in research libraries for the common use of all, further defines the relationship between intellectual property and education. The American Association of University Professors frames this as a matter of academic freedom, pointing to the Supreme Court case Stanford v. Roche 2011, in which the court upheld the rights of faculty against the university’s presumptive claim on the inventions of its faculty (as opposed to their scholarly copyrights).

Even when faculty members and the university are aligned in seeking a patent—with such patenting enabled with federally funded research work in the United States through the Bayh-Dole Act 1980—it can raise questions about the extent of such institutions’ service to private intellectual property interests and its consistency with their commitment to public benefit (which it may well be if, for example, it facilitates greater equitable public access to inventions). This makes thinking about the place of intellectual property in education a way for students to learn more about the institutions of which they are a part, as they might, if only in passing, become students of their own education as part of their civic preparation for joining a larger institutional world.

An illustrative instance is found in the case of Myriad Genetics, Inc. This molecular diagnostic company employs a series of patents that had been secured as a result of federally funded research conducted principally at the University of Utah. The patents enable Myriad to be the sole source of a relatively expensive testing procedure for mutations in the genes known as BRCA1 and BRCA2, which are used to identify heightened risk for breast and ovarian cancer.14 One of the company’s patents on a naturally occurring strand of DNA was challenged by a number of groups including the American Civil Liberties Foundation and the Public Patent Foundation, with the Supreme Court unanimously disallowing the patent on the grounds that the DNA in question was a product of nature. The case brought out a great deal of the rancor that had been felt over how Myriad’s exclusive use of its patents appeared to put company profits ahead of public interest. The company then decided to change its strategy, dropping its patent infringement suits against companies that, as a result of the court’s decision, began offering this important service for women’s health. The whole incident speaks to the pressure that universities have been experiencing for some time to pursue profitable patents to make up for reduced state and other forms of funding.15 It highlights the importance of educators providing students with some understanding of how this area of the law can affect the ethical role that education plays in society.

The Myriad Genetics case also illustrates how the “experimental exception” in patent law is another example of education’s special standing.16 When the company came to defend its DNA patent before the Supreme Court, it included in its defense the consistency with which it honored this exception by enabling a great number of researchers to conduct a multitude of studies involving the DNA in question, principally of breast cancer, without having to license the patent. The privilege granted to research by this exception has itself been eroded over time, as it has become more difficult for university researchers to warrant that any given experiment employing someone else’s patent isn’t going to lead to its own patented and commercialized development down the road, thus disqualifying the research from the exception rule. Such is the campus patent chase taking place among universities, even as the results of these extensive patent-filing efforts make it clear that most of the patents granted to these institutions go unlicensed, producing a loss for the university.17 There are, however, alternative ways of approaching intellectual property opportunities in educational settings that can appear to be more consistent with the spirit of learning as it is set out here.

New Intellectual Property Initiatives

Some educators and scholars have sought ways of using the law to facilitate this commitment to openness and sharing in the digital era, often with educational benefits. What might be called the most successful of these initiatives to date has been the introduction of Creative Commons licensing in 2001, which makes it far easier for copyright holders to let people know that their work can be readily shared, while retaining rights of attribution for the copyright holder.18 Creative Commons licensing, much as with fair use, has a great affinity with educational interests and materials. It expands the commons within which students are able to work.19 With over a billion objects on the Web licensed in this way, students can work within an alternative economy of sharing that has taken hold among not just educators but artists, musicians, and other producers of intellectual property. They can begin to consider using such licensing for their own creative and intellectual work.

Creative Commons licensing has been eagerly taken up by those developing freely available learning materials for teachers and students, which are now identified as open education resources (OER). Making these materials available has been part of ensuring that intellectual property issues do not unduly reduce the equality of opportunity that education represents, at its best, while researchers are establishing how examples of OER contribute as much to student learning as commercial materials.20 A wide range of OER materials is under development at all educational levels through philanthropic support, with educators and, in some cases, students contributing to their creation. 21 For example, Open Up Resources is a multi-state OER initiative in the United States that is not only developing English Language Arts and Math materials for elementary schools, but provides professional development to support teachers’ further use of these materials. As for the impact of OER on the school curriculum and the textbook industry that dominated the content of classrooms in the 20th century, it may be too early to say, but Pearson, the world’s largest education company, with some 400,000 employees and seven billion dollars in revenue, is currently in the midst of selling off its U.S. K-12 curriculum business, with company president John Fallon acknowledging that OER is “an important part of the landscape,” while cautioning education officials that those who work on such resources “will have to find a way to fund and sustain that approach” (without considering that this may follow from schools reduced purchases of traditional publisher materials).22

More than a matter of economics, however, OER introduces an intellectual property contrast between the traditional packaging of knowledge in a single textbook (or its digital equivalent in modular guise) for a year’s course in history or math and the role of teacher and student as generators, assemblers, and curators of a creative commons worth of materials, calling for much greater levels of judgment and engagement with a richer array of perspectives, including a growing panoply of primary sources.23 The introduction of OER may initially be as a supplement, as Fallon is quick to note, but even then, it is worth educators drawing attention to what it signifies about teachers, students, and knowledge within the school’s intellectual property regime.

A parallel movement to OER, also employing Creative Commons licensing, seeks open access to published research and scholarship.24 Open access is turning this body of work, which has traditionally been limited to those university libraries that can afford it, into a growing public resource. Recently, the extent of the published research that had been made open access passed the halfway point, in that slightly more than half of the research published in recent years, can be found freely available online through the growing number of open access journals and as authors post copies of their work in article repositories.25 Open access is now required for publications resulting from the support of many research funding agencies (if typically after a twelve-month embargo period intended to protect publisher subscriptions). Both government and philanthropic organizations that fund research are now committed to transforming research from a private property of restricted distribution into one of the greater public goods of the digital era. Such moves can be interpreted as furthering the basic human right to know what is known, as recognized in the Universal Declaration of Human Rights, which asserts that “everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.”

The research libraries have been particularly strong supporters of open access initiatives treating this approach as a natural extension of the idea of the library as an intellectual commons. Without such a move, the libraries had been facing declining access to this research and thus a reduction in their ability to contribute to that vital human right and “to promote the Progress of Science and Useful Arts,” to return to the constitutional role of intellectual property in the United States. As for the financing of this open access publishing activity, some hold that it falls to the libraries to redirect their current global expenditures on subscriptions to the financing of the same journals on an open access basis.

With millions of research articles published each year, this move to open access represents among the largest intellectual property gains for learning that the world has seen. It will certainly have an impact on education, not only in making the quality of knowledge directly available to students globally, but as it also speaks to a new set of responsibilities in preparing professionals and citizens, more generally, to take advantage of having lifelong access to research and scholarship that bears directly on their professional lives as well as for the benefit of their families and communities. Students will need further preparation in both the use and application of this work, as well as in defending and extending their information rights amid the thickets of intellectual property law that seek to balance incentives for quality publication and the public interest in such knowledge. While they are still in school, they can be offered new opportunities to not only work with but create online resources, in their own efforts to increase the common stock of humankind.

A further intellectual property development that is making much of this openness in educational realms possible today is the phenomenon known as open source software (OSS).26 This is software that is licensed to ensure that it remains open to modification, customization, and (free) redistribution. Examples of OSS being used in educational settings include software languages and tools, such as Scratch, NetLogo, and GoGo Board, which are helping students (of all ages) to learn programming basics, with Github Classroom providing a code development and management repository.27 Although not as clear-cut an instance, there is the remarkable growth in the school market share of Google Chromebook that now makes up well over half the mobile devices shipped to schools in 2016.28 The Chromebook is bringing more and more students into the realm of OSS, as its operating system is largely available as open source software under the name Chromium, as well as into Google’s intellectual property exchange, in which one trades access to one’s self (as data and advertising recipient) for access to its useful online resources.

At the postsecondary level, another example of OSS, this time used in conjunction with Creative Commons licensing and open access, is Open Journal Systems (developed by the Public Knowledge Project, which I direct). Faculty members around the world deploy this journal management and publishing platform in making the research in their peer-reviewed journals universally available.29 Open sources software is also commonly used for online discussion forums, and has formed the basis of platforms, such as EdEx, for mounting massive open online courses or MOOCs, which first emerged in 2006 and represent a significant breakthrough in OER.30 The convergence of open intellectual property initiatives continues to shape education by advancing a learning commons across educational levels and globally for the digital era. This still leaves the important challenge for teachers and students to find ways of making explicit the intellectual properties and opportunities, rights and advantages, at issue in these new education experiences.

Intellectual Property in the Curriculum

One area of the curriculum in which the topic of intellectual property has found a home, it should not be surprising to find, is business education. A clear instance of this is found in Daphne Jameson’s discussion of how well a business sense of intellectual property can frame problems of plagiarism in this particular subject area.31 In her college business classes, Jameson uses actual infringement cases in the entertainment industry or among businesses, ripped from the headlines of the day to “intrigue” the students, as she puts it. Although different standards are applied in judging the sins of plagiarism and copyright infringement, Jameson has found a bridge between the business education classroom and property rights outside the classroom, while helping students to see the legal reasoning and business consequences of such court cases. Another instance is found with Jerome Katz’s approach of bringing students directly into the business of intellectual property by having them sign nondisclosure agreements in his Saint Louis University classes on entrepreneurship: “We tell students,” Katz explains, “that we believe their ideas will have value, even financial value.”32 In a similar vein, John J. Pellegrini and Elizabeth Jansen work with the Mayo Innovation Scholars Program in Minnesota to engage teams of students in playing the role of venture capitalists doing due diligence for the Mayo Clinic by assessing the viability of proposed concepts for technology-transfer investment.33

Intellectual property has also proven to be a topic of interest for faculty teaching college composition classes.34 Among the leaders in this field, Andrea Lunsford points to the influence of Case Western English professor Martha Woodmansee, “who has been arguing passionately since the early 1980s that our culture’s obsession with the ‘author’ of intellectual property that can be commodified and bartered in a capitalistic system has disenfranchised many, many creators—a great many of whom are women.”35 Lunsford, along with Jenn Fishman and Warren Liew, point out the need for greater consideration of intellectual property matters in students’ writing, as it is more often taken as a proxy for acquiring the ways of schooling (“the structures and strictures of academic literacy”) while their “writing is devalued in both the public media and the academy.”36 As a result, it should be no surprise that the students “fail to identify themselves as builders and holders of intellectual property.” Lunsford, Fishman, and Liew set their work within the scope of Paulo Freire’s critical pedagogy project as they seek to raise student awareness of intellectual property within an ideology of private ownership that affects their schoolwork, as well as published writing more generally. They offer an example of what this can lead to with the comments of a student who has integrated the concept into his writing: “I now consider the ongoing management of intellectual property to be an integral part of the writing process itself.”

Classroom Innovations

In addition to playing a minor role in the long-standing disciplines of business education and composition, it is worth noting a number of innovative educational programs in which students are actively generating intellectual properties of value, if not yet framed in those terms, as part of their educational experience. The maker movement in education provides a good example. In this program, students work in “digital fabrication labs” at inventing and constructing devices of their own devising.37 The process of designing, trialing and testing, assembling and building, these devices brings together the intellectual and physical labor that goes into making things in which the students most certainly come to have a property, even as they realize the extent to which they are assisted by the ideas and help of others as part of a community of makers. The respect they gain for themselves as makers tends to alter some of the intellectual property boundaries between the world as given (patented and copyrighted) and the world as theirs to make and remake.38 There are many opportunities in this making process for the students to gain a greater sense of the intellectual properties and rights embodied in the things with which they work, and how they make (and license) their own contributions to what is shared and held in common.

A second instance is found in Kieran Egan’s “Learning in Depth” program.39 Here the students take on a topic early in their schooling—such as apples, dance, or dust—and they stay with it across the grades. In the course of pursuing this project, in addition to other work, they gain a growing mastery, thoroughness, and sophistication in what they make of their topic: “By learning something in depth we come to grasp it from the inside,” Egan writes, as if to suggest that the child comes to have a property in it, following Locke. While Egan’s goal remains the depth of the child’s learning, he also writes with admiration of the student presentations and of students deciding to merge overlapping aspects of their work. It is this aspect of what comes of the learning that can be seen to move its depth into the realm of intellectual property, not in the sense of creating a marketable product, but in the students coming to consider how the value of their own learning can sometimes be found in how they use it to contribute to the learning of others.

Wikipedia offers a further example of students’ innovative engagement with new orders of knowledge-making within educational settings. This collective enterprise is another project that draws on Creative Commons licensing out of a commitment to advancing an intellectual property commons.40 As well, instructors have been designing educational activities in which students apply their learning to the creating, editing, and extending of Wikipedia entries, in a concerted effort to improve in a number of ways—such as addressing biases in coverage and editorship—what the encyclopedia has to offer.41 Instructor and student interest in making such contributions has led to the formation of the Wiki Education Foundation, which supports instructors in teaching students about the editorial role that they can play in developing Wikipedia as part of their learning experience in almost any subject area.

Other educators have used the wiki software, which is available in open source software formats, to have students construct their own local history encyclopedia.42 The wiki experience provides students with valuable insights into another sort of intellectual property experience, with a largely self-organized collective and near-anonymous construction of knowledge. This can help them to see an alternative approach to intellectual property, reflecting a strong commitment to cultivating the commons as a ready lookup resource for all, idealistic in its conception and quirky in realization. The entry “talk page” offers students who are working on this commons an opportunity to reflect on, learn about, and ardently defend the intellectual properties of an educational representation in the world beyond formal schooling.

Yet consider the grounds for extending the presence of intellectual property in the curriculum. Across the different subject areas, students are to be found assembling, expressing, and framing ideas, information, and forms of knowledge. They are working today, as never before, with a vast range of sources that will include materials held in common, no longer under copyright, subject to fair use, and licensed for school use. As students learn to work amid these varied rights of use, they will be able to see the tensions arising from this societal desire both to encourage creative work by protecting it and to enrich the common culture by limiting those property rights. They can see this played out in the courts, with cases regularly making the news, much as a recent court ruling set aside the copyright long held on the song “Happy Birthday,” allowing it stand, as it surely should, in the public domain.43 They can see this tensions, as well, in the periodic legislative initiatives to extend owners’ monopoly rights (currently at 70 years after the author’s death, or for 95 years in the case of corporate ownership), with this extended time period offering the students some insight into the law’s service to corporate and public interests.44

Intellectual property can also introduce students to the economic forces of globalization. This can be in terms of the international regulation, largely between the Global South and North achieved through TRIPS (the Agreement on Trade Related Aspects of Intellectual Property Rights) administered by the World Trade Organization (WTO), or around particular and pressing issues, such as the allowances made for patent enforcement and generic HIV/AIDS drugs.45 The educational aim here is to connect students’ own work with the standing of intellectual labor beyond the classroom, while providing them with a sense of education’s special status as a protected public good that may contribute to the future of this distinction.

Conclusion

The concept of intellectual property has long been understated and understudied in educational contexts. In the history and more recent developments of this concept, in which intangible goods take on considerable value, education has continued to play a significant role. Education contributed to the idea of a text representing a distinctively intellectual property associated with certain rights and responsibilities, just as education is afforded certain exemptions in intellectual property law. With the changes afoot in the legal and economic standing and status of cultural forms in the digital era, as well as in the consequential role that intellectual property plays in the global economy, it seems prudent and wise to make this concept a more explicit part of a 21st-century education. Intellectual property enables teachers and students to catch sight of how the life of the mind works between what is given in common and what can be made of that commons and then returned to it. The concept can be used, as well, to introduce students to an important chapter in the nature and history of the law that bears on their own work and world, even as they can have a hand in changing the intangible, intellectual aspects of that world.

Further Reading

Aufderheide, P., & Jaszi, P. (2011). Reclaiming fair use: How to put balance back in copyright. Chicago: University of Chicago Press.Find this resource:

Lessig, L. (2008). Remix: Making art and commerce thrive in the hybrid economy. New York: Penguin.Find this resource:

McSherry, C. (2001). Who owns academic work?: Battling for control of intellectual property. Cambridge, MA: Harvard University Press.Find this resource:

Merges, R. P. (2011). Justifying intellectual property. Cambridge, MA: Harvard University Press.Find this resource:

Suber, P. (2013). Open access. Cambridge, MA: MIT Press.Find this resource:

Weber, C. (2004). The success of open source. Cambridge, MA: Harvard University Press.Find this resource:

Bibliography

Albanese, A. (2014, November 24). In twist, publishers appeal their “win” in GSU copyright case. Publisher’s Weekly.Find this resource:

Alberta Education (2010). Alberta (Education) v. Access Copyright, 2010 FCA 198. Available at http://www.canlii.ca/t/2btl7.

Archambault, E., Amyot, D., Deschamps, P., Nicol, A., Provencher, F., Rebout L., & Roberge, G. (2014). Proportion of Open Access papers published in peer-reviewed journals at the European and world levels: 1996–2013. Montreal: Science-Metrix.Find this resource:

Bede. (1969). The ecclesiastical history of the English people (Trans. Bertram Colgrave). Oxford: Oxford University Press.Find this resource:

Berman, E. P. (2012). Creating the market university. Princeton, NJ: Princeton University Press.Find this resource:

Blikstein, P. (2013). Digital fabrication and “making” in education: The democratization of invention. In J. Walter-Herrmann & C. Büching (Eds.), FabLabs: Of machines, makers and inventors. Bielefeld, Germany: Transcript Publishers.Find this resource:

Buderi, R. (1988). Universities buy into the patent chase. Scientist, 2(23), Available at http://www.the-scientist.com/?articles.view/articleNo/10015/title/Universities-Buy-Into-The-Patent-Chase/.Find this resource:

Burnett, C. (2009). Arab into Latin in the Middle Ages: The translators and the social contexts. Surrey, U.K.: Ashgate.Find this resource:

Carr, D. F. (2013, March 14). edX MOOC software goes open source. InformationWeek: Education.Find this resource:

Cumming, R. M. (2009). Lazy virtues: Teaching writing in the age of Wikipedia. Nashville, TN: Vanderbilt University Press.Find this resource:

Datig, I., & Russell, B. (2015). “The fruits of intellectual labor”: International student views of intellectual property. College & Research Libraries, 76(6), 811–830.Find this resource:

Defending the freedom to innovate: Faculty intellectual property rights after Stanford v. Roche. Draft AAUP, (2016).Find this resource:

DeVoss, D. N. (2013). Intellectual property in College English—and English Studies. College English, 75(5), 534–547.Find this resource:

Dewey, J. (1922). Democracy and education. New York: MacMillan.Find this resource:

Egan, K. (2010). Learning in depth: A simple innovation that can transform schooling. Chicago: University of Chicago Press.Find this resource:

Gadd, I. (2013). The history of Oxford University Press, Vol. 1 Beginnings to 1780. Oxford: Oxford University Press.Find this resource:

Gardner, E. (2016, February 9). Warner Music pays $14 million to end “Happy Birthday” copyright lawsuit. Hollywood Reporter.Find this resource:

Hantman, R. D. (1985). Experimental use as an exception to patent infringement. Journal of Patent and Trademark Office, 67, 617.Find this resource:

Jameson, D. A. (2011). Who owns my words? Intellectual property rights as a business issue. Business Communication Quarterly, 74(2), 210–215.Find this resource:

Katz, J., Harshman, E., & Lund, D. K. (2000). Nondisclosure agreements in the classroom: A student entrepreneur’s refuge or risk? Journal of Management Education, 24, 234–253.Find this resource:

Kelves, D. (2013, September 26). The genes you can’t patent. New York Review of Books.Find this resource:

Kimmons, R. (2015). OER quality and adaptation in K-12: Comparing teacher evaluations of copyright-restricted, open, and open/adapted textbooks. International Review of Research in Open and Distributed Learning, 16(5), 39–57.Find this resource:

Lamlert, W. (2014, July 15–19). Copyright and Creative Commons license: Can educators gain benefits in the digital age/international association for development of the information society? Paper presented at the International Conference e-Learning, Multi Conference on Computer Science and Information Systems, Lisbon, Portugal.Find this resource:

Ledford, H. (2013). Universities struggle to make patents pay. Nature, 501(7468), 471–472.Find this resource:

Lessig, L. (2003). The Creative Commons. Florida Law Review, 55, 763.Find this resource:

Locke, J. (1764). Two treatises of government (originally 1690). T. Hollis (Ed.). London: Millar et al.Find this resource:

Lucas, R. M. (2016). People need to know: Confronting history in the heartland. New York: Peter Lang.Find this resource:

Lunsford, A. A. (1999). Rhetoric, feminism, and the politics of textual ownership. College English, 61(5), 529–544.Find this resource:

Lunsford, A. A., Fishman, J., & Liew, W. M. (2013). College writing, identification, and the production of intellectual property: Voices from the Stanford Study of Writing. College English, 75(5), 470–492.Find this resource:

May, C. (2014). The global political economy of intellectual property rights: The new enclosures? London: Routledge.Find this resource:

Mehrpouyan, A., & Razavi, G. K. (2014). Legal issues of intellectual property rights and licensing for e-learning content in the United Kingdom. E-Learning and Digital Media, 11(3), 272–277.Find this resource:

Merges, R. P. (2011). Justifying intellectual property. Cambridge, MA: Harvard University Press.Find this resource:

Misra, P. K. (2012). Training teachers to use and produce open educational resources: A win-win approach. Journal of Educational Technology, 9(2), 1–7.Find this resource:

Nelsen, L. (1998). The rise of intellectual property protection in the American university. Science, 279(5356), 1460–1461.Find this resource:

Pellegrini, J. J., & Jansen, E. (2013). The Mayo Innovation Scholars Program: Undergraduates explore the science and economics of medical innovations. Journal of College Science Teaching, 42(4), 28–32.Find this resource:

Rose, M. (2009). The public sphere and the emergence of copyright: Areopagitica, the stationers’ company, and the Statute of Anne. Tulsa Journal of Technology and Intellectual Property, 12, 123–144.Find this resource:

Russell, C. (2012). Complete copyright for K–12 librarians and educators. Chicago: American Library Association.Find this resource:

Shao, Ken. (2011). Monopoly or reward: The origin of copyright and authorship in England, France and China and a new criticism of intellectual property. Hong Kong Law Journal, 41, 731–758.Find this resource:

Sprigman, C. (2002, March 2). The mouse that ate the public domain: Disney, the Copyright Term Extension Act, and Eldred V. Ashcroft [Blog post]. FindLaw.Find this resource:

Suber, P. (2013). Open access. Cambridge, MA: MIT Press.Find this resource:

Sun, J. C., & Baez, B. (2009). Intellectual property in the information age: Knowledge as commodity and its legal implications for higher education. ASHE Higher Education Report, 34(4), 1–151.Find this resource:

Takhteyev, Y. (2012). Free software and free textbooks. Education Canada, 52(2).Find this resource:

Tkacz, N. (2014). Wikipedia and the politics of openness. Chicago: University of Chicago Press.Find this resource:

Tobin, T. J. (2014). Training your faculty about copyright when the lawyer isn’t looking. Online Journal of Distance Learning Administration, 17(2), Available at http://www.westga.edu/~distance/ojdla/summer172/tobin172.html.Find this resource:

Weber, C. (2004). The success of open source. Cambridge, MA: Harvard University Press.Find this resource:

Wiggins, M. R. (2011). Managing fair use on campus: The online academic administrator’s dilemma. Online Journal of Distance Learning Administration, 14(4), Available at http://www.westga.edu/~distance/ojdla/winter144/wiggins144.html.Find this resource:

Wiley, D., Hilton, J. L., III, Ellington, S., & Hall, T. (2012). A preliminary examination of the cost savings and learning impacts of using open textbooks in middle and high school science classes. International Review of Research in Open and Distributed Learning, 13(3), 262–276.Find this resource:

Willinsky, J. (2006). High school postcolonial, and the students ran ahead. In Y. Kanu (Ed.), Curriculum as cultural practice: Postcolonial imaginations (pp. 95–115). Toronto: University of Toronto Press.Find this resource:

Willinsky, J. (2016, November 17). A natural experiment with intellectual property’s original intent reaches a milestone [blog post]. Retrieved from http://www.slaw.ca.

Willinsky, J. (in press). The intellectual properties of learning: A prehistory from Saint Jerome to John Locke. Chicago: University of Chicago Press.Find this resource:

Wright, S. L., & Katz, J. A. (2016). Protecting student intellectual property in the entrepreneurial classroom. Journal of Management Education, 40(2), 152–169.Find this resource:

Notes:

(1.) A. Albanese (2014, November 24). In twist, publishers appeal their “win” in GSU copyright case, Publisher’s Weekly; Alberta Education (2010). Alberta (Education) v. Access Copyright, 2010 FCA 198. Retrieved from http://canlii.ca/t/2btl7.

(2.) J. C. Sun & B. Baez (2009). Intellectual property in the information age: Knowledge as commodity and its legal implications for higher education, ASHE Higher Education Report, 34(4), 115, 118.

(3.) C. Russell (2012). Complete copyright for K–12 librarians and educators (Chicago: American Library Association).

(4.) T. J. Tobin (2014). Training your faculty about copyright when the lawyer isn't looking, Online Journal of Distance Learning Administration. 17(2). M. R. Wiggins (2011). Managing fair use on campus: The online academic administrator’s dilemma, Online Journal of Distance Learning Administration, 14(4).

(5.) A. Mehrpouyan & G. K. Razavi (2014). Legal issues of intellectual property rights and licensing for e-learning content in the United Kingdom, E-Learning and Digital Media, 11(3), 272–277.

(6.) I. Datig & B. Russell (2015). “The fruits of intellectual labor”: International student views of intellectual property, College & Research Libraries, 76(6), 811–830.

(7.) J. Willinsky (in press). The intellectual properties of learning: A prehistory from Saint Jerome to John Locke (Chicago: University of Chicago Press).

(8.) Bede (1969). The ecclesiastical history of the English people (Trans. Bertram Colgrave) (Oxford: Oxford University Press).

(9.) C. Burnett (2009). Arab into Latin in the Middle Ages: The translators and the social contexts (Surrey: Ashgate).

(10.) I. Gadd (2013). The history of Oxford University Press, Vol. 1, Beginnings to 1780 (Oxford: Oxford University Press). The West’s monopolistic approach to granting printing rights, granted by the crown, can be compared to the older Chinese printing tradition, dating back to the 11th century, in which early efforts at state monopolies faltered and gave way to a booming book trade without restricted rights or censorship but with some recognition in the courts of intellectual property rights; Shoa, Ken (2011–12). Monopoly or reward? The origin of copyright and authorship in England, France and China and a new criticism of intellectual property, Hong Kong Law Journal, 41.

(11.) M. Rose (2009). The public sphere and the emergence of copyright: Areopagitica, the stationers’ company, and the Statute of Anne, Tulsa Journal of Technology and Intellectual Property, 12, 123–144.

(12.) R. P. Merges (2011). Justifying intellectual property (Cambridge: Harvard University Press). P. K. Misra (2012). Training teachers to use and produce open educational resources: A win-win approach, Journal of Educational Technology, 9(2), 1–7.

(13.) J. Locke (1764). Two treatises of government (originally 1690). T. Hollis (Ed.). London: Millar et al.

(14.) D. Kelves (2013, September 26). The genes you can’t patent, New York Review of Books.

(15.) E. P. Berman (2012). Creating the market university (Princeton, NJ: Princeton University Press). Buderi, R. (1988). Universities buy into the patent chase, Scientist, 2(23).

(16.) R. D. Hantman (1985). Experimental use as an exception to patent infringement, Journal of Patent and Trademark Office, 67, 617.

(17.) H. Ledford (2013). Universities struggle to make patents pay, Nature, 501(7468), 471–472.

(18.) L. Lessig (2003). The Creative Commons. Florida Law Review, 55, 763.

(19.) W. Lamlert (2014, July 15–19). Copyright and Creative Commons license: Can educators gain benefits in the digital age/international association for development of the information society (Paper presented at the International Conference e-Learning). Multi-Conference on Computer Science and Information Systems. Lisbon, Portugal.

(20.) D. Wiley, J. L. Hilton, III, S. Ellington, & T. Hall (2012). A preliminary examination of the cost savings and learning impacts of using open textbooks in middle and high school science classes, International Review of Research in Open and Distributed Learning, 13(3), 262–276.

(21.) R. Kimmons (2015). OER quality and adaptation in K-12: Comparing teacher evaluations of copyright-restricted, open, and open/adapted textbooks, International Review of Research in Open and Distributed Learning, 16(5), 39–57. P. K. Misra (2012). Training teachers to use and produce open educational resources: A win-win approach, Journal of Educational Technology, 9(2), 1–7.

(22.) S. Cavanagh (2016, May 16). Pearson CEO Fallon talks Common Core, rise of “open” resources, EdWeek Market Brief.

(23.) B. Tally & L. B. Goldenberg (2005). Fostering historical thinking with digitized primary sources, Journal of Research on Technology in Education, 38(1), 1–21.

(24.) P. Suber (2013). Open access (Cambridge, MA: MIT Press).

(25.) E. Archambault, D. Amyot, P. Deschamps, A. Nicol, F. Provencher, L. Rebout, & G. Roberge (2014). Proportion of Open Access papers published in peer-reviewed journals at the European and world levels: 1996–2013 (Montreal: Science-Metrix).

(26.) C. Weber (2004). The success of open source (Cambridge: Harvard University Press).

(27.) Y. Takhteyev (2012). Free software and free textbooks, Education Canada, 52(2).

(28.) N. Singer (2017, May 13). How Google took over the classroom, New York Times.

(29.) J. Willinsky (2016, November 17). A natural experiment with intellectual property’s original intent reaches a milestone [blog post]. Retrieved from http://www.slaw.ca.

(30.) D. F. Carr (2013, March 14). edX MOOC software goes open source, InformationWeek: Education.

(31.) D. A. Jameson (2011). Who owns my words? Intellectual property rights as a business issue, Business Communication Quarterly, 74(2), 210–215.

(32.) S. L. Wright & J. A. Katz (2016). Protecting student intellectual property in the entrepreneurial classroom, Journal of Management Education, 40(2), 152–169.

(33.) J. J. Pellegrini & E. Jansen (2013). The Mayo Innovation Scholars Program: Undergraduates explore the science and economics of medical innovations, Journal of College Science Teaching, 42(4), 28–32.

(34.) D. N. DeVoss (2013). Intellectual property in College English—and English Studies, College English, 75(5), 534–547.

(35.) A. A. Lunsford (1999). Rhetoric, feminism, and the politics of textual ownership, College English, 61(5), 529–544.

(36.) A. A. Lunsford, J. Fishman, & W. M. Liew (2013). College writing, identification, and the production of intellectual property: Voices from the Stanford Study of Writing, College English, 75(5), 470–492.

(37.) P. Blikstein (2013). Digital fabrication and “making” in education: The democratization of invention. In J. Walter-Herrmann & C. Büching (Eds.), FabLabs: Of machines, makers and inventors (Bielefeld, Germany: Transcript Publishers).

(38.) L. Martin & C. Dixon (2013). Youth conceptions of making and the Maker Movement. Paper presented at Interaction Design and Children Conference, New York.

(39.) K. Egan (2010). Learning in depth: A simple innovation that can transform schooling (Chicago: University of Chicago Press).

(40.) N. Tkacz (2014). Wikipedia and the politics of openness (Chicago: University of Chicago Press).

(41.) R. M. Cumming (2009). Lazy virtues: Teaching writing in the age of Wikipedia (Nashville, TN: Vanderbilt University Press).

(42.) R. M. Lucas (2016). People need to know: Confronting history in the heartland (New York: Peter Lang).

(43.) E. Gardner (2016, February 9). Warner Music pays $14 million to end “Happy Birthday” copyright lawsuit, Hollywood Reporter.

(44.) C. Sprigman (2002, March 2). The mouse that ate the public domain: Disney, the Copyright Term Extension Act, and Eldred V. Ashcroft [blog post]. Retrieved from FindLaw.

(45.) B. Waning, E. Diedrichsen, & S. Moon (2010) A lifeline to treatment: The role of Indian generic manufacturers in supplying antiretroviral medicines to developing countries, Journal of the International AIDS Society, 13, 35.