2013

Intellectual Property
An Annotated Bibliography
This annotated bibliography explores a variety of scholarly sources related to the history, theory, and protection of intellectual property.

West Virginia University Writing Center 2013

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American Library Association. Fair Use in the Electronic Age: Serving the Public Interest. Alawon, 4.22 (1995). Web. 3 Dec. 2012. This is a source from the American Library Association that lists the rights users can expect under fair use doctrine without infringing upon copyright. It breaks users down into the public, nonprofit libraries and other Section 108 libraries, and educational institutions, and it lists the rights that pertain to that group. This is a helpful source because it provides relevant background information on fair use and gives specific expectations for groups. Aufderheide, Patricia. "The Common Sense of the Fair-Use Doctrine." The Chronicle of Higher Education (2011). LexisNexis Academic. Web. 3 Dec. 2012. Patricia Aufderheide is a professor in the School of Communication at American University, and she has performed much research in the fields of fair-use and copyright. This article provides a short list of dos and donts when it comes to fair-use, reminding teachers that it is okay to exercise fair-use rights when teaching or researching and to inform their students about copyright. She also reminds teachers not to forget that moving away from traditional education settings requires students to exercise their fair-use rights. Fair use can be used in both commercial and noncommercial settings, and it is not to be confused with the open-source movement or Creative Commons. This is a helpful source for our project because it speaks directly to an educational setting and provides tips for both teachers and students. Barlow, John Perry. The Economy of Ideas: Everything You Know about Intellectual Property Is Wrong. Intellectual Property: Moral, Legal, and International Dilemmas. Ed. Adam D. Moore. Boston: Rowman and Littlefield, 1997, 349-72. Print.

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John Perry Barlow, co-founder and executive chair of the Electronic Frontier Foundation, wrote this article to explore the future of intellectual property laws. He explains that since ideas can be reproduced and transferred all over the world without their owners permission or even knowledge, it is impossible to protect them. With the advent of new technologies and uses of the Internet, ideas are becoming more liquid than solid, as information is becoming part of a giant database instead of becoming a tangible, patentable object, and, consequently, cannot be owned. Barlow calls this the most unreal estate imaginable. This may be a useful source for us if we choose to delve deeply into the effects of the Internet and Web 2.0 with regards to intellectual property. It makes a lot of great points about IP and the reasoning behind why it is controversial on the Internet. Bartholomae, David. Writing with Teachers: A Conversation with Peter Elbow. College Composition and Communication 46.1 (1995): 62-71. Web. 25 Apr. 2013. In this article, Bartholomae describes the discussion of academic versus personal writing he had with his colleague, Peter Elbow. He begins by attempting to define the term academic writing, which is difficult because it varies considerably among disciplines and assignments. In the end, he decides that academic writing is crowded by others, because teachers influence the direction of the writing and the writing itself is based on the work of other scholars (63). Then he proceeds to define personal writing, which is free from past scholarship and purely creative. Elbow is a strong supporter of personal writing, and Bartholomae favors academic writing. Bartholomae claims that as teachers, they have a responsibility to expose students to the discourse of academia, which necessitates exposure to past works. He believes that while personal writing free of any previous concept or bias is attractive, it is unrealistic and Utopian. This is an

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interesting source because it illustrates the role of intellectual property in the production of new academic writing. Boyle, James. A Politics of Intellectual Property: Environmentalism for the Net? Duke Law Journal 47.1 (1997): 87-116. Web. 22 Mar. 2013. In this article, Boyle asserts that the technological age has changed the dynamics and means of power in society. Most notably, technology has made knowledge the basis of power, because parties can tightly control the dissemination of their intellectual property to whomever they choose. As a result, intellectual property is now the governing law. However, Boyle points out that because this shift in power is so recent, no politics or models of intellectual property law have been developed. Mostly, Boyle blames societys preoccupation with the censorship of cyberporn and other unsavory aspects of the Internet for the delayed development. Instead, he believes society needs to move on and recognize the fact that intellectual property is the key to determining who controls educational, scientific, and cultural innovation on the Internet. Boyle goes on to compare the current state of intellectual property politics with the environmentalism movement of the 1950s and 1960s. At that particular point in time, activists were beginning to worry about the protection of National Parks and environmental disasters such as oil spills. In order to confront these issues, environmentalists created a set of theoretical frameworks and analytical tools to create a common discourse among everyone involved. Boyle suggests that intellectual property is in need of its own theoretical frameworks. This source is useful because it illustrates the power of intellectual property in the technological age. If students know how much power rests in the possession of intellectual property, they may better understand why it is important to obey intellectual property laws.

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Boyle, James. The Second Enclosure Movement and the Construction of the Public Domain. Law and Contemporary Problems 66.1.5 (2003): 33-74. Web. 25 Apr. 2013. Boyle begins his article analyzing a poem that critiques the English enclosure movement of the 18th century, which involved the state seizing previously public land and turning it into private property. While many protested this process, claiming it harmed the cohesiveness of communities and damaged citizens relationship with the environment, others viewed the enclosure movement as a great success. During the movement, the government took previously unused land and created production and profit. Supporters believed the increased profits improved the economy and served the greater good. Next, Boyle suggests that we are now in the midst of a second enclosure movement, in which knowledge previously belonging to the public domain is being claimed as intellectual property. Boyle believes the second enclosure movement continues unchecked, the effects will be extremely harmful to society. He states that the public domain and creative commons are important for fostering widespread collaboration on important problems and issues that would otherwise be impossible. Appropriation of information in the public domain by intellectual property law jeopardizes this collaboration. This is a valuable source because it provides historical context for the acquisition of previously public property for private use. Bracha, Oren. The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright. The Yale Law Journal 118.2 (2008): 186-271. Web. 10 Apr. 2013.

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In this article, Bracha discusses the ideology of authorship and its relation to the development of copyright law. Bracha specifically focuses on the nineteenth century, claiming that the most important interaction between authorship and copyright law occurred during this period. The authors discussion is split into five parts. First, Bracha cites other works that analyze the relationship between authorship and copyright law. He argues that these works lack a true understanding of the relationship because most of them halt their research at the end of the eighteenth century. Second, Bracha examines the transition from the eighteenth century to the nineteenth century, which is when the concept of original authorship began to flourish. As a result, copyrights were given to authors rather than publishers. Third, the author discusses the doctrine of originality, which worked to define the degree of originality an authors work needed to possess in order to qualify for a copyright. Fourth, the spread of copyright protection to multiple genres and mediums is described. Fifth, Bracha discusses the late nineteenth century evolution in copyright law that began to account for more complex authorship situations, such as collaborative works. This source would be helpful to our presentation because it provides historical context for the development of authorship and intellectual property. Breyer, Stephen. The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs. Harvard Law Review 84.2 (1970): 281-351. Web. 8 Apr. 2013. In 1970, Congress considered revising the Copyright Act of 1909. This prompted Stephen Breyer to write an article that analyzes the moral and economic reasoning behind copyrights on books. Essentially, this reasoning states that without copyright law, neither publishers nor authors would make profits and authors hard work would not be properly protected. After considering this reasoning, Breyer states that while he does not believe copyright laws should be abolished, he

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does not believe they should be expanded either. Instead, he recommends weakening copyright law, stating that the extension of copyright protection for 56 years after the authors death is too long. He also suggests that the making one hardcopy of a document for personal use and storing digital copies for research purposes should be legal. Breyer also addressed the extension of copyright law to computer software since the 1970s marked the rise of personal computer use. Basically, he concluded that software should not be protected by copyright law because it already turned a huge profit without protection and software consumers were often required to purchase many additional services and products in addition to software, such as maintenance tools and services. This article is interesting because it offers a modern history of U.S. copyright law on intellectual property and describes the rationale behind the law in detail. It also offers early opinions of computer software as intellectual property. Buskirk, Martha. Commodification as Censor: Copyrights and Fair Use. October 60 (1992): 82 -109. Web. 10 Apr. 2013. In this article, Buskirk explores the idea of intellectual property as a commodity rather than solely academic work. In order to ensure readers understand the basics of intellectual property and copyright law, Buskirk begins by providing a brief history of copyright law starting with the invention of the printing press in the sixteenth century to the early development of individual authorship in the eighteenth century (as opposed to publisher controlled text). The history lesson on the development of authorship concludes in 1976 when the U.S. passed legislation that based copyright terms on authors life spans plus fifty years. Next, Buskirk moves to the topic of fair use, which aids the creation of new intellectual property by allowing copyrighted sources to be quoted or copied in certain circumstances. She argues that without well defined fair use

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guidelines critics would not be able to sufficiently analyze works, resulting in a form of censorship. While text is regulated by reasonable fair use laws, the author suggests that images are in danger of being censored due to copyright holders maintaining almost complete control over their creations. In modern times, images have become commodities that consumers associate with brands or products rather than individual ideas or authors. This association results in the desire to strictly control the reproduction of images because they represent economic value, resulting in Trademark law. To illustrate her point, Buskirk cites the example of strictly copyrighted Disney cartoon characters. After discovering that a pre-school had created their own reproductions of popular Disney characters such as Mickey Mouse, Disney claimed the school was in violation of copyright law and pursued legal action. This source is relevant to our presentation because it offers a very detailed description of images as intellectual property, as well as emphasizes the importance of fair use. Also, discussion of familiar brands such as Disney may help students relate to the material. Carlson, Scott. Whose Work Is It, Anyway? Chronicle of Higher Education, 29 July 2005. Web. 18 July 2012. In this article, Scott Carlson, senior reporter at The Chronicle of Higher Education, explains the problems orphaned works create for those who want to use the works. Publications with no known author are considered orphan works, and they create problems when people want to use their works and give credit to the author. There are many viewpoints on how to use orphan works: first, if unable to find the author after a thorough search, one may use the publication. If the author makes himself known within five years, then he may get a share of the profit received

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by the person who used the work. Second, orphan works should be fully protected, as many photographers and illustrators works are often used without their knowledge and/or consent because people cannot find them. This might be a helpful source to explain situations in which students cannot find the author to a source they might want to use. It is a topic whose laws are under debate, so it might be beneficial to discuss. CCCC Caucus on Intellectual Property. Use Your Fair Use: Strategies toward Action. College Composition and Communication 51.3 (February 2000): 485-487. The CCCC Caucus on Intellectual Property wrote this section of their journal to remind their readers (teachers, mostly) that they are much less restricted than they think they are. They show Section 107 of the Copyright Act of 1976, which is about fair use, and they give the guidelines that courts use in order to determine if something is fair use. They encourage teachers to educate others about fair use so they can get all the sources they can to use in their classrooms. This is definitely a usable source because it is easy to read and understand. It gives clear guidelines and breaks down the fair use section of the Copyright Act. Decherney, Peter. Communicating Fair Use: Norms, Myth, and the Avant-Garde. Law and Literature 25.1 (2013): 50-64. Web. 10 Apr. 2013. In this article, Decherney explores the ambiguity of fair use laws in the creative marketplace. First, he starts by claiming that the legal system does not actually handle the majority of fair use violations. Instead, he says gatekeepers (teachers, publishers, studios) handle fair use issues before they ever get to court. Also, he believes analysis of fair use should not be approached through the lens of economics or the legal system, but through storytelling. According to Decherney, fair use myths are spread to gatekeepers and the public through stories that have

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no clear origin. Fair use myths are incorrect concepts of fair use law that are commonly seen as correct as a result of storytelling. For the second half of his article, the author focuses on the 1960s and 1990s avant-garde American film communities creation and communication of fair use myths, because the ability to critique and manipulate others work is vital to the field. Additionally, their fair use never resulted in lawsuits, played a major role in the industrys creative development, and experienced change over time. He concludes that fair use myths are circulated throughout the film community as a result of people sharing false accounts of filmmakers fair use in movies. This is a useful source because it illustrates the confusing nature of fair use enforcement. Golub, A. Copyright and Taboo. Anthropological Quarterly 77.3 (2004): 521-530. 4 Apr. 2013. Alex Golub is an assistant professor of anthropology at the University of Hawaii at Manoa. He wrote this article to explore the relationship between the self and the body as seen through people in different cultures: third world, first world, and the online world. He explains how in some cultures, taking a picture of someone is the equivalent of stealing their soul, whereas in a first world culture, it is not treated like that at all, although people are arrested for video-taping events that they do not have the rights to be video-taping because they are stealing the image and likeness of the person being taped. It is ironic that this seems very primitive, even though first world countries are not primitive areas. This could be a helpful source just to gain a deeper insight on copyright in first world America. Its interesting to see how primitive taboos pop up even though first world countries seem so far removed from third world countries. Kapczynski, Amy. The Access to Knowledge Mobilization and the New Politics of Intellectual

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Property. The Yale Law Journal 117.5 (2008): 804-885. Web. 8 Apr. 2013. Kapczynskis article addresses the increased critique of intellectual property law in the United States and abroad by a multitude of different groups, from farmers to computer programmers. Instead of focusing on intellectual property in relation to academia or publishing, the article discusses intellectual property in a more general sense. These groups are protesting the constraints intellectual property law places on access to knowledge or A2K in all areas of society and learning. They are asking the World Intellectual Property Organization (WIPO) to pass an Access to Knowledge Treaty that would ensure enough access to intellectual property to stimulate and protect innovation in areas such as generic medicine and software development. The author then goes on to investigate the sociological theories behind the success of the A2K movement. This article is fascinating because it explores various applications of intellectual property law on a global scale. Lewin, Peter. Creativity or Coercion: Alternative Perspectives on Rights to Intellectual Property. Journal of Business Ethics 71.4 (2007): 441-455. Web. 8 Mar. 2013. Lewin seeks to discover what intellectual property rights reflect about the subject of property rights as a whole, especially in relation to modern technology. First, he examines property rights in general and separates the approaches to thinking about property rights into two categories: Consequentialist and Axiomatic. Consequentialist approaches are based on a consideration of the consequences of different property rights regimes (441). On the other hand, Axiomatic approaches are based on criteria said to be independent of consequences (441). The author sides with the Consequentialists because he believes possible legal, economic, and ethical consequences always need to be taken into consideration. This could be a helpful source because

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it describes property rights in a general sense. It also explores the ways in which modern technology has complicated intellectual property rights. For instance, the author points out how we have become a culture of copiers (movies, television shows, music, etc.). May, Christopher. The Hypocrisy of Forgetfulness: The Contemporary Significance of Early Innovations in Intellectual Property. Review of International Political Economy 14.1 (2007): 1-25. Web. 10 Apr. 2013. In this article, May argues that intellectual property rights are not universal, and their development must be studied within their own specific historical, political, and cultural context. This context is the combination of technological, legal/political, and philosophical forces that occurred during the rise of capitalism in Europe. May believes its understandable that the development of intellectual property rights paralleled the development of capitalism, because intellectual property rights are knowledge as a commodity. He goes on to describe the development of intellectual property rights from their early beginnings in 15th century Venice to their present state. He provides such a detailed picture of intellectual property rights historical context because he wants to emphasize that they are not natural. Instead, he states that modern intellectual property rights are the result of commercialization and regulation in a capitalist society. The detailed history provided by the author could be very useful for explaining the origins and background of intellectual property to students. Newby, Tyler G. Whats Fair Here is Not Fair Everywhere: Does the American Fair Use Doctrine Violate International Copyright Law? Stanford Law Review 51.6 (1999): 1633-1663. Web. 25 Apr. 2013.

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In this article, Newby examines fair use at an international level. He begins by telling the story of how Nanosoft, an American software company, became involved in an international legal dispute with Sonoco, a Japanese software company. Sonoco had recently developed a popular hand-held personal computer, the Handyman, and Nanosoft wanted permission to develop software applications for the device. Sonoco refused, but by reverse engineering (1634) the Handymans operating system code, Nanosoft was able to develop the applications anyway. Sonoco sought legal action against the American company, because in order to engineer the code, Nanosoft would have had to copy part of the code that was protected by copyright. Nanosoft claimed that their actions were in accordance with U.S. fair use laws. The power to settle the dispute was eventually given to the World Trade Organization (WTO), which ruled in favor of Nanosoft. The Japanese government responded by asserting that American fair use laws violate international copyright law. The author argues that in this case, yes, American fair use laws were in violation of international law. He believes that the dispute should have been solved between the two nations rather than the WTO in order to ensure a fair outcome. This is a useful source because it illustrates the differences between U.S. and international copyright laws, as well as the complications that result from these differences. Posner, Richard A. The Truth about Plagiarism. New York Newsday, 18 May 2003. 18 Dec. 2012. Richard Posner, a judge on the U.S. Court of Appeals and lecturer at the University of Chicago Law School, wrote this article to show that plagiarism is not always as horrible a thing as it is made out to be. It is true that credit should be given to whom it is due, but people develop ideas off of previous ideas. It is okay to take ideas from something and personalize itin fact, many play, book, and movie ideas came from earlier works. If this type of plagiarism were punished

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like other types are, there would no longer be a dissemination of ideas, and creativity would risk being lost. This is a helpful source because it points out that there are some types of plagiarism, by definition, that are okay. Plagiarism is used loosely and often too broadly, according to Posner. The Purdue OWL. Purdue U Writing Lab, 2010. Web. 10 Feb. 2013. The Purdue Online Writing Lab (Purdue OWL) provides an extensive collection of resources for students, tutors, and teachers. Through the OWL, users can access a multitude of information related to academic writing. For example, the website includes pages that cover topics such as grammar, English as a second language studies, and style guides. Many of the pages also include exercises that are meant to help users master the information covered in the various sections. This website is especially useful to our presentation, because it contains detailed Modern Language Association (MLA), American Psychological Association (APA), and Chicago style guides, as well as an explanation of plagiarism. The explanation of plagiarism could be used to help students understand the importance of correctly citing other peoples work and the style guides could give them the information necessary to do so. Additionally, students would walk away with knowledge of a convenient resource that they can use at home. Saint-Amour, Paul K. Your Right to Whats Mine: On Personal Intellectual Property. Law and Literature 25.1 (2013): 103-121. Web. 17 Apr. 2013. In this article, Saint-Amour discusses the exclusivity and constraints of American copyright law. While authors are given exclusive rights to their work as a form of motivation, these rights are also constrained to prevent the violation of free speech laws. Without the freedom to draw from other authors intellectual property, production of new material would be hindered. Saint-Amour

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extends this line of reasoning by proposing that eventually there will exist a personal property right in other peoples intellectual property (105). In order to illustrate his point, he draws an interesting comparison between intellectual property and rental property by citing Margaret Jane Radins work on tenants rights and rent control. Radin argues that since rented homes are personal property, or related to ones sense of self, tenants have certain rights that protect against treatment such as unlawful eviction. Presently, Saint-Amour claims the use of other peoples intellectual property is based on the legal right to free speech and not personal property. However, he believes the idea of intellectual property as personal property should still be considered. He is not advocating the right to copy others work simply because you feel a passing connection with it, but rather through extended interaction with it-by living with it in a condition that is like habitation, by mingling our thoughts and feelings with it, making it part of the domicile of our intellectual, creative, and political self-production (110). In other words, the creation of new intellectual property depends on personal relationships with established intellectual property. This source is useful because it creates an interesting analogy of intellectual property vs. rental property that students may find relatable. Schlosser, Melanie. Fair Use in the Digital Environment: A Research Guide. Reference & User Services Quarterly 46.1 (2006): 11-17. Web. 4 Apr. 2013. Schlossers guide was initially created to help librarians and students understand the concept of fair use in relation to digital information. She begins by drawing comparisons between the invention of the printing press and the rise of digital information. First, she tells an abbreviated story of the invention of the printing press and its role in the creation of copyright law. Then, she goes on to claim that the rise of digital information is just as revolutionary as the invention of the

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printing press in the world of copyright law. For instance, while the printing press allowed more widespread distribution of physical text, modern technology allows text to be distributed digitally across the globe. Next, Schlosser offers a definition of fair use, an explanation of fair uses relationship with digital information, reasons this guide is important/relevant in todays world, a description of copyright law, and numerous sources related to fair use of digital information. This source is useful because digital information is now more commonly used by the average college student than physical texts. Also, the authors description of fair use is simple and easy to understand, which may help explain its properties and purpose to students. The sources Schlosser includes could aid in further research on the topic of fair use.

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