Pencil Graphic (c) Duane Goehner

An Ethical Edge in Education:

Cognizance of Copyrights and Copy Wrongs

Duane Goehner


Presented at the International Conference: The Social and Moral Fabric of School Life

4 October, 1997; Seattle, Washington, USA

Intellectual Property Problem History

Getting beyond the ostentatious sound of the term "Intellectual Property," its definition is really very simple: the ownership of one's own creative work. As educators, we are familiar with the need for the protection of our written work. Many of us have published articles, books, and curricula. We have personally seen the value of copyright protection. Yet, while we appreciate the need for copyright, the changing mores of society coupled with the increase in new technological media have created a sense of confusion on the part of intellectual property. What is right in the copyright quandary?

As children, we all remember the warnings against plagiarism. "It must be your own work," teachers scolded when we sounded too much like Thoreau in our third grade report. Most of us have learned that we ought not to use thoughts and ideas from others in our writing without giving credit. We also sense internally that if someone else creates a product, we ought not to take that creation and make financial gain ourselves. It would be theft, not only violating a code of trust within society, but also harming the individual's rights.

The Gutenberg Press created a new challenge within society: the proliferation of the stolen written word. Material could be mass-produced, with potentially lucrative sales. Although literary property value originated in classical Greece and Rome, the advent of the printing press expanded circulation significantly. In 1709 the first copyright act was passed after several important authors complained about literary theft. Since the lawsuit of "Donaldson v. Beckett" argued before the British House of Lords in 1774, copyright law has attempted to create a careful balance between the rights of authors to profit from their work, and the rights of readers to have fair use of the copyrighted material. Adam Smith intensified the plagiarism problem by suggesting that ideas, as well as words, should have protection. (Hatch, 1992). In 1790, the first US copyright law was enacted. Since then, the American copyright law has had four major revisions. Generally speaking, the copyright laws exist for three basic reasons: to reward authors for their creative works; to encourage availability of the works to the general public; and to facilitate access and use of the works by the public in appropriate situations (Bruwelheide). The rules of copyright are laid out in law books and ever unfolding case law, but what are the ethical and moral principles supporting copyright law?


The Moral Question of Ownership

At root in the copyright issue is the question of ownership. We affirm that lawful claim can be made to our possessions. Kant outlined that man appropriates property and the right of first occupancy legitimizes true ownership; the first to exercise will over the first right possesses the same object. If there is something "right" about owning, there must also be something "wrong" about taking someone's rightful property. Smedes reasons, "There is a wrong of taking because there is a right of keeping" (p.183). Moreover, if in fact the will is part of ownership's value, then theft is more than violation of a civil rule; it violates the very person as well.

Ownership goes beyond simply possession of land and objects. Kant deduces, "since the dictates of my will derive their force from my will itself and this is beyond the confines of space, the act by which I declare myself owner of a thing makes me the owner, even if I do not hold it physically" (Durkheim, p.133). Certainly that is true for man's creative works. "The strongest moral claim I can make on my property is that I created it" (Smedes, p.194). He who creates has a natural right of ownership: The created work has his image stamped on it. If creative work is of even higher value than merely claimed property, then our duty as society should be to preserve the rights of the creator. The desire to revere the law should be more than just obligation, as Niebuhr (p.37) observes, but should be motivated by the desire to preserve the unique worth of every man.

The moral aspect is important in the copyright consideration, but there is another significant dimension in preserving the rights of the creator: economic impact. We cannot deny that much of what motivates us is personal gain. There are few impelled to be creative just for creativity's sake; far more are hoping for financial profit. Does Pfizer Pharmaceuticals invest millions of dollars into research simply for the joy of research? Would Microsoft spend $500,000,000 to create Windows 95 (Jadallah) had there not been the hope of both regaining the investment, and also turning a profit? What do you think motivates the author Tom Clancy? Yes, there may be a love for what one does, but motivation would be greatly deflated if anyone else could capitalize on creativity without regard to the creator's right of ownership. An unauthorized printing of Mark Twain's works even upset the famous writer who cherished writing. He said he would deal better with the "crime" to his readers if his books were disseminated through the authorized publisher; "...then I could contemplate the spectacle [of plagiarism] calmly as the dividends came in" (Twain). Within the history of literary property, as well as other intellectual property, "the main justification in the history of Western civilization for copyright is economic" (Hatch).


Educators' Responsibilities

There is, indeed, need for copyright protection. The question must then be posed to us as educators: What is our responsibility in both honouring copyright and helping our students do the same? "If stealing is held to be bad, then it is bad no matter who does it, or whether only a little stealing or a lot of stealing is done" (Newsome. p.130). Whether embezzlement, software piracy, or plagiarism, we need to affirm in word and action our assent to the preservation of ownership. "To believe something," as Dewey comments, "is to make behavioral commitments" (Bandman, p.90). Our "attitudinal belief" (Bandman, p.89), must be fleshed out. We must help our students develop a sense of "right and wrong."

Many may promote the notion that education should be completely neutral, not elevating any particular moral code. Such ideological philosophy may sound politically correct, but there are laws with underlying specific moral principles within society. Aristotle says that education's chief aim is to help make the student "like and dislike what he ought". That way, as C. S. Lewis observes, "when the age for reflective thought comes, the pupil who has thus been trained in 'ordinate affections' or 'just sentiments' will easily find the first principles in Ethics" (Lewis, p.263). It is a very high calling to both train and model the proper "ordinate affections." Proper respect for other's property, both physical and intellectual is an essential "just sentiment." Without helping to mold the inner guidance system of standards within our students, we must share blame for their consequential failings of character. "We remove the organ and demand the function. We make men without chests and expect of them virtue and enterprise.... We castrate and bid the geldings be fruitful" (Lewis, p.265).

We sow a thought and reap an act;
We sow an act and reap a habit;
We sow a habit and reap a character;
We sow a character and reap a destiny. (Thackeray)

The entire educational system is part of the moral education process. "In every class and throughout the school-indeed, throughout the school system-values are demonstrated through actions, procedures, policies, and attitudes of every individual from the members of the Board of Education, to the Superintendent, to the principals and teachers, to the cafeteria workers, bus drivers, and to the students" (NSBA, p.14). In regards to intellectual property rights, teachers need to help their students understand the value of intellectual property by having proper expectations for footnoting (Saunders), demonstrating the respect for others' copyrighted material, etc. They need to purchase consumables, use legal software, and recognize elements of infringement-and help their students do the same. Schools need to have clear policies that abide by copyright law. Districts need to help their educators understand the law and legal requirements. In fact, it is the practical implementation of the laws that often confuse people in education.


Fair Use Guidelines

Fortunately, educators have greater latitude with the limits of copyright. Without the "fair use" privilege, copyright would not serve its constitutional purpose "to promote the progress of Science and Useful Arts." The American copyright protection subsists " original works of authorship fixed in any tangible medium of expression, now known or later developed, from which can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device" (Title 17 U.S.C., Section 102(a)); the Berne Convention helps support similar international rights in most other countries.

To determine fair use, four factors are considered:

  1. the purpose and character of the use, including whether such a use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

In copyright litigation, it is the defendants responsibility to prove that a use of copyrighted material is fair (Bruwelheide, p.13). All four factors are considered, so knowledge of the guidelines is important.

If a use is for a "productive" or "intrinsic" purpose, it would be deemed "fair use." Productive implies the use of material in creation of a new work, such as criticism or scholarship; an intrinsic purpose is for its own sake, such as videotaping a TV program to view at a later time. There would be no commercial advantage or financial gain from such use. A professor could request a few copies of an article be held on reserve in the library, since the library owns the material and is simply making it available due to time constraints. A teacher could copy articles on a given topic for each member of a class if it was unreasonable time-wise to secure authorization , but if she would use the article as part of her curriculum each year, she would need to receive permission from the author or publisher. [Note: Any creative work has copyright privileges. To be in compliance with the 1989 Berne Convention, a work no longer needs to bear the copyright (c) symbol for protection, so an author's rights are preserved even without formal copyright registration. (However, in the USA, full legal privileges require registration with the U.S. Copyright Office.)]

The nature of the work relates to how the work is to be used. For instance, a how-to book is meant to be instructive, and the plans they contain followed. If the book has plans or designs included, presumably the author means for them to be used. The physical nature might also be a factor that affects the use of a copyrighted work. A work of music would have to be heard to get the benefit of the work, and printed material read.

The third factor is based on the amount of the work used. Generally fair use implies excerpts, such as those used in criticisms or quotations, however in certain instances, particularly for research and scholarship, fair use might allow the copying of an entire work.

Lastly, fair use considers the effect of the use on the market for the copyright owner. Uses that destroy or impair the market for the copyright owner's creative work would provide little incentive for authors to initiate new undertakings. A teacher can not legally make photocopies of worksheets from a single student workbook for all students in her class. Such use would have a detrimental effect on the author's potential profits.

New Technology

Many educators genuinely strive to following the guidelines of copyright laws in respect to printed material, but in the area of new technologies, they fall short of the same conformity. In Brunner's survey of the problem, she concludes, "The educational community has typically not honored the copyright laws as they apply to the electronic media, though it has always respected other kinds of intellectual property." The illegal uses include copying a single licensed software to more than one computer, use of photographs, music or video beyond fair use limits, or putting pirated material on networks and school world wide web sites. Recently a freshmen at the University of Puget Sound posted more than 100 software programs-some retailing for more than $3,700 apiece-on his personal web page at the school. Steven McDonald, associate legal counsel at The Ohio State University, believes students often do not even realize they are breaking the law; they have never been exposed to an understanding of copyright laws in school (Haworth, p.A19). In research commissioned jointly by the Business Software Alliance and Software Publishers Association, the estimated losses in 1996 to software piracy was $11.2 billion, equating to more than 225 million business applications pirated (BSA). The pirating happens frequently in the educational community, both among students and faculty. Funding is short, so an easy answer is to "borrow" someone else's disk and load the software onto other hard disks. A professor at Moscow State University commented on the reason he uses illegal software: "This is the only way to learn...we have no money" (Ostoumov).

.A new type of "virtual morality" and "cyberethics" (Hauptman) has often entered our reasoning in regards to software and media. "Bill Gates is making enough money," we rationalize. "If everyone else, including professionals, is doing it (Betts), why shouldn't we with our tight educational budgets?" This is a path that leads to a very dangerous destination.

Since piracy is theft (Kruger), modeling the illegal use of software is certainly against the principles that we try to instill in our students. The "gray area" problems confronting both educators and administrators (Walker, 1995) help delineate the true nature of integrity, honesty and stewardship residing within. Students are watching. These messages are more caught than taught. Certainly we need to help students understand the rights and wrongs of copyright through teaching, but our actions are also crucial.

Most educators are genuinely concerned with their students' future prosperity. What better way to encourage students in their creativity than to help them understand the protection that intellectual property rights offer? In fact, hundreds of thousands of students' futures are tied to copyright protection just within the software industry; over $5 billion in potential wages were lost last year alone in software piracy (Wrenn). The loss in taxes was $1 billion. For each job within software, about three others outside the industry support each position. That equates to about a half-million potential jobs lost. The impact both personally and socially is significant.

Even if the moral or social impacts do not motivate, certainly the legal aspects do. Microsoft, other software companies and Business Software Alliance are beginning aggressive litigation. Recent raids on network computers, businesses and schools have netted amazing results (Times, D2). The new 1992 laws institute criminal penalties including imprisonment and legal awards of up to $100,000 per work. Several copies detected on your school computer could bring a $250,000 fine and five years in prison. Here in the Pacific Northwest, Microsoft is beginning a national anti-piracy campaign. Initially it will target businesses, but will move to the educational environment and internationally in the near future. "Education is a big piece of this," says Gwen Weld, the director of Microsoft's anti-piracy effort. "Educational institutions need to be sure their software is legitimate, and can help their students through education and awareness" (Weld).


Questions to Ponder in Piracy

In consideration of technology copyright protection, we should ask ourselves the following three questions:

  1. Would I perform this use with print media in this setting?
  2. Am I doing something to prevent purchase, lease or licensing?
  3. Do I hope that I will not get caught? (Bruwelheide)

If any of these questions are answered in the affirmative, the use is probably questionable.

Intellectual property matters are essential in any discussion of social and moral issues facing education. School administrators, faculty, and students need to grasp copyright protection principles. Guidelines of copyright law and "fair use" must be observed. Ignorance certainly should not be an excuse that our students or we educators claim. We have the responsibility, no matter our field of specialty, to know the guidelines, helping our students become good citizens—people who not only respect the law, but also respect the personal rights and property of others. What can be said about our ability to truly educate and mold our students morally and socially if they leave our influence in complete ignorance of basic laws of intellectual property protection? We have the responsibility to safeguard the copyright fundamentals, both verbally and by example within our curriculum, classrooms, schools and districts. How else will students ever catch the real ethics supporting the rationale of copyright concepts?





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