That book, like many of my literary impulse-buys over the years, spent years gathering dust on the frantically stacked bookcase in my room. When I finally rediscovered the book, I discovered the it had a section which was of particular interest: America's Loony Laws (I've mentioned this topic in an earlier post). This section was brilliant! The things they’ve outlawed in the US! For example, it is illegal in Illinois to go fishing on your wedding day whilst making love to your wife; in Alaska it is illegal to push a moose from a moving aircraft; in landlocked Oklahoma, it is illegal to hunt for whales. Now, my understanding of the law is that it is mostly reactionary – people don’t come up with every law upon the inception of society. No, instead, what happens is that they set down the basics – don’t murder, don’t steal, don’t touch the genitalia of the young – and then the rest of the laws crop up as a response to some scenario which has led to trouble. Perhaps there was a nasty accident involving fishing hooks and wedding tackle in Illinois. Perhaps the governor of Alaska had a lovely Sunday lunch interrupted by a live moose crashing through his ceiling. Perhaps there was a mishap involving whalers and an extremely large lady in a swimming pool in Oklahoma. Who knows? There is almost another book’s worth of material in explaining how these things came about. But that’s not what interested me, was it?
You see, I had grander ideas than writing a book: I wanted to be a television star. So, I wrote a pitch for a show in which some friends and I would attempt to break fifty laws, in fifty states in fifty days, in a bid to become America's Least Wanted. Now this pitch sat somewhere on my hard-drive for around four years without anyone reading it - I'm well stocked on ideas, just not on contacts in the television industry. However, when years later I met Jamie (my stand-up comedian friend) and found out he had plenty of television contacts, I remembered my idea and told him about it. He thought it was a great idea, and an excellent opportunity for a free holiday - the worst that could happen is that we get deported, which means that we'd only need a one way plane ticket. We're saving money here!
And so the pitch was sent out to around thirty television companies, and sure enough, one of them became interested in picking it up. They were quite a big company, and I can't name them for legal reasons (because of the implications of what I am about to tell you). Now, this company requested that I send them an extended piece of prose detailing the idea (much of what is written above is adapted from what I sent to them). I, of course, acquiesced in this request. And this is where the story gets interesting...
I sent this in February 2008. In March 2008 a new television production company was incorporated in the UK and US, and the first television show they have patented is... you guessed it - mine! Of course, I have never met with or communicated with any of their board (although I suspect someone who knows them may know of me) and so this, legally, is an unfortunate coincidence for me - my four year old idea gets thought up by someone else just a month after I have told lots of people in the television industry about it.
And this rather long digression brings me to my point - just how do you prove ownership of intellectual property?
Learning The Hard Way
Looking at the small print on my contract, it appears as though the ownership of the intellectual property rights to any resources I produce whilst employed by Newcastle College is defaulted to them. If I upload a set of lecture notes I have written to our Blackboard site, although authored by me, they legally belong to the college. In corporate law, an equivalent clause would most likely be in breach of fair contract terms governing business to business relations*1, and similarly consumers receive protection from contracts which unfairly favour one party over another*2. What I'm not trying to do here is moan about a perceived injustice; I'm merely exploring potential avenues around this contractual nightmare.
I am in what I suspect is a fairly unique position in FE: I have negotiated a subject link with one of the UK's most prestigious universities, and in the process secured an annual scholarship for one of my students and negotiated a publishing deal. Quite impressive, I feel, for someone so underqualified! However, there appears to be a conflict of interest here - if I publish a book via this university's publishing company, the copyright belongs to them (with royalty payments heading my way), and this entails that my students must wait for the books to be pressed and then buy them; if I publish an electronic copy on Blackboard before the books go to press (the most pragmatic solution as a teacher), the copyright seemingly belongs with the college. If I make a mistake in choosing here, I may indeed learn the hard way about intellectual property rights - once again! I need answers, gosh darn it!
Avenues to explore
One solution that has come to mind is to incorporate a limited company i.e. Andrew Haggerstone Ltd, produce the resources as products of this company, outsource the purchase of all resources used in the classroom to this company, and have this company invoice me for a sum of £0.00. Now, this is a bit tricky - it involves paperwork, paying incorporation fees, filing tax returns, and generally facing the bemusement of the college's management structure! Also, I'm not a solicitor, so I have no idea of whether or not this would work!
So what other avenues might we navigate in the surreal estate business?
There are what are termed the 'moral rights' of an author. According to The UK Copyright Service, "moral rights are concerned with the protection of the reputation of the author. There are two fundamental moral rights that belong to the author of a copyright work: [i] the right to claim authorship, [and ii] the right to object to any treatment of the work which would be ‘prejudicial to personal honour or reputation’. Moral rights exist separately from economic rights and cannot be sold or given away."*3 However, it would seem as though the right to claim authorship is not really in dispute here, it is the right to ownership of the work.
A useful distinction ought to be drawn at this point. There are what are termed 'scholarly works' - these are articles, books and conference papers - and contractually I am entitled to the copyright of these things. However, anything 'produced for the purposes of running the course' which I teach belongs to the college. This implies that there would be no conflict if I was to produce modified, but distinct, lecture notes based upon the work I publish.
Shared Resources & Collective Intelligence
Even if we can protect ourselves from 'the establishment' when it comes to copyright issues, what if we wanted to protect ourselves from our colleagues. I am not, of course, advocating the viewpoint that we should not share resources - I actually believe that the free distribution of information and ideas should extend much further than it currently does - but what if we didn't want someone stealing the credit for our best idea?
Here, the major concern would appear to be about electronic resources ; anything you have been fortunate enough to have published in print is protected by the copyright agreements mentioned above. Electronic resources pose a slightly different problem.
Scenario 1: You upload a learning resource to a website for your students/colleagues to access, but you do not want this resource, or elements of it, to be redistributed or reproduced by anyone. How do you protect your work?
One approach is that of 'watermarking', which "attempt[s] to provide copyright owners with the desired degree of protection, and to act as a disincentive to data piracy"*4. This process embeds data into the file (which may be a video clip for instance), and this data contains the details of ownership and any restriction on use. The process of 'fingerprinting' works in much the same way. For those of you who are familiar with the image editing suit Photoshop, watermarking is something which can be visibly inserted into digital images, which in turn places a restriction on how that image may be used in practice - if your name is across an important portion of that image (which may be uploaded to a public source such as Flickr, Photobox or even a social networking site like Facebook), then without the means of removing the watermark, that image becomes impractical to use. Watermarking and fingerprinting can therefore be used to prevent anyone from utilising resources you have designed.
Scenario 2: You're happy for Alex to use your resources (she asked nicely, and she always smiles at you when you go in the staff room), but you don't want Kyra to get her hands on them (you're pretty sure she's not actually foreign, and she just puts on that accent to make herself appear more 'arty'):
Watermarking and fingerprinting both belong to a copyright process known as steganography. The limitation of this type of protection is that it is passive - it requires you (or an expensive solictor) to detect when someone has gone ahead and used your resources regardless.
There is another form of protection which would potentially provide protection from your resources being redistributed by those few people you were initially happy to allow use of your resources. This is known as cryptography, and a method of restricting use can be found in what are termed 'digital signatures'.
According to Sandy Shaw, "this service enables the originator of a data object to provide the receiver with the means by which the origin of the object can be authenticated."*5 In other words, without the permission of the originator (distributed, for example, by means of a one-use pass-code such as that used with software packages), the resource simply cannot be accessed. Alex can use it, but Kyra cannot - she requires a unique pass-code, and attempting to use Alex's will simply alert you (thanks to the wonders of the internet) to the fact that two seperate IP addresses are attempting to use one pass-code. Similarly, the digital signature method can even alert you to any attempts (even by Alex) to modify your resource.
For the intellectual property liberals, though, such restrictions on use are probably unwarranted. In fact, it seems like lots of you (well, of us, I'm one of you) have started a movement which has been dubbed 'collective intelligence'*6. This is simply collaborating on resources to ensure they are of the highest standard. An example (though not exemplar) is Wikipedia. Resources such as this naturally raise issues over 'moral rights' of authorship, but even though these rights are apparently inalienable, many of us 'lefties' have decided to set them aside to contribute to resources of this nature. And here I don't don't mean to make light of things when I say 'lefties' - it would appear as though there is some genuine concern that people of a left-wing nature are more inclined to contribute*7. One can only speculate that something about an affiliation with capitalism and the right makes you more inclined to concern yourself with issues over copyright! But the right need not fear, for they have an equivalent - Conservapedia - "where homosexuality is defined, not as 'sexual attraction between people of the same gender' as on Wikipedia, but as 'an immoral sexual lifestyle that goes beyond the boundaries that God has set up.'"*8 Cyberspace appears to the venue of an escalating conflict, with collective intelligence providing the ammunition for its participants; will the spoils of war be intellectual property?
References:
1. Business Link, Unfair Contract Terms, http://www.businesslink.gov.uk/bdotg/action/detail?type=RESOURCES&itemId=1074405689
2. Office of Fair Trading, Unfair Contract Terms Guidance, http://www.oft.gov.uk/shared_oft/reports/unfair_contract_terms/oft311cons.pdf
3. The UK Copyright Service, http://copyrightservice.co.uk/protect/p12_writers_copyright,
4. Sandy Shaw, Overview of Watermarks, Fingerprints and Digital Signatures, http://www.leeds.ac.uk/educol/documents/00001244.htm#_Toc456162870,
5. Ibid.
6. The New Media Consortium, 2008 Horizon Report, http://www.nmc.org/pdf/2008-Horizon-Report.pdf
7. See, for example http://www.youtube.com/watch?v=CJEeyLeqJHc
8. Ibid.
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