Intellectual Property: Your Right to Compensation


The following remarks are based on my presentation in the breakout session, "Intellectual Property Rights in a `Virtual' World." They represent the views of the author only, and by no means should they be construed as the position of the Academic Senate for California Community Colleges.

I'd like to become impractical here as quickly as possible. However, one of the points of Plenary Session breakouts is to present useful information, so let me dispense with that right at the outset. Our question is, basically, "When it comes to publishing the fruits of your intellectual labor on the Internet, what are your rights to compensation?" The answer is quite simple: Whatever you can negotiate. The sample contract language contained in Tom Tyner's very useful Guidelines for Negotiating Distance Education Issues1 makes this quite clear.

The literature on this subject reveals the following standard with reference to the issue of ownership of intellectual property:

If you create it independently, it's yours.
If someone else-say, your school-hires you to create it, it's theirs.
If you create it on their time with their resources, each of you owns part.

The value of ownership in terms of compensation, however, comes back again to what you can negotiate.

There is the further issue, of course, of what you can enforce. If you've negotiated an agreement with your college, it will probably be pretty easy to keep them honest. Once your stuff is on the 'Net, though, and available to the planet, what do you do if someone steals it? First, you have to catch them, and that is likely to be close to impossible. If you do catch them (here's some more useful information, again), and they have either made money from using your work or have cost you money by using it, then they will probably have to pay you something for it. Unless, that is, they live in some far away place that is not particularly friendly to the robust spirit of American capitalism-and there are such places, and not all of them are all that far away.

You are probably thinking that this is not really very practical information at all. Well, I'm very sympathetic to that feeling , so let me wax impractical for a bit, and perhaps shed some light on why, in fact, it is so difficult to be practical in this area.

Marshall McLuhan, author of such works as Understanding Media and The Medium is the Massage, wrote that "When faced with a totally new situation, we tend always to attach ourselves to the objects, to the flavor of the most recent past. We look at the present through a rear-view mirror. We march backwards into the future. Suburbia lives imaginatively in Bonanza-land."2 We use television to look at movies, and the primary use of our computers is as typewriters.

On one level, the reason we have difficulty giving practical advice about intellectual property rights on the Internet is plain: We are trying to fit the rules we created for print media to an entirely different medium, to computing on a global network. The new medium is sufficiently different that there is no easy fit. We are going to have to create new rules, and so we are often told that the applicable regulations will "evolve through future court decisions."3

Well, maybe applicable regulations will evolve. But maybe not. It seems entirely possible that our very concern with intellectual property rights is itself an instance of looking at the present through a rear-view mirror, of trying to experience the electronicmedia world through print-media eyes. "The alphabet and print technology," McLuhan wrote, "fostered and encouraged a fragmenting process, a process of specialism and detachment."4 Print also made possible the contemporary notion of "authorship," the commodification of one's thoughts and ideas, and fostered "ideas of literary fame and the habit of considering intellectual effort as private property."5 "Electric technology," on the other hand, "fosters and encourages unification and involvement"6 and marks the emergence of a single, global consciousness.7

I want to suggest that we would do well to take our difficulty in applying the notion of intellectual property rights to the Internet as the occasion to reassess what we do as teachers and to rethink our relationship to our audience. If McLuhan is correct, the medium of the global computer network is already massaging us; we need to see if we can't make out the message in the massage.

There are some of us still extant (quite a few, I was surprised to discover at this breakout) who remember using the Internet without a browser, doing it all from the UNIX command line. We were a fairly exclusive club, limited to the military, academics and generally nerdy types, who were either willing or required to master the intricacies of FTP, Gopher, SMTP (email), IRC, and search engines that took months to begin to learn to use effectively. None of us doubted that it was worth the effort, though, for when we logged on to the 'Net, we entered a very different world. The world of cyberspace was characterized by a palpable spirit of openness, of freedom and of sharing the fruits of one's creative efforts. We daily celebrated the fact that no one owned the 'Net, no one was "in charge," telling us what we could and couldn't do-and yet the whole thing worked, and worked beautifully. The medium's message was very clear: The global network was a liberating alternative to the world of "mine" and "yours," of property and the rights to it. This was a counter to the world of competition for pecuniary gain, offering instead progress through cooperation.

This "spirit" of the Internet seems lost today. With the ascendancy of the Web, and with Web browsers facilitating universal access, the Internet has become commercialized and reflects to a disconcerting degree the everyday world of getting and spending.

But listen closely to McLuhan: The medium itself, and not its content, is the message. What we find today on the Web is commercial content; the spirit of the medium-its message-is not lost, it is just masked. We are running headlong into that message, I believe, when we encounter the "difficulty" of ensuring intellectual property rights on the Internet. The 'Net as medium seems hostile to the concept of private property. If it's on the 'Net, it's everybody's. "Applicable standards" may indeed "evolve" through court rulings. How will they be enforced? In the final analysis, they can't be. In the meantime, however, make no mistake, we could have some very dark times indeed.

What are the implications here for our rights as teachers to be compensated for our intellectual property? I suggested earlier that a reassessment might be in order. The fact is that we are paid good salaries-obscenely good by global standards-to pursue knowledge and to educate others. If we create something that successfully communicates our knowledge to others, perhaps we should just celebrate that and not worry about owning it. (As someone in the breakout pointed out, we should certainly copyright it in order to prevent others from attempting to appropriate it and make it inaccessible.)

Finally, back to McLuhan one last time. "After three thousand years of explosion," he wrote, "by means of fragmentary and mechanical technologies, the Western world is imploding. During the mechanical ages we had extended our bodies in space. Today, after more than a century of electric technology, we have extended our central nervous system itself in a global embrace, abolishing both space and time as far as our planet is concerned. Rapidly, we approach the final phase of the extensions of man-the technological simulation of consciousness, when the creative process of knowing will be.extended to the whole of human society, much as we have already extended our senses and our nerves by the various media."8 And, he asks, "might not our current translation of our entire lives into the spiritual form of information seem to make of the entire globe, and of the human family, a single consciousness?"9 So where does this leave us on the subject of compensation for intellectual property? Perhaps the medium is telling us that, where knowledge is concerned, it is time to start thinking and acting more like a single, global consciousness, and less like buyers and sellers.

1 Tom Tyner, Guidelines for Negotiating Distance Education Issues, Community College Council, California Federation of Teachers. 6-8.

2 Marshall McLuhan, Quentin Fiore, Jerome Agel, The Medium is the Massage: An Inventory of Effects (Original copyright, 1967. Reprinted: SanFrancisco, Hardwired 1996) 74-75.

3 Tom Tyner, op. cit., 6.

4 Marshal McLuhan et al., op. cit., 8.

5Ibid., 122.

6Ibid., 8.

7 Marshall McLuhan, Understanding Media: The Extensions of Man (Original copyright, 1964. Reprinted: Cambridge, Massachusetts, The MIT Press 1994) 3-4, 61.

8Ibid., 1.

9Ibid., 61.