Howard - Who “Owns” Electronic Texts?

Who “Owns” Electronic Texts?

Tharon W. Howard

Introduction

In his article, “Who ‘Owns’ Electronic Texts?”, Tharon W. Howard explores intellectual property law from a historic and philosophical perspective to better understand how notions of copyright are being challenged by current advances in mass communication technologies. Most writers, he states, tend to believe that authors “own” their texts, and can assert control over how they are used. The trend toward collaborative writing processes and online distribution of texts has raised many intellectual property issues that writers are unprepared to deal with.

Howard then presents five potential scenarios illustrating the intellectual property dilemmas that modern writers face.

Scenario 1 involves a company that would like to incorporate a famous photograph located in a popular magazine into the cover of their annual report. How should the document designer proceed?

Scenario 2 imagines an individual being asked to install a piece of software on their work computer, even though it has already been installed elsewhere.

Scenario 3 questions if one can legally and ethically quote from an email message posted to a listserv in a scholarly article. Is this an obligation, and who controls such a text?

Scenario 4 explores whether a personal correspondence between individuals via a company email system should be considered private. The computers are owned by the company, but does that give other employees the right to monitor and reproduce such personal messages?

Scenario 5 describes a faculty member compiling a list of hyperlinks to potential employers’ job listings for job-seeking students. If these businesses are derived from a published book of business listings, does the creator have an obligation to pay royalties if their hyperlink system is published?

These scenarios, state Howard, reveal the way in which intellectual property issues are becoming an increasingly large concern in the workplace. In fact, an understanding of intellectual property and copyright in this environment could very well be considered a necessary component of electronic or computer literacy.

A Historical Overview

Unbeknownst to most people, copyright laws did not come about as a means to protect the “natural property rights” of authors. Rather, they represent a limited privilege that is granted to authors by the state for a variety of reasons. Following the invention of the printing press in the 15^th century, stiff competition between publishers established a need to protect their ability to profit from works they had purchased and printed. The easy mass-production of texts also took control of published works away from the Church and the government, allowing the dissemination of dissenting viewpoints. These developments led to the establishment of copyright laws, the purpose of which was to protect the financial interests of publishers and censor dissenting voices. England’s Statue of Anne, and the U.S. Constitution expand on these privileges, but remain grounded in the notion of copyright as “a privilege or license granted by the government for a limited period of time in order to promote not only the right of authors to profit from their labors, but also the enhancement of the public’s collective welfare.”

Major Principles of U.S. Copyright Law

The goal of U.S. copyright law is to strike a balance between the rights of an individual author and the good of the public. For this reason, the fundamental principle of “fair use” has existed throughout our history. In determining whether any particular case represents fair use, there are no black-and-white rules, rather there are a series of factors to take into consideration. Ideas themselves cannot be protected. One reason for this is that ideas are seen as universal truths that are accessible to all and cannot be owned by a single person. Also, because an individual’s ideas are dependent upon many ideas developed by others, an idea is a communal property. Copyright is only meant to protect an author’s specific expression in a fixed tangible form.

Copyrights in the Electronic Environment

Even when they are properly understood, these principles do not always yield clear answers when dealing with electronic texts. However, a broader understanding of copyright principles can still serve as a useful guide for professional communicators.

With this in mind, Howard now returns to his scenarios to see if this informed perspective sheds any light on the issues they embody.

Scenario 1

In the scenario involving the repurposing of a famous photograph, its inclusion on an annual report would likely fail the test of fair use. The document designer should seek to obtain permission and a copy of the original image from the original copyright holder.

Scenario 2

This scenario expresses a common misconception that an individual or company “owns” any software that they have purchased. What is actually purchased is a limited license to use the software in a certain way.

Scenario 3

In scenario 3, it would probably be legal for an individual to quote from an email, but the situation quickly becomes “clouded by the technology involved”. The author of the email may believe that copyright has been violated since she wasn’t able to publish her material through a more traditional means before it was copied, diminishing its value. However, the very act of sending this email to a discussion group would likely be considered a form of publication. Legalities aside, the most ethical course of action would likely be to procure permission from the author before quoting her.

Scenario 4

Usually, a company is the sole copyright holder of the texts produced by those in its employ. In some jurisdictions, there are laws which protect the privacy of personal communications between employees. Regardless, this scenario is less a question of copyright than it is of personal privacy.

Scenario 5

Determining whether the reorganization of data compiled in another source constitutes a copyright infringement is a tricky one, and cases have gone both ways. Howard predicts that this will become an increasingly prevalent issue with the advancement of computerized database systems in which information is automatically stored, manipulated, and accessed in a wide variety of ways. The most conservative course in this scenario, Howard concludes, would be to contact the publisher of the reference materials and attempt to work out a financial arrangement before publishing any repurposed material.

Conclusion

The advancement of electronic information technologies has created many challenges to our current model of intellectual property law. “It may well be,” states Howard, “future copyright laws will need to find radical new foundations.” Today more than ever, professional communicators need a more thorough understanding of the history and philosophy behind intellectual property law.