- Oct 2016
-
techwritingf16.robinwharton.net techwritingf16.robinwharton.netHTCQ2001.vp10
-
It is a complex and pro-found piece of thinking and an expression of the American national ideal. The in-tellectual property clause embodies hope in our nation as a strong, intelligent forcefor expanding understanding and knowledge, and it reflects the desire to enableegalitarian access to information to make possible the dialogic enterprise neces-sary for democracy.
I think that this is a really unique interpretation of the "American national ideal." First, Herrington notes that the copyright clause allows the United States to become stronger intellectually, which leads to overall strength of a nation. Second, he notes that is also is an example of the strive for egalitarianism and democracy, which is a unique, but accurate, take on the copyright clause. Intellectual property laws and the copyright clause allow individuals to take credit for their work and prohibit them from taking credit for the work of others. While the laws are broken occasionally and copyright infringements do happen, the laws themselves symbolize the American ideals of equality and a democracy in which everyone has a voice.
-
This complex interrelationship of elements that drive intellectual property law ap-plication has been recently interpreted by the Supreme Court’s decision inEldredv. Ashcroft(2003).
In short, Eldred v. Ashcroft ruled that the 1998 Copyright Term Extension Act does not violate the copyright clause or the first amendment right to free speech. The 1998 Copyright Term Extension Act extended copyright term to seventy years after a creator's death. For the full text of the ruling, see the opinion of the court, written by Justice Ruth Bader Ginsberg:
-
The First Amendment exists to ensure that the government is inhibited from cre-ating restrictions that limit public debate. It provides two levels of scrutiny (protec-tion) for speech, the most well protected being content-based speech, and least strin-gently protected, content-neutral speech. Content-neutral regulations are those thatdo not target specific speech, parties who speak, or topics of speech but restrictspeech generally, regardless of its content.
I think it is important to understand the strict scrutiny imposed on legislature that limits "content-based" speech and the mid-level scrutiny imposed on legislature limiting "content-neutral" speech in a more general sense, outside of the Eldred v. Ashcroft case. A copyright extension would limit access to a variety of media, making it a content-neutral limitation. That being said, constitutionality of that type of restriction should be subject to the O'Brien Test. According to that test, a restriction is only constitutional if
- Congress has authority to create the restriction
- The restriction is to promote a significant government interest
- Said interest is not meant to limit free expression
- The restriction is not imposed further than necessary to carry out the government interest.
Although these criteria seem reasonable, I question what the "significant government interest" would be in extending copyrights. I also wonder if the interest would be worth the negative implications of the statute for technical communicators and other media curators. For more information on the O'Brien test, here is a brief summary: http://mspillman.iweb.bsu.edu/news409/FirstAmendTests.pdf
-
At times, they create original, even expressive, works such asimages, graphic presentations, advertising copy, and other forms of communica-tion that are clearly representative of viewpoints and are creative efforts of thosewho develop them. At other times, technical communicators may do rote-levelwork, compiling reports of others or filling in the blanks of forms and thus pro-viding no original content.
Technical communicators have a unique position in terms of the post-Eldred interpretations of copyright and fair use. Sometimes, authorship is clear, and technical communicators are guaranteed speech protection and can maintain copyright claims. However, sometimes original, expressive pieces that would typically fall under the "clear authorship" umbrella of work may be composed in a work for hire setting. In that case, the author is deemed to be the corporation or employer, which means the technical communicator is not granted authorship rights, even if the piece was created individually. The same rule applies for routine and administrative texts written by technical communicators in a workplace setting.
-
In addition, the Court indicatedobliquely that it would support creation of original work over the use of the work ofothers (Eldred v. Ashcroft, 2003, headnote 9a–9b). The Court has emphasized origi-nality as a basis for First Amendment protection, consistent with the concept that in-dividual speech garners greater protection than does commercial speech. In addition,if the speech is not original, it is more difficult to make a claim of representation ofthe speaker (exercising a free-speech right) rather than mere repetition of another’srepresentative words.
Here, it appears that the Court sees original work and the use of others' work as in opposition to one another. However, as noted in "Rethinking Plagiarism in Technical Communication," technical communicators blur the lines of original content, as effective products and documents build upon the work of other technical communicators in order to present new information. However, because of the "re-use" of other content, the newly-generated content cannot be determined to be completely original, even though it would likely be more effective than completely original technical content. Similarly, a decent study in a peer-reviewed journal typically contains a "literature review" section at the beginning of the article. In doing so, background is provided for the new information or findings presented. In citing previous documents in a literature review, new information is more credible, even though the full body of text is not entirely original.
Reyman, Jessica. "Rethinking Plagiarism for Technical Communication." Technical Communication 55.1 (2008): 61-67. Web.
-
This interplay between the First Amendment and fair use makes it possible fortechnical communicators to create new products in response to those of others as ameans to represent themselves and their employers in the workplace.
In Reyman's "Rethinking Plagiarism for Technical Communication," the author discusses the ways that college students have been programmed to fear plagiarism, despite the non-conventional definitions of plagiarism within technical communication. Such definitions allow technical communicators to build upon the work of other authors, which enables them to work within a particular discourse to present new information or interpretations and expansions of other information. The fair use doctrine noted here is the appropriate avenue for technical communicators to re-use copyrighted work in order to produce better texts and products.
Reyman, Jessica. "Rethinking Plagiarism for Technical Communication." Technical Communication 55.1 (2008): 61-67. Web.
-
The Court found that the traditional contours of the intellectual property provisionprovided a proper mechanism for allowing copyright holders to benefit from theirwork while limiting holders’ control by way of fair use.
In the beginning of the article, the implications of Eldred v. Ashcroft appeared to be relatively severe for technical communicators, as the 20-year extension to copyrights would significantly limit the sources available to them. However the fact that the fair use doctrine still applies after the ruling provides technical communicators with a "loophole" in the sense that they can still re-use and re-purpose texts within the parameters of the fair use doctrine. In Writer/Designer: A Guide to Making Multimodal Projects, the first prong of the fair use doctrine states that the purpose of a text must be used for "educational, nonprofit, criticism, commentary, news reporting, teaching, scholarship, or research." One could argue that the vast majority of technical communication falls under at least one of these uses. However, there is still a chance that one could argue that technical communication is about capitalism and product sales, which brings into question whether the "loophole" will remain as future Supreme Courts interpret copyright law.
Arola, C. (2014). Writer/Designer: A Guide to Making Multimodal Projects.
-
The Nationpublished 400 words of verba-tim quotes from the book, eliciting a copyright infringement suit from Harper &Row. The Court decided that, althoughThe Nationused 400 words of a 500-pagebook written by a public figure who was speaking about particularly politicallycharged issues of critical importance to the public, the use was still a copyright in-fringement, noting that the author’s expression maintains protection, even whenhe is a public figure, and pointed to the extensive investment of effort, time, andfunds from both the author and publisher, who were on the eve of publishing thework for public consumption.
It is peculiar that this was declared unconstitutional for several reasons when the fair use doctrine is applied. First, The Nation, which is an informative political news magazine, published the text in order to inform the public, and likely to critique it. Both of these uses are allowed under the first prong of the fair use doctrine as described in Writer/Designer: A Guide to Making Multimodal Projects. Second, the magazine only published a small portion of the 500-page book, which is also allowed under the doctrine. However, it is unclear whether the book had been officially published, and it is likely that The Nation's use of the quotes would reach a large audience, so it fails the fair use doctrine in that regard. Because it only meets two of the four criteria, it is a tricky case, but I still believe it fell close enough within the fair use doctrine to be considered constitutional.
Arola, C. (2014). Writer/Designer: A Guide to Making Multimodal Projects.
-
The discourses created by technical communicators have not been considered au-thored discourses; the technical communicator may be a transmitter of messages or atranslator of meanings, but he or she is not⎯or at least not until now⎯considered tobe an author.
Here, Slack, Miller, & Doak describe the role of technical communicators as the transmitters of messages, not authors. However, as this was stated in 1993, I believe that the role of technical communicators has evolved over time. In "Wicked Problems in Technical Communication," Wickman discusses the role of technical communication in solving "wicked problems." In Sullivan's "Beyond a Narrow Conception of Usability Testing," she argues that technical communicators have a distinct role in promoting increased product usability. In both articles, a major theme is that the technical communicator is an individual curator with a unique set of ideals and goals, which proves that technical communicators are seen as authors more than ever before. To get a better understanding of the role of technical communicators as authors, refer to this infographic: http://stuffwriterslike.com/wp-content/uploads/2014/09/future-of-technical-writing.png
Sullivan, Patricia (1989). Beyond a Narrow Conception of Usability Testing. IEEE Transactions on Professional Communication 32(4).
Wickman, C. (2014). Wicked Problems in Technical Communication. Journal Of Technical Writing & Communication, 44(1), 23-42.
-
The purpose of freedom of speech...istopromote a democratic culture. . . [which]is more than representative of institutions of democracy
As acampbell30 also noted regarding this quote, we often think of cultural production and distribution at the aggregate level, but individual rights such as free speech allow individuals to participate in democracy. In terms of technical communicators, they have the opportunity to produce social change, whether intentionally or not. While activism and protest come to mind when one thinks of the term "social change," social change often flies under the radar. Social change that could be produced by technical communicators could be the ways that we gather information digitally or a slow cultural shift in the American writing process.
-