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(C) Robin Wharton, 2012.

All rights reserved.*

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  • Disciplinary definitions of intellectual property do not always perfectly reflect legal definitions, or vice versa

  • Intellectual property includes amorphous concepts such as reputation and privacy, but be aware of semiotic slippage when moving between legal and other disciplinary discourses

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§ 107 . Limitations on exclusive rights: Fair use40

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such 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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Bright Lines and Golden Rules:

Copyright, Fair Use, and Critical Pedagogy

The Ethical Approach:

How do we make texts

accessible to our students?

  • Focus on disciplinary ethics and conventions
  • Give credit where credit is due (and expected)
  • Provide a "genealogy" of ideas for your audience
  • Only use what you need, and make it count

Rather than a difficult legal question, “Is this fair use?,” why don’t we ask ourselves a question we are particularly well-equipped to answer, such as “What are the pedagogically sound options for making this text available to my students?” In arguing we should reframe the issue this way, I am guided by James Porter’s approach in Rhetorical Ethics and Internetworked Writing. The law is difficult and unwieldy and hard to know. Instead of getting bogged down in it, let’s deal instead with the ethical -- and yes, pedagogical -- concerns in which the fair use/dealing exception for copying related to “educational purposes” is grounded.

http://www.hybridpedagogy.com/

What do we tell students about fair use

and its application to the work they do

in our classes?

The Legal Approach:

  • Focus on "regulatory framework" as part of the rhetorical situation
  • Involve professionals from the non-academic workplace
  • Integrate exploration of the regulatory framework and its application as part of the writing process (e.g., a whitepaper or memo project)
  • Encourage use of open source and Creative Commons materials
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