Intellectual property education refers to the idea that students in schools should be required to listen to explanations of and arguments for intellectual property laws, especially copyright. Proponents argue that such education should be implemented because of increasing copyright infringement by students. Detractors argue that such education is tantamount to forced indoctrination of propaganda.

Table of contents
1 History and Reasoning
2 Misconceptions

History and Reasoning

For most of its history, copyright was only an issue for publishers and authors. But because of an accident of modern technology, nearly everything done with computers, especially those on networks, is covered by copyright law, and may be infringing. When installing a program, a copy is made to the hard drive, when launching a copy is made into memory, when visiting a web page a copy is sent over the network. All these activities are allowed in the US under section 117 Limitations on exclusive rights: Computer programs of the US Copyright Act and do not violate US copyright law, provided that the sale of software is considered a sale under the Uniform Commercial Code, which has substantial case law to support this argument, and not a licesnse.

The crux of the current debate on copyrights is actually due to the nature of electronic information systems themselves. The problem stems because transfixing a computer program into the memory of an electronic information system is not permanent without a storage device. Thus it was questionable at one time on whether or not computer programs were subject to copyright protection. To protect their assets commercial computer companies used "licenses”, contract terms to augment trade secret protection, in order to protect against unauthorized copying. When the federal courts interpreted the Copyright Act to provide substantial protection for computer programs as literary works companies continued to practice of "licensing" their products for end use in order to get around the doctrine of first sale (Step-Saver Data Systets, Inc. v. Wise Technology).

Even after 1990, even though it was unnecessary to protect their products with licenses, software companies continued to "License" their products to preempt federal copyright statutes, the US Constitution, and other federal laws so that they could impose terms very favorably for them, such as ignoring all exemptions to copyright and give themselves search and seizure powers prohibited to US Law enforcement agencies by the US Constitution, and quite unfavorable to the consumer. They were able to engage in the practice due to monopolization of the software industry. With regards to the software industry most users, and professionals, are unaware that the grants made in most EULAs are already granted by section 117 of the US copyright act while at the same time take away all the rights granted to the consumer by the " Limitations on exclusive rights of the copyright holder" codified in sections 107-122 of the US Copyright Act. The EULA has became so predominate that most take the EULA contract for granted, and typically do not read them, and clicking it as a necessary evil to use any commercially available softwares.

Since software makers claim that their product is not sold but rather licensed, they argue that the 117 exemptions do not apply thus requiring a liscence in order to use software. MAI Systems Corp. v. Peak Computer, Inc and Triad Systems Corp. v. Southeastern Express Co are two excellent cases demonstrating the abuses that copyright holders have leveraged with through this practice. In both cases the defendant was repairing or maintancing machines for another company. Section 117 of the Copyright Act states that "it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided...that such a new copy or adaptation is created as an essential step in the utilization of the computer program...." although the service and maintenance that was done in both MAI and Triad was an "essential step in the utilization of the computer program," and thus immune to an allegation of infringement, however the defendants in these two cases were found to infringe because, the software that their customers were using had been "licensed" to the customers, not "sold.". In both of these cases, the court noted that the duplication rights provided under Section 117 only applied to an "owner" of a copy. The court concluded that a "licensee" was not an "owner.". It is important to note that section 117 has since been modified by the DMCA to allow repairs of computers.

Copyright holders in other mediums decided they wanted to give themselves the same powers as computer software makers by forcing users into similar contract agreements, however there has traditionally been no precedent to agree to a contact in order to use legally acquired copyrighted protected materials, in fact case law supports that there is "no diffrence between a license and sale of protected materials.." and "to call a sale a license is mere play on words" (Bauer & Cie. v. O'Donnell and Bobbs-Merrill Co v. Straus)thus bringing the enforceability of the EULA and the practice of licensing copyrighted materials for end-use into question.

Electronic copies of files, by their very nature have little to no individual value. A computer can, and does, easily create and destroy copies of materials. This has led to abuse and wide spread infringemnt by the general public. In order to curb this abuse the copyright holders have lobbied congress to pass more and more restrictive laws. Every time a new law is passed by congress the content copyright holders abuse it greatly. Examples of this include; the inclusion of commercials on the unskippable track on DVDs reserved for the copyright notice, using the DMCA to protect items that do not qualify for copyright protection such as garage door openers and ink cartridges, adding restrictions on reading books aloud in the EULA of Ebooks, using the DMCA to prevent uses outlined in the exceptions to copyright through the use of copy protection schemes or Digital Rights Management schemes, preventing valid research on computer security claiming that it circumvents copy protection schemes, silencing individuals who have found serious flaws in software used in electronic voting, placing copy protection mechanisms on materials in the public domain, and creating a regional country restriction playback prevention scheme to price discriminate in more wealthy countries then claiming it is a anti-copy mechanism when in fact it is a anti-playback mechanism.

The general public has reacted negatively to these abuses by copyright holders and unlike professional publishers; members of the public have little understanding of or sympathy with the arcane structures and absolutist character of copyright.

One school of thought, advocated by commentators including Richard Stallman and Jessica Litman, holds that if the expectations and habits of the public conflict with copyright, it is copyright which must adjust.

Many members of the intellectual property establishment reach the opposite conclusion: digital technology means that all citizens must now learn to understand and respect copyright as it stands. Since the rules of copyright often run contrary to users' self-interest and copyright infringement is a victimless crime, a great deal of education may be required to prevent it.

Intellectual property education was strongly advocated in 1995 by USPTO head Bruce Lehman's Working Group on Intellectual Property Rights for the Information Infrastructure Task Force. As they put it, children must learn to "just say yes" to licensing. Since then, calls for IP education in schools have been ongoing.

Two developments in 2003 have been the introduction of legislative proposal HR-2517 in the U.S. House of Representatives by Howard Berman, entitled the Piracy Deterrence and Education Act of 2003; and the launch, by the MPAA, of an IPE campaign in American schools (news coverage: [2],class="external">[1).

Misconceptions

Many proponents of intellectual property education make some common mistakes:

  • They assert that copying CDs is wrong. As with blank consumer music and video tape, in the US, blank music CDs have a mandatory royalty included in their price as do music CD recorders. Those royalties are distributed to those in the music business through copyright collective associations. Copying music using these systems is a lawful, licensed use which benefits the copyright holders. Computer CD recorders and blank computer CDs do not include these royalty payments (see blank media tax).

  • Under US law, the Limitations on exclusive rights: Computer programs and fair use doctrine permit purchasers to make copies for personal and family use without paying royalties.

  • Under US law, first sale doctrine permits owners of a copy of a protected work to transfer ownership without permission or paying royalties. Digital Rights Management and Product Activation by its nature prevents this.

  • They ignore history. Copyright holders have tried to impair the development of technology which upset their business model for generations, attempting to stop player pianos, cable TV and VCRs.

  • They ignore provisions in copyright law for non-profit archives and libraries to make and lend copies of works.

  • Many times they will try to claim copyright on non-copyrightable items such as; letter decorations (fonts), facts (phone books), listing of ingredients(recipes), figures (labor statisticts), the works of the US Government, and materials in public domain without any transformative effort or work besides digitizing or hosting them.

  • They may pay insufficient attention to the fact that, like fair use, copying for educational purposes is a copying right owned by society, not one granted to them under US law.

  • They note that copyrighted works will eventually become public domain without noting the great increase in copyright terms, such that essentially nothing produced during the lifetime of any student will enter the public domain during that life. For those retiring and retired today, that public domain right has been repeatedly approached and then taken away, as some copyright holders have lobbied Congress over 20 times to extend copyrights just before their copyrights were about to expire.

  • They ignore that the license and not sold argument was settled back in 1908 and 1913 by the U.S. Supreme Court (BOBBS-MERRILL CO. v. STRAUS, 210 U.S. 339 (1908) in cases of copyrigh and BAUER & CIE v. O'DONNELL, 229 U.S. 1 (1913) for patent) different than some of the lower courts have inturpeted it in cases such as MAI Systems Corp. v. Peak Computer, Inc.. Likewise many of the lower courts adhere to the older rulings when answering this question in cases such as SoftMan v. Adobe. Since protected materials are sold then exceptions to copyright found in 107-122 apply and there is no legal grounds for an individual to agree to an EULA or "Shrink-Wrap" license , except that collusion among software makers have made it commonplace to include them.

  • Digital Rights management and Activation techniques allow the content holders to decide, dictate, and enforce their own exclusive rights on the materials instead of Congress.

  • They compare a civil infraction (most consumer copyright infringement) with the crimes of murder and theft of property (piracy).

Alternative views include the view that the reason copyright holders are seeing infringement problems is that their efforts to extend the time they have monopolies and impose restrictions on use have caused people to be scornful of them; then perceive them as simply acquisitive, seeking to change the law maximize their gain at the expense of most of the society from which they benefit and on which they depend for their income. Solutions of those with this view involve such things as returning to a copyright term no longer than the patent term, so that people can see works entering the public domain during their lives and will see actual benefit as a result.

See also: philosophy of copyright

References

  1. Richard Stallman, Reevaluating Copyright: The Public Must Prevail, Oregon Law Review 75(1) 1996.
  2. Jessica Litman, Digital Copyright, Prometheus Books, 2001.
  3. Bruce A. Lehman (chair), Information Infrastructure Task Force Working Group on Intellectual Property Rights, Intellectual Property and the National Information Infrastructure - Part 3 (Education), 1995.
  4. Cui, Mei. Intellectual Property Issues in Middle Schools of the United States and the People’s Republic of China, Mastes Thesis, Concordia University, River Forest, IL. 1999.
  5. International Intellectual Property Alliance (IIPA). “USTR 2002 'Special 301' Decisions and IIPA Estimated U.S. Trade Losses Due to Copyright Piracy.” IIPA Online. [1]
  6. Shaheen Lakhan, Stop Piracy with Edification: Intellectual Property Education in School - University of Southampton Cogprints Archive
  7. Oliver R. Goodenough, "The Future of Intellectual Property: Broadening the Sense of `Ought'", European Intellectual Property Review, 24(6) 2002.