In the fall of 2015, Muhlenberg College President John Williams asked if I would teach a copyright law course to interested undergraduate students. While at Harvard Law School, he and his wife Diane had taken an online course titled CopyrightX, the brainchild of Harvard professor Terry Fisher.
President Williams was very excited about the course, and believed it could be taught effectively at our institution, though this would be the first time the course would be offered to undergraduates in the United States. I agreed to the request, but had some reservations.
I have no degree in law or in copyright, and my experience is purely hands-on in the work I do as a librarian at Muhlenberg.
As you may know, the very existence of libraries depends on an exception in copyright law called the First Sale Doctrine. This doctrine allows books and other library materials to, among other things, be loaned out without infringing on copyright law.
Copyright also affects other aspects of libraries, such as interlibrary loans and operating library reserves.
Over the years, I have pointed many of our faculty members to sources of information to address their copyright questions. I also co-authored our institution’s copyright policy.
So, I do have first-hand experience with copyright, but lacked any of the theoretical underpinnings.
Furthermore, I knew copyright only as it affects higher education. My view of copyright was myopic.
Creating a course
After discussing possibilities with our college provost and with Fisher, I realized that I should myself take the CopyrightX course, so I enrolled in the spring of 2016.
I also realized I would not be set adrift teaching this course, but rather would be firmly anchored in abundant content that would be made available to me through Harvard as part of Muhlenberg’s contract with them.
As I started to gather my thoughts and develop the lesson plans, the format of the course began to take shape.
There would be 1-1/2 hours of online lecture by Harvard’s Fisher, reading of legal cases outside of class, followed by in-person discussions that I would lead each week, enhanced by PowerPoint slides that I could repurpose. These slides and case studies would bring to life famous legal cases in the history of U.S. copyright.
I also decided to add what I feel was a key component of the course’s success for undergraduates: at least one in-class writing assignment per discussion session that would serve to jump-start the conversation.
In fact, I made the course writing intensive, meaning that students could expect and would be given numerous opportunities for writing.
Engaging students
From day one, the legal cases captivated my students. Far from being dry, these cases—whether from the Supreme Court or district courts—are often finely wrought prose, sometimes even witty.
I recall the case of Castle Rock Entertainment v. Carol Publishing Group, in which the publishers of a Seinfeld-based quiz book used show-related material without permission. The court’s decision rejected the defendant’s “fair use” argument.
The human drama behind the cases also resonated nicely with students. For example, in the case of Mannion v. Coors, Jonathan Mannion, a photographer, went up against the giant Coors Brewing Company and won. He did so, of course, by having a crack legal team, but also by simply having a good case.
Coors had hired Mannion to photograph an athlete, and then went on to appropriate his work without compensating him. In the end, Mannion came away well-compensated for his creative work.
The combination of historical background provided in the PowerPoint slides, complete with images and a timeline allowed the cases to come to life for the students.
Helping students think critically about copyright law
I recall such cases as Patrick Cariou v. Richard Prince, where Prince had appropriated works of Cariou. My undergraduate students were awestruck by the types of appropriation, and where the courts drew the line. Students were fully engaged with the idea of fair use.
We read together this passage: “In 25 of his artworks, Prince has not presented the same material as Cariou in a different manner, but instead has ‘added something new’ and presented images with a fundamentally different aesthetic.”
I asked the students to look at the pictures—those the courts had found to be transformative and thus fair use, and those the courts had not found to be fair use.
What was the difference?
The word “chaotic” appeared in our discussion. Students could see that the surface of the underlying works considered to be transformative had been sufficiently disturbed as to be “chaotic” and thus transformative. Those works that had not been sufficiently disturbed were considered to be infringement.
In addition to the real-life cases, the course was filled with hypothetical cases that encouraged the students to think critically. I generally had students address these cases in writing during class, but sometimes talked through them in class discussion and then offered them as exam questions.
For instance, the final exam, authored by Fisher, asked students to consider a paisley-covered guitar that may have been infringed upon. There were many issues the students had to consider to answer this question, such as:
- Was the guitar a protectable type, and if so, what type was it?
- What is the concept of “scenes a faire” and what are the stock elements in light of the common paisley pattern?
- What is the level and type of copying, such as comprehensive versus fragmented?
- What role does access and substantial similarity play?
- Consider the possibility of fair use; how does secondary liability play a role?
These are all examples of the many opportunities students had to think critically in this course, carefully weighing the options and making a considered answer, much as justices or juries in a court must weigh the evidence.
Seeing the world differently
In this course, students learned the most fundamental concept of copyright, written into the U.S. Constitution, that copyright is intended “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
Before this class, students could look at the web—as we all probably have from time to time—as information compiled anonymously. Now they understand there is a creator as well as a consumer. The creator is not a faceless name, but a person who exerted labor and creative energy to render a work.
Copyright seeks to strike a balance between creator and consumer, acknowledging that some created works need incentives to be created; the incentives exist to make sure there is always creative output.
Inspiring students to create change
Copyright is about change. It is constantly in flux. Students pondered throughout the semester how the copyright code could itself change. Students were asked in the Harvard online lectures and then again in my discussion sessions to think about the theories behind copyright: fairness, personhood, welfare and culture.
These theories all inform the law, but some are more or less influential than others at different times and places. As time goes on, it may be our students who—in their generation—can change the law to more equitably distribute the riches of intellectual property.
Kelly Cannon is the outreach and scholarly communication librarian at Muhlenberg College.
