Westbrook, Steve.  “What We Talk About When We Talk About Fair Use: Conversations on Writing Pedagogy, New Media, and Copyright Law” in Copy(write): IP in the Writing Classroom.  Eds. Rife, Martine, Danielle Nicole Devoss, and Shaun Slattery. 2011.

  • W. begins by noting that writers “appropriate and transform material” (1).  This is likely because of the finite number of words and combinations we have at our disposal as language users.
  • W. notes that when we talk IP in our own discipline we often talk about it through a lens of genuine love – love for freedom of speech and a love of our student expressions (and a desire to protect our students in the production of those expressions).
  • 3 “waves” of the IP caucus at CCCC: 1) the first wave conformed to the antiquated, Romantic notions of authorship and sought to reify those ideals in the world of the web; 2) the second wave considered the public domain, fair use, and rhetorical systems of textual ownership in more critical ways – extending the conversation and creating a “wake-up” call for folks in the field; and 3) the third wave is concerned with the pedagogical turn toward IP and copyright in our classrooms – how do we teach this concept (a concept that is inherently fuzzy and difficult to reason through in and of itself).  (2-3)
  • This turn to pedagogy is necessitated by the turn to New Media production – or the ways that meaning is made through symbolic structures in non letter-bound genres.  While many of our classes have been immune from copyright prosecution (because of the lack of visibility in our closed class systems), when they move to the open web (youtube, etc.) the possibility of infringement charges rises exponentially.
  • In the section on writing textbooks, W. notes that there are three assumptions about source sampling: 1) we rely on the incorrect assumption that sourced materials can be cited using the prevailing academic conventions (he likens the composition student to Biz Markie . . . a problematic comparison at best considering the lack of profit motive and educational setting of our students); W. criticizes folks for grabbing images from “just about anywhere” and not teaching to CreativeCommons specific sites for image retrieval.  In effect, both criticisms are representative of a central confusion: teachers mistake student compositions in our classes as just that instead of also as examples of public writing (again, a point that might be up for contention; 2) the second position is the opposite of the first – instead of granting students too much license this position sees pedagogues granting too little by requiring permissions in all appropriations. This position pretty much kills any utilization of “fair use” ; 3) the third position teaches the four tenants of fair use doctrine:  What is the purpose of the use?  What is the nature of the work being used?  How much of the copyrighted work is being used?  What effect would the use have on the market for the original?
  • Westbrook recommends that we, as teachers, do a couple of things in our classrooms: 1) we should consider the overreaching actions of the corporate sector when they invoke copyright to try and control the public discourse; 2) we should consider past cases with our students to discuss the ways that fair use operates historically in order to prepare them with the critical IP literacy required to create in New Media environments.
  • The “fair use” argument (when predicated on a “journalistic” defense like in the Diebold case) provides the basis for protections for some of the actions of hyper-transparency movements like WikiLeaks.
  • I think that the “four factors” approach makes sense not only in the interest of IP adherence but also in the creation of rhetorically effective texts.  When students work critically and coherently with sourced materials in this sort of way – the way to remain inside the bounds of fair use – they are likely creating rhetorically sophisticated texts.  A research question:  If a text successfully defends itself in all four factors of fair use is it also typically rhetorically efficacious?
  • The point of teaching IP and fair use is a big one: students have the potential to invoke these same arguments toward free speech and the cultivation of a more productive, engaged democratic polity.  It does this a couple of ways: 1) it will develop their rhetorical decision-making skills and sharpen critical thinking; and 2) it will increase student agency and make them more aware of their rights as writers.  This point is key because when students become invested in their own work they become invested in writing, politics, and conversations “about culture, power, and law” (18).


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