Intellectual Property Online:

The Case of Student Writing

Kairos has asked me to briefly address the issue of intellectual property online as it relates to the writing and other work done by the students in our classrooms. I comment not with any legal expertise, but rather as a teacher who published eleven hypertext webs authored by my students in a previous issue of Kairos (published them with the students' permission, of course).

If we assume that an author publishing scholarly research in an academic journal typically retains certain rights and privileges with respect to his or her work, then the salient questions are these: what difference (if any) does it make that the authors in this case are undergraduate students publishing work completed for a classroom assignment, and not graduate students, faculty, or independent scholars publishing work inspired by some deficit in the scholarly record? And what difference (if any) does an online, electronic environment create for conventional (read: print-based) notions of intellectual property?

The second question in particular is vast and vexed, but it is a question that gains some timely urgency given that it has become increasingly commonplace for instructors to place portfolios of their students' writing on the Web, sometimes even the full semester's work of the class. This is, I believe, a phenomenon more or less unique to the pedagogical culture of the Web, without significant precedent in print media.

But who retains authority over student writing once it is placed online? Does it matter, for example, whether it is published out of disk space in the instructors' personal account, individual students' personal accounts, a local departmental or administrative server, a third-party non-profit resource (such as Kairos), or some commercial venture? These are questions of speculative intrigue, but also much immediate practical consequence. Within weeks of my class's projects' publication in Kairos, for example, one of my students was contacted by someone writing chapters on online style and document design for a prominent publisher's writing and style guide; the student was offered an honorarium of fifty dollars in return for use of a screenshot of her hypertext. In this case, the student was free to do as she pleased, since it is Kairos's stated policy that all authors (including, implicitly, student authors) retain full rights to reproduce/republish their online texts, but this episode captures something of the volatility (and vitality) of the medium.

A second example: the very first time I published a class's writing on the Web (in the Fall of 1995), I was contacted by an overseas publisher who sought permission to reproduce my students' work as examples of "everyday speech" in an ESL textbook. I turned the offer down -- without consulting the students -- partly due to sketchy details about the nature of the publication, but also because the potential for commercial use of some or all of the student texts would have disqualified them from hosting by the English Department's server. I still stand by my decision, but in retrospect I suppose I might be reasonably asked to elaborate by what authority I presumed to speak for my fifteen students, who presumably retained some rights over their essays and might be entitled to remove them from the Virginia server and re-use the work for their own (potential) profit.

Should intellectual property rights for published student writing be divided between teacher and student? Can an instructor claim any responsibility over a student text once it crosses the threshold of publication? While it is true that any undergraduate scholarly writing likely to see publication will not be strictly the author's "own" in the sense that it will have benefited heavily from an instructor's comments and strategies for revision, this is not any less true for a graduate student publishing a thesis chapter (which will have been read and commented on by his or her advisors), or for academic authors of any rank who benefit from the comments of reviewers and referees.

So in that respect, undergraduate writing can be comfortably situated along the continuum of the scholarly writing process more generally. Yet, it is also true that undergraduate student writers who publish their work (online or otherwise) generally do not do so with quite the same professional investment or authority as a graduate student or faculty member. This was the case for my own students in Kairos, for although the overall quality of their work was very high, and much of it could have stood on its own, the whole was still framed by my own introductory comments addressing (among other matters) the rationale for the student projects' appearing in a scholarly journal (the Kairos staff and I took to calling this document the projects' "wrapper").

Neither Kairos nor I felt that publishing the student work simply on its own merits as critical writing would have been as useful or effective as presenting it in the context of a window into a classroom -- and even the most de-centered classroom reveals inequities of power dynamics. Clearly then there are material realities (or conventions) that impinge on the oft-rehearsed claims that electronic writing environments are inherently democratizing; but does any of the above suggest that when publishing in a scholarly journal, an undergraduate student ought retain anything less than the full rights to his or her work?

Push come to shove, I would say not.

Matthew Kirschenbaum
University of Virginia

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