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Donna Wentworth
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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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October 27, 2005

Copyright and the Evolution Wars

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Posted by Wendy Seltzer

Proving the (uncopyrighted) adage that everything turns into a copyright issue if you look at it long enough, the NYT reports that 2 Science Groups Say Kansas Can't Use Their Evolution Papers -- and they're using copyright to stop it.

Two leading science organizations have denied the Kansas board of education permission to use their copyrighted materials in the state's proposed new science standards because of the standards' critical approach to evolution.

The National Academy of Sciences and the National Science Teachers Association said the much-disputed new standards "will put the students of Kansas at a competitive disadvantage as they take their place in the world."

Apparently, the Kansas standards document quoted extensively from NAS and NSTA reports in the process of singling out evolution as a controversial theory. The organizations denied permission, but (and I haven't seen the Kansas report myself) unless the use was so extensive as to misappropriate the organizations' reports, it could still have been a fair use. (To be fair, the fault lies as much with the Kansas board of education for thinking it needed permission, if its uses were fair.)

Even though my politics are more flying spaghetti monster than "intelligent design," I don't think this is a proper use for copyright. Copyright is not about endorsement or agreement, and it's not a right to stop criticism, even ill-considered criticism. Quotation can be fair use even in a context the original author abhors -- that's precisely when we need fair use most, we on all sides of a political debate.

The organizations are free to broadcast their loud disapproval of the uses to which their publications are being put, and free to sue for misrepresentation if false statements or positions are put into their mouths, but asserting copyright rights seems a heavy-handed way to win a battle of ideas.

Comments (11) + TrackBacks (0) | Category: Big Thoughts


COMMENTS

1. Joseph Pietro Riolo on October 27, 2005 8:44 PM writes...

There is another reason why these science organizations
don't like "Intelligent Design". Intelligent Design
created the public domain and promotes the true freedom
of knowledge. Evolution, that these science organizations
strongly support, prompts the ever-expanding of
intellectual property rights.

Or, is it the other way? :-)


Joseph Pietro Riolo
<josephpietrojeungriolo@voicenet.com>
<riolo@voicenet.com>

Public domain notice: I put all of my expressions in this
comment in the public domain.

Permalink to Comment

2. Joe Gratz on October 27, 2005 9:48 PM writes...

Proving the (uncopyrighted) adage that everything turns into a copyright issue if you look at it long enough

Phew! And all these years I thought it was just me.

I agree that they'd have a strong fair use case, even if they used relatively large excerpts of the report. Copyright-as-cudgel makes baby FSM cry.

Permalink to Comment

3. Jonathan Dursi on October 28, 2005 10:48 AM writes...

I thought the same sort of thing when I first read about this article, but after having read more carefully, I think I was wrong and that this is actually an acceptable use of copyright.

We're very used one side of the copyright fight trying to get to copyright enlarged to encompass completely unrelated rights (like `technological protection measures' which police use of copies, rather than just the making of copies!). We quite rightly fight this, and so when we see something that smells like that, it's pretty natural to get our dander up.

But remember, even if we fight our way back to a more reasonable definition, Copyright has always a bundle of rights, something whch gets lost in the current discussion. And one of the non-economic aspects of copyrights is that of Moral Rights, which includes the some measure of rights to not have your work (and thus your name) twisted or distorted. As is pointed out in the Berne Convention,


Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

I think these moral rights have a perfectly reasonable place in copyright law (although the overstrengthening of copyright and its terms can make even moral rights too strong), and moral rights are certainly at play here; why should the NAS or NSTA allow their names to be associated with the twisting of their works?

Permalink to Comment

4. Von Fugal on October 28, 2005 4:07 PM writes...

Jonathan, you make a good point that this isn't the same beast as the economical money-grab copyright feature-creep we fight so diligently, and we certainly should avoid knee-jerk reactions as to such. However, I'm just as familiar with the beast this action associates with as with the other. It's just as scary, if not scarier. This beast is one that will grow to destroy freedom of speech. It feeds on these misguided copyright advancements.
Just because I say something and copyright it doesn't mean I can prevent you from refuting what I say. This is one of the most important aspects of fair use, to quote from a work to offer commentary and rebuttal. For that reason I don't think this case will fly, I certainly hope it doesn't.
It may prove very hard to undo.
As for those moral rights, they have nothing to do with any liscencing to use a work nor is misrepresentation in any way infringement. If that's what their trying to fight, they should fight it as such.

Permalink to Comment

5. Jonathan Dursi on October 29, 2005 1:08 AM writes...

Just because I say something and copyright it doesn't mean I can prevent you from refuting what I say. This is one of the most important aspects of fair use, to quote from a work to offer commentary and rebuttal. For that reason I don't think this case will fly, I certainly hope it doesn't.

But VF, that's not what's going on here. The Kansas BoE copied NAS and NSTA materials wholesale in making their education `standards', and NAS and NSTA is saying ``no, we dislike what you're doing to our work, and disallow you to use it''. No dissent is being suppressed, no fair use is being squashed; the NAS and NSTA are saying ``If you want to write that grotesquerie of an education standard, fine, but we won't make it easy for you by letting you copy our stuff''. Nothing is preventing the Kansas BoE from sitting down and writing the equivalent materials.

Where is the suppresion of fair use here? If I write a book, I'm under no obligation to let people copy chapters three and five from it and use & distribute it for their own purposes.

Permalink to Comment

6. Jesus on October 29, 2005 7:06 AM writes...

Isn't this whole debate just pointless semantics anyway?

All scientists have to say is that God created evolution as part of his "intelligent design", and the entire debate is finished.


After all, evolution itself being a dynamic solution to dynamic problems is far more of an intelligent design than something static.

Permalink to Comment

7. Joseph Pietro Riolo on October 29, 2005 9:55 AM writes...

To Jonathan Dursi:

Where do you get the information that Kansas Board of
Education copied materials wholesale? The article said
that in some cases, it was just a phrase and in some
cases, it was extensive. But, nothing said that whole
materials were copied.

Regarding your comments about moral rights, you should
be aware that they do not exist in the U.S. copyright law
except for some visual art works. Also, authors can't
use moral rights to suppress fair use and freedoms of
speech and press. Only France can allow that. Even if
science organizations do not like the way Kansas Board
of Education is doing, the board can still quote materials
as long as they are within the boundary of fair use.
In your example, I can copy chapters three and five
from your book to my work if they are within the boundary
of fair use and there is nothing you can do to stop
from me doing it, in spite of your moral rights.

Do you really think that these two science organizations
will be content that Kansas Board of Education writes
the equivalent materials on its own? I don't think so.
I think that they will use the doctrine of substantial
similarity to prevent the board from writing the
equivalent materials. What this really shows is that
the science organizations are control-freak and will
try every means to prevent the board from touching
their materials, even with a ten-foot pole.


Joseph Pietro Riolo
<josephpietrojeungriolo@voicenet.com>
<riolo@voicenet.com>

Public domain notice: I put all of my expressions in this
comment in the public domain.

Permalink to Comment

8. Evofan on October 29, 2005 11:20 AM writes...

The NAS and NSTA put out model standards specifically for the use of states designing their own science standards. That's what they are for, and normally the NAS and NSTA is happy about that.

The problem here is that the creationist majority on the Kansas Board of Education has inserted a bunch of pseudoscience into those standards. NAS and NSTA are perfectly within their rights to not allow the Kansas Board of Education to say to the thousands of teachers and students of Kansas that the state's science standards are based on NAS and NSTA standards when, in fact, the modified standards are against the core principles of science and education that the NAS and NSTA stand for.

No one is preventing anyone from publishing criticism of NAS, NSTA, or evolution. The Kansas Board of Education is a governmental body, they are publishing a governmental document for the use of Kansas teachers and students. NAS and NSTA want no part of that governmental body's actions, and they have the right to refuse to participate in governmental policy that they see as detrimental to science and education.

I think you are really fighting some other battle about for-profit corporations owning/controlling speech. There is no monetary profit at issue here, no one is making or losing money from selling or publishing the standards. Instead, this is a political fight over governmental education policy. The creationists have been playing hardball, so why not the scientists?

Permalink to Comment

9. Joseph Pietro Riolo on October 29, 2005 5:30 PM writes...

To Evofan:

Where do you get the information that the Kansas Board
of Education inserted its own statements into the two
science organizations' standards? I think that there
is some misinformation floating around here. Unless we
have access to the science organizations' standards and
the board's working standards, we will never know exactly
what they are arguing over.


Joseph Pietro Riolo
<josephpietrojeungriolo@voicenet.com>
<riolo@voicenet.com>

Public domain notice: I put all of my expressions in this
comment in the public domain.

Permalink to Comment

10. internetfuzzi on October 31, 2005 6:14 AM writes...

Sorry Jesus, but there was something wrong in your comment : you mentioned that "All scientists have to say is that God created evolution as part of his "intelligent design", and the entire debate is finished."

The debate will just be over when Creationists agree that Its Highness The Flying Spaghetti Monster has created Intelligent Design as well as all the sciences and everything at all ..

And sorry, Wendy, if I didnt really comment on the copyright issue. This time either my english is less good than I thought, or its just a temporary mess - but I couldnt really understand the circumstances. I will have to read it again and maybe do some cross research to understand it - but thanks for the hint ;D

With noodly greetings from germany,
Bruder Internetto - COTFSM-HH

Permalink to Comment

11. Von Fugal on November 1, 2005 12:04 PM writes...

Evofan, you miss the point. Maybe the Kansas board is claiming to base their standards on those of the mentioned organizations. Maybe it's just teaching some of their doctrine in their own context. The former I would agree is not OK, the latter is perfectly fine. The point is, wrong or right, the Kansas board isn't violating ANY copyright laws. False attribution maybe, provided they are actually doing that, but that's not a copyright issue. Maybe the NAS and NSTA can just tell the Kansas board to include conspicuous disclaimers that these are not their views.
I think they don't do that because like Joseph said, they are control freaks.

Permalink to Comment

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