Of Amateurs Teaching Intellectual Property in the Age of Trump

I come to intellectual property law as an amateur. My interest in it has grown from a passing interest in sensational literary-estate cases, through a good deal of advocacy work on behalf of open access to research, into something of an educational mission. With the fervor of a convert, I now look for ways of introducing lessons on intellectual property into my teaching in the school of education and in the program in science, technology, and society (STS). I may throw a mini-lesson into a discussion of the materials that students are using for a project or on a headline lawsuit involving their favorite pop stars; I have developed units on how inventions make their way into the world. In bringing this out-of-the-ordinary topic into the classroom, I often explain myself to the students by explaining that I have come, if only lately, to realize that sending them out into that grand exercise of intellectual property rights known as the global economy without the basics of this legal regime in hand now strikes me as educationally irresponsible, bordering on negligent.

If I once thought, like many educators, that copyright had little place in the schoolhouse, I’ve now come to think that it offers the means of throwing open the classroom door to the history and economy of ideas, to what is regarded by law as common to us all and what is revered as distinct about our ways of understanding the world. Students can begin to see how the stake they gain in the shared body of arithmetic, biology, and history becomes their means of making something that is their own but that more importantly can be of value to others.

It is a system that was originally and ostensibly legislated in Britain to encourage learning and in the United States “to promote the progress of science and the useful arts,” as the U.S. constitution has it. If that seems like something out of the ancient past in an age of hundred-million-dollar lawsuits over your phone’s bezel design, students can also come to see that education retains an “exceptional” status within intellectual property law that promotes learning through fair use rights (copyright), experimental exceptions (patents), and an academic exception that recognizes the special contribution of teachers and scholars in creating intellectual property that does not simply and automatically belong to their employer (both).

The cases that in which these distinctions are worked out speak to how an elaborate legal system serves the interests of both creators and the commons. To have students grasp the legal reasoning around intangible and ineffable goods can be like learning to grab hold of and unhook the slippery trout you’ve caught, before tossing it back into the river. They come to see the natural and common law claims of their own (intellectual) labor; the social engineering of incentives and nudges, precedent by antecedent, exception by exemption.

Today, however, lessons about intellectual property take on a new urgency for this Canadian teaching at an American university. Since assuming office, President Trump has been turning us all into legal students of executive orders, stays, suspensions, and blockages. And while a broad range of constitutional and legislative rights, including equal protection, due process, and religious freedom, are at issue in the travel ban order of January 27, 2017, its ability to damage the core mission of the universities as well as the creativity of the technology industry has been cited by a number of those filing objections to the executive order with the courts. This speaks to the intellectual property ramifications of these unwarranted and potentially unconstitutional actions. More broadly, this administration has been assaulting the credibility of the courts and the press; placing gag orders on government scientists; threatening withdrawing of federal funding from Berkeley; and displaying a general disregard for the facts. This breakdown of civility and attacks on democratic institutions should give us all pause, not least of all for how contrary it runs to the constitutional intent of intellectual property law, namely, “to promote the Progress of Science and the useful Arts.”

So what’s an amateur jurisprude to teach today about the state of intellectual property? Two lessons come immediately to mind. While the digital future of journalism — as a — has proven particularly challenging (with the New York Times, for example, trying app after app), the number of Times’ subscribers has shot up by a quarter of a million or 21 percent in the final quarter of 2016. This is intellectual property at work making a particular professional outing of the truth viable. By the same token, I’m tempted to argue, the drive for open access to research and scholarship should gain a similar uptick in support — as we seek to flip subscription journals to open access, with research libraries providing the same support — as we realize how vital public access is today to empirical findings and scholarly analysis. This is a time for standing up for the intellectual properties that matter.