PROPOSAL

International Intellectual Property of Digital Texts: An Analysis of US and Chinese Graduate Students
Submitted by: Turner Vaughn Clemson University

Submitted to: Tharon W. Howard Department of English Clemson University

April 20, 2011

Abstract Intellectual property and the ownership of those rights is an essentially understanding of any professional. In an ever-increasing digital world with shrinking borders, comprehension of these laws becomes even more complex and important. Students in professional communication are no exception. Whether working in industry or academia, students of professional communication need to be aware of intellectual property issues. Improper understanding can lead to a damaged career, lawsuits, unemployment, loss of tenure, damage to company, damage to professional reputation, and many others. This proposal depicts a study that will survey international (Chinese) and American graduate students in professional communication programs across the country. Problem Area There is a difficult distinction for most Americans to make between physically stealing and stealing something digitally. The first is a very tangible obvious crime. It is very easy to be caught, prosecuted, and punished. In the digital world, however, the lines become blurred. For example with the invention of the iPod, and iTunes the digital music empire was born. Consumers no longer went to the record store to pick up the newest album for their favorite artists. They were now available on the Internet. This led to software programs like Napster, Kazaa, and Bearshare that enabled users with little computer knowledge to download music for free. Although legal action was taken against Napster and it was effectively shut down, many other programs still exist. The problem here is the majority of people who download songs for free on the Internet would not consider themselves as thieves. They are not your bank robbers, or pick-pockters; they are normal everyday people. Regardless of why this is the case, whether it is a question of enforcement or some psychological difference, the problem still persists. This problem still persists in America to a large extent. Bit torrent sites and other peer2peer sites offer much more than just music; they provide software, video games, textbooks, movies, government documents, the list goes on. It, like Napster, does not take much computer knowledge to access. There is an increasing fear of getting caught, however this happens sparingly

and usually only occurs to people who download massive amounts of data and provide their own information to the bit torrent sites. So why is this important? These types of violations stand to threaten to the very economic base of this country. Private property is a fundamental tenant of capitalism and the protection of those rights ensure economic stability. By providing economic stability it also establishes social, political, and cultural stability as well. So when you combine an increasingly digital world with a economic system based entirely on private property, many concerns arise when illegal consumption of digital goods is a common thing. This problem increases dramatically when these digital goods enter an international marketplace. Globalization is increasing day my day. Countries are engaging in trade with each other across the globe daily. Businesses not only sell the products in other countries, but they also operate factories and manufacture goods. China, which has the worlds largest population, has one of the worlds fastest growing economies. There are hundreds of US companies that sell, buy, or work with China. Several US companies have their entire manufacturing base located in China due to the lower labor wages and lower environmental sanctions. Apple, a large computer company based out of California, has several factories in China that physically make their products daily. The difficulty arises with the difference in intellectual property and private property rights in China and America. First of all until 1979 China was a completely communist country with virtually no private property rights. Since 1979, however, things have changed though only slightly. It has been said that China is now a communist country with Capitalist tendencies. It still retains its communist political structure, however it allows for the ownership of private property and the concept of capitalism. However there are several issues that still exist. In my historical analysis section I plan to focus on how this transition happened, the laws that exist today, and the enforcement of these laws. I will attempt to analyze this history through two different lens: economically and culturally. It is possible to explain part of the difficulty of the transition through cultural analysis. China, historically, has a collectivist ideology. This can be found in government systems, Chinese philosophies, and the structure of the family. This difference can be simplified to mean that China places emphasis on the group before the individual, where in American emphasis is clearly placed on the individual. That being said it is possible to relate issues with private property in China to its cultural and social history. The group is more important; therefore what is good for the group should be shared, until 1979 nothing was owned by citizens so naturally everything that was created was for everyones use. However things have changed since 1979. There is also another system that governs intellectual property rights between countries. There are several international organizations and committees that exist to address IP violations around the world. However

these groups hold little enforcement power because regardless of increasing globalization, the nation-state is still the supreme law in any given country. It is only through volunteer participations and trade interests that countries adhere to any laws, sanctions, or policies established by international organizations such as the United Nations. As texts become more frequently digitized and dispersed internationally, how does an author retain intellectual property rights in an incredible complex and diverse global government system, specifically China? I am interested not only in the history of international intellectual property, but professional communicators knowledge of those rights. Many companies deal with copyrights daily, however how many of those individuals are aware of their protection, specifically in China? Digital text is any text produce by a United States company in digital form (online pdf, document, etc.) that can be accessed by individuals in China. Intellectual Property According to the World Intellectual Property Organizations website Intellectual property is defined as creations of the mind, which are inventions, artistic and literary works, symbols, images, names, and design used in commerce (WIPO). Intellectual property can be divided into two separate types: artistic property and industrial property. Artistic property is concerned with music, movies, books, paintings, etc. and is protected by copyrights (Howard 402). Intellectual property rights are concerned with national law. Each country has slightly different laws that govern and hear disputes of copyrights. If any disputes arise within the creators country national law protects him/her. However when an artistic work crosses into international waters, whether digitally or physically, the risk of loss, fraud, or copyright infringement greatly increases. Due to lack of enforcement, i.e. no world government, international law does not cover intellectual property rights across borders. Several international organizations have made substantial efforts in creating international intellectual property standards. These generally occur between developed countries that trade frequently. This applies to, however, only certain to countries that chooses to enter into such agreements. Another example of the international effort in property rights is through international organizations such as the WTO and the United Nations. The WTO, with 153 member countries worldwide, is the strongest international pro-trade effort that exists (WTO Website). One of their organizations, the TRIPS council (Trade-related Aspects of Intellectual Property Rights), is the organ of the WTO that concerns itself with intellectual property abroad. As with other councils in the WTO, all members are members and therefore have agreed to the provisions of the TRIPS council. The TRIPS council promotes transparency among member nations with regards to national legislation of intellectual property. Another organization, which is part of the United Nations, is the

WIPO (World Intellectual Property Organization) established in 1967. The UN consists of 184 member nations, which comprises 90% of the world. The organization within the UN, WIPO, serves to protect intellectual property abroad through collaboration and voluntary agreement (WTO Website). Although intellectual property is not an international law enforced by an international government, there are several organizations within very powerful bodies that promote collaboration, communication, and cooperation among member countries that wish to remain part of the world trading community.

Digital Texts & Intellectual Property As the value of the content or message increase, compared to the diminishing marginal costs of medium, intellectual property becomes increasingly important. (113) With something so complex and changing as intellectual property, the intellectual property system needs to be flexible and malleable for any given situation. It is important to distinguish, explicitly, what is considered public knowledge and what is not. Boyle is concerned that a fundamental property regime of the information economy will be created without the publics knowledge. The reason this is an issue is because there is much at stake when it comes to IP and the digital world, and without a politics surrounded that discussion little accountability and public awareness would exist. Dr. Howard focuses on issues in the US workplace relating to intellectual property and digital texts. He also mentions that the majority of writers assume ownership of their text, when in fact they are quite oblivious. His article is separated into several possible scenarios that professional and academic authors might face. Each scenario is selected to show the ignorance of the general professional public of intellectual property law. They address IP issues with pictures, corporate email messages, hyperlink usage, and personal emails in a business setting. I use this article to provide a framework for addressing the issue internationally, which naturally increases in complexity. Dr. Howard states, in agreement with several other scholars on this subject, future copyright laws will need to find radical new foundations. Striphas includes a relationship to consumer capitalism and how, the widespread private ownership of mass-produced consumer goods has grown increasingly problematic from the standpoint of capitalist production an understanding embedded in many, if not most, commercially available eBook texts and devices. (231) Striphas argues, through his analysis of consumer history, that social imperatives of commodity ownership have shifted in the US during the past century (253). Which has caused the emergence of a new and contradictory conjunction of the law, capitalism, culture, and technology, in which the very category of private property is destabilized precisely as it is extended to encompass ever more objects and ides. (253) Because eBooks

offer a valuable way in which to explore the history and constitutive relations of contemporary capitalism, how possibly to go about transforming those relations, and how then to being to engender a more economically democratic, sustainable, and just society. (254)

International Intellectual Property Rights Thurow addresses three major difficulties facing international intellectual property due to varying government systems and economic levels. These difficulties are first to determine what should be considered private and public knowledge. Certain knowledge should be classified for the public use; this can include general scientific knowledge, common medicine practices, etc. Second difficulty is representing the needs of both developed and developing countries. Thurow states that, In a global economy, a global system of intellectual property rights is needed. (103) For example a countries need to get low-cost pharmaceuticals should not be equivalent to its need for low-cost CDs. Ngenda argues that the internationalization of IP through the WTO and TRIPS council has required a legal transplant that, lies in its domestication of norms and values that are fundamentally irreconcilable or irrelevant in their transposed contexts. (59) Which basically says domestic IP laws being used over seas will simply not work. Ngenda argues that the United States in constructing these laws has attempting to align universal norms with its own domestic agenda. In order for an international IP system to function it has to address international issues, not just the issues of dominant economic power. Ngenda contributes this to the construction of the other and that developing countries are at the mercy of the western developed countries. Ngenda states, The Chauvinism typified in the formulation of UP treaties and some judicial decisions involving claims to customary rights of ownership, lay s claim to an unqualified morality and indisputable sagacity embodied in the norms and values intrinsic to the Western and (increasingly) multilateral model of IP, and the attendant universalism with which they are advocated. (59) A more universal approach is necessary for an international intellectual property rights systems to be fair and successful. Research Plan

Observation Phase (survey) In order to research the question of future professionals understandings of intellectual property, I will conduct a survey. This survey will consist of several scenarios that any professional communicator can expect to experience while in the workplace or when producing scholarly articles as an academic. The survey will present 6 different scenarios with relation to

international intellectual property law. The participants will answer the questions using a liker scale, which would judge their confidence in their answer. There also would be an additional liker scale to judge whether the participant would participate in this activity. In addition to the liker scale questions, participants will also be asked to give justification for their answers. For example when asked if something is legal they will also be asked why. In order to measure moral decisions and evaluations, each scenario will also have a question about ethics. This question will be whether the participant thinks the scenario is ethical or not and then give a justification for their answer. This is also where the liker question regarding whether the participant is comfortable with participating in the scenario. Participants: there will be two different groups of participants. One will consist of graduate students born in America, and who have lived in America most of their life. The second group will be Chinese graduate students studying in America. They will be required to have lived in America, consistently, for two years or less. This is in order to avoid Americanization of foreign participants. As this study is focused specifically on China, I will only use participants from China in conjunction with American graduate students to provide an element of comparison. In order to produce fair results I will select an equal number of participants from each group. The following are the sample scenarios that will be used in the survey. The survey is also attached in the appendices.

Survey Scenarios:

Scenario 1 One of Tims projects for the international company he works for is translated by someone hired by the company and then sent to offices overseas: Who owns this translated text, the translator, Tim, or the company?

Scenario 2 Your boss asks Susan, one of the employees, to include photos of the companys offices overseas that he found on Google images in a report that discusses financial figures of foreign operations. Does Susan have a right to use these photos?

Scenario 3

A US employee working in a Chinese office of a US based company has been emailing back of forth with Chinese government officials regarding regulations for the factory. The employee has been asked to produce a report, using text from the email conversation that will be published in the US as part of the companys annual report.

Scenario 4 While visiting in China Tim has access to download music legally. Time returns to the States with his computer.

Scenario 5 An academic article, written by Professor Smith is translated into Chinese and then published in an academic journal in China, at his request.

Scenario 6 As part of Johns academic research he is studying workplace communication in US companies that have factories in China and how they compare to the US offices. While researching the Chinese office allows him access to everything, where the US office does not. John quotes documents from the Chinese office in your article, which are similar documents he was not allowed to access in the US.

Data Analysis Phase

Research Outcomes As expected, based on previous literature, there is a difference between Chinese and American students and their perceptions of intellectual property. The Chinese respondent was less familiar with intellectual property related knowledge than American students. Their rationales were also very personal and varied greatly from scenario to scenario. One consistent finding with both respondents was that neither was very sure of the answers they provided. Although they provided rationales for their answers, they were not really sure about each scenario. This suggests that, if the data continues to show this, that graduate students, both Chinese and American, are unprepared when it comes to matters of intellectual property.

This could suggest necessary pedagogical changes for the curriculum of graduate programs. Another finding that will require additional data support is the difference between corporate or academic scenarios and personal scenarios. There seems to be a different regarding ethics with scenario 5, which addresses personal use of downloaded music. Here some of the respondents marked that they new it was illegal, however they considered it ethical. Which could suggest that either music or the personal nature of use determines an individuals opinion of intellectual property. These respondents would not break the law, or what they perceived to the law, expect in the personal use scenario. It also must be noted that the scenario does not list anything about making profit off of the download, simply to sue it. This is quite different from scenarios in which something is considered legal but not ethical.

Date August 2011

Data Collection Confirm committee members and establish committee. Complete prospectus. Begin contacting possible participants via email. (see Appendix X) Send out survey, via survey monkey, to all responding participants.

Data Analysis

Writing

September , 2011 October, 2011 November December 2011

References An, Baisheng. "Intellectual Property Rights in Information and Communication Technology Standardization: High-Profile Disputes and Potential for Collaboration Between the United States and China." Texas International Law Journal 45.175: 175-99. Academic Search Premier. Web. 6 Mar. 2011. Davidson, Lloyd A. "The End of Print: Digitization and Its Consequence Revolutionary Changes in Scholarly and Social Communication in Scientific Research." International Journal of Toxicology 24 (2005): 2534. Academic Search Premier. Web. 6 Mar. 2011. Griffin, James. "The Need for a New Paradigm in IP Law: A Focus on Authorship." Information & Communications Technology Law 14.3 (2005): 267-78. Academic Search Premier. Web. 6 Mar. 2011. Lipton1, Jacqueline. "Facilitating Fair Use in the Digital Age." Information & Communications Technology Law 14.3 (2005): 279-98. Academic Search Premier. Web. 6 Mar. 2011. Ngenda, Akalemwa. "The Nature of the International Intellectual Property System: Universal Norms and Values or Western Chauvinism?" Information & Communications Technology Law 14.1 (2005): 59-79. Academic Search Premier. Web. Stearns, Laurie. "Copy Wrong: Plagiarism, Process, Property, and the Law." California Law Review 80.2 (1992): 513-53. Academic Search Premier. Web. 6 Mar. 2011.

Striphas, T. "Disowning Commodities: EBooks, Capitalism, and Intellectual Property Law." Television & New Media 7.3 (2006): 231-60. Academic Search Premier. Web. 6 Mar. 2011. Teng, S. "Moving beyond the Law: Foreign Pressure and the Politics of Piracy in China." Journal of Intellectual Property Law & Practice 1.6 (2006): 42324. Journal of Intellectual Property Law and Practice. Oxford Journals, 26 Mar. 2006. Web. 6 Mar. 2011. Thurow, Lester C. "Needed: A New System of Intellectual Property Rights." Harvard Business Review (1997). Print.

Appendix A International Intellectual Property and Digital Texts Description of the research and your participation This research is being conducted by Masters of Professional Communication Graduate Student Turner Vaughn. Your participation will involve filling out two separate surveys. The first will ask general knowledge information and demographics. The first survey will be fill-in-the-blank and circling answers. The second survey will involve open-ended responses as you reply to several different scenarios. For each scenario you will read the text and then respond, in your own words, to two separate questions. There are six scenarios in all. Potential Benefits Your participation in this survey will help focus current and future research on international intellectual property rights. It will also assist to structure pedagogical practices in order to effectively address the subject in the classroom. Protection of Confidentiality This survey is completely anonymous. Your name will not appear in any of the distributed information resulting from this study, and your privacy will be protected throughout the course of this study. Voluntary Participation Your participation in this survey is completely voluntary, you may stop at any time. But please note that any incomplete surveys will not be usable for research findings. Please complete the survey in its entirety. Contact Information If you have any questions please contact Turner Vaughn at edgarv@g.clemson.edu Consent I have read this consent form and have been given the opportunity to ask questions. I give my consent to participate in this study. Participants Signature: _________________________________ Date:________________

Appendix B Preliminary Questions Age ______ Graduate Program MA MS PHD

Graduate Major _________________________ Birthplace _______________________________ Years Lived in the US _______

Are you familiar with the following organizations, conventions or terms? (circle all that apply) WTO TRIPS Berne Convention DRM

Have you ever used the following programs or software? (circle all that apply) Napster Kazaa Morpheus Bearshare SCRIBD Limewire

Have you ever used any of the software mentioned above to download music? Y N N

Have you ever used a bit torrent program or website? Y If so, which ones? (Please list them)

Please let me know if you have any questions before you continue the survey.

For the following questions read the scenarios carefully and then respond to the questions that follow each scenario.

For questions regarding legality, answer the question to the best of your knowledge or what you think would be legal or illegal and why.

For questions about ethics, look at the scenarios through your personal moral lens. What do you think is ethical?

Please let me know if you have any questions. Due to the nature and content of the study I cannot provide any clarification or additional knowledge to the questions.

Scenario 1

One of Tims projects for the international company he works for is translated by someone hired by the company and then sent to offices overseas: Who owns this translated text, the translator, Tim, or the company?

Why?

How sure are you with your answer?

1 Very Unsure Sure

5 Very

Scenario 2

Your boss asks Susan, one of the employees, to include photos of the companys offices overseas that he found on Google images in a report that discusses financial figures of foreign operations. Does Susan have a right to use these photos?

In your opinion is this legal? Why or Why not?

How sure are you with your answer?

1 Very Unsure Sure

5 Very

In your opinion is this ethical? Y Why or Why not?

How comfortable are you with doing this?

3 Indifferent

4 Very

Very Uncomfortable Comfortable Scenario 3

A US employee working in a Chinese office of a US based company has been emailing back of forth with Chinese government officials regarding regulations for the factory. The employee has been asked to produce a report, using text from the email conversation that will be published in the US as part of the companys annual report.

In your opinion is this legal? Why or Why not?

How sure are you with your answer?

1 Very Unsure Sure

5 Very

In your opinion is this ethical? Y Why or Why not?

How comfortable are you with doing this?

3 Indifferent

4 Very

Very Uncomfortable Comfortable Scenario 4

While visiting in China Tim has access to download music legally. Time returns to the States with his computer.

In your opinion is this legal? Why or Why not?

How sure are you with your answer?

1 Very Unsure Sure

5 Very

In your opinion is this ethical? Y Why or Why not?

How comfortable are you with doing this?

3 Indifferent

4 Very

Very Uncomfortable Comfortable

Scenario 5

An academic article, written by Professor Smith is translated into Chinese and then published in an academic journal in China, at his request.

Who has rights to the Chinese published version, Professor Smith, the translator, or the academic journal in China?

Why?

How sure are you with your answer?

1 Very Unsure Sure

5 Very

Scenario 6

As part of Johns academic research he is studying workplace communication in US companies that have factories in China and how they compare to the US offices. While researching the Chinese office allows him access to everything, where the US office does not. John quotes documents from the Chinese office in your article, which are similar documents he was not allowed to access in the US.

In your opinion is this legal? Why or Why not?

How sure are you with your answer?

1 Very Unsure Sure

5 Very

In your opinion is this ethical? Y Why or Why not?

How comfortable are you with doing this?

3 Indifferent

4 Very

Very Uncomfortable Comfortable