57.1, February 2010

Copyright Law as Mediational Means: Report on a Mixed Methods Study of U.S. Professional Writers

Martine Courant Rife


Purpose: This article reports on 12 select findings from a sequential mixed-methods, empirical study of U.S. educational-context professional writers composing for the Web. The study explores the status of knowledge and understanding of U.S. copyright law, levels of chilled speech, and the use of rhetorical invention in such digital writing contexts.

Method: Research methods include a digital survey receiving 334 responses from randomly selected students/teachers and discourse-based interviews with seven of these participants.

Results: With respect to authorship, Web writers sometimes occupy conflicting positions. Empirical evidence challenges traditional ideas of authorship, i.e., a single author working alone in a garret, producing texts from his or her sole creative genius. The study finds digital writers’ speech is not as “chilled” as one might expect, and while knowledge of copyright law is important to digital writers, they are fairly confident in the knowledge they have. Copyright law is not the primary concern of digital writers. As it turns out, ethics trumps the law in importance when considering digital composing choices. In the area of copyright knowledge, key misunderstandings appeared among writers. For example: confusion on (1) the difference between copyright and plagiarism, (2) unauthorized use and authorized use, (3) the government exception to copyright, and (4) the fact that U.S. copyright law protects “creative” work to a higher extent than it protects “factual” work.

Conclusion: The study hopes to provide a methodology for further research, and a baseline in the area of knowledge and understanding of copyright law as it intersects with invention, among the professional writing population.

Keywords: Copyright; Invention; Mixed-methods; Chilled speech; Plagiarism

Practitioner’s Takeaway

  • The overall participant copyright-knowledge score is only 63%: we need professional development to increase digital writers’ copyright knowledge
  • For designing EULAs (End User License Agreements) or Terms of Use, the mediational-digital composing heuristic offered here contains rhetorical topics motivating users’ choices on whether or not to appropriate and/or remix content
  • More focus is needed in the field of technical communication on how writers can legally protect their own work
  • The practitioner-academic divide is a much less bright line than we might think.

Overview and Project Description

This article reports on a sequential mixed-methods (Creswell, 2003; Greene, 2007), empirical study of U.S. educational-context professional writers and the mediational (Hart-Davidson, 2007; Hutchins, 1995; Spinuzzi, 2003) influence U.S. copyright law might have on their digital writing processes. Research methods include a digital survey among randomly selected students/teachers (N=334) and discourse-based interviews with 7 digital writers. In order to limit the research scope, I chose to focus on U.S. writers because I examine the influence of U.S. copyright law. Copyright law varies greatly from country to country, and in many instances due to the global reach of the Web, the entire job of figuring out which country’s copyright law applies in the event of a controversy is extremely complicated and difficult (see Moberg v. 33T LCC, 2009, for a recent but accessible example of a case where the main issue examined in what country a work originated and which law applies). Because of the extreme complexity involved in international intellectual property issues, along with the fact there is no “international law” but instead multiple international treaties deciding which law applies when and what legal protections are available where, I clarified the scope of my research for participants by informing them responses to copyright knowledge questions in the survey are limited to U.S. law—thus my rationale for containing the population to U.S. writing program participants. Although the research is limited to U.S. law and a U.S. population, many agree U.S. copyright law has a profound influence on international law and policy (Bowrey, 2005; Gellar, 2000; Hennig & Tjarks-Sobhani, 2004; Okediji, 2000; Ricketson, 1986). Therefore, my research might be informative to international audiences and might provide a point of contrast for additional studies in other countries.

Further, the research methods and intellectual property focus might possibly be used in other countries to study local knowledge/influence of countries’ respective copyright laws (see Hennig & Tjarks-Sobhani, 2004, for exemplary international empirical research)—and the research could be continued to include examinations of how writers working in global contexts understand/consider international intellectual property law issues (if at all). For technical writers who design EULAs (End User License Agreements) or Terms of Use for various digital interfaces, the findings from the empirical study might be instructive.

I define empirical as “the way of knowing through the senses, through direct, physical experience. As a mode of inquiry, it goes back to Aristotle’s concept that we come to know essences by the process of abstraction, inductively moving from particular sense data to a knowledge . . . ” (Kinney, 1979, p. 352). My study is empirical in the sense it differs from literary interpretation or more abstract theoretical approaches to scholarship. In other words, I write this article based on first-hand, original, and primary data collection with real people and their texts.

Three main areas are examined: (1) the status of knowledge and understanding of copyright law among educational-context professional writers; (2) rhetorical invention (Portewig, 2008; Melton, 2009) processes of these writers as copyright law intervenes in their composing; and (3) levels of chilled speech among digital writers. In this article 12 key findings from the study are discussed as well as implications from those findings. The study hopes to raise a few issues and provide a baseline that might be used for further research.

In fall 2007, after almost 2 years of pilot study work with my collaborator William Hart-Davidson (Rife & Hart-Davidson, 2006), I launched a full-fledged empirical study exploring U.S. copyright law’s mediational influence on digital composing using a sequential transformative mixed-methods research design. It was called “sequential” because it uses two phases: the first phase includes a digital survey, and the second phase includes the collection of Web texts and discourse-based (Odell, Goswami, & Herrington, 1983) interviews about those Web texts with 7 writers who also participated in the survey.

Defining Key Terms

Key terms used throughout this article:

  1. Chilled Speech: Failing to include content, publish to the Web, or generally suffering anxiety due to fear of copyright liability.
  2. Mediation: A particular mode of organizing behavior that coordinates between the behavior and a mediating structure that is not necessarily part of the inherent task domain (Hutchins, 1997, p. 338; Rife, 2012).
  3. Heuristic: An intellectual structure, in this case a “mediating structure,” used to organize rhetorical topics under consideration during the composing process (Haller, 2000; Lauer, 1970; Rife, 2012; Selber 2004).
  4. Rhetorical Invention: One of the five canons of invention as conceived by Aristotle, along with style, arrangement, delivery, and memory. Invention is a generative canon, and the method by which we seek what to say—but it is also a way of knowing the world through the accumulation of probable knowledge, knowledge that can be drawn upon in order to generate ideas and decisions (Lauer, 1970, 1979, 2004; Miller, 2000; Young, 1978; Rife, 2012). Inventive strategies help writers make decisions in that realm between “fact” and “mere opinion”—the realm of rhetoric (Booth, 1974).

An Inventional Heuristic

In addition to the 29-question digital survey testing knowledge of copyright law and levels of “chilled speech” in light of copyright law, digital writers participated in discourse-based interviews designed to elicit tacit knowledge regarding how writers factored in copyright law and fair use in composing decisions—i.e., the mediational influence of copyright law in composing decisions. So my theoretical frame for the research includes the idea copyright law as an inventional heuristic (for a discussion of inventional use of heuristics by expert professional writers, see Welle Donker-Kuijer, De Jong, & Lentz, 2008; De Jong & Schellens, 1997, 2000; De Jong & Van der Geest, 2000) is mediating the composing choices of digital writers.

In other words, copyright law is influential in finished texts, but by the time a final textual product emerges, the rhetorical considerations, the heuristic for rhetorical invention deliberated upon is erased (Haller, 2000). The rhetorical arguments informing composing choices that take place before the finished product emerges are “stripped” out, “lending the text an apparent objectivity that obscure[s] its rhetorical origins” (p. 354). One key method to learn about these “stripped out” inventive processes is to interview authors. Interviewees in my study are 7 individuals who took the survey and are professional writing students or recent graduates working in the field, and range from undergraduate to PhD candidate. All interviewees work as Web writers and/or managers of Web spaces—some have substantial technical writing backgrounds. An examination of a wide variety of Web texts provided by interviewees supports the discourse-based interviews by helping me create interview questions wherein I looked for the influence of copyright law in a finished text.

The Law

Before discussing the study’s findings, I briefly explain U.S. copyright law and its relevance to digital composing and thus offer a rationale for why copyright law is important and why writers’ understanding of it might impact their composing choices. In sum, under U.S. law (Title 17, U.S.C.) anything in “fixed,” “original” format, including Web-published materials, are automatically copyright protected without registration, regardless of a writer’s “legal awareness.” Thus, Web publishing triggers all kinds of complex legal issues (the same is true for countries who participate in international intellectual property treaties such as the Berne Convention—but for purposes of time and space here, I limit my discussion to U.S. law). Further, because Web publishing instantaneously delivers content to anyone with access, the use of others’ copyrighted materials in one’s own compositions is potentially highly visible in a way that might not have been true previously. Due to this instant and potentially highly visible dissemination, copyright holders are becoming more aware and assertive about their rights than might have been true in the past—which explains the growing interest in this particular area (specifically, copyright law for digital writers). (See CCCC Caucus on Intellectual Property, 2000; DeVoss & Porter, 2006; Herrington, 1997, 2001, 2003; Juillet, 2004; Lessig, 2004, 2008; Logie, 1998, 2005, 2006; Reyman, 2006; Vaidhyanathan, 2001, 2004; Westbrook, 2006; but for a historical perspective, see also Institute of Electrical and Electronics Engineers (IEEE), 1977, 1979.) Further, the professional writing community as creators of content should be aware of copyright issues in order to protect their own proprietary creations from unanticipated and/or exploitive appropriations. This is an extremely complicated legal area but I offer a brief overview here.

Four main areas of copyright law often arise when composing for the Web: (1) copyright law’s basic protections; (2) exceptions to those protections as provided in the fair use statute, Title 17, Section 107; (3) work-for-hire law as stated within Title 17; (4) issues of authorized or licensed use: use with permission. A prime example is the Creative Commons (see www.creativecommons.org) system of licensure. Creative Commons is a system developed and now international, providing content creators with free boilerplate licensing they can place on their works so others can have clear guidance on later appropriations. For example, I could label this article with a “Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License,” which indicates U.S. laws offer primary governance over later situations, and others can use my work freely for noncommercial purposes as long as they attribute me and do not use my work to make derivative works—they should not take my article and turn it into a conference presentation, and so on. You can see how complicated these issues are.

Title 17, Sections 102 and 106, Copyright Protection U.S. copyright law (Copyright Law of the United States, Title 17, U.S.C., 2009), enacted through Congress’s constitutionally granted power under Article 1, Section 8, U.S. Constitution, is applicable to Web composing because it provides automatic protection to any work that is fixed and original. Because of copyright law’s broad application, virtually all digital publishing, whether or not it incorporates another’s text, visuals, sounds, or movies, is going to invoke copyright law. Protected works include notes, Web pages, software, computer code, emails, reports, patterns, tutorials, instructions, manuals, visuals, video, audio, and all other “fixed” media. Under current law, a copyright holder holds exclusive rights to copy, distribute, perform/display, and create derivative works.

Title 17, Section 107, Fair Use

Relief from the copyright holder’s exclusive rights is provided in the fair use doctrine as codified in Section 107 of the U.S. Copyright Act (Copyright Law of the United States). Fair use is relevant in the context of unauthorized use (using without permission). Title 17, Section 107, defines fair use as “reproduction in copies . . . or by any other means . . . [for uses] such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” (Copyright Law of the United States). The four factors courts use to make legal determinations regarding infringement are listed in the statute, and function as a legal heuristic guiding not only judges, but also attorneys, users, authors, and others who attempt to make everyday composing decisions.

Those four fair use factors ask that one consider:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work (nonfiction has less protection than “creative” work)
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market (Title 17, Section 107, U.S.C.)

Title 17, Section 201(b), Work-for-Hire

Just as copyright protections and fair use exceptions try to control or organize how texts are appropriated and circulated, the work-for-hire provisions of Title 17 provide a default author in employer-employee contexts. In employer-employee situations, an employee’s creations made within the scope of employment are technically “authored” by the employer, who thus owns all copyrights unless the parties have expressly agreed otherwise in a signed writing. Work-for-hire issues are relevant for professional writing students, who very quickly leave educational settings and become employees at organizations where their own notions of individual authorship, as often emphasized in academia, may be seriously challenged. Further, my research shows among the digital writers interviewed, all had already done some form of paid writing prior to graduation. Some of this paid work was extensive.

Authorized Use, or License

Sometimes writers do not need to worry about whether or not they are within the perimeters of fair use because they receive express permission from a copyright holder, or they use within the confines of a preattached license. The Creative Commons Web site provides a number of boilerplate copyright licenses writers affix to their work, allowing future authors to appropriate under certain conditions as stated in the license.

Existing Literature and Research

This study extends the work of previous empirical studies conducted regarding U.S. copyright in educational contexts (Dush, 2009; Fisher & McGeveran, 2006; Heins & Beckles, 2005; Hobbs, Jaszi, & Aufderheide, 2007). Dush (2009) examines copyright knowledge students have prior to entering her writing classroom and reminds us students do not arrive as blank slates but have preexisting knowledge and copyright stances. Hobbs, Jaszi, and Aufderheide (2007) examine U.S. teachers/students and find serious misunderstandings among the population that restrict “media literacy” in the form of expression, teaching, and learning. Heins and Beckles (2005) surveyed a broader audience of artists and scholars, finding respondents only have a vague understanding of fair use, and this uncertain knowledge circumscribes composing practices: “There is an urgent need for accurate information” (p. 54). Among the educational community, Fisher and McGeveran (2006) find undue fear about copyright infringement liability constricts exchanges of valuable information across social network spaces. They find DRMs (Digital Rights Management technologies) require even pure educational users to knowingly violate copyright law by circumventing anti-access measures in order to gain access to digital texts. Apparently, such illegal circumvention is a common practice. Together these studies say there is lack of knowledge about copyright, and this misunderstanding is chilling or circumscribing speech. Fisher and McGeveran (2006) as well as in my pilot study (Rife & Hart-Davidson, 2006) find writers are willing to break the law in some circumstances if they think the law is wrong and feel it is ethical to violate law in order to accomplish goals.

Additional research in technical writing explores issues in the area of public policy, public uses of technical communication, as well as intersections between technical communication and the law (see, for example, Durack, 2001, 2004, 2006; Herrington, 2003; Howard, 2004; Juillet, 2004; Logie, 2005, 2006; Reyman, 2006, 2008; Rife, 2006, 2007; Waller, 2006). My study also focuses on connections between rhetorical invention and composing, an area of interest in technical communication (Portewig, 2008; Melton, 2009).

Research Questions

The detailed research questions explored with the survey and interviews are as follows:

  1. What do writers know and understand about copyright and fair use?
  2. How confident are writers in this knowledge?
  3. Are writers unable to express themselves fully because of fear of copyright liability, i.e., is their digital “speech” chilled?
  4. How important do writers think knowledge of copyright and fair use is to their work?
  5. What is the relationship, if any, between knowledge of copyright/fair use, confidence in that knowledge, and levels of “chilled speech” in digital environments?
  6. When writers create Web texts or write for the Web, does their understanding of copyright law and fair use influence the choices they make?
  7. How do writers understand copyright law and fair use as they do rhetorical invention in digital writing?
  8. How do writers reshape the law as written via their understanding (what happens as the external law becomes internalized)?
  9. What other rhetorical topics are at work in writers’ minds as they compose for the Web, other than copyright and fair use?
  10. What kinds of things do professional writing students need to know in order to be experts after they graduate or when they are writing outside the educational setting?

Questions 1–5, and to a small degree Question 9, are investigated in the survey. All the questions are explored in the interviews, but in the interviews the main focus of inquiry is on Questions 6–10.


A sequential transformative mixed-methods study design explored research questions primarily in two spaces: (1) cyberspace via the online survey; (2) a conference room at a Midwest university where participants attended or had recently attended as students.


A stratified, random selection of 155 professional and technical writing programs and National Council of Teachers of English (NCTE) writing majors, STC and ATTW membership, and NCTE writing major lists as of September 2, 2007, were surveyed. The lists are maintained by the Conference on College Composition and Communication—NCTE, ATTW, and STC. When creating the final list, programs from countries outside the United States, with no Web presence, and members that did not have a program, but instead only had a single class in technical communication listed, were eliminated. Therefore, the population is biased in favor of writing programs involved in membership lists and with Web presence—indicating perhaps a bias toward more involved, tech-savvy programs. A total of 446 began the survey, while 334 finished the entire survey (see Rife, 2010, for a detailed discussion of survey recruitment and attrition issues).

A total of 155 programs were contacted via students/teachers, with 64 writing programs and/or writing majors as provided on the membership lists confirming response, for a programmatic response rate of 41%. A total of 334 participants comprising 41% students, 47% teachers, and 12% “others” from 64 technical and professional writing programs and/or writing majors completed the entire survey. The main variation between the actual population and the randomly selected participating population is that PhD programs participated on a significantly higher level than how they appear in the entire population, while two-year programs participated at a significantly lower level. The study population subsequently is biased in favor of PhD programs and does not have adequate representation of two-year programs. The survey itself screens out anyone who had not created and published to the Web a composition such as a “web page, web space, wiki, blog, page on facebook/myspace or other social networking software application.” Thus, the results overall are biased in favor of more tech-savvy individuals.

The survey has six parts and 29 questions total, 15 one-part and 14 two-part questions. Areas of the survey explore levels of chilled speech, knowledge about copyright law, and attitude towards the importance of knowledge of copyright when writing for the Web. Survey responses are anonymous unless participants volunteered identities, and participants received no remuneration.


Criterion-based sampling was used for selecting seven interviewees. For purposes of constructing interview questions, participant-authored Web compositions were collected. After locating interviewees in the survey meeting the criterion, a recruitment email was sent. Discourse-based interviews (Odell, Goswami & Herrington, 1983) were conducted between November 14 and November 30, 2007, and used in hopes of eliciting tacit knowledge and better understanding of writerly motivations behind specific choices made during digital projects. The interviewees include (pseudonyms used to protect privacy):

  • Leslie, a former corporate professional writer with a great deal of technical communication workplace experience, now a PhD candidate in rhetoric and composition on the job market
  • Rob, a second-year PhD student in rhetoric and composition studying in the United States but with Indian citizenship—also with a great deal of technical communications practitioner experience
  • Jessie, studying toward a master’s in professional writing, finishing up her thesis and about to enter a PhD program
  • Carey, studying toward a master’s in professional writing, also working full-time in a technical communications position at the educational institution where she studies
  • Sarah, with a recent master’s in professional writing, working in her own start-up Web design business
  • Amanda, a recent undergraduate professional writing degree holder, working as a communication specialist for a national health organization
  • Heather, a junior undergraduate professional writing major working as a Web writer for various entities on campus

Data Analysis

Survey data were analyzed using traditional quantitative techniques in order to locate patterns and correlations across the populations with respect to variables. Interviews and other data were analyzed using qualitative techniques. Patterns, themes, and rhetorical topics (Haller, 2000) were extracted upon analysis from interview data. From each of the seven interviews, multimedia (visual/textual) vignettes were created as a form of data analysis (see Rife, 2012). Vignettes help the researcher formulate key issues toward the researcher’s theory of what is happening (Miles & Huberman, 1994, p. 81). Interviewees received no remuneration other than a report of study findings and an answer key to the knowledge portions of the survey.

The 12 Key Findings

The 12 findings discussed here are the following. (1) Web spaces are sites of cultural collision, or common places, where writers occupy sometimes conflicting positions. (2) Web space writing intertextuality challenges traditional ideas of authorship, i.e., a single author working alone in a garret, producing texts from his or her sole creative genius (Foucault, 1984). (3) Digital writers’ speech is not as “chilled” as one might expect, considering some of the literatures positing that copyright law chills speech. (4) A “mediational-digital composing heuristic” took shape during the research. This heuristic contains rhetorical topics like copyright law, but has others in addition (ethics, design, etc.). Copyright law turns out not to be the primary concern of digital writers in this study. (5) For this group of writers, ethics trumps the law in importance when considering digital composing choices. The next seven findings are in more pragmatic areas than the first five findings, and concern copyright knowledge issues. (6) Misunderstanding of the difference between copyright and plagiarism. (7) Misunderstanding of the differences between unauthorized use and authorized use. (8) Misunderstanding of the government exception to copyright. (9) Misunderstanding of the fact that U.S. copyright law protects “creative” work to a higher extent than it protects “factual” work. (10) Clear understanding that U.S. copyright protects derivative works. (11) Digital writers are fairly certain about their own copyright knowledge and have a relatively stable confidence level regarding their own understandings of the law. (12) Knowledge of copyright law is important to digital writers.

Finding 1: Web spaces are sites of cultural collision, or common places, where writers occupy sometimes conflicting positions. In this study, the kinds of cultures colliding in cyberspace include contrasting workplace, educational, and international cultures, especially as those cultures understand authorship and attribution. Workplaces contain individual cultures (Henry, 2000), as do educational/academic disciplines (Hyland, 2000). Hyland’s research, for example, illustrates how citation practices vary within disciplinary cultures. Obviously, different countries are going to contain different cultures—different rules, customs, and practices agreed upon by members of a community. A good example of cultural clash between the workplace and the educational institution arises when comparing how these two cultures understand repurposing or reusing materials. Copyright law is relevant in this clash because it helps to create and sustain “authors” by protecting the “creations of their minds,” i.e., their intellectual property. To illustrate the clash, consider this quote from a recent document drafting book for practicing lawyers: “In contract drafting, plagiarism is a virtue. A lawyer drafting a contract should always try to start with a form designed for the kind of transaction involved, or from a contract previously used in a similar transition” (Fox, 2008, p. 42). In contrast, here is some typical boilerplate language from a standard U.S. writing course syllabus:

You must avoid plagiarism on all papers. Plagiarism consists of taking words or ideas from an outside source without properly acknowledging the source, or submitting a paper written by someone else. Plagiarism will result in a 0.0 on the first graded activity on which it occurs, and a 0.0 in the course if it reoccurs (WRIT 121, 2009).

Interviewees are or recently had been students, but all are digital writers. In the interviews it became clear the multiple cultures (workplaces, education, international) they participated in collided in their Web compositions. It turns out student-interviewees did not simply write for classroom assignments, but instead navigated extremely complicated identities and professional roles, surfacing in their Web texts some conflicting notions of authorship and ownership of texts.

One interviewee, Amanda, a recent 4-year graduate working for a national health organization as an online communication specialist, is supplied by her organization and its constituents with content for Web compositions. She regularly maintains its Web site and uses the organization’s intranet. Amanda is involved as an alum with her undergraduate program, and generally finds it beneficial to stay marketable and keep her personal Web portfolio up to date and reflective of her current position and past experience. Yet her portfolio is forward looking as well, since she did participate in various professional activities, some of which are competitive—such as applying for an opportunity teaching abroad and seeking promotion and raises. In several areas of Amanda’s portfolio, she features others’ work she edited. Amanda incorporates texts, visuals, and designs created by others. She uses proofreading marks in her design she obtained on the Web and considers a fair use partially because she retrieved these marks from a university Web site used to teach students editing.

As far as copyright, Amanda is not terribly concerned about it. In her job, the employer provided forms others must sign to release their rights to donated materials, pictures, and texts. With the advent of user-generated content, such releases are crucial for Amanda to perform her job. She is well aware she is not the author of material she completes as an employee and also feels a sense of responsibility as a representative of the organization to make sure the organization is presenting a uniform identity, and using others’ materials fairly:

We have a—it’s a publicity [form] and something else, and it’s just like a legal document, and the person can sign it for interviewing and if it’s a kid then the parents have to sign it . . . it has all the same sort of language that like our websites have when people want to share their story, or talk about their experiences, and they say that you can publish this in any way that you see fit, and they trust us, our organization, to use it, in a way that’s not disrespectful, or judgmental about their character, or anything. This is basically to protect the organization, and the people who we are getting the stories from, so I think it’s more a legal issue. . . and when you’re writing stories for the newsletter, for the external newsletter, and anybody we interview, I give them the option to review it first before I publish it. . . so that they can see what we are saying. To make sure that they are comfortable with it being published, and I give them an option to say yes or no. It’s just a courtesy. (Rife, 2012)

Clearly, Amanda navigates the Web with a sophisticated understanding of authorship. For her, she switches in and out of “author” position depending on whether she is working on her own or for her company. As an employee, it is the organization, not Amanda, standing in the author position. This switching in and out of author positions occurs for other interviewees as well.

Data analysis finding cultural conflicts arise between the academy and the workplace due to competing views of intellectual property and authorship, such as those faced by Amanda, also arise due to tensions writers face when working in opposing international spaces. One research participant (Rob) had been trained in a business setting he referred to as an “outsourcing” company in India to purposely evade detection by copyright law with respect to his globally networked digital writing. The Web writing Rob did for that company involves the creation of promotional pages that entice people to go to various companies’ actual Web sites. Rob explained:

We didn’t, didn’t have the, capacity to be very creative, we just had to have the work done . . . the content was humanly not possible to write, generate so much variety of content, for the same company, twenty pages, you know. I was allowed to use [others’] Web content provided that I jumbled up the words, because I had to write twenty pages for the same topic. (Rife, 2012)

So the company had its employees use existing content from the Web and jumble up the words, “put in our own spices,” upload the pages on the Web, and then check the URL at copyscape.com, a Web site that lets you check to see if someone is copying your Web site. Instead of using copyscape for that reason, Rob used it to make sure the Web sites he created didn’t “copy” another Web site too much, even though the content was taken from preexisting Web sites. In his former residence in India, the strategizing to avoid detection by copyright detection services was not viewed as either illegal or unethical. Rob explained:

In spite of the tremendous development in everything related to web in India, so much that huge chunks of web based projects are outsourced to India, why is copyright not as you might expect it to be? There could be a historical/cultural reason why we Indians do not think about it much. Knowledge is a community-owned thing in India, and this concept dates back to the time before written language. The Vedas (ancient Hindu texts) were said to the word of God given to some sages and we never came to know which sage said what. This knowledge was passed on from generation to generation for a couple of thousand years. Re-mixing, re-mediating and re-interpreting is believed to have led to its growth and relevance to contemporary ethics. (Rife, 2012)

However, when the student writer began doctoral work in the United States, he faced a completely different paradigm and understanding of authorship and individual textual ownership. Traces of both views of authorship, one where the individual is cited and the other where it is not as important to cite the work of others, appears in Rob’s and other interviewees’ Web compositions.

Finding 2: Web space writing intertextuality challenges traditional ideas of authorship, i.e., a single author working alone in a garret, producing texts from his or her sole creative genius (Foucault, 1984). Data analysis finds the single author is more of an idea, an ideological production rather than a reflection of authorship in Web environments. Interviewees illustrate how they remix (for discussions of “remix writing,” see DeVoss & Webb, 2008; Grabill & Hicks, 2005; Lessig, 2004, 2008; Ridolfo & DeVoss, 2009; Rife & DeVoss, 2010; Westbrook, 2006) others’ work in their own, take bits of this and pieces of that, mix in visuals, texts, and ideas from others in order to create their own final products. Leslie, a PhD candidate teaching first-year writing at a doctoral university, completes her degree and enters the job market around the time of our interview. She returned to school after working many years as a technical communicator at a transnational company. Prior to Leslie’s interview a Web composition (partially depicted in Figure 1) was collected from her in order to frame interview questions. Leslie designed a videogame-themed colorful course Web page for her first-year writing students. She wants to use a theme for her writing course that might draw upon her students’ interests while simultaneously involving the study of digital writing. Leslie said, “I wanted to have a cool site for them, when they first signed up.” In her Web writing, Leslie plays multiple roles, including that of graduate student, teacher, and potential employee-job seeker.

Figure 1. Screen Capture From Leslie’s Web Page

This Web space serves the pragmatic function of housing teaching materials, incorporating work Leslie did as a graduate student, and also showcasing Leslie’s Web design abilities and innovative pedagogies for potential employers. The gaming control and visuals are blended together by Leslie in a graduate visual rhetoric course, where she received feedback and even a grade from her professor. By the time Leslie teaches first-year writing, the gaming control visual as a graduate course project detached from its origins and is simply acting as a teaching and marketing tool for Leslie.

By considering Leslie’s multiple audiences and how she fashioned this Web text over a period of time (more than 1 year) with multiple underlying motivations illustrates the common place at work—a place of convergence of the past (graduate student), the present (graduate teaching assistant), and the future (faculty member at new institution). The Web writing in this case collapsed time in that it placed the past, the present, and the future all in a 10″ × 15″ space. This same kind of phenomenon is seen in all the interviewees’ Web writing. Leslie remixed the Web text over a period of years, taking materials from a variety of places, and receiving feedback from others along the way. She explains the complexity of the visual featured in her Web text:

We’d just learned Photoshop that semester and I was playing with my new knowledge of Photoshop and doing cool things. So, it’s made up of like 100 different pieces. The major part of it is a PlayStation Portable; the console there, and then what I did was I took the part where you’d normally see the video game, and I replaced it with this composite image of my own, the name of the class, and the font used where it says the name of the course there, is actually a font developed for a particular game, Grand Theft Auto. It’s called Price Down. It’s a font they made for that. So I replicated that and did my course title with that name, and then it’s divided up into different pieces. I got that idea from, I saw it somewhere else. Somebody had a book cover that had like little pieces divided up into little frames, sort of almost like stained glass, and I wanted to do something similar. And so what I decided to do for that was, the emphasis in my class was going to be not on games themselves but on how people use games, so, all but the final corner image down here, all those images, the rest of the images, were actually people’s photos I found on flickr.com, I searched for video games, and I got pictures of real people playing video games, and then I cut out just the people that I wanted. I mean just the parts that I wanted. I traced, cut out the people, and I ran them through some kind of filter to make it look funky like they do. They look kind of stylized, almost like video games, and then I assembled them into these little frames, and put them in there, the ah, like, I said the only image here, that is not of real people is the lower left hand corner.

Leslie takes things familiar to students, a game control, game fonts, a look of “stained glass,” people playing games, a PlayStation Portable, typical Web page navigation elements, an image of notebook paper, a posting of office hours, and then blends that together with the newness of a new college course, an unfamiliar medium for a syllabus, unfamiliar connections of games to formal education, an unfamiliar combination of game control and Web page navigation links, and brought all of these images and allusions into a new light. This is the common place, the digital remix. And it triggers all kinds of copyright issues.

Fonts can be copyrightable and usually are in the context of gaming and branding; gaming control designs are copyrightable. All the visuals Leslie took from flickr.com may well have copyrights owned by others. Leslie did all this without permission. She is far less worried about copyright than about protecting people’s privacy, especially the younger individuals featured playing games. That is one of her main motivations for applying the filters in Photoshop. She said, “I wasn’t really worried about copyright. I didn’t think anyone would come after me for taking their flickr pictures.” She did say she would be more careful about using these materials to make her remix if she was going to sell this image for a profit. But in the context of educational use, “I think for not for profit, for educational purposes I think that would be pretty low on anyone’s list of priorities for anyone to come after me about it.” However, Leslie’s Web text and interview, like those of the other interviewees, illustrates how the idea of “single author” does not hold up very well when analyzing Web compositions, since Leslie’s Web text emerged from multiple moments in time, and from mixing together “100 different pieces.”

Finding 3: Digital writers’ speech is not as “chilled” as one might expect, considering some of the literatures positing that copyright law chills speech. While based on some literature (Heins & Beckles, 2005; Hobbs, Jaszi, & Aufdereude, 2007; Porter, 2005; Westbrook, 2006) expectations are speech might be greatly chilled due to fear of copyright liability, it turns out speech is less chilled than expected. While digital writers’ speech is influenced, informed, and mediated by copyright law, their speech is not “very chilled” although in specific areas there is some substantial chilling of speech. As illustrated in Table 1 below, “chilled speech” is measured by a 6-point index exploring whether the writer had been asked to take others’ copyrighted material down from the Web, had voluntarily done so, or had reflected on using copyrighted materials and decided not to even though the Web composition may have been improved. The six questions further asked whether the writer in general felt unable to express himself or herself due to restraints of copyright law.

Table 1. Chilled Speech Index



Can’t Answer


1. Have you ever been asked to take down something (text, audio, image) you had posted to the Web by a copyright holder or alleged copyright holder because the text, audio, image, etc., was allegedly infringing on the owner’s copyrights (for example, via a communication by way of a take-down notice or a cease and desist letter, or even an email)?




2. If so, have you ever actually taken down such material because of this request?


3. Have you ever voluntarily taken something down, on your own initiative, that you had posted to the Web because you felt you might be subject to copyright liability even though you never actually received a request to do so?





4. Have you ever not posted something to a Web composition you were creating because of fear of copyright liability?





5. Have you ever felt that the purpose or message of a Web composition you were creating would be better, clearer, or more aesthetically pleasing to the audience if you could use others’ copyrighted materials without fear of legal liability?





6. Have you ever felt that you weren’t really able to say what you wanted in a Web composition because you were afraid if you said it the way you wanted, someone might sue you for copyright infringement?





On a 6-point scale with a score of 0–2 being “not chilled,” 3–4 being “somewhat chilled,” and 5–6 being “very chilled,” only 2% of the population have very chilled digital speech. In contrast, 80% of the population does not have chilled speech, and 17% had “somewhat chilled” speech. Notably, only 6% of the population (N=373) were asked to remove Web materials by a copyright holder or alleged copyright holder.

Survey participants are influenced by copyright law, but it does not completely prohibit them from expressing themselves. Yet in some specific areas there is a substantial chilling of speech. A total of 58% felt “the purpose or message of a web composition [they] were creating would be better, clearer, or more aesthetically pleasing to the audience if [they] could use others’ copyrighted materials without fear of legal liability,” while almost half agreed they had “not posted something to a web composition [they] were creating because of fear of copyright liability.” In contrast, only 14% felt they “weren’t really able to say what they wanted in a web composition because [they] were afraid if [they] said it the way [they] wanted, someone might sue [them] for copyright infringement.”

Digital writers consider and address copyright and fair use in their writing processes, something interviews show as time consuming and frustrating, but ultimately writers express themselves although perhaps not in a way as aesthetically pleasing as they might think optimal. And yet, it is important to remember, as I discuss momentarily, the majority of these writers are willing to break the law on occasion if they think the law is wrong. This points to a possible lower level of law chilling speech than one might find with a different population. Plus, as I mentioned earlier, this population is likely more tech savvy and possibly more confident about avoiding potential copyright liability than a more general population of writers might be.

Finding 4: A “mediational-digital composing heuristic” took shape during the research. This heuristic contains rhetorical topics like copyright law, but has others in addition (ethics, design, etc.). Copyright law turns out not to be the primary concern of digital writers in this study. Interview data show that the mediational considerations, the rhetorical topics made by digital writers, fall into five basic categories:

  1. Ethical Considerations: Ethical/political considerations including considerations of attribution
  2. Design Considerations: Issues of design/content rather than issues of copyright as influencing composing choices
  3. Faith/Religion: Reasoning based on one’s cultural background, religious beliefs, or faith
  4. Employer Demands or Requirements: Reasoning based on the demands or requirements of one’s employer
  5. Copyright and Fair Use Considerations: Using, applying, referencing copyright law such as asking permission, considerations of originality, etc. referencing fair use or the four-factor fair use test of Section 107 (fair use elements such as educational use, amount used, size, etc.)

While data do not give us enough information to judge exactly how these topics were prioritized in writers’ minds, based on both the survey and interviews, ethics is more important than law among this group of digital writers. Leslie, for example, is more interested in protecting the privacy of children featured playing videogames in the images she appropriates than she is about potential copyright violations for remixing the image.

Figure 2 illustrates the mediational heuristic at work when writers in this study compose for the Web. Each element in the circle of rhetorical topics mediates invention. These rhetorical topics interact together as the writer weighs and balances the import of each one—i.e., the probable knowledge factor. Probable knowledge requires interaction of all available rhetorical topics, and is thus represented as encompassing. Since other inventional theories do not explicitly state their theory of authorship (Kenneth Pike’s tagmemics, Kenneth Burke’s dramatistic pentad, Gordon Rohman’s prewriting, classical invention, etc.), and my research shows in digital spaces, the single author is a figment of the imagination, it is wise for researchers, teachers, and/or writers to have an explicit theory of authorship in mind as they move forward. Existing inventional writing theories implicitly rely on an author as a solitary genius, a perpetual surging of innovation. In my research I took into account remix writing, and the idea the author is inherently multiple, and much more complex than a single actor or person. Whatever theory of authorship one has as one moves forward in implementing or imagining an inventional heuristic is no doubt going to shape the outcome. In this research authorship is found to be extremely complex, with writers pulling from multiple sources, and Web texts taking months if not years to complete. It is not uncommon for a Web text to be written by many people switching in and out of the author position consecutively, and taking care of that Web space over a period of years.

Figure 2. The Mediational-Digital Composing Heuristic

Probability thinking, a hallmark of invention and part of the heuristic, allows writers to prioritize and chose among whatever rhetorical topics they decide will be most influential in their writing choices. Digital writers in the study are willing to appropriate and use copyrighted materials if they think they will not be caught in the context of their low-visibility use. They are willing to do this because they overwhelmingly think U.S. copyright law is overly restrictive, especially in educational contexts where materials are appropriated in order to learn and teach, not for commercial profit. All the interviewees had different ethical stances when asked about selling their own texts for profit. In that case, many would not feel comfortable because they did not have proper permissions for using the copyrighted materials they did. Instead of advertising or proclaiming their use to the world, they quietly took what they needed, and sometimes went to great efforts to disguise this use by transforming the original copyrighted material. An earlier research participant from the pilot study (conducted prior to the full-study reported here), Shauna, circumvented anti-access technology on a DVD in order to take bits and pieces of popular movies for an educational montage critiquing racial stereotypes perpetuated in movies. Although she knew this was a violation of Title 17, specifically the portion commonly known as the DMCA (Digital Millennium Copyright Act), she circumvented the digital rights management technologies (DRMs, such as encryption codes that prevent hacking taking clips from movies) anyway because, she said, the law prohibited “fair use.” She also thought she would not be caught, and if caught the worst that might happen, she surmised, is she’d be asked to take the material down from the Web. Shauna’s interview provides an example of both “ethics” trumping legal considerations, and probability thinking—the cool calculation of possibilities when making composing choices. The mediational-digital composing heuristic depicted in Figure 2 is an inventional heuristic for digital writing, at least for the interviewees in this study.

Finding 5: For this group of writers, ethics trumps the law in importance when considering digital composing choices. Shauna provides a good example of ethics trumping the law. Leslie as well provides an example because she is more concerned with protecting people’s privacy (an ethical concern) than abiding by copyright law. The same is true with Amanda, who asks permission to use others’ texts, texts she’s edited, even when she could have used without permission under “fair use.” Amanda also has detailed attribution information throughout her personal Web portfolio—she thought this was the right thing to do, and also it illustrated her awareness of attribution as a strategy of professional collegiality. Amanda also has copyright information on her own Web pages showing her work as copyrighted. But when asked about this, she made clear she is not concerned with others appropriating her work, but wants to show her copyright awareness. She feels “copyright 2006” is a proper rhetorical element in a Web page—showing in this instance design is more important than copyright.

That ethics trumps the law is supported in both the survey question and the interviews. The question was asked in the survey: “In general, would you say that people should obey the law without exception, or are there exceptional occasions on which people should follow their consciences even if it means breaking the law?” Of the 384 respondents to the survey, 73% would follow their conscience rather than the law on exceptional occasions, while only 14% would obey the law without exception. The question was taken directly from the GSSDIRS General Social Survey 1972–2000 Cumulative Codebook.

As interviewee Carey points out, you have to break the law sometimes “because I mean we wouldn’t have all the civil rights, the law now, we wouldn’t have it unless people stood up to the law.” The seven interviews certainly support the idea digital writers are more concerned about attributing, asking permission, not harming others, than they are about legal violations.

Sarah, with a recent master’s degree in professional writing, working in her own start-up Web design business, has deep concerns about implications of her use of others’ content, not with respect to herself, but with respect to the church she writes for. “The whole thing was just really confusing to me, but because I was getting paid for it, it made me, it wasn’t like in school where I didn’t really worry about it because it wouldn’t really matter, like, I didn’t want this to come back to the people I’d done it for.”

The 300-plus survey takers are aware of legal and ethical implications of Web writing as evidenced by an average score of 63% on the knowledge portion, and by 73% responding to the question on ethics versus law, stating on occasion it is acceptable to follow your conscience rather than the law. All 7 writers interviewed have this awareness of legal and ethical implications. Undergraduate student Heather tacitly screened photos her employer sent her as Web content since she knew of possible negative implications for people featured in those photos (students, teachers, and other professionals). Leslie used Adobe filters on flickr images in order to protect young game players’ identities. Carey, an employee at a doctoral university and working toward a master’s in professional writing, kept her social network site content free in order to protect the institution and its connection to her professional identity. Amanda had the same kind of concerns with her Web persona and her organization’s identity.

When Amanda is asked whether legal-ethical issues arising from using others’ materials arose in her undergraduate professional writing program, particularly her editing courses, she stated, “No. No it wasn’t discussed.” So she independently decides it is unethical to use someone else’s materials without their permission even in the case of doing it to illustrate her own editing skills acquired at an educational institution. However, she did sometimes include the original when blended with her edits. She explicitly tells me her pressing concerns when writing for the Web are ethical, not legal. For a number of interviewees, even though they could use material under fair use without receiving permission, they request permission anyway not because of fear, but because in their minds it is the right thing to do.

Why ethics trumps the law can only be speculated upon without further research. It could be because writers have been taught more about plagiarism, attribution, and permission than they are taught about copyright law. We cannot know the answer to this without conducting another study that might trace where and to what extent writers obtain their knowledge of ethics, law, religion, etc.

Notably, regarding the GSSDIRS Codebook question used, Robin Collins (2007) reports at one time the question was administered by blind ballot to an audience of 20 “humanists,” where 100% selected that one should “follow their conscience.” Collins reports results on this question in the international community. Sample results include the United States, where 42.7% would obey the law without exception, while 57.3% would follow their conscience. In Canada, 25.1% would obey the law, while 74.9% would follow their conscience. In France, 15.2% would obey the law, while 84.8% would follow their conscience (Collins, 2007). We might draw the conclusion here students and teachers in professional writing are more humanist than the general U.S. population. However, Collins (2007) also has data showing as educational level in the United States increases, so does the willingness to follow one’s conscience over the law on occasion. The results in this study support Collins’s reporting, since a significant number of individuals taking the questionnaire have advanced degrees, and all have at least some formal education—and are situated in a field often associated with the humanities. The results here then should not surprise us. However, results might be drastically different if administered in a formal workplace setting or corporation where an “ethical” decision that is not also “legal” could have grave repercussions for the organization. It’s imaginable that it might be very difficult to move from academic cultures and the luxury of acting autonomously in one’s writing decisions with respect to ethics (like “it’s ethical to break copyright law because copyright law is too restrictive”), into formal workplace settings where an ethical decision to violate copyright law could bring serious legal liability to the organization. This is an area where further research may be warranted.

Finding 6: Misunderstanding of the difference between copyright and plagiarism. The survey contains a question I refer to as “The Plagiarism Question” and asks: “The single most important thing U.S. courts look at when deciding whether or not a particular use is a fair use, is whether or not the original author has been attributed and/or credited.” The best answer is false, but 49% answered “true.” In the United States, attribution is not an element of a fair use analysis, although it might be taken into account by the court. It is certainly not “the single most important” factor courts consider. The only exception to this is if a work of “visual art” is used (Title 17, Section 106A, U.S.C.; Section 101 defines “visual art” as a painting, drawing, print, sculpture, or still-life photograph existing as a single copy, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author). Digital visuals are not protected by Section 106A. Attribution is important for the ethical doctrine of plagiarism—a doctrine of great concern to those in academia, but is not part of a fair use determination. In fact, many fair use cases concern items where attribution is not important, such as in the case of parody or satire. In responding to this question, participants show misunderstanding of the differences between the ethical doctrine of anti-plagiarism and its requirement of attribution, versus fair use, which does not require attribution. With respect to “The Plagiarism Question,” 340 participants respond, 49% are wrong, yet 60% feel at least somewhat certain they are correct.

A reason for this pronounced misunderstanding, a finding confirming a previous pilot study finding (Rife & Hart-Davidson, 2006), is the academic institution’s emphasis, bordering on obsessive fixation, with attribution and documentation of “authors.” This fixation is likely due in part to the economy of symbolic capital via attribution. In other words, tenure and promotion at the university are tied to how much one is cited by others, how much one’s scholarly work is taken up. In contrast, in for-profit environments, promotion is instead tied to how much financial profit one produces. This is an area where more research is needed because it is unwise to grossly generalize an attribute of the population based on responses to a single question. Yet, the misunderstanding of differences between plagiarism and copyright arose during interviews, with an overemphasis on the importance of attribution. Be clear. In copyright situations, even if attribution occurs, it will not shield a user from legal liability for copyright infringement.

Finding 7: Misunderstanding of the differences between unauthorized use and authorized use. A use of copyrighted material is either unauthorized, such as a use under Section 107 “fair use,” or an illegal use. If the use is not unauthorized, it is authorized, such as with express permission or under a Creative Commons or some other form of license. Across the population, understanding of the authorized versus unauthorized use is less than what one might hope.

Fourteen knowledge survey questions tested three areas. Eight questions test whether writers understand basic elements and protections of fair use per Section 107 of the statute. Five questions examine writers’ understanding of the differences between the right to use someone else’s materials in context of authorized versus unauthorized use. For example, the questions explore whether writers know the difference between using with express permission, using under a license like Creative Commons, using things that are not copyright protected, and using under the fair use doctrine. One question, “The Plagiarism Question,” explores writers’ understanding of the difference between the ethic of anti-plagiarism and the considerations of the fair use doctrine.

For global views of this population’s scores on the knowledge portions, only those who finished the entire survey (N=334) are included. The average score for the entire 14-question set on copyright/fair use knowledge is 63%. Based on a traditional grading rubric, where 70% is around a 2.0, or adequate, the average score for the entire population falls short of “passing.” On the other hand, considering the complexity of the subject matter and the questions themselves, and considering professional writers are tested in an area some see as the exclusive domain of $300-per-hour intellectual property lawyers, 63% is a remarkable accomplishment.

The average score for the five questions on licensing versus fair use, or authorized versus unauthorized use, is 51%, indicating some misunderstanding in this area. Interviewees note they are concerned about their lack of understanding about Creative Commons and exactly what it means to use with a license. Interviewees are confused about the fact items on flickr.com or other sharing Web sites might be licensed in particular ways. They sometimes assume if something is posted to a Web site, anyone can use it for any reason. Some interviewees read licenses, and some did not. In contrast, the average score for the eight fair use/copyright questions is 71%, indicating greater understanding in this area.

Finding 8: Misunderstanding of the government exception to copyright. One area of clear misunderstanding that surfaces in the survey is a misunderstanding of the government document exception to copyright (see Title 17, Section 105, U.S.C., for details). The survey question read as follows:

Mary, a law abiding citizen, decides to use five pages of a seven page ninth circuit court decision in her website. She legally obtains this unedited opinion directly from the court’s website. She wants to cut and paste all five pages directly onto the html page she is composing. She will not edit or comment on the court opinion, nor does her webpage allow commenting by others. Before using the text in her website, as a conscientious, law abiding person she should be sure she is within fair use.

While the amount used is normally an issue in a fair use determination (“five pages of a seven page opinion”), in this case that shouldn’t matter because an unedited Ninth Circuit court decision is a government document and thus in the public domain. In a fair use determination, normally it would matter how much synthesis the new author conducts, and whether the use is for research or critique. While the question points out Mary isn’t doing any of that, it should be irrelevant because a federal judicial opinion is not copyright protected—at least that is the “best answer” in this circumstance, and survey participants were prompted to provide the “best answer.” The best answer in this case is false, because Mary does not need to do a fair use analysis even if she is a law-abiding citizen. In fact, a law-abiding citizen would know about the government document exception to copyright in the United States. (Obviously, money and stamps are exempted from this leeway in copyright protection!).

Yet, 68% of the respondents said Mary should do a fair use analysis, and 67% were very or somewhat certain they are correct in their answer. Pragmatically, it might not be that important to U.S. professional writers that they can use most U.S. government–authored materials without concerning themselves with copyright and fair use. But on a more political level, this misperception is important.

In the United States, as distinct from other democracies or other forms of government (monarchies for example), federal government documents generally aren’t copyright protected. The fact the savvy and educated participants taking the survey aren’t hearing the words of Lincoln’s Gettysburg Address—“government of the people, by the people, for the people”—as they consider authorship of government documents is troubling, since the authorship status of government documents in the United States is one of the clear markers that separates it. A copyright information Web site sponsored by York University points this out:

In the United States, documents prepared by the government are generally considered to be in the public domain, and thus have no copyright protection. In Canada, however, the Crown owns copyright in government documents (“Copyright and You,” n.d.).

In the political climate of late 2007, at the end of the George W. Bush Administration, some U.S. citizens, especially the humanists, felt very detached from government-authored actions. One wonders whether this sense of detachment seeps into our perceptions of who owns the government (and the knowledge it produces).

Finding 9: Misunderstanding of the fact that U.S. copyright law protects “creative” work to a higher extent than it protects “factual” work. What is “creative” work? If any group challenges traditional notions of “creative” writing, it is professional writers. While the master narrative defining creativity might label it as producing items like poetry, paintings, short stories, sculpture, novels, and so on (poetry and fiction are the exclusive domain of the “creative writing” course at my institution), anyone who has either produced or critiqued an instruction manual appreciates the vast creativity involved in constructing a text that appeals to and is understandable by a broad, often global, audience. Yet, in the United States the more traditional definition of creativity is drawn upon in determinations for purposes of copyright protection and fair use.

Fair use is less likely to cover a use of someone else’s creative work. One of the fair use four factors in Title 17, Section 107, U.S.C., looks at the nature of the copyrighted work. Courts generally do not find “factual” material to be “creative” material. For example in Stewart v. Abend (1990), the court focused on copyright protection of the owner’s exclusive right to create derivative works and did not find fair use. Cornell Woolrich is the author of the story “It Had to Be Murder,” and the 1954 film Rear Window is based largely on Woolrich’s story. When MCA, Inc. rereleased the film in 1971 without securing rights from the party who had been assigned Woolrich’s copyrights (Woolrich had since died), suit was brought. The court held the film was not a “new work” falling under the protection of fair use. The four factors were taken into account by the court: the infringing work was commercial (factor 1, purpose of the use), the original work was creative rather than factual (factor 2, nature of the copyrighted work), and the rerelease harmed the copyright holder’s ability to find new markets (factor 4, effect on market). In this case, the creativeness of the infringed work was one of the factors that, added with the others, caused the court to find this use was not fair.

When asked about the issue of creative versus factual work, the survey participants overall were not aware of the differences, with 58% answering that creative and factual work are equally protected by copyright, while only 42% thinking creative work has different protection than factual work. The misunderstanding could derive from the field’s tendency to challenge concepts like “creative” and “factual.” It could also derive from the field’s more sophisticated understanding of genre.

Finding 10: Clear understanding that U.S. copyright protects derivative works. One area where the study population evidences clear understanding of copyright law is regarding the ability to create derivative works from another’s copyrighted materials. The survey question asks: “The owner of a copyrighted novel has failed to make this novel into a play. You decide to do so without the copyright holder’s permission. Your derivative work, the play, closely follows the plot and characters in the novel, but is likely to be a fair use because it is different than a novel.” The best answer here is false, since a play is obviously a derivative work based on the novel, and would impair the copyright holder’s future market. A novel is also a creative work and so has more protection than something like a factual report. The participants overall had a very clear understanding of these issues, as 95% out of 350 selected the best answer (note: 350 responded to this question, while 334 finished the entire survey). The clear understanding perhaps emphasizes the academic economy of symbolic capital via attribution and the importance of retaining the ability to control the destiny of one’s works. It might be that the survey respondents feel they were stakeholders along with the novelist, but removed from items authored by the U.S. government.

Finding 11: Digital writers are fairly certain about their own copyright knowledge and have a relatively stable confidence level regarding their own understandings of the law. After each of the 14 knowledge questions, participants are asked to specify how certain they are in their answer, with 1 being “very certain” and 5 being “not certain at all.” The study explores whether there is some empirical data available to support the general statement individuals are confused and uncertain about copyright law and/or fair use, an argument used to support the assertion such individuals are thus fearful of fully expressing themselves when composing for the Web (i.e., “chilled speech”). However, such empirical data was not generated. The average certainty score for the entire population is 2.3—i.e., somewhere in between “somewhat certain” and “not too certain”—indicating that as a whole, the population is aware of its lack of knowledge (if the average certainty score was closer to 1 [“very certain”] with an average test score of 63%, we would have much more cause for concern).

In a utopian world 100% of the survey respondents would receive 100% on the knowledge score and a 1 on the certainty score. That is, they would have high knowledge and lots of confidence. But for 100% of each of the 14 questions, the majority of respondents answered “somewhat certain” (a 2 on the 5-point scale) regarding their confidence level. Unlike a number of claims made in recent scholarship that individuals are extremely uncertain about copyright and fair use (Hobbs, Jaszi, & Aufderheide, 2007; Westbrook, 2006), the data here indicate a fairly stable confidence level. The study also finds no correlation between knowledge and confidence, and in some instances finds with more knowledge there is less certainty in that knowledge. This makes sense because the more aware one becomes of the variables at play, the rhetorical topics at play in any composing decision, the more uncertain one might become. But here again, we need further research.

Yet if respondents are in fact extremely unsure, we would have seen a lower average certainty score—perhaps closer to 5: “not certain at all.” If respondents felt extremely lost and confused, we would have seen the majority selecting “not too certain” rather than “somewhat certain” in at least some locations of the survey. However, we do have to take into account the potential biases in the responding population. These individuals probably are more tech savvy and knowledgeable about copyright and fair use, and so that as well could explain respondents’ relatively high and stable confidence levels. Participants who are very uncertain about their knowledge may have been the ones who dropped out of the survey. We cannot know this for sure.

By examining certainty levels with respect to each question, we can also examine, in a sense, “how wrong” the respondents are in their answers. It is interesting to think about degrees of wrongness—as in a typical multiple choice test, an answer is either right or wrong. However, it is my theory if a respondent answers a question wrong but is not very certain about his or her answer, then that respondent is in a way less wrong than a respondent who answers wrongly but is very sure he or she is correct. This is not a variable I have seen tested before. But, overall from this examination, the respondents are somewhat certain about their answers, on average, and also have an overall average knowledge score of 63%. This, I argue, is an indication this population has some level of awareness of its “wrongness” or misunderstanding—perhaps also indicative of a willingness to learn, but the later statement we cannot know for sure without further research. However, we do know from the data this population of writers has a keen interest in learning more about copyright law.

Finding 12: Knowledge of copyright law is important to digital writers. A survey question asks respondents how important they think knowledge and understanding of copyright and fair use is to their work. Findings show the vast majority of professional writing teachers and students believe knowledge of copyright law is important to their work as digital writers. Only 1% think such knowledge is not important. A full 98% believe such knowledge is at least somewhat important, with 79% stating knowledge of copyright is either important or very important. Almost half of those participating think knowledge and understanding of copyright is very important.

Implications for Teaching, Learning, Research, and Practice

The findings of this study show a vast majority of professional writing teachers and students believe knowledge of copyright law is important to their work as digital writers. Yet, they scored only 63% overall on the survey’s knowledge portion. We might explore the idea that teaching copyright law in technical and professional writing should become the norm. Professional development for working technical writers is also in order, since at least for this population, knowledge in this area is not being gained in formal educational settings, at least with the robustness we might hope for. Interviews show digital writers want to learn and engage with all the various laws that impact professional writing, such as privacy law, defamation law, and contract law. Teaching copyright might be folded into a core course or a professional development seminar where the laws of public writing in general are taught.

This study finds the single author is an ideological production at least with respect to the production of Web texts. And if the author is not working in solitude even though he or she is “alone,” if digital writing travels through space and time and collapses the past, present, and future all in a 10″ × 15″ space, then we have to consider cross-cultural issues, issues of attribution and plagiarism, and issues of collaborative work in an entirely new light. Situating U.S. copyright law restrictions in a cross-cultural, international context may deeply impact how copyright law is taught or understood. At this point, though, we do not have any comparative data to show how copyright law might influence composing processes of writers in countries other than the United States. As I mentioned, international intellectual property issues add a layer of complexity to an already complex topic. But this is an area where we need further scholarship and exploration. These types of laws should certainly impact how we approach the practice of technical communication.

Considering how central writing is due to the Web, we really need more empirical studies on digital writing processes. We need additional theories that help us understand why inventional heuristics work sometimes but not other times (see Welle Donker-Kuijer et al., 2008; De Jong & Schellens, 1997, 2000; De Jong & Van der Geest, 2000). I offer the digital composing heuristic I developed in this study to be tested, explained, expanded, and explored with further research. Studies involving the exploration of cross-cultural inventional strategies in digital writing contexts are needed, as are studies involving authorship in the workplace and how that might differ from authorship in the classroom (see Portewig, 2008, and Reyman, 2008, for recent examples).

While it was not the focus of this study on copyright law, as I interviewed digital writers I learned something possibly very important about the so-called practitioner-academic divide. That is, the divide may be far less clear-cut than one might imagine. To my surprise, all the students interviewed were also practicing technical communicators in one form or another. Several had been previously employed full-time as technical communicators and so brought their experience and perspectives with them to their coursework at the university. I leave this study with the distinct impression the practitioner-academic divide is far less a bright line than is usually presented. This area would benefit from further inquiry. Understandings in this area might assist with audience analysis—for example, the digital writers I interviewed, as readers, need knowledge at the intersection of practice and academia—and it is not uncommon for writers to straddle these two domains for extended periods of time. Therefore, to divide a readership into “practitioners” and “academics,” I think, is a simplistic divide. The affordances of Web writing appear to allow writers to perform many roles simultaneously in ways we have yet to imagine.

For technical writers who design EULAs (End User License Agreements) or Terms of Use for various digital interfaces, the findings from the study might be instructive because the mediational-digital composing heuristic contains rhetorical topics motivating users to make choices on whether or not to appropriate and/or remix content. My research shows that in some cases, ethics is more powerful than law in writers’ decisions. Therefore, in order for EULAs and Terms of Use to actually be effective, they may have to play upon the topics that are mediating content choices. Further, since the study finds users may have marked misunderstandings of basic copyright issues, specifically issues of licensed use or use with permission, those who want EULAs and Terms of Use to actually be understood and used may have to consider writing plainly, offering explicit guidance, and explaining basic information. The writers in my study want to do the right thing and, if given an intelligent and understandable rationale for doing so, will likely heed reasonable requests to use content in particular ways.

Findings in the study showing the emphasis digital writers place on attribution (such that pragmatically “attribution” requirements obtain the force of law) may point to possible culture shock as professional writers trained in academia enter organizational work environments. Such work environments often retain attribution for the organization, or for key figures within that organization. What might be considered “plagiarism” in academia may be the normal mode of operation in the organization. Therefore, organizations might take special care to clarify authorship policies and procedures. Further, educational institutions may want to work harder toward helping students understand the ways in which paradigms of authorship differ between workplace and educational cultures, or in international contexts. Service-learning activities may be a good place to work in such curriculum.

Very clearly, this research provides empirical data showing professional writers do not feel they have been properly educated in their writing programs or professional development with respect to legal implications for entrepreneurship, organizational/corporate authorship, and collaborative or joint authorship. They have been inadequately educated as well on how to exploit their own intellectual creations for profit—which is a key understanding to business success (Faber & Johnson-Eilola, 2002). One recent graduate from a master’s degree professional writing program, Sarah, now working as a professional writer, said:

I think so much everything I’ve encountered is different than how we did it in class . . . I mean I just wish, I love the different things we learned in school, but the focus was really on work you do in the classroom, and I think about all the time we were building stuff in class where I wished we had pretended we were doing it for commercial reasons. And so that we really had to talk about the issues, and think about them then as opposed to sort of ignore them because we were safe then.


I thank William Hart-Davidson, Jeff Grabill, and Danielle Nicole DeVoss, Michigan State University, who acted as research advisers during this project.


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About the Author

Martine Courant Rife is a professor at Lansing Community College and also a Michigan licensed attorney. In addition to working on two special issues of peer-reviewed journals, she is currently working on several book projects including a monograph based on this study, Invention, Copyright, and Digital Writing: Towards a Rhetoric-Based Theory of Composing Process for the 21st Century. Her research examines intersections between law, rhetoric, and professional communication. Rife is the winner of the 2007 Frank R. Smith Outstanding Journal Article Award for “Technical Communicators and Digital Writing Risk Assessment.” Her work most recently appeared in TCQ, IEEE-IPCC Conference Proceedings, and Computers and Composition, and she has a piece forthcoming in IEEE-TPC. She can be reached at martinerife@gmail.com or 517-483-9906.