Legal and Regulatory Issues for Technical Communicators Conducting Global Internet Research

Heidi A. McKee and James E. Porter

Abstract

Purpose: This article discusses the ethical and regulatory issues that technical communicators need to consider when conducting Internet research.

Method: We open by considering how technical communicators live, work, and do research in global contexts where distributed networks for the design, development, and distribution of documents, interfaces, and technologies span cultural and geographic borders. By drawing on published case work and interviews with technical communicators who work in global contexts, we examine the key legal and ethical issues technical communicators face when they are conducting Internet research. We propose heuristics for technical communicators to use when addressing these issues.

Results: Key legal and regulatory issues that technical communicators face when conducting Internet research include the diversity of legal regimes, the variability of privacy laws and cultural differences, the impact of government surveillance on research risks, and the complexity of intellectual property in a global world.

Conclusion: Technical communicators need to be aware of the potential legal and regulatory challenges they may encounter when conducting Internet research that spans cultural and geographic borders. By consulting precedent cases, seeking advice from diverse audiences (e.g., focal participants, corporate legal), and remaining flexible in research design, technical communicators can successfully meet these challenges.

Keywords: internet research ethics, privacy, intellectual property, law, globalization

Practitioner’s Takeaway

• When conducting Internet research that spans cultural and geographic borders, technical communicators need to be informed of applicable laws and regulations, including knowing what country has jurisdiction.
• Because understandings and expectations for privacy are culturally determined, technical communicators will be well served to understand the cultural expectations of the persons whose communications they study.
• Technical communicators need to be aware that in many countries and regions of the world, Internet communications are closely watched, censored, and regulated, raising risks for researchers, the companies for whom they work, and the persons whose communications they study.
• To seek answers in the ever-changing regulatory, legal, and cultural climate, technical communicators need to ask a range of questions, consult precedent cases, and seek advice from diverse audiences.

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Introduction

Isn’t all research global research by now? If not yet, it is probably moving there. Increasingly, technical communicators live, work, and do research in global contexts, where distributed networks for the design, development, and distribution of documents, interfaces, and technologies span cultural and geographic borders. As Starke-Meyerring, Duin, and Palvetzian (2007) noted, “As workplace professionals and as citizens, technical communicators increasingly experience a fundamentally changed communication environment as a result of globalization” (p. 141)—and, we would add, particularly as a result of Internet-based global communications. More and more, the work of technical communicators is “distributed” work (Spinuzzi, 2007) in global networks.

For example, as technical communicators work with colleagues, partners, and clients around the globe, U.S. technical communicators create training manuals used by managers in China—and vice versa. International project teams comprising members from, say, Kenya, India, and the United States, all of whom work for the same transnational corporation, create documentation for users in East Africa and Southeast Asia. Increasingly, the design of online information products—for instance, basic decisions about information architecture for a given product (McCool, 2006)—requires knowledge about potential audiences.

To be most effective and successful working amid the complexities of global networked environments, technical communicators need to develop knowledge about, and therefore conduct research on, cross-cultural audiences and communication issues—a point made by former Technical Communication editor George Hayhoe: “Today we must address the needs of global audiences. . . . To do our jobs, we need research about audiences in cultures with whom we are beginning to communicate. . . . It is vital for the continued success of our companies and our profession” (Hayhoe, 2006, p. 141).

Testing for usability, for instance, increasingly demands that we develop a better understanding of how to design information for cross-cultural audiences using mobile devices. Such an effort will require research, much of which will be Internet-based. For example, to understand how audiences from different cultures access and use mobile text messaging systems, Sun (2006) conducted a comparative case study of users in Albany, NY, and in the Hangzhou region of Zhejiang province in China. Sun’s research showed that U.S. and Chinese participants used text messaging in different ways, bringing different cultural expectations to their habits of texting that have important implications for the design of mobile devices and handheld interfaces. Such studies will become the foundation for technical communicators who are designing and structuring interfaces, producing documentation, conducting usability studies, and developing content management systems for global users.

Global research raises many methodological and ethical challenges for technical communicators, particularly for those working with Internet technologies, because of the cross-cultural, international, and transnational nature of the work. In the process of planning, collecting data for, and presenting a research study, Internet researchers face myriad issues, including legal and regulatory issues. Negotiating legal codes and government regulations—as well as actual government practices, which may or may not be consistent with laws and regulations—is an important aspect of any researcher’s work; it is especially important for Internet researchers, who often face additional complexities because of the networked, global nature of the Internet.

Our aim in this article is to focus on how international laws and regulations affect technical communicators doing Internet-based research. Because laws and regulations are continually revised, we will not attempt to provide an up-to-date report on current laws in various countries—an impossible task that would be out of date as soon as we finished. Nor will we attempt a comprehensive discussion of the full range of government oversight that might affect researchers. Instead, we will focus on a few examples drawn from the experiences of researchers we interviewed, focusing on three main considerations: issues of privacy, government censorship, and intellectual property.

Our analysis is based on interviews with technical communication researchers and on published reports of research. (For a full description of the methodology and theoretical framework for this article, see McKee & Porter, 2009.) Our goal here is to highlight the kinds of issues that technical communicators doing Internet-based global research are likely to encounter.

The Complexity of “Obey the Law”

In Ethics in Technical Communication: Shades of Gray, Allen and Voss (1997) list ten core values for ethical communication (which also apply to research). The second value on the list is legality, which they define as the “duty to follow the laws and regulations that govern our profession, including meeting all terms and obligations of legal contracts we undertake” (p. 100). This seems clear-cut and obvious: We should obey the law. But it is not always so simple, particularly in the realm of international law.

When a technical communicator lives in one country, works for a corporation headquartered in another country, and is studying users in five other countries, what is the law? Which country’s law should a technical communicator follow if, as is bound to happen, conflicts exist among countries’ legal codes? What legal issues might technical communicators face in conducting global research? And what should they do when laws and regulations are at odds with fundamental ethics or human rights principles? (For a discussion of the latter question in relation to international project teams, see Voss & Flammia, 2007.)

Although abiding by guidelines, regulations, and laws is usually a sine qua non of ethical action, it is not the end of ethical considerations for a researcher. As Voss and Flammia (2007) point out, laws can be unethical, such as the racially discriminatory Jim Crow laws in the United States (p. 75). Researchers are under no obligation to follow unethical laws (Porter, 1997). However, under normal circumstances, being aware and respectful of regulatory review, legal codes, and government practices is an important aspect of any researcher’s work.

Compounding these complexities is the rapid pace of technological change and the ever-changing nature of Internet communications. Often organizations, institutions, and governments—and their laws, policies, and regulations—simply cannot keep up, providing Internet researchers with too little guidance or inappropriate guidance that applies overbroad generalizations or makes false comparisons between offline and online research. Yet, despite the difficulties technical communication researchers face when they seek to negotiate regulatory and legal issues, we believe that the research process and ethical approaches for research are strengthened when researchers consider as fully as possible the range of laws, regulations, and practices that affect their work.

As we are using these terms, a “law” is a formal statute enacted by a governing body (e.g., a monarch, a legislative assembly), while a “regulation” is a specific interpretation of a statute by a government agency responsible for implementing or policing the statute. A “practice” is simply any action that a government takes, whether guided by laws and regulations or not. In fact, some government practices are not authorized by—indeed, may be quite inconsistent with—formal laws or regulations (e.g., subsidies to farmers or businesses that violate trade agreements and interrogation techniques that constitute torture and violate state constitutions and international human rights agreements).

Because of the global nature of the Internet, researchers often work across geopolitical and cultural borders. Communication content that may be permitted in one country—a pro-democracy sentiment, for example, or a view that women are entitled to work outside the home—may be prohibited in another. Thus, technical communicators doing Internet research not only need to be aware of laws, regulations, and practices to (perhaps) abide by them, but they also need to be aware of them to avoid placing the persons whose communications they are studying at risk.

Privacy Laws and Cultural Difference

Privacy and the protection of privacy are central issues for technical communication researchers. Most countries or regional alliances in the world have privacy laws regulating what material may or may not be shared about individuals. These laws vary widely and are, of course, enforced to various extents. Technical communication researchers need to be aware of these laws, because the information they gather and the technologies they use to gather it may fall under special legal protections.

For example, since the passage in the United States of the Health Information Privacy Protection Act (HIPPA), which puts strict limits on sharing an individual’s health information, many technical communication researchers studying health communications have been required to go through specialized research training. Researchers studying children and their communications also face myriad laws and regulations, since many countries have additional protections in this area. In the United States, the Children’s Online Privacy Protection Act of 1998 (COPPA) regulates what data may be collected from children under the age of 13 (15 USC 91).

Although countries in a particular region of the world (e.g., East Asia, Central America) or with a common dominant cultural background (e.g., Great Britain, Canada, Australia) are more likely to share common traits, particularly in terms of rhetorical patterns in the reception and production of visual and verbal communications, technical communication researchers will still be well served to identifying the laws governing the collection and study of communications, particularly around issues of privacy.

For example, even though the European Union, the United States, and Canada share many western cultural traditions—and are often treated as culturally similar, if not the same—they have different traditions regarding privacy and privacy laws. Levin and Nicholson (2005) note that, legally, “in the U.S., privacy protection is essentially liberty protection, i.e., protection from government. For Europeans, privacy protects dignity or their public image. In Canada, privacy protection is focused on individual autonomy through personal control of information” (p. 357). Ess (2002) also noted “an apparent contrast” between U.S. and European laws and guidelines regarding privacy:

European law (first of all, the EU Data Privacy Protection laws) and ethical codes for research (primarily, the NESH [National Committee for Research Ethics in the Social Sciences and Humanities] guidelines) more fully endorse a deontological insistence on protecting the rights of individuals, no matter the consequences. That is, these rights—including rights to autonomy, confidentiality, informed consent, etc.—and their protection are emphasized as (near) absolute values, ones that cannot (generally) be overridden by utilitarian considerations of possible benefits gained at the cost of compromising these rights, e.g., in the name of economic efficiency and/or research interests, including possible benefits to society. By contrast, U.S. law regarding data privacy, for example, appears to clearly favor the utilitarian interests of economic efficiency—first of all, the economic interests of corporations—over individual rights.

Even though the EU supports stronger privacy rights than does the United States, at least with regard to protection from commercial and private invasions of privacy, others point out that European laws tend to be more lenient regarding government intrusions on privacy. According to Sullivan (2006), wiretapping is “130 times more common” in the Netherlands than in the United States. Sullivan summed up the distinction this way: “Europeans reserve their deepest distrust for corporations, while Americans are far more concerned about their government invading their privacy.”

Further complicating considerations of privacy (and, as we discuss below, copyright), especially for researchers working around the globe, are the variations between countries with common law systems and those with civil law systems. Common law originated in England (and is found in most Commonwealth and former Commonwealth countries); it is built on case-based reasoning, in which laws emerge from the decisions of judges on specific cases. In common law systems, laws governing privacy can be changed rather quickly through the process of judicial review, in which individual judges can create new legal precedents via rulings on a case. Civil law is Roman in origin and is built on legal principle and codes that cannot be changed via judicial ruling. Thus, civil law systems move much more slowly in response to new developments and technologies, because in these systems, judges may not create precedent for new legal interpretations and rulings that future cases may rely on. Rather, judges may only rule on or do what is in the specific wording of laws drafted and passed by the legislature. For this reason, the pace of international change in relation to such issues—and the prospects for quick harmonization of international legal opinion on these issues—can vary greatly from nation to nation, depending on the legal system at work. (For further discussion and databases of resources on issues of transnational law and privacy, see UNIDROIT: The International Institute for the Unification of Private Law, http://www.unidroit.org.)

In addition to laws, international and national charters, declarations, and statements of principles for the rights of persons also apply to technical communication researchers, including the African Charter on Human and Peoples’ Rights (African Commission, 1981), the Charter of Fundamental Rights of the European Union (European Parliament, 2001), and the most translated document in the world (translated into more than 350 languages): the Universal Declaration of Human Rights (United Nations General Assembly, 1948). In this document, a key principle is that all persons are created equal and are entitled to full and equal protections, including the protections of privacy. Article 12 of the declaration states:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Depending on how individuals perceive their Internet communications, technical communication researchers—especially those who collect, copy, or quote others’ communications without consent—could be perceived as violating an individual’s human right to privacy.

Two tenets of the Code of Ethics of the Association of Teachers of Technical Writing (ATTW, 2009) regarding our responsibilities to the public specifically address issues of privacy:

• To protect the security, confidentiality, and privacy of the information we are entrusted with.
• To adhere to standard principles of research with human subjects by obtaining informed consent and maintaining the privacy and confidentiality of research results.

But determining what communications are public and thus subject to research without informed consent (although copyright considerations may apply—see below) is difficult, especially on the Internet. On the Internet, the notion of “public” is radically problematized; in most cases there is no bright line distinguishing between public and private discourse (see Rife, 2007). The Internet consists of a broad continuum of discourse types, ranging from those intended for wide public distribution (e.g., CNN, Médecins Sans Frontières, Facebook’s Terms of Use) to those intended for limited circulation (e.g., MySpace pages with share settings) to those intended for very limited, more private use (e.g., communications on corporate intranets).

Different forums operate by distinctive customs and particular conditions of use shaped by users’ expectations of privacy. Even within a single forum, differing participant norms and expectations may exist, as in Second Life, for example, or on Facebook, where people have different use expectations for profiles and wall posts than for person-to-person messages sent via Facebook’s e-mail feature. What we see is an emergent consensus among researchers that the public-private distinction should not be regarded so much as a binary with two unambiguously clear meanings at either end but rather as a continuum (Bruckman, 2002a; 2002b) or as “indexical signs that are always relative: dependent for part of their referential meaning on the interactional context in which they are used” (Gal, 2002, p. 80).

We can regard the public-private distinction as fractal because “the distinction between public and private can be reproduced repeatedly by projecting it onto narrower contexts or broader ones” (Gal, 2002, p. 81). Gal cited as one example the “privacy” of the house: Within the public space of a city or street, a house is private. But within the house, there are “public spaces” (the living room) and “private spaces” (the bedroom and bathroom), and within those spaces the conventions for disclosing information can vary depending on the people who are interacting and their degree of trust with one another. Thus, notions of public and private are not coherent and distinctive but rather “fractalized,” where the distinction between the concepts operates at different levels of granularity (Gal, 2002; Lange, 2007). For example, in her ethnographic study of young people’s online video-sharing practices on YouTube, Lange (2007) discovered that users have different levels and fluctuating notions of privacy in their online interactions, engaging in what she called “publicly private” and “privately public” practices. Lange concluded that on social networking sites, new patterns of online behavior are emerging that are “neither strictly public nor strictly private.”

The matter of public versus private is further complicated by cultural differences. Across and within cultures, there are widely varying and changing understandings of what is private and for whom. For example, as Ess (2009) explained in Digital Media Ethics, “‘privacy’ in many Asian cultures and countries has traditionally been understood first of all as a collective rather than an individual privacy—e.g., the privacy of the family vis-à-vis the larger society” (p. 52, emphasis in original).

According to Nakada and Tamura (2005), Japanese culture does not have a single, well-defined notion of privacy; rather, it has a complex and pluralistic view that combines both a traditional worldview (seken) and a more modernized, western view (shakai). The traditional view of privacy is related to the virtue of maintaining “harmony between people, along with trusted human relationships” rather than to the western/Enlightenment sense of autonomous individual rights as a form of property right (see also Voss & Flammia, 2007). However, Nakada and Tamura also noted that western values are becoming enmeshed with more traditional Japanese values, and the result is a complex mix of views. To some extent, Japanese culture is embracing western concepts of privacy regarding data privacy; that is, “the right to control one’s personal information” (p. 33).

But it is not just in Japan or in Asian countries and cultures where notions of privacy are shifting. Privacy in western cultures has often been viewed as the right of autonomous individuals (see Ess, 2009, pp. 51–59), but as Capurro (2005) pointed out, in the new networked society, ethics and values may be shifting to a globalized principle, one he calls “networked individualities” that may represent a shift to a more group-oriented notion of privacy (pp. 40–41; see also Mizutani, Dorsey, & Moor, 2004). The target here is clearly a moving one.

For technical communication researchers, what this means is that in seeking to abide by laws, codes of ethics, and declarations, we need to pay attention to the particularities of communication venues and contexts we seek to research. One technical communication researcher we interviewed (who asked to not be identified) worked for a software company, conducting on-site usability studies of microbusiness computing practices in a large developing country. Microbusinesses are, as the name indicates, small businesses that employ just a few people, many of them family members. Conducting such research was difficult for this researcher not only in terms of obtaining informed consent (participants refused to sign any document that could be traced back to them, so the researcher modified the protocol to obtain oral consent), but also in terms of balancing public-private communications. Most of the microbusinesses being studied were run out of people’s homes or in buildings where the families also lived, and most business was conducted on mobile devices that were used for both personal and work-related communications. Thus, the data collected through surveys and mobile digital capture covered public and private uses and contexts of use. In the reporting, this researcher and his team had to make nuanced, culturally attenuated judgments about what to report, not just out of respect for the privacy expectations of participants but also to protect the corporation from potential harm for violating the developing country’s regulations governing data collection.

Not only must technical communicators account for ever-evolving cultural differences in the discussion of private and public, they must be aware of changing laws and regulations passed by governments and regulatory agencies that are struggling to keep abreast of the rapidly changing technological and global matrix in which citizens work and live. To conduct research legally and ethically, technical communicators must identify privacy and other laws that may apply to a particular research context and analyze the cultural understandings of privacy that shape users’ expectations.

Government Surveillance and Research Risk

Technical communication researchers working in global contexts can also run afoul of other laws and regulations, some that may cause significant harm to the researchers or their subjects. Because of various laws in various countries, reporting certain information that could be traced back to individuals (or the organizations they represent) could result in criminal prosecution and social, financial, or even physical harm, depending on the nature of the information and the country in question.

Beth Kolko, associate professor of technical communication at the University of Washington, is keenly aware of such dangers. She co-directs the Central Asia + Information Communication Technologies project (2009), a multiyear investigation of the Internet and related mobile technology developments in Kazakhstan, Kyrgyzstan, Tajikistan, and Uzbekistan. To study how culture, policy, and infrastructure affect people’s use of information and communication technologies, this extensive longitudinal project uses numerous data collection methodologies, including surveys in each country on Internet access and use, interviews with professionals in various fields, and tracking of public Internet access facilities. All the Central Asian countries that Kolko and her team study engage in various degrees of government control of Internet access and communications.

In 2006, the OpenNet Initiative conducted an empirical study of Internet filtering and surveillance in 40 countries (Deibert, Palfrey, Rohozinski, & Zittrain, 2008). They found evidence of filtering in 26 of those countries, including Kazakhstan, Kyrgyzstan, Tajikistan, and Uzbekistan. Among the Central Asian states, Kazakhstan and Uzbekistan are the most repressive, with authoritarian governments intent on controlling the flow of information (Deibert et al., 2008). According to the OpenNet study, as reported in the country profile (Uzbekistan, 2007),

The security forces in Uzbekistan manually check Internet access at “edge locations” (such as cybercafés) and monitor users’ activities. The regulatory framework is so intricately woven that, in most cases, ISPs and Internet publishers are unaware of the governing law. To avoid inflicting the wrath of authorities, Internet actors frequently undertake self-censorship. (p. 7)

In Kazakhstan, according to the country profile: “Current rules require all Internet traffic to pass through state-owned channels, politically sensitive Internet content is selectively filtered, and opposition media and bloggers are said to practice self-censorship for fear of government reprisal” (Kazakhstan, 2007, p. 1). In both countries, ISP providers are required to keep detailed data on all Internet users and their online activities.

When we asked Kolko about government surveillance and censorship of the Internet, she described how difficult it has made her research, in both its online and offline components:

For example, I think it was 2004, I was on the way to the region. I was on the way to Uzbekistan. In Heathrow I ran into someone I knew—another professor—and we were talking, and she asked, “How is your project going? How are your local researchers?” Let me explain. I work with local researchers, anywhere from 8 to 12 local researchers spread across the countries [to conduct surveys and observations in Internet cafes]. So, at the airport, she said, “How’s it going?” and I said, “It’s fine.” So she said, “I can’t get anyone to work with me right now because the Uzbek government just passed a law that anyone accused of giving sensitive information to foreigners will be accused of treason, and the law doesn’t define what is sensitive information.” Now the penalty for treason in Uzbekistan is death, I believe. If it’s not death, then the penalty for being arrested in Uzbekistan is often death [because of how badly prisoners are treated]. (Kolko, personal interview, December 8, 2006)

Because of the passage of this new law, yet another layer of potential harm was added to Kolko’s research project, a layer that, understandably, deeply concerned Kolko:

I was being kept up late at night worrying, my god, what happens if these people [the local researchers] get arrested? So we ended up abandoning one of our research methods, and instead hired a local survey firm [that works with government approval] to do the survey for us. There’s a couple trade-offs—our aim [for the study] is much larger now, but our methodology is not as good as if we were doing it with our locally trained people. But I don’t have to be kept up at night worrying about them disappearing. (Beth Kolko, personal interview, December 8, 2006)

While not all researchers face concerns as grave as having collaborators or participants “disappear,” other dangers exist. Another researcher we interviewed, Terri He (who is not a technical communication researcher but whose experiences illustrate the difficulties of conducting research on global communications that are potentially open to government surveillance) studied an online queer activist community to examine the intersections of gender, sexuality, and globalization in nationalistic discourse. As she researched this online community, He had to balance her need to represent the specifics of the discussion with her desire not to expose individuals to harm. Homosexuality is legal in Taiwan, but it is treated somewhat ambivalently, not least because it is still taboo in China. Because of Taiwan’s uncertain political status vis-à-vis the People’s Republic of China, the possibility of a Chinese intervention and crackdown is an omnipresent reality in the lives of the Taiwanese. As He explained:

The reason for feeling anxious about Chinese laws and governmental authority lies in the fact that China regards Taiwan as a rebel region that must be reunited with the mainland—by force if necessary. Almost all nation states worldwide, in addition, are actually with China on this point and do not establish official diplomatic relations with Taiwan. Such an unfavorable situation increases the worries for its residents on the Taiwanese islands, and extends it into the realm of the Internet. (Terri He, personal communication, March 10, 2009)

He was especially aware that the people whose communications she studied could be exposed to harm if their sexual orientation were widely publicized. In China, although no law explicitly bans homosexuality and government oppression of homosexuals has lessened in severity in recent years, lesbian, gay, bisexual, and transgendered individuals still face severe stigma; loss of jobs, family, and educational opportunity; potential social and political harassment; and even imprisonment (Yanhai, 2001). In addition, given the extent of China’s Great Firewall and the massive surveillance initiative of the Golden Shield project (Walton, 2001)—which includes requirements that ISPs and Internet cafes (where most Chinese access the Internet) keep detailed records of users’ online activities—it is becoming increasingly easy for the Chinese government, like other governments around the world, to track individuals’ online communications.

Technical communication researchers studying communications, particularly online communications in which people discuss potentially regulated subjects, need to be aware not just of laws and regulations but of government and employer practices that may affect the persons being studied. The OpenNet study of worldwide Internet censorship (Deibert et al., 2008) identified a number of subjects regulated by government filtering of Internet content, including political reform, human rights, women’s rights, environmental issues, economic development, gay/lesbian content, and dating, as well as religious conversion, commentary, and criticism (p. 7).

Although the readership for a corporate report or journal article may be small and attendees at a conference may represent a specialized group, researchers should never assume that what they publish will stay within the academic or corporate boundaries for which it was produced, particularly in this age of digital networking (Porter, 2009; Rife, 2007). As researchers, we must assume that there is a chance (no matter how slim), that our work could be picked up by a broader audience, perhaps journalists seeking information for a newspaper article or government agents tracking publications that mention their country. Our work as researchers has the potential to bring greater scrutiny to communications that otherwise might not be noticed because of the sheer volume of online communications. All researchers should be aware of the potential harm to participants from those who may read their work, but especially researchers who study Internet communications and people’s use of the Internet in countries where government surveillance is an issue. In such countries, Internet research can expose subjects to a higher degree of risk than in countries with a tradition of freedom of expression.

Intellectual Property in a Global Context

A challenge for technical communicators doing Internet-based research is to negotiate intellectual property ethics, regulations, and laws in a global context for which a firmly settled or authoritative legal framework does not yet exist. However, a global human rights perspective is emerging, we believe, as a consensus standard—albeit a very broad one and one that is not without some controversy—that can guide technical communicators with regard to copyright questions related to research.

It is beyond the scope of this chapter—and, indeed, our expertise—to attempt an extended discussion of issues pertaining to international intellectual property. In general, though, it is important for Internet researchers to realize three key points, articulated by Gnädig, Knorpp, Grosse Ruse, and Giannakoulis (2003), about copying across international intellectual property regimes:

• Many acts of using copyrighted material are not limited to the territory of one particular country but concern several territories. Therefore they [researchers] should examine which different national legislation could possibly be touched by their research activities.
• In general, at least the law of the country in which the act whose copyright legality is in question occurs is applicable. This rule applies independently of the nationality of the user or the author, and irrespective of where the work was first published.
• The distributor needs to take into account all the different copyright laws of the countries in which distribution takes place. Only the laws of countries to which copies are distributed unintentionally can be left aside. (p. 12)

Generally speaking then, according to Gnädig et al. (2003), when researchers copy a work, they are subject to the laws of the country in which the copying act takes place. However, when researchers distribute copied work (as may be the case for publication), they—and probably the publisher—must take into account the copyright laws of the countries targeted by the distribution, a principle that raises some serious problems for Internet-distributed content. In general, for a researcher working through these murky issues of jurisdiction, it is helpful to take both an international perspective and a global perspective toward intellectual property issues (Yu, 2007a; 2007b).

An international perspective takes a comparative view, looking at the differences among intellectual property regimes—culturally and legally, in principle and in practice, and across different national or cultural boundaries. Researchers working with this perspective might compare, for instance, the laws and customs in China, where intellectual property is viewed more communally, versus those in the United States, where it is viewed more individualistically (at least until a work enters the public domain).

An example of the international/comparative perspective applied to intellectual property matters is the often-discussed difference between U.S. and European Union copyright law with regard to the author’s moral rights. As Suhl (2002) and others have noted, U.S. copyright law does not have a strong established tradition of recognizing the author’s moral rights, while European law and custom do. An author’s moral rights include the right of attribution (i.e., to be credited as author of the work); the right to preserve the integrity of the work; and even, in some jurisdictions, the right to control performance, production, or distribution of the work. U.S. law focuses mainly on the rights of the copyright holder, who may or may not be the original author/creator of the copyrighted work. Suhl (2002) pointed out that the differences in an author’s moral rights are due to differing cultural views about the purpose of creative works and their relationship to society at large:

The level and type of protection afforded to creative works by U.S. law is a reflection of its market-dominated political economy. In Continental legal systems, intellectual and creative works are manifestations of the culture. …Copyright law in the U.S. is a reflection of a utilitarian tradition. In contrast, Continental copyright law is a derivative of natural rights and German idealism. (pp. 1213–1214)

One implication of this difference for Internet researchers is that authors of works published in the European Union have more rights, more control, and more say regarding reproduction and redistribution than authors have under U.S. laws and customs. This difference in intellectual property law may extend to (as well as from) cultural differences, perceptions, and customs regarding the rights of the creator/author. (See also Ess, 2009, 74–75.)

However, as the EU seeks to standardize laws across member nations, corporate rather than individual authorship is becoming more typical, particularly in the context of work for hire, the venue in which most technical communicators work. But even within the EU there are differences of degree—for example, between UK and continental traditions—regarding the author’s moral rights. France, for instance, has the legal “right of integrity,” in which the author has the right

to combat an adaptation that does not truthfully represent the work [or] when a public display of a work is detrimental to the work’s overall conceptual view. The author in France, and in many other Continental regimes, maintains a personal connection with his or her creation that extends beyond the author’s reputation interests; essentially, the author is allowed to intervene whenever he or she feels that a modification to a given work may affect the public’s judgment of the author. (Suhl, 2002, pp. 1222–1223)

Transfer of copyright practices also highlight differences. In the United States, copyright transfer is a fairly common practice. In fact, the work-for-hire provision in U.S. copyright law makes transfer to an employer the default position for authorship: “The employer or other person for whom the work was prepared is considered the author” (U.S. Copyright Office, 2008, section 201b). Notice that the employer is not just regarded as the copyright holder but actually becomes the author. In general, EU member states hold to a very different view of authorship, but there are also differences among countries. In the United Kingdom and the Netherlands, transfer of copyright more closely resembles U.S. law; however,

in most continental EU Member States, the creator of a piece of work is considered to be the author and copyright-holder. In most cases, that original right-holder will be an individual. Some countries (like Finland or Germany) don’t accept legal entities like universities or companies to be such original copyright-holders at all. Some countries (like France, Portugal, Spain, Italy and the Netherlands) allow them to obtain copyright as such only under quite restrictive conditions. (Gnädig et al., 2003, p. 26)

Differences also exist with regard to duration of copyrights. For instance, in some member states of the European Union, the author’s moral rights “are perpetual (e.g., France), while in others, moral rights expire at the same time as economic rights” (Gnädig et al., 2003, p. 42).

Differences also exist between U.S. and European notions of fair use. For example, Lewen’s (2008) research made clear that the strong copyright protections regarding digital filesharing under U.S. law do not export well to Sweden, which has a legal tradition known as allemansratten (rights of common access) that allows persons “to walk and even camp on privately-owned land, as long as they do not harm the land or interfere with the activities of landowners” (p. 192). Although originally developed for property issues, the cultural expectations that accompany the rights of common access carry over into intellectual property considerations for print and digital works.

What constitutes harm and interference to land or intellectual property varies from culture to culture (and, within a culture, from legal decision to legal decision). An international ethical perspective examines these differences and reflects on their significance for the use of copyrighted work for purposes of Internet research. This perspective probably works best for limited comparisons on a case-by-case basis, but because it is case-specific, it may be hard to extrapolate to broad (global) circumstances. This is where a global perspective, working in concert with an international perspective, can be helpful.

A global perspective looks at the underlying principles and legal standards for intellectual property that the international community shares, has already developed (e.g., in the Berne Convention, the International Copyright Protection System), and is continuing to develop. A global perspective does not attempt to efface or deny differences, although that can be an unintended consequence of developing shared standards. Rather, this perspective acknowledges that if we want to interact and live in shared spaces, it is important to establish shared policies, customs, regulations, and laws, and to arrive at some common understandings about how we are going to live and work together (see Camarce, 2007; Helfer, 2007). These emergent global principles and standards can operate as a kind of benchmark to establish minimum standards and harmonize differences across intellectual property regimes.

The Universal Declaration of Human Rights considers intellectual property rights to be a fundamental human right:

Article 27. (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. (United Nations, 1948)

Like the U.S. Constitution, with its balance between individual rights and societal good, the Universal Declaration of Human Rights recognizes that a balance is needed—between the “right to the protection of moral and material interests” and “the right to…share in scientific advancement and its benefits.”

Article 27 can be viewed as an international principle regarding intellectual property—and that principle articulates a balanced approach to the right of copyright holders vis-à-vis the rights of the public. However, according to Schultz (2006) and others, this balance has been “attenuated” in recent years as corporations (particularly in the United States) have used their influence to pass legislation and influence international agreements in a way that tips the balance in favor of stronger copyright protections; for example, lengthening the term of copyright (the Sonny Bono Copyright Act of 1998) and criminalizing “unauthorized access” to copyrighted material (the Digital Millennium Copyright Act of 1998).

Some intellectual property scholars argue that we are in an era of “copyright grab” (Samuelson, 1996) or a “second enclosure movement” (Boyle, 2003). Like the English enclosure movement from the 15th through the 19th centuries—which involved fencing off and privatizing common grazing land—this movement involves curtailment of the public right to access intellectual property, a right that includes the access rights of researchers to use public information for research purposes.

In terms of specific laws, beginning with the 1886 Berne Convention for the Protection of Literary and Artistic Works, a series of international treaties have aimed at harmonizing copyright law. Article 10 of the most recently revised Berne Convention articulates a general fair use provision that could be said to establish a universal agreement:

It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries. (World Intellectual Property Organization, 1979, Article 10)

However, the Berne Convention also recognizes the principle of the author’s moral rights to claim ownership over a work, even if those rights have been transferred:

(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation. (Article 6^bis)

Building on Berne, other agreements have arisen, including the Trade-Related Aspects of Intellectual Property Rights agreement (TRIPS) (World Trade Organization, 1994). Because of the TRIPS agreement, all WTO member states now have a set of minimum standards regarding international intellectual property. According to Yu (2008), the TRIPS agreement is “a universal template for modernizing intellectual property systems” (p. 932). That said, Yu is careful to point out that the agreement primarily represents the interests of powerful WTO member states and does not itself fully address “the challenges confronting less developed countries and … the local conditions in these countries” (p. 939). Also problematic is the fact that implementing international agreements requires a well-developed judicial system to review cases and the political will to back up such an effort. Many countries have neither. Still, from the point of view of research, such agreements can serve as international benchmarks to guide ethical decision making. From these and other statements of law and principle, what has emerged over time is something close to a global consensus regarding copyright.

Fitzgerald and O’Brien (2006) described this consensus: “Moral rights [for example, the right of attribution, to be credited for the work, and the right to preserve the integrity of the work] stay with the creator or author. Economic rights [the right to control reproduction and communication to the public] go with the copyright owner” (p. 224). Fundamental to moral rights for authors are, first, the moral right of attribution: Content creators should be credited for their intellectual property. (See Lastowka, 2007). Second is the right to preserve the integrity of the work: The content should not be skewed, misrepresented, or changed in a way that dramatically changes the original intent or that violates the author’s integrity. (As we have pointed out, these moral rights for authors have a stronger legal tradition in Europe than in the United States. However, in U.S. Copyright Law, section 106a, added in 1990, does grant authors of works of visual art rights of attribution and integrity.

Some have criticized these international standards for being far too influenced by copyright legislation recently enacted by the U.S. Congress that expands the rights of copyright owners at the expense of the public interest (see Harmonizing Copyright’s, 2008; Reichman, Dinwoodie, & Samuelson, 2007). Doreen Starke-Meyerring (2005) argues that “globalizing processes are dominated by corporate neoliberal interests in the removal of government regulations from global markets through such organizations as the WTO, the IMF [International Monetary Fund], and the World Bank” (p. 485).

Despite these debates, an international standard is emerging that is fundamentally a human rights approach to intellectual property and a view of intellectual property that affords moral rights to the author stronger than those recognized in U.S. copyright law. Technical communicators doing Internet-based research should stay up to date on these developments.

The Complexity of Copying Digital Materials: One Example

Often it is in the specifics of an example that the complexities of intellectual property law are most evident. To that end, we ask you to imagine that we—Heidi and Jim—are technical communicators working for a software company. We have been asked by our employer to study other companies’ user help forums and help-related social networking sites to determine how users and technical developers communicate with each other in these forums.

We start our research project by collecting samples and reviewing different models of user help forums. One site we study is Adobe Support Forums (http://forums.adobe.com/index.jspa), in particular the Adobe Dreamweaver forums. For an example of the type of discussion we study, see the thread on “I need different type size to appear on the same line” (http://forums.adobe.com/thread/520240?tstart=0).

Our main research purpose for examining these sites is to determine how quickly and how accurately users requesting assistance received helpful answers to their questions. In short, do these online user forums actually work? And which models for online user help seem to work best? The goal for our research is to develop a better understanding of how social networking sites can provide user help and to recommend a model for such a site for our own company. At first our research will be presented at company meetings and in short internal reports, so the copying we do for this research will not be distributed publicly. But eventually we plan to distribute copied material more widely in conference presentations and perhaps even in research publications, because the company wishes to establish itself as a knowledgeable leader in the area of social networking and user help.

Can we, ethically and legally, use information from these forums? We have to begin by defining “use.” If we mean read-only (even if we are, technically speaking, downloading a copy of the forum to our local machine), then we are not reproducing or redistributing the information in any way that would cause a problem for intellectual property. Our “copying” is simply downloading for personal use, information, and knowledge—and such a use of publicly available information is highly protected under fair use/fair dealing provisions in all jurisdictions that we can imagine. If, however, our use of the information involves downloading and redistribution of the material to other readers for other purposes, that act of distributing copies pushes us into another level of consideration:

• What type of information are we copying (images vs. text)?
• What quantity of material are we copying (generic use vs. specific quoting vs. graphical capture)?
• For what purposes are we reproducing this material (commercial vs. noncommercial)?
• How are we distributing this copied material (how widely and by what means)?

The information on these user forums is publicly available on the Web, meaning that, even though we have not registered as Adobe forum users, we can access this page. But on the forum page itself, we do not see any statement about use, so we turn to the Terms of Use agreement.

Reading far into this agreement, we find this prohibition:

You are agreeing NOT to reproduce, sell, trade, resell or exploit for any commercial purpose, any portion of the Site, the Services or any Materials, use of any Service or Materials, or access to any Service or Materials. (Section 6, User Conduct, Subsection #19)

By quoting from an individual user’s post in this forum in the work for hire we are producing for our company, are we (a) violating that person’s copyright or (b) violating Adobe’s copyright? If the individuals have posted from countries around the world, as many in the Adobe help forums do, which countries’ copyright law applies? The law of the individual post writer’s country? U.S. law, because Adobe is a U.S. corporation? The law of the country where our corporation is based? The law of the country where we seek to present and publish our work?

As we hope is clear in this brief example of intellectual property, researchers face complicated and constantly changing laws, ethics, customs, international standards, and political stances toward the use of information. Somehow, researchers have to make some procedural sense out of this complexity—or at least enough sense to make prudent legal decisions about their research. So, rather than supplying specific answers to the questions in our hypothetical example (answers that would vary depending on the material being copied, the context of use, and the countries and technologies involved), we will provide a heuristic for researchers to reflect on the intellectual property implications of their copying activity.

A Copyright Model for Researchers: Questions to Consider

1. Identification of the material
   • Copying activity: What materials will be copied for this research project?
   • Authorship: Who is the author? Or, if the work was created collaboratively, who are the authors?
   • Ownership: Who is the copyright owner or owners?
   • Laws and regulations: What legal jurisdiction applies to this material?
   • Explicit licensing: What usage license, if any, is operative? In other words, what are the explicit directives and wishes of the author(s) and copyright owner(s)?
   • Implicit expectations: What are the implied expectations for copying and redistribution of this material—for the author, the copyright owner, the community at large? Cultural attitudes, customs, mores.
2. Use of the material
   • Purposes and venues: Why are you (the researcher) copying this material? For what particular use(s)? Are you copying for your own personal use as a researcher (e.g., to read an article)? Are you planning to distribute portions of this material in publications or presentations?
   • Commercial implications: To what extent is your use a nonprofit educational use versus a commercial use? To what extent might your use impinge on the future marketability of this material?
   • Substantiality: How much of this material are you copying?
3. Potential infringements and harms of using material
   • Infringement of IP rights: What are the potential harms to research subjects, authors, content creators, individuals, or communities of the use of this material?
   • Liability to researchers: What are the potential harms to the researcher working as an individual or on a team? What are the potential harms to the research community and to the potential for future research?
4. Overall ethical and legal decision
   • Justification: Given the answers to the questions above, is your copying of the material justified—for the research process, for presentation, for publication?
   • Permission: Should you request permission to copy this material?
   • Attribution: How should you credit authorship and/or ownership of this material?

What we have done in this heuristic is transform the fundamentals of many countries’ copyright laws and several international treaties into a set of exploratory prompts leading to a key legal and ethical decision: Should a researcher copy certain material and, if so, how?

An important aspect of this heuristic is gathering information and perspectives. In this endeavor, technical communicators would be wise to talk through these issues with colleagues (especially legal advisors, if the company employs a legal team); with fellow technical communicators (in national and international venues); and with the persons/corporations whose communications are being studied.

Conclusion: Strategies for Conducting Global Internet Research

We have described some of the complexities technical communication researchers face in navigating laws, regulations, and government practices. Abiding by legal and regulatory mandates while at the same time proceeding ethically with research can be difficult, especially with the myriad regulations and laws researchers face as a result of the increasingly global nature of their work. Conducting ethical research usually, but not always, involves abiding by a specific country’s laws, but legal and regulatory considerations are only one part of being ethical. As we hope is clear in our discussion, “the law” is a messy, moving target, constantly in a state of flux, open to various interpretations in different jurisdictions, and typically not up to date with regard to emerging technologies. For these reasons, technical communicators who are conducting Internet research need to stay informed about legal and policy developments, government and institutional regulations, and the like. At the same time, they need to be wary of viewing any laws and regulations as providing definitive answers to ethical questions.

We offer the following recommendations for technical communication researchers to consider as they seek to conduct global Internet research.

• Be informed about laws and regulations: Whether research occurs solely within one country or across many countries, it is essential that technical communicators consider appropriate and applicable laws. Consulting with company legal experts, if available, is recommended, as is communicating with other researchers who have conducted similar studies. Building from precedent, where available, can be helpful.
• Be informed of customs and cultural practices: Understandings of privacy of communications or ownership of texts are culturally influenced. Technical communicators should try to understand as much as possible the cultural expectations of the persons whose communications they are studying. In addition to reading relevant published work, holding focus groups or in-depth conversations with focal participants and key informants can be helpful.
• Be adaptable and flexible with research design: As any researcher knows, the best-laid plans often go awry. This is perhaps even more true in conducting global research, where the number of factors to consider increases exponentially. From oppressive (and even dangerous) regimes to diverse social customs, the technical communication researcher needs to adapt his or her research to balance competing needs. The researcher also might need to be prepared to abandon a project if the situation becomes too dangerous for the researcher or the people whose communications are being studied.
• Be able to explain and justify research to diverse audiences: A great deal of technical communication research involves cutting-edge digital technologies and communications that often outpace the ability of institutions and countries’ legal and regulatory bodies to address them. For this reason, technical communicators need to be prepared to explain and justify their research to diverse audiences, especially nonexpert audiences.
• Be comfortable with uncertainty: Laws, regulations, and cultural customs are constantly in flux, and even the most informed researcher will never have all the necessary information, especially when he or she is researching across borders.

Ultimately, technical communicators will need to exercise their own informed critical judgment, based on an in-depth understanding of relevant legal, legislative, and regulatory frameworks and on the circumstances and details of their own research contexts, as well as the cultural expectations and customs of the people and communities being studied.

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About the Authors

Heidi A. McKee is an associate professor of English at Miami University and affiliate faculty with Armstrong Interactive Media Studies. She is the Internet and digital media specialist on Miami’s institutional review board (IRB). She is co-editor of two recent edited collections: Digital Writing Research: Technologies, Methodologies, and Ethical Issues, which won the Computers and Writing award for Best Book of 2007; and Technological Ecologies and Sustainability (2009, ccdigitalpress.org). With James Porter, she co-authored The Ethics of Internet Research: A Rhetorical, Case-Based Process (2009). Contact: mckeeha@muohio.edu

James E. Porter is a professor at Miami University, with a dual appointment in English and Armstrong Interactive Media Studies. He has served on IRBs at Purdue University and Michigan State University. His books include Audience and Rhetoric (1992), Opening Spaces: Writing Technologies and Critical Research Practices (1997, with Patricia Sullivan), and Rhetorical Ethics and Internetworked Writing (1998). His latest book, co-authored with Heidi McKee, is titled The Ethics of Internet Research: A Rhetorical, Case-Based Process (2009). Contact: porterje@muohio.edu

Manuscript received 1 November 2009; revised 19 February 2010; accepted 19 March 2010.