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Academic freedom in the classroom: discussions of infringement.

The impact of communication on higher education can create implications for academic quality and its learners. Two laws, the First Amendment and copyright, can act in tandem to enrich instructor and student discourse; the ability to share perspectives on the works of others opens opportunities for new and transformative discussions. However, what is discussed during an educational communication point may be limited due to regulations on free speech or accessibility to copyrighted work. As the technological landscape continues to evolve, so do the benefits and challenges of using it with these laws. The complexity of this intersection is not one that is readily noticed by all, easily discussed, or heavily examined by scholars; this causes greater problems for the future. Firm policy and procedures are lacking, and when paired with contradictory values held by administrators, faculty, policymakers and copyright holders, the dilemma mushrooms. Paul Horwitz (2007) contends that government interference hinders and constrains the roles universities play in contributing to the "broader world of social discourse."


Many instructors and professors are restricted in their communications to a degree that students are essentially escorted through their education, as opposed to being empowered. Downs (2009) writes in the Pope Center Series on Higher Education that, "the heart of academic freedom is the protection of the right of teachers, students, and researchers to express their ideas with intellectual honesty and without fear of reprisal," and adds that instructors "must not seek to indoctrinate students, and they must not present propagandistic or fraudulent material as truthful." As Hill writes, "Academic freedom is not a right but a basic necessity" (2010). Students and faculty should reach a common ground where all judgments, standpoints, and opinions are accepted and respected, but not necessarily agreed upon by everyone. That is the only way in which students will be encouraged to think critically. Downs (2009) clarifies that academic freedom only applies to public institutions "because the U.S. Constitution protects liberty only against illegitimate governmental or state action and law."

The current state of copyright law appears to benefit the copyright holder and his or her ability to generate revenue from his or her work (Aull, 2008; Crews, 2000; McLeod, 2007; Thornburg, 2003). The original guise of this law was to promote individuals to freely pursue creating intellectual property to benefit not only themselves, but society; current trends would indicate that there is more of a focus on the economic value to the individual copyright holder than to its impact on the public good (Aull, 2008; Cohen, 2008; Crews, 2000). The direct impact on education is in how it limits growth and discovery in any field (Aull, 2008; Crews, 2000). The Foucauldian idea of discursivity within and through all knowledge is stunted by the demand for monetary compensation for the rights to use intellectual property (Foucault, 1984; McLeod, 2007). The notion of enlightenment is replaced by return on investment.

The creation and protection of intellectual property is not meant to limit the use of another's work for purposes of education, research, or examination (Anderson & Elloumi, 2004; Aull, 2008; Carter et al., 2006; Caswell et al., 2008; Talab, 2007; Thornburg, 2003). The dominant and prevalent opinion of today is that the law is restrictive and limiting; stifling the competitive marketplace of ideas (Cohen, 2006; Crews, 2000; Gasaway, 2001).

Hired Work and Work for Hire

Many educational institutions are setting the standard for how one can speak about a topic in class and how it can be discussed with learners. Private colleges and universities have the right to draft and enforce their own ideals and rules, which could be better or worse for faculty in particular, depending on what actually occurs. Downs addresses the fact that private schools and religious schools "... are generally not subject to the First Amendment.... Unless these schools have bestowed academic freedom rights to their faculty through contract or charter, they possess the institutional right to circumscribe the freedom of students and faculty members, much like the power that any private corporation would enjoy" (2009). Hill (2010) cites Euben's 2001 review of U.S. case law in illustrating the tensions that exist between the institution and its faculty. Institutions have a right to decide how courses should be taught, and the faculty who are employed have academic freedom in doing the same. Euben defines the academic freedom of the institution as "the right to determine 'who may teach, what may be taught, how it shall be taught, and who may be admitted to study.'"

With a surge in developing online distance education programs by traditional state and private institutions as well as for-profit, fully-online universities, the capacity for copyright infringement increases. In addition, internal to academic bodies is the struggle to develop amicable ownership policies to intellectual property between the institution and faculty (Blanchard, 2010; Talab, 2007; Twigg, 2000; Ubell, 2001). Distance education must take into account not only copyright law as it stands today, but additional acts that govern and mitigate infringement. The Digital Millennium Copyright Act (DMCA) and Technology, Education, and Copyright Harmonization Act (TEACH Act) create opportunities for use of digital media within an online learning environment (Cohen, 2008; Cohen, 2006; Digital Millennium Copyright Act, 1998; Meese, 2010; Talab, 2007). Pairing these issues together creates for a gray area in which best practices and methods for fairly using copyrighted work and developing and managing online courses is desirable.

Creatively Fair Opportunities

Solid constructs and tenets regarding academic freedom need to be clearly identified and agreed upon by the stakeholders of higher education in the contemporary setting. Carr (2007) mentions the crucial fight to distinguish between education and indoctrination and how it is continually compromised. Cooke (2007) writes of the necessity for academic freedom at American universities, in that the classroom "is one place where the conflict should take place."

In a positive light, academic freedom can encourage students to think intelligently, and to think for themselves, when faculty provides them with the resources and training they need. Among the "essential freedoms" Garnett (2009) provides are the students' abilities to learn to think critically in their disciplines and to "draw their own reasoned the face of theoretical, empirical, and normative uncertainties." Areen (2006) points out in Government as Educator that while the First Amendment was never conceptualized as a benefit for university faculty under the umbrella of academic freedom, it can protect a professor's speech and power as a member of governing faculty.

Turning to copyright, one misnomer is the use of Fair Use Media Guidelines. It is important to note that although these guidelines exist, they are not law. These guidelines were part of The Conference on Fair Use (CONFU), which disbanded in 1997 after several attempts to reach a consensus on proposed guidelines (Crews, 2000; Gasaway, 2001; Thornburg, 2003). The guidelines were not to supersede previously established fair use rules for education (CONFU: The Conference on Fair Use website, 2004). Because copyright law and fair use practices may be unclear, the answer to educators' pursuit for copyrighted classroom materials may lie in the "copyleft"--a play off of its alternative nature to copyright--movement. Copyleft companies like Creative Commons allow copyright holders the ability to determine the licensing and fair use permissions for their works. Educators may access these materials and determine in what manners and to what extent they may use the materials according to the copyright holders' wishes.

As current copyright regulations stand, Creative Commons--and similar--materials may be the safest bet for educators when searching the Internet for classroom-worthy items. This is not to say that educators may not indeed be able to use other videos, songs, or presentations fairly, but that, if materials with similar educational outcomes exist within the Creative Commons, these materials should be pursued to avoid any potential infringement issues.

Opportunities for Further Examination

An area for future research regarding academic freedom in higher education would examine new, temporary, or adjunct-level faculty members through the ranks. Conducting a longitudinal study in how teaching and research styles change upon reaching various levels of promotion may yield interesting findings, assuming these instructors conform to department standards. Another area to investigate would be the cost-benefit ratio for faculty at public universities to stay within academia when free speech is limited.

The topic of copyright infringement is a major concern in general, but when associated with education, the topic becomes one of endorsing guidelines with no actual discussion on impact, ramifications, consequences, or cost from the perspectives of universities and faculty (Aull, 2008; Crews, 2000). However, a plethora of information discusses methods and rationale for student copyright infringement and plagiarism and how the university and instructors can minimize, mitigate, and educate on the topics (Nemire, 2007; Wada, 2008). Articles discuss what should be done, but no further supporting articles, research, or discussion on how guidelines are enforced towards universities and faculty exist (Aull, 2008; Crews, 2000; Thornburg, 2003; Twigg, 2000). It is unclear what legal actions have been taken or what strategies have worked effectively for minimizing and making educational programs successful in the arena of managing copyright (Aull, 2008; Crews, 2000). Infringement has the potential for becoming unwieldy, but with the proper controls, the program can be successful.


To begin the arduous process of ensuring academic freedom and copyright infringement are not drivers to education, a plan must be formulated that includes current reviewing processes and policies (Twigg, 2000; Wada, 2008). Administrators may need to start a level higher than an audit, by evaluating the entire process of how education is managed and executed on their campuses (Anderson & Elloumi, 2004; Twigg, 2000). The opportunity to study, to analyze, and to teach to another's work is the potential for discovery and deeper comprehension of not only the creator's particular work but of the larger discourse within which it resides.


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Julie L. Gomboc-Turyan

Department of Communications Media

Indiana University of Pennsylvania

Britta J. McCreary

Department of Communications Media

Indiana University of Pennsylvania

Robyn A. Defelice

Department of Communications Media

Indiana University of Pennsylvania

Laura E. Wilson

Department of Communications Media

Indiana University of Pennsylvania
COPYRIGHT 2011 Indiana University of Pennsylvania, Department of Communications Media
No portion of this article can be reproduced without the express written permission from the copyright holder.
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Article Details
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Author:Gomboc-Turyan, Julie L.; McCreary, Britta J.; Defelice, Robyn A.; Wilson, Laura E.
Publication:The Proceedings of the Laurel Highlands Communications Conference
Article Type:Report
Geographic Code:1USA
Date:Jan 1, 2011
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