Thursday, November 10, 2005

Flavors of intellectual property, and the Kansas NAS/NSTA affair

PZ Meyers points to Jennifer Granick's WIRED News editorial on the NAS and NSTA's decision to deny Kansas permission to incorporate NAS/NSTA science teaching standards into the state curriculum. It seems the NAS/NSTA doesn't want Kansas to use their materials to help implement the state's ridiculous curricular choices on biology and evolution.

A number of people have expressed mixed feelings about this. PZ ultimately comes down on the side of the NAS/NSTA. Donna Wentworth at Copyfight takes the opposite position. My reaction's straightforward: the NAS/NSTA's motives are good, but their actions are wrong, and copyright's not the appropriate legal mechanism for their purposes. Therefore, I believe the NAS/NSTA should let the goofballs in Kansas Board of Ed. use their materials. Furthermore, I believe the law should allow Kansas to do so, regardless of what the NAS and NSTA choose. While I'm wishing, I believe that Kansas should toss those clowns off its Board of Ed. Well, reality disappoints me in manifold ways, but that's nothing new.

Let's consider why some people might consideer the NAS/NSTA justified here. PZ suggests that NAS/NSTA are trying to prevent adulteration and misrepresentation of their work:

What the Kansas school board has done is to take a legitimate set of science standards, and patched in odd little bits of anti-science nonsense here and there, and called that their science curriculum. NAS and NSTA are merely saying, "Hold it! You don't get to trade off our name as scientific institutions and label that monstrosity 'Science'!"

However, it's not clear to me that the Kansas State Board of Ed. is actually representing their curriculum as consistent with NAS/NSTA's views. In fact, they're probably not --- as Granick writes:

NAS and NSTA do not have to endorse the Kansas Board of Education's decision to teach intelligent design. The theory isn't supported by science, and Kansas should not be able to imply that teaching it comports with NAS or NSTA standards. United States trademark law would certainly prohibit Kansas from claiming NAS or NSTA approval for its alternative curriculum.

If Kansas were to claim or imply that the NAS and NSTA endorse the Kansas science curriculum's shoddy science --- or even sow confusion about whether they do --- then NAS and NSTA would be within their legal rights to stop this trademark infringement.

In other words, to the extent that the NAS/NSTA have a legitimate legal interest here, it's in protecting the integrity of their names. This class of problems is covered by trademark law. Markets, whether in goods or information, work best when actors have "perfect information", which includes knowing the truthful past history of actors. Trademark law protects markets from the confusion that would result if one could muddy the waters around a name.

But NAS/NSTA aren't invoking trademark law. They're invoking copyright, which is a completely different kind of intellectual property. The purpose of copyright law is to provide an incentive to produce novel works, by allowing a creator to capture some of the work's economic value.

Copyright accomplishes this value-capture by granting the creator a limited, transferable monopoly on copies and derivative works. This seems like a fine mechanism for capturing economic value for the creator. But under current law, copyright's limited monopoly includes a veto power on whether derivative works can be created at all.

In my opinion, this is completely wrong. Copyright should never grant the author control over whether a derivative work is made, only on how the value from those works gets distributed. First, I don't believe creators have any moral right to prohibit derivative works, regardless of those works' nature. Second, in the US, intellectual property law's purpose is not to protect creators' moral rights, but to "promote the progress of the useful arts". Therefore, I believe derivative works should always be permitted, even where the uses involved far exceed traditional "fair uses", so long as the following conditions are satisfied:

  1. The creator of the derivative work does not create confusion as to the authorship and provenance of the work and its elements.
  2. The creator of the original work receives fair compensation for the dilution of that work's economic value, if any significant dilution occurs.

Obviously, in this case, the NAS and NSTA couldn't care less about economic value. Their invocation of copyright is in no way about preserving the incentive for them to continue producing teaching standards. It is about preventing the creation of a derivative work. And in the general case, preventing derivative work creation does not "promote the progress of the useful arts" (except indirectly and by accident, which isn't a principled basis for designing law).

Of course, I'm hardly a fan of so-called Intelligent Design, and none of the above exonerates, in any way, the Kansas School Board of Ed., which richly deserves all the contempt that has been heaped upon them.


  1. So what you're arguing is not necessarily the end result (NAS/NSTA demonstrating that they have no association with cultists nor do they endorse their dogmatic schemes) but that they used the incorrect legal mechanism?

  2. I rather like your idea on copyright. For a long time I’ve wished that a sizable campaign would start to reel in the excesses of current US law and to lay out sensible principles on which to base such law. Good luck.

    The trademark point seems spot on. If the NAS is offended by Kansas’s action, then they should certainly take steps to protect their reputation. I think they have a case for requiring that if Kansas does use the materials, then Kansas must include a disclaimer of any NAS support. This also strikes me as a better way to show that Kansas does not accord with accepted standards of teaching science.

  3. I'm of two minds on this. I can certainly see how the NAS/NSTA would not want their name associated with the Kansas Board of Educ., but who will be filling in the blanks when Kansas is no longer allowed to use the NSTA national standards? The same 6 board members who voted in the ID clause in the 1st place? Wouldn't this just cause more harm to the Kansas science curriculum?

    I can only hope that (more than) a couple of the 6 IDiot board members get voted out in time to reverse the decision before it goes into effect in 2007.

  4. For the record, I have been forbidden by Time-Warner to create a derivative literary work based upon an obscure movie. I have the letter from the TW vice-president to show for it (and several months of wasted labor). No haggling over price--just straight out prohibition.

    I've done the research, and I know that fair use protects my kind of expression. But webhosts won't give the individual the benefit of the doubt, and I have no intention on paying several thousands of dollars to prove that I am entitled to fair use.

    One other thing about clearance: media companies are notoriously slow about responding to clearance queries.

    for more about derivative works, etc, see Kembrew McLeod's book Freedom of Expression (which covers artistic works more so than general IP).

    The original purpose of the no-derivative works clause is to prevent people from making trivial changes to a copyrighted work and pawning it off as an original new work.