Lisa Maruca Department of Interdisciplinary Studies Wayne State University Detroit, mi 48202 The Plagiarism Panic: Digital Policing in the New Intellectual Property Regime Presented at the ahrb copyright Research Network

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John Cahir has written for this conference that the moral justification for copyright law has been provided by a “public interest narrative” in which copyright is thought to encourage an increased production of works, the circulation of which, in general, promotes public welfare.41 We might recall the shorthand title of the first English copyright law, “An Act for the Encouragement of Learning.” This was later mirrored in Article I, Section 8, Clause 8 of the U.S. Constitution, in which protection was thought “to promote the progress of science and useful arts,” Even as late as 1954, the US Supreme Court, Cahir notes, explained that

The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of author and inventors in “Science and useful Arts” [Mazer v Stein 347 US 201].42

While the Court does reference “personal gain”—an important impetus that the law has long acknowledged—the emphasis throughout the first 250 years of copyright was on the way this gain encouraged learning. In this thrust, the domains of copyright and education might certainly be thought to intersect. Recently, however, the “public interest narrative” Cahir describes has taken a different emphasis. The European Parliament declared in 2001, for example, that

providing for a high level of protection of intellectual property, will foster substantial investment in creativity and innovation, including network infrastructure, and lead in turn to growth and increased competitiveness of European industry, both in the area of content provision and information technology and more generally across a wide range of industrial and cultural sectors. This will safeguard employment and encourage new job creation [my emphasis]. 43

In this rationale, the public good takes a new form. As Cahir notes,
The paragraph from the European Copyright Directive quoted above indicates the extent to which strong copyright laws have become conflated with economic growth and hence the public interest. The constant mantra of governments and producer interests is that in the absence of such protection investment will shrivel up, culture will wither and jobs will be lost.44

Public interest it seems, has moved from promoting learning to promoting industry. This is a subtle shift—learning was always thought to be of an economic good—but a profound one. And it is this latter form of public interest that the turnitin culture supports: one in which the educational function of texts is subsumed into their ability to produce jobs—for the author and others. All texts are always commodities. As I noted earlier, fears about plagiarism were purportedly fostered by the “Napsterization of knowledge.” Given the recent role that corporate interests have played in extending and restricting copyright in the name of public

good—concretely, in the Sonny Bono Copyright Term Extension Act of 1998—perhaps we should dub this new attitude the “Disneyization of learning.” Surely this is not a public good we wish to encourage as we point copyright in its new direction. If we wish to intercede, though, we must pay vigilant attention to the nature of discussion of all forms of intellectual property regulation and control.

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