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Genres as Forms of In(ter)vention
In his chapter in this volume, “History and the Disciplining of Plagiarism,” Michael Grossberg suggests that plagiarism should be differentiated, in part, according to the different spheres of activity in which it takes place. This suggests that plagiarism is not just an issue of intellectual integrity, or lack thereof, but also an issue of disciplinarity. Indeed, in their longitudinal study of first-year writing at Harvard University, Nancy Sommers and Laura Saltz describe how first-year students struggle to negotiate the “push and pull” of the novice and expert roles they variously occupy as they learn to write with authority about subjects and methods new to them. Apprentice writers struggle, in particular, to make nuanced, disciplinary-based distinctions about what is significant, what can be assumed, and what must be cited about a given subject (Sommers and Saltz 132). Part of the acquisition of disciplinary knowledge involves acquiring these nuanced distinctions, which can neither be learned once and for all across disciplines nor, when misused, legislated only through plagiarism policies and concerns about intellectual integrity. These distinctions, I argue, have less to do with questions of intellectual integrity than with how we understand the nature of imitation, particularly the complex interaction between imitation and invention that informs our disciplinary knowledge of what to imitate, in what way, and for how long, as well as when to reappropriate or transform what is imitated as our own invention. To understand these complex transactions between imitation and invention, we need to look at the spheres of activity in which they are differentiated, because it is within such spheres that participants make crucial distinctions between what is commonplace knowledge and what must be cited, between what is known and what is new. One important sphere of activity in which this interaction takes place is genre.
In this chapter, I examine the complex relationship between imitation and invention, arguing that imitation and invention exist on a genre-Page 80defined continuum and thereby have a variable relationship that we must acknowledge if we want to understand imitation’s inventive power—that genre-differentiated point of transformation where imitation becomes invention. To do this, I will turn to the concept of “uptake” as it has been described in recent genre scholarship. I hope to show that every imitation involves an uptake, and it is in the space of this uptake that we can gain insight into the nature of invention. At the same time, the space between imitation and invention also provides the opportunity for intervening in and resisting normalized uptakes. As I hope to show, genres are integral to this process of in(ter)vention, since they coordinate specific relations between imitation and invention. I will first explain what I mean by uptake as the space between imitation and invention, and then I will present two examples, one from research I have already done on writing prompts and student essays, and the other from the case of I, Rigoberta Menchú: An Indian Woman in Guatemala and the controversy it stirred.
Within speech act theory, uptake traditionally refers to how an illocutionary act (saying, for example, “It is hot in here”) gets taken up as a perlocutionary effect (someone subsequently opening a window) under certain conditions. Recently, Anne Freadman has brought uptake to bear on relations between genres, arguing that genres are defined, in part, by the uptakes they coordinate and sanction within systems of genre and activity: for example, how a call for papers gets taken up as proposals, or, as in Freadman’s more consequential example, how a court sentence during a trial gets taken up as an execution. Uptake helps us understand how systematic, normalized relations between genres coordinate complex forms of social action—how and why genres take up other genres and how and why they are taken up within a system of activity, such as, say, a trial or a classroom. Together, these inter- and intrageneric relations maintain the complex, textured conditions within which individuals identify, situate, and interact with one another in relations of power, and perform meaningful, consequential social actions—or are, conversely, excluded from them.
Uptakes, then, can be understood as the ideological interstices that configure, normalize, and activate relations and meanings within and between systems of genres. In her work on kairos (defined in classical rhetoric as timing and appropriateness), Carolyn Miller describes rhetorical timing as “the dynamic interplay between . . . opportunity as discerned and opportunity as defined” (312). Uptake coordinates typified relations between opportunities discerned and opportunities defined. These relations are typified because they are learned recognitions of opportunity that Page 81over time and in particular contexts become habitual. As Freadman has argued, uptakes have memories—knowledge of uptake is what helps us select, define, and recontextualize one genre in bidirectional relation to another so that one genre becomes a normalized response to another (40). As such, we can think of uptake as defining a horizon of possibility or opportunity that configures a specific relationship between imitation and invention. Knowledge of uptake is knowledge of what to take up, how, and when: when and why to use a genre, how to select an appropriate genre in relation to another, how to execute uptakes strategically and when to resist expected uptakes, how some genres explicitly cite other genres in their uptake while some do so only implicitly, and so on. In short, uptake constitutes a specific relation between the known and the new, repetition and divergence. What’s important to note here is that the relation between imitation and invention defined by uptake is not absolute or learned once and for all; rather, it is a genre-specific relation that involves recognizing when and how much to imitate; to what extent explicitly and to what extent implicitly; what must be acknowledged and what can be assumed as known; when to reappropriate or recontextualize (in short, transform) what’s imitated as one’s own invention; and whether something is worthy of being imitated in the first place. Such knowledge is often tacitly acquired and ideologically and disciplinarily consequential, especially when it is misused in ways identified as plagiarism.
To illustrate how uptake reveals and maintains particular genred relations between imitation and invention, I will turn to the example of assignment prompts and student essays, two genres related chronologically and kairotically. Chronologically, the writing prompt assigns a specific time sequence for the production of the student essay, often delimiting what is due at what time and when. At the same time, the writing prompt also establishes a kairotic relationship by providing the student essay with a timeliness and an opportunity that authorizes it. Participating within this kairotic interplay between two genres, the student must discern the opportunity granted by the prompt and then write an essay that defines its own opportunity in relation to the prompt. In so doing, students negotiate a complex relationship between imitation and invention, in which they are expected to take up the opportunity discerned in the writing prompt without acknowledging its presence explicitly in their essay. This uptake between the opportunity discerned in one genre and the opportunity defined or appropriated by students in another genre appears most visibly in the introductions of student essays.Page 82
In one particular case, students had read and discussed Clifford Geertz’s essay “Deep Play: Notes on the Balinese Cockfight.” They had been assigned to take on the “role of cultural anthropologist”; had conducted some field observations for research; and were then prompted to write, “in the vein of Geertz in ‘Deep Play,’” a
claim-driven essay about the “focused gathering” [a term that Geertz uses] you observed. Your essay should be focused on and centered around what you find to be most significant and worth writing about in terms of the “focused gathering” you observed. . . . Some issues you might want to attend to include: How does the event define the community taking part in it? What does the event express about the beliefs of the community? What does the event say about the larger society?
As they take up this prompt, we can see how students negotiate the possible range of relationships, to various degrees of success, between imitation and invention as defined between these two genres.
In those examples where students seemingly work on the periphery of the desired relationship between imitation and invention, the writing prompt can be discerned a little too explicitly in their essays. For example, one student writes the following:
Cultural events are focused gatherings that give observers insights to that certain culture. Geertz observes the Balinese culture and gains insights on how significant cockfighting is to the Balinese: including issues of disquieting and the symbolic meaning behind the cockfights. My observations at a bubble tea shop in the International District also have similarities with Geertz’s observations of the Balinese cockfight on the cultural aspect.
The phrases “cultural events” and “focused gatherings” locate the language of the prompt in the essay, but the first sentence simply imitates the language of the prompt rather than invents or recontextualizes it as part of the essay’s own constructed exigency. Similarly, in the second sentence, the only way to understand the relevance of the transition into Geertz is to know the prompt, which makes that connection. By the time the student describes her own observations in the third sentence, too much of the prompt’s background knowledge is assumed, so that, for the logic of these opening sentences to work, a reader needs the prompt as context. The student has not imitated the prompt in ways expected in this uptake, Page 83although if this were an answer to an exam question, the uptake might have been more appropriate.
Compare the opening sentences of the above essay to the opening sentences of the following essay:
When you want to know more about a certain society or culture what is the first thing that you need to do? You need to make and analyze detailed observations of that particular society or culture in its natural environment. From there you should be able to come up with a rough idea of “why” that particular culture or society operates the way it does. That’s exactly what Clifford Geertz did. He went to Bali to study the Balinese culture as an observer.
As in the earlier example, this excerpt borrows the language of the prompt, but this time, it reappropriates that language as it imitates it. Accordingly, the reader meets Geertz on the essay’s terms, after the student has provided a context for why Geertz would have done what he did. Basic as it might be, the question that begins the essay performs the transaction I described earlier, in which the student recontextualizes the question the prompt asks of him and asks it of his readers as if this is the question he desires to ask.
In the next example, the student begins her essay by describing underground hip-hop music and the function it serves for its listeners, and then poses the question: “Is music created from culture, or is culture created from music?” The second paragraph begins to compare hip-hop to symphonies:
On a different note, a symphonic band concert creates a congregation of different status people uniting to listen to a type of music they all enjoy. “Erving Goffman has called this a type of ‘focused gathering’—a set of persons engrossed in a common flow of activity and relating to one another in terms of that flow” (Geertz 405). This type of “focused gathering” is an example of music created from culture.
By posing the question, “Is music created from culture, or is culture created from music?” the student invents an opportunity for her essay based in the opportunity presented in the prompt. This is the question the student is asking. In this excerpt, the student does not rely on the prompt’s authority to justify the claim that “a symphonic band concert creates a congregation of different status people uniting to listen to a type of music they all enjoy.” Instead, she appropriates the authority the prompt grants her to Page 84assert this claim. Only in the context of her authority does Geertz then figure into the essay. The student uses the quotation from Geertz to make it appear as though Geertz’s description of a “focused gathering” was meant to define her focused gathering, the symphonic band concert. The determiner “this” no longer modifies the cockfight as Geertz meant it to; instead, it refers back to the concert. In a way, this move creates the impression that the student found Geertz rather than having been assigned to use Geertz, thereby deftly managing the relation between imitation and invention that is expected when students take up the prompt in their essays. The above examples indicate how the transaction between imitation and invention is differentiated, learned, and reproduced as part of genre knowledge—in this case, knowledge of assignment prompts and student essays, and their uptake profiles.
The next case allows us to examine how uptake can be a site of intervention when it exceeds a genre’s normalized relation between imitation and invention. I will briefly outline the case of Rigoberta Menchú and the book I, Rigoberta Menchú: An Indian Woman in Guatemala, which both won her the Nobel Peace Prize in 1992 and generated a controversy that would play itself out in the popular press and within academic circles to this day. After providing some context for the book and controversy, I will examine both from the perspective of genre and uptake.
First published in 1983 and then translated from Spanish into English in 1984, I, Rigoberta Menchú narrates the testimony of Rigoberta Menchú, as told by Menchú to anthropologist Elizabeth Burgos-Debray, who transcribed, edited, and published Menchú’s testimony. In the book, Menchú, then twenty-three years old, recounts her struggle as a Mayan peasant growing up in war-torn Guatemala, including her community’s traditions and the destruction of the Quiche-Maya way of life; the horrific working conditions on the country’s coffee plantations, which led to the death of two of her brothers; the kidnapping, torture, and murder of her mother and another brother; her father’s battles with oppressive Ladino landlords; the death of her father when Guatemalan security forces set fire to the Spanish embassy in Guatemala City, which her father and other activists had occupied to protest human rights abuses; and the peasants’ attempts at resistance by joining forces with guerrilla movements. The power of Menchú’s testimonio drew the world’s attention to the suffering of the indigenous peoples in Guatemala and won her acclaim as a human rights advocate. The book became an international best seller as well as required reading in many university courses, and, in 1992, won Menchú the Nobel Page 85Peace Prize. More significantly, by bringing international attention to the suffering of indigenous Guatemalans, Menchú’s book helped pressure the Guatemalan government to sign a peace agreement with the Guatemalan National Revolutionary Union in 1996.
I, Rigoberta Menchú fulfills the genre conventions of a testimonio, in which a witness is moved (by conditions of war, repression, struggle, subalternity) to narrate his or her testimony, often to an interlocutor who records that testimony (Beverley 32). The act of testimony, of bearing witness to the events the narrator recounts, is one of the defining features of the genre, which emerged in the 1960s and developed in close relation to movements of national liberation and revolutionary activism, especially in Latin America—in fact, I, Rigoberta Menchú was first published by Cuba’s Casa de las Américas, which began awarding a prize for testimonios in 1970 (Beverley 31–32). Indeed as John Beverley has defined it, testimonio is a representation and form of subaltern agency that brings an alternative voice and politics into the public sphere and its dominant genres (19). In the voice it gave to Menchú and the solidarity it brought to the resistance movement in Guatemala, I, Rigoberta Menchú fulfilled the genre’s function.
In 1999, anthropologist David Stoll published Rigoberta Menchú and the Story of All Poor Guatemalans, which argued that Menchú could not have been an eyewitness to some of what she recounts having seen, especially the torture and killing of her brother along with twenty-three guerrillas, and that some of what she describes either did not actually happen the way she claims or has been exaggerated for effect. For example, Stoll questioned Menchú’s claims about her lack of education and disputed her version of the conflict over land ownership and the relationship between the indigenous Indians and the guerrilla movement, which Stoll claims Menchú framed in ways that supported her revolutionary agenda. Stoll is careful to note that the human rights violations Menchú describes did occur: “that a dictatorship massacred thousands of indigenous peasants, that the victims included half of [Menchú’s] immediate family, that she fled to Mexico to save her life, and that she joined a revolutionary movement to liberate her country” (viii). Nonetheless, some of these events did not happen in the versions she tells them and not always to her or her family, leading Stoll to describe Menchú’s testimony as “mythic inflation” (232). Since Stoll’s findings, Menchú has conceded that in some instances, she grafted other people’s experiences into her own (Beverley 109 n. 24).
When a New York Times reporter verified (and, Menchú supporters argue, simplified) Stoll’s research, the findings ignited a controversy that Page 86was played out academically and publicly. The resulting controversy saw some critics calling the book a “piece of communist propaganda” and Menchú a liar. Some called for the removal of the book from college courses (Operation Remove Rigoberta), and bemoaned it as an example of the problems with political correctness and postmodernism, while others, like David Horowitz, called it a “monstrous hoax,” “a destructive little book,” and “one of the greatest hoaxes of the 20th century.” At the same time, political and academic supporters hailed the book for its literary strength, for its ability to give voice to the voiceless, and for its ability to create change in the world (see Arias; Beverley).
How can we account for the passion and ferocity of these critiques and the responses to them (for example, see the rebuttals of Arias; Beverley; Eakin; Robin)? On one level, one could argue that Menchú’s testimonio pushed the notion of “witness” beyond its genre-expected uptake profile. If I, Rigoberta Menchú were a novel, for example, it would not be an issue whether or not Menchú actually witnessed the events she narrates. In pushing the boundaries of uptake beyond those expected of a testimonio, however, Menchú seems to have challenged that genre’s relationship between imitation and invention, imitating the genre’s form of individual witnessing but reappropriating or reinventing it, perhaps excessively, as collective witnessing. In this way, she could be said to have intervened in the relationship between imitation and invention in a way that resisted the genre’s normalized uptake, granted her power to speak, challenged the dominant social order, and brought on charges of deception.
But by many scholarly accounts, I, Rigoberta Menchú does not, in fact, exceed its genre that much. Scholars such as Beverley and Carey-Webb, for example, point out that testimonios often offer one’s experiences as representative of collective memory and identity, thus displacing the “master subject” of modernist narrative and stressing “the personal as reflective of a larger collective” (Beverley 34–35, 64; Carey-Webb 6–7). In fact, Menchú announces this at the very beginning of her narrative:
My name is Rigoberta Menchú. I am 23 years old. This is my testimony. I didn’t learn it from a book, and I didn’t learn it alone. I’d like to stress that it’s not only my life, it’s also the testimony of my people. It’s hard for me to remember everything that has happened to me in my life. . . . The important thing is that what has happened to me has happened to many other people too: My story is the story of all poor Guatemalans. My personal experience is the reality of a whole people. (1)
If I, Rigoberta Menchú did not exceed its genre (both in terms of its notion of witness and in its political agenda), then we need to look, not at how Menchú took up the genre, but rather at how her book was taken up by readers, especially in the United States, where it had such resonance. I argue that the book achieved the circulation and attention it did, and had the impact it did, in part, because it was generally read as an autobiography, a genre that holds powerful cultural capital in North America. (References to it as autobiography, especially among opponents like Horowitz, abound to this day.) Autobiographies not only hail a certain readership; they also fulfill certain desires for life-writing and the assumptions embedded in and elicited by these desires. These include a view of self as unambiguous, coherent, and interiorized subject; an understanding of memory and experience as individual and private; and a juridical understanding of testimony as something accorded to an “eyewitness.” In fact, John Beverley has argued that, as the expression of public achievement and bourgeois notions of self, autobiography affirms social order and one’s place in it, a trajectory quite different from testimonio’s political project of reappropriating the power to define reality and enact social change (40–41).
In being taken up and figured as autobiography, I, Rigoberta Menchú hailed a readership expecting these desires to be fulfilled, a readership that re-presented Menchú’s testimony in a form of dominance that it was seeking to dismantle. At the same time, however, in being taken up as autobiography, it may have gained a readership and an influence it would not otherwise have had, and in so doing, challenged the very assumptions about subjectivity and testimony that had granted it circulation and attention in the first place. (Throughout her testimonio, Menchú describes how her community used cultural forms of power such as the Spanish language or the Bible against those who imposed these forms on them.) This recontextualization of uptake from one genre to another, I argue, in part helps to explain the assault that some readers felt when they learned that Menchú had elided or misrepresented her narrative, because it reconstituted the relationship between imitation and invention from one expected in testimonio to one expected in autobiography. But such reconstituting of the expected transaction between imitation and invention is also what allowed I, Rigoberta Menchú to intervene the way it did.
The two examples I have presented reveal that uptake is a site of both invention and intervention, a site of transformation guided by genre knowledge. When students take up the writing prompt as their essay, they Page 88are negotiating a complex, normalized transaction between imitation and invention. Likewise, when I, Rigoberta Menchú intervenes in normalized uptakes (in how it is taken up), it enables a form of resistance. Imitation always involves an uptake, a learned (and genred) recognition of opportunity that informs what we take up, why, and how. By making these choice points, these points of transformation, analytically visible to students, we enable them to participate more critically and effectively as readers and writers, because it is within uptake that the opportunity for in(ter)vention abounds.
1. Rebecca Moore Howard makes an important distinction between plagiarism as fraud (submitting a purchased paper as one’s own, for example) and plagiarism as misuse of sources. While the former involves much more clearly issues of intellectual integrity, and can be legislated, the latter strikes me as having much more to do with issues of disciplinary knowledge, and must be addressed within various spheres of activity.
3. Yates and Orlikowski’s work on the function of chronos and kairos in communicative interaction describes how, within communities, related genres choreograph interactions among participants and activities chronologically (by way of measurable, quantifiable, “objective” time) and kairotically (by way of constructing a sense of timeliness and opportunity in specific situations).
7. In Scandals and Scoundrels, for example, Ron Robin refers to I, Rigoberta Menchú as autobiography. This question of naming, I argue, is not merely a semantic difference, as the genre we use to identify the text informs how we take it up.
8. It is important to acknowledge the role that Menchú’s interlocutor and editor, Elizabeth Burgos-Debray, played in how I, Rigoberta Menchú was taken up. In transcribing Menchú’s testimony, Burgos-Debray reordered the transcripts to render them in consumable form. As she explains to David Stoll: “Rigoberta’s narrative was anything but chronological. It had to be put in order. . . . I had to reorder a lot to give the text a thread, to give it a sense of a life, to make it a story, so that it could reach the general public” (Stoll 185). As an intermediary between Menchú’s testimony and how it would appear in published form, Burgos-Debray thus contributed to how and why metropolitan readers would take it up as many of them did. In part, one could argue that readers took up I, Rigoberta Menchú in ways that Burgos-Debray initially took it up.
Arias, Arturo, ed. The Rigoberta Menchú Controversy. Minneapolis : University of Minnesota Press, 2001.
Bawarshi, Anis. Genre and the Invention of the Writer: Reconsidering the Place of Invention in Composition. Logan: Utah State University Press, 2003.
Beverley, John. Testimonio: On the Politics of Truth. Minneapolis: University of Minnesota Press, 2004.
Carey-Webb, Allen. “Transformative Voices.” In Teaching and Testimony: Rigoberta Menchú and the North American Classroom, ed. Allen Carey-Webb and Stephen Connely Benz, 3–18. New York: State University of New York Press, 1996.
Eakin, Paul John. The Ethics of Life Writing. Ithaca, NY: Cornell University Press, 2004.
Freadman, Anne. “Uptake.” In The Rhetoric and Ideology of Genre, ed. Richard Coe, Lorelei Lingard, and Tatiana Teslenko, 39–53. Cresskill, NJ: Hampton Press, 2002.
Grossberg, Michael. “History and the Disciplining of Plagiarism.” Paper presented at Originality, Imitation, and Plagiarism: A Cross-Disciplinary Conference on Writing, Sweetland Writing Center, University of Michigan, Ann Arbor, September 23–25, 2005.
Horowitz, David. “I, Rigoberta Menchú, Liar.” Salon.com, January 11, 1999. http://www.salon.com/col/horo/1999/01/11horo.html, consulted July 8, 2007.
Howard, Rebecca Moore. “Representations of Plagiarism in Mainstream Media and on Campus.” Paper presented at Originality, Imitation, and Plagiarism: A Cross-Disciplinary Conference on Writing, Sweetland Writing Center, University of Michigan, Ann Arbor, September 23–25, 2005.
Menchú, Rigoberta. I, Rigoberta Menchú. Ed. Elizabeth Burgos-Debray. Trans. Anne Wright. New York: Verso, 1996.
Miller, Carolyn R. “Kairos in the Rhetoric of Science.” In A Rhetoric of Doing: Essays on Written Discourse in Honor of James L. Kinneavy, ed. Stephen Witte, Neil Nakadate, and Roger Cherry, 310–27. Carbondale: Southern Illinois University Press, 1992.
“Operation Remove Rigoberta.” Front Page Magazine, May 12, 1999, http://www.frontpagemag.com/campaign/rigobertacampaign.htm . Consulted January 30, 2001.
Robin, Ron. Scandals and Scoundrels: Seven Cases That Shook the Academy. Berkeley and Los Angeles: University of California Press, 2004.
Sommers, Nancy, and Laura Saltz. “The Novice as Expert: Writing the Freshman Year.” College Composition and Communication 56, no. 1 (2004): 124–49.
Stoll, David. Rigoberta Menchú and the Story of All Poor Guatemalans. Boulder, CO: Westview Press, 1999.
Yates, JoAnne, and Wanda Orlikowski. “Genre Systems: Chronos and Kairos in Communicative Interaction.” In The Rhetoric and Ideology of Genre, ed. Richard Coe, Lorelei Lingard, and Tatiana Teslenko, 103–21. Cresskill, NJ: Hampton Press, 2002.
When Copying Is Not Copying: Plagiarism and French Composition Scholarship
The past fifteen years have seen an explosion of research about higher-education language activity—reading, speaking, and writing—in France. A key focus of this research has been students’ interaction with other sources, with the discours d’autrui (the discourse of others), in particular through discussion of paraphrase, quoting, citing, and student authority in academic writing. It is clear from this research that fascination with plagiarism is far from universal. French education does not emphasize avoiding plagiarism as we know it; in fact, some French writing and teaching practices can even encourage it. Informal interviews with French teachers and students give a preliminary sense of the French understanding of plagiarism. “What is that?” say students. Secondary-school faculty tell us that discussing plagiarism is not part of the curriculum. A few university faculty mention occasional trouble with students who buy papers, but most are quick to point out that undergraduate grades and diplomas are primarily awarded based on exams—taken in person, handwritten, graded blind. This perspective on plagiarism intrigues, in an era when teachers, administrators, and scholars in the world of U.S. composition studies struggle daily with a wide variety of plagiarism issues, generally lumped together under the one term and evoked with disdain, anger, or even a sense of personal injury.
Composition theories and pedagogies in France have always treated reading and writing as an integral whole; authority and ease in inhabiting others’ discourses is valued over “originality” in school writing, at least until advanced postsecondary studies. France’s complicated relationship with source use and textual authority begins in the relationship students are invited to develop with source texts early in their schooling. Paraphrase, however, is not a welcomed tool in that textual relationship; secondary and postsecondary students are taught an entrenched aversion to it.Page 91
After a brief overview of French teaching practices as related to source use, I will present a few textual movements in French students’ writing in order to suggest alternative cultural understandings of the textual authority students might inhabit. I will propose that French students are taught to enter into relationships of equality and play with other texts, and that this leads them to a different understanding of the already-said. This does not necessarily ease their transition into advanced research writing in their fields, but does strikingly shift emphasis away from issues of plagiarism. Finally, I will offer a theoretical linguistic frame for describing this relationship with the term reprise-modification, adapted from French linguistic theory. I believe this frame will help to complicate the often reductive U.S. understanding of plagiarism, while encouraging a rethinking of French practices as related to paraphrase.
French Practices: Writing and Source Use Instruction, Secondary and Postsecondary
In French secondary schooling, writing is taught in all disciplines; it is always taught in relationship to reading and speaking; and writing instruction is extensively theorized with a mix of education, linguistics, and literary theory. This instruction lays the groundwork for both the abilities students acquire and the problems students face in higher education. Practically speaking, the end of French secondary school is considered the beginning of postsecondary education; the final exam, the baccalauréat, is le premier grade universitaire (the first university degree) and the student who passes it is guaranteed a university seat. That weeklong exam is writing-intensive. University Writing or University Methods has always been a course in postsecondary technical fields such as engineering. Work on writing has equally been an intense part of the curriculum in elite school tracks (écoles préparatoires and grandes écoles). Since the late 1980s, the government has required one-credit first-year courses in research, thinking, and writing of all entering students in traditional university cycles; these courses have quickly become, in some settings, writing-in-the-disciplines courses, al-though in other settings the mandate has been ignored.
As students work on writing across their secondary or postsecondary curriculum, paraphrase, citation, quoting, and other explicit text interactions are treated differently at different grade levels, as well as in the study of literature versus the study of nonliterary texts. Officially, paraphrase is a secondary and early postsecondary education concern related to writing Page 92about literature, while citing and quoting are more advanced undergraduate or even graduate study concerns, reserved for writing in particular fields.
The roots of the French perspective on student writing, paraphrase, and literary texts are in the French relationship with the aesthetic. In the ancient and medieval rhetorical traditions, the paraphraser was initially considered on par with the original author when providing reformulations of sacred texts (Daunay 72). Bertrand Daunay suggests that a paraphrase was seen as similar to a translation: a reformulation respecting the enunciative system of the source, a form of quasi- or shared authorship through ownership of the language manipulation. The paraphraser changed the expressions but traced his text on the original (73). Paraphrase was also originally a way to teach text production through the heuristic action of reformulating others’ texts. By the Renaissance, it had evolved into a commentary and an explication, not just a rendering (75). It was not until the 1800s that paraphrase became the object of academic criticism and disdain.
Avoiding paraphrase is today the subject of extensive explicit commentary in French textbooks and the Instructions Officielles, the state-mandated secondary school curriculum. Any paraphrase of literary texts read for assignments is discouraged, even punished. In a way reminiscent of our admonitions to avoid “just summarizing” (the plot, the story line, the chronology . . .), both faculty and textbooks in France warn students to avoid paraphrasing literary works, generally classified among the least sophisticated or least successful forms of literary commentary. “Run from paraphrase,” one textbook says, “which repeats the text while diluting it and transposes its original phrasing into ordinary prose, in order to explain ‘what it means’” (Daunay 21). To explain a literary work’s meaning by rephrasing it into “ordinary” language removes its aesthetic value, and thus its true meaning. Daunay cites another textbook that admonishes, “Repeating the text in another form . . . only gives rise to paraphrase, inevitably deforming because the signifier always changes the signified, imperceptibly if one is talented, but generally enough that the text becomes unrecognizable in its paraphrased translation” (13). In this version the challenge for students is even more complicated—either copy outright or develop original thoughts, but do not reformulate, no matter how sophisticated the paraphrase might be. The term copying reflects a complex concept that we cannot afford to take for granted in cross-cultural discussion. Both of its most obvious meanings—the actual re-production of objects or signs versus the act of doing the same kind of thing—play out in students’ experiences Page 93working with text. French practitioners do not use the word copying but in effect encourage it in both forms: reproducing precise phrases and frames on the one hand, and “doing the same” on the other. The latter is not a case of “imitating” in the creative or rhetorical tradition, but of taking on the discursive role and position of academics, without necessarily inhabiting them at first.
Paraphrase is also treated, indirectly, in reference to students’ work with texts that are not strictly “literary” (essays, news articles, memoirs, documents, editorials, and so on). Students are asked to respond to these texts, and are taught to summarize nonliterary texts quite radically—they learn to reduce texts to precisely one-quarter their length, maintaining the original message, maintaining key phrases, while shortening and condensing the text overall. This ability is a cornerstone to academic writing activity, and a rigorous way to learn to manipulate (in the positive sense) ideas, words, meanings, and concepts—without citing, quoting borrowed phrases, or recognizing in some other way the author of the original text. Quoting and citing are not even mentioned in most school course manuals and textbooks until late undergraduate or master’s-level documents. In any analysis of nonliterary texts, up until roughly the end of undergraduate studies, students copy many of the ideas and even phrases from assigned texts with no citations or quotation marks. They build on ideas from texts read in class or for an exam, rephrasing them (barely), occasionally mentioning the author, and then providing additional examples or ideas of their own. The kernel of an idea and the actual phrasing are recast but are not credited. Students thus speak with and through the text or texts themselves, inhabiting voices, often appropriating even the style, tone, or voice of the pieces to which they respond (for examples, see appendix). Students also take up the language of assignment prompts. This is qualitatively different. If we can say that normally we would not expect a student to cite the language of the assignment, this is not so much a case of uncited words as a reusing of the assignment language that shadows the reusing of excerpts read in class, and so is considered acceptable in the same way.
When students reach later undergraduate and graduate writing work, they are required to write in a discipline and to authoritatively reflect on what they read, understand it in context, critique it if need be, represent it accurately, and position themselves with respect to it. After a first round of writing that still relies on abilities developed in secondary studies, most students move into researched writing or writing that synthesizes multiple sources read for class or read in addition to class. This is the first time students Page 94will work with abstract theoretical discourse in the discipline they have chosen. Because writing is often not taught at these later stages, or is taught in optional “methodology of research” writing courses, the references are found primarily in commercial guides sold in bookstores or in locally produced university pamphlets for students working on senior theses and other end-stage academic projects. Students struggle with parts of this new challenge of managing the discours d’autrui, but in response French scholarship reflects a nurturing paradigm (or an exasperated one) rather than a punitive one.
Michel Guigue and Jacques Crinon tell us that acceptable processes and practices in drafting include
- using explicit quotes in earlier drafts that act as a well of material and ideas to draw from (the later draft still has some quotes as quotes but has other ideas left in the draft in paraphrase or summary form with no reference or citation);
- including earlier short actual cited quotes that later become longer close paraphrase, cited or not;
- borrowing detailed observations from a source without citing them in what scholars consider the later, improved version. This borrowing would typically be considered a form of plagiarism in a U.S. classroom, but here is considered a successfully thorough “appropriation” of the text and the material, showing that the student has become comfortable with his or her status as a member of the disciplinary community in question. (83–86; see examples, appendix)
Copying, Close Paraphrase, and Polyphony: The Scholarly Perspective
While plagiarism has not become the focus of scholarly discussion in France, students’ management of multiple voices in their essays has. Scholarship on the subject is clearly interested in understanding students’ complex relationships with text and supporting students’ integration into the discourse of a field without judging them for overly close work with sources. French writing research thus extensively explores university students’ work with other texts, with a focus on la polyphonie énonciative, literally the “multivoiced uttering” of students’ speaking or writing or even reading at the university, a work with language that is understood in a Bakhtinian frame: “Someone who apprehends the utterances of others is Page 95not mute, silenced; on the contrary, he or she is a being full of interiorized words” (qtd. in Guibert 29).
Scholars study students’ actual primary research in many cases, with requisite secondary research (literature reviews, for example) or secondary research that includes use of texts studied for class and use of class notes and professors’ lectures. Consistent with practice, most of their explanations point to paraphrase as a “poor reintroduction of the original” rather than an effective interpretation of a source, and explore troubles students have with reformulation or quoting. The aesthetic judgment being made about the effective language of an original source versus the always-otherwise rephrasing of it appears to carry more weight than the judgment about “borrowing/not borrowing” language or crediting a source.
While the French method described earlier for secondary writing education builds students’ ability to work in a textual frame and to inhabit academic discourse, it does not produce a uniform ability to work effectively with texts once students arrive at the university. French students clearly have trouble managing polyphonic writing (in 2002 an entire conference was dedicated to the problem). The difference often surfaces when students start working with the discourse of others, in particular the theoretical discourse of others in researched writing (Reuter 14). Yves Reuter focuses in particular on the problem of “patchworks,” accumulations of quotes and juxtaposition of quoted material that dominate some students’ essays. French research identifies students’ need to learn how to get their voices into the “academic concert” (9) and to have the opportunity to “feel their way.” This “feeling their way” perspective is part of the backdrop for the relative flexibility in university acceptance of forms of plagiarism like missing citations, close paraphrase, word-for-word borrowing, or other forms of “copying,” including stylistic copying.
Students’ earlier textual work responding to essays has clearly helped to create some of the difficulties identified by scholars. Marie Christine Pollet and Valérie Piette lament students’ deference to authority, a deference that appears, to the outside observer, to arise naturally from their earlier years of exactly this kind of writing. They also explore students’ trouble with effective quote integration (167), including dropping in quotes without fully understanding them (173), and citing insignificant details (173). Here, Pollet and Piette give the example, with dismay, of a student who quotes and cites a definition, and, to boot, one “that the professor surely knew” (173). The professor-as-audience and the context of school-based writing dominate.Page 96
Voice is another complication that has attracted French scholars’ attention. Françoise Boch and Francis Grossman describe in detail the overlap of voices, the smudged distinctions, the difficulty of telling who is speaking in the student’s text, all considered to be signs of a lack of polyphonic mastery (91). Pollet and Piette comment on the erasure of students’ authorial voices; Rozenn Guibert describes one aspect of this complication as “voice confusion,” the awkward situation of a student writer who literally loses track of a source text and begins to take on the attitude, persona, and perspectives of an author from whom he or she is working (38). This can also lead to mismanagement of meaning: “Certain students . . . generalize excessively, erasing nuances and modalizations present in the source document: ‘certain doctors’ becomes ‘doctors’; ‘some historians affirm that . . .’ becomes ‘historians agree that . . .’” (Pollet and Piette 175). Boch and Grossman point to other entrenched problems: not recognizing the different value of sources, not knowing why a particular source point is being introduced or cited, and tending to drop in information dogmatically, “not because the student does not know how to cite but because the student does not know how to ‘own’ the text being cited” (9).
Theorizing the writing and the teaching of writing that works with other texts certainly implies for French researchers an occasional discussion of formal citation work. But this discussion serves to get at questions of identity: what are the relationships between the one voice and the many? Between the writer and the reference? What subject positioning is encouraged, enabled, or prevented? What power structures are at play, how is the self-defined status of the student-subject presented, which utterance modes are used, what is the play of references in interaction with each other? What points of view, what ways of treating others’ voices can we identify (distance, modulation, appreciation . . .), and what genres can be analyzed? Much of the focus is on identifying features that might help the novice writer-researcher to understand the stakes, the history, the existing structures and paradigms into which he or she is integrating written work; to resist or further the agenda of a field; and to develop hypotheses that matter and are relevant to these issues. Isabelle Delcambre includes issues of student unfamiliarity with the literature and culture of a particular discipline as part of the problem (personal interview, May 30, 2006).
The problems evoked are rarely considered plagiarism. When they are, it is just disappointing, even described as an immature concern. Plagiarism as such is mentioned only once in the recent special issue of the journal referenced here, Apprendre à Citer le Discours d’Autrui. Boch and Grossmann Page 97cite the following two postsecondary textbooks as childish, even infantile in their perspectives on plagiarism: “A principle of scientific work concerns referencing material: when borrowing a text from an author, mention the source. It would be serious to be accused of plagiarism. Someone who copies an author’s work and attributes passages of the work to himself has plagiarized” (95). “It is not only a question of intellectual honesty, you will make yourself guilty of plagiarism, which will be sanctioned by the examination committee” (95). They conclude that plagiarism should be avoided because peers in the scientific community have no respect for plagiarized work and would, in fact, reject an article or a book that provided neither correct citation nor references to the history of preceding publications (96), rather than be treated as an object of moralizing discourse.
Pollet and Piette point to a student sample in which a citation for some specific information appears to be missing and immediately reject the idea that it might be plagiarism, quoting Elisabeth Nonnon:
This kind of trouble is inevitable in an activity in which reading and writing are inextricably linked; one reads to nourish the reflection for one’s essay, one writes to synthesize and integrate borrowings that one has made during the process of developing knowledge. Learning to situate effectively one’s own discourse in relation to different discourses of others, marking out the transitions between sources. . . , all of this plays out partly in a working out of the utterance indicators one chooses. (173)
Effective quoting and citing are treated, in the scholarship, as an art; the goal is working from an author-based world (an author’s text, words, ideas) toward one’s own. “We can distance ourselves from the theme of plagiarism,” insist Boch and Grossman, “and push for the importance instead of understanding “polyphonic management . . . it does not matter whether enunciative interference is from bad faith actions or clumsiness. The result, in fact, is the same from the point of view of written communication—and this point of view is the one that we feel should be highlighted” (101; emphasis added). Scholars and teachers feel that the different forms of quoting, citing, and paraphrasing acceptable for different fields add to the complications for students. The university is not always clear with students about the best approach to take: “The anthropologist who cites his informants, the compiler who uses the ‘method of massive excerpts,’ and the journalist who references sources in passing. None of these approaches seems right to us. But what exactly do we expect of our students?” (Guibert 42).
Recasting the Issues: Paraphrase, Plagiarism, Originality, and the discours d’autrui
While the French practices and positions take a more nuanced view of plagiarism, they seem to miss the boat on paraphrase as a necessary language act. Students find themselves in a real bind, as they cannot accomplish the requisite close readings of literary texts without paraphrasing, an unavoidable textual movement that both renders and interprets. The French understanding of paraphrase is theoretically in a bind as well: in spite of itself, it supports the Bakhtinian understanding of every utterance as simultaneously new and already said: “There can be neither a first nor a last meaning; [anything that can be understood] always exists among other meanings as a link in the chain of meaning, which in its totality is the only thing that can be real. In historical life this chain continues infinitely, and therefore each individual link in it is renewed again and again, as though it were being reborn” (Bakhtin 146). Notice that for Bakhtin, this reformulation is not only rich and positive but unavoidable; the language, as Bakhtin argues, has been completely taken over,
shot through with intentions and accents. . . . All words have a “taste” of a profession, a genre, a tendency, a party, a particular work, a particular person, a generation, an age group, a day and hour. Each word tastes of the context and contexts in which it has lived its socially charged life. . . . Language is not a neutral medium that passes freely and easily into the private property of the speaker’s intentions; it is populated, overpopulated—with the intentions of others. (273–74)
Building from Bakhtin, the French linguist Frédéric François offers us the concept of “reprise-modification,” an essential textual movement, the simultaneous appropriation and modification that every new utterance, even direct and credited quoting, involves: an always-dynamic-taking-up-and-modifying, past-present-future in degrees of concert. This dynamic act is not a single act but a broad sweep of sorts of discursive modification: reaccentuations, mixtures, paraphrases, transpositions, forced changes of background, and so on (correspondence, 2006). The concept of reprise-modification might allow both French and U.S. writing specialists to move into new dialogue about paraphrase, plagiarism, and source use in our students’ work. We might begin by reconsidering copying and paraphrasing as forms of reprise-modification. Copying’s long and honored history in Page 99many fields is seen as a mode of learning, an apprenticeship method: art, music, writing, technology.
Considered from the frames of both translation theory and linguistics, copying is multilayered and multinatured. Translation theory encourages us to think about language not only in its “naming” relationship, as it creates equivalents, and “copying” into another language, but also in the way it develops understanding, interprets, through the “this is like this” relationship that reminds us of the very nature of originality in its literary iterations. To learn to speak, or write, is to learn to translate (Paz, cited in Barnstone 23). Some translation theories today pose the translator as author, as original text worker, suggesting that this textual work is no different from other reuses of available language, a perspective that recalls the early understandings of manuscript copying as authorship. If translators are authors and we posit the essential discursive movement in all language use as reprise-modification, then the act of reading is clearly part of the language production relationship. Translators necessarily see the fabric of discourse as heteroglossic, a reprise of the already-said, a complex working through of existing language in perpetually new forms, even when they are copied word for word or rendered equivalent through translation.
In students’ writing, the voices in a draft—the multiple student voices, peers’ voices, teachers’ voices, voices from texts read—are the polyphonic utterances to be managed, inhabited self-consciously, orchestrated. Writers reprennent-modifient the thematic, macrostructural, rhetorical, linguistic, syntactic, and microstructural elements of already-existing discourse—copying that is not copying but a complex and culturally defined intellectual action, Bakhtinian to the core. As I have argued elsewhere, we can think about copying as one strategy along a continuum of strategies of reprise-modification: “reproducing, quoting, tracing, imitating, shadowing, miming, paraphrasing, summarizing, referring to, linking outward from a single word, indirectly suggesting, referring to through connection to a cultural commonplace, echoing through association, stylistic allure, or implied assumption, and so on” (Donahue 95). Nothing is ever clearly exact copying or wildly loose translation or paraphrase. Every one of these language acts is intertwined with the others, and all are necessary steps in text construction. What’s more, the same actions can exist as different forms along that continuum, functioning in local versions, with differing intents, with differing receptions at different points in time or location. Summary in one instance is read or received as interpretation in another; Page 100an imitation in one era is read as a poor copy in another. Claiming plagiarism, from this point of view, becomes quite difficult.
In French essays, the nature of the student’s relationship with the text he or she has been assigned to read is qualitatively and specifically different. In secondary school writing, literary texts are revered aesthetic objects, and nonliterary texts are objects of appropriation. In school essays, the text’s authority is equal to the student’s as he or she speaks with and through the original essay. The French strategy of working closely with nonliterary text seems to provide an authority quite different from, for example, the expressive authority provided through narrative writing. Both existential and discursive positions are woven through a student’s text. In university students’ writing, the nature of this relationship shifts; students are asked to work with theoretical discourse and to more clearly demarcate their own voices and ideas from those they are studying. But the essential understanding of students’ work as polyphonic reprise-modification leads both teachers and scholars to focus on the nature of the management and the discursive development of the new members of a discipline, rather than the moralistic, legalistic, or otherwise shame-filled act we like to call plagiarism.
APPENDIX: EXAMPLES OF STUDENT WORK
I offer here a few specific examples excerpted from studies of French students’ essays, representative of what I have found in larger samples. The first text was written in first year of university studies, in a required writing class. It is a response to an assignment that specifically asks students to work with an excerpt of a text by Joël de Rosnay. The second and third examples come from Guigue and Crinon.
|What a long path to follow ... as not everyone has the same chances or the same talents.||This long work of analysis is not permitted to everyone.|
|Signs, also, of a “flight” from a society that has become competitive, aggressive, and violent ...||This tendency translates the need for renewal and for flight from a system that, more and more, harms individuals.|
We also see close paraphrase of the assignment itself.Page 101
|What does the author mean when he writes, “managing one’s life mean accessing a certain form of liberty, of autonomy”? Do you think this concept is desirable and possible?||What does this management of our life mean? We will see whether this concept is desirable and possible...|
|Draft 3||Draft 7 (final)|
|First of all, as P. Meirieu observes in Apprendre, Oui, mais Comment? that children do not know the specificity of the spoken word that resides in the fact that speech is a continuous flow of words not split up into sentences, . . . This is qually underscored by the work document of December 1996 refined by M. A. Morel and L. Danon-Boileau.||We observe first of all that the specificity of speech resides in the fact that it is a continuous flow of words that only vocal pauses split up. . . . This property is equally highlighted by M. A. Morel and L. Danon-Boileu.|
|Draft 2||Final Improved Draft|
|In conclusion, I will cite Barrè de Miniac: “Becoming the subject of one’s writing, the author of one’s texts, is being able to establish conscious strategies, to analyze the expectations of the reader, the stakes of the situation.”||In addition, as Barrè de Miniac points out, becoming the author of one’s texts means being able to take into account the knowledge that one shares with a future reader, analyzing the expectations of the reader.|
1. This is a problem that is rapidly spreading in French-speaking countries. See, for example, “Plagiat: Les cas augmentent à l’Université,” http://www.tsr.ch/tsr/index.html?siteSect=200001&sid=6427564 .
2. See, for example, the conference proceedings of the Association Internationale de Recherches en Didactique du Français (International Association of Research in the Theory and Teaching of French) and the publications of multiple research laboratories in France, in particular the Université de Lille III research group, THEODILE, the Université Stendahl-Grenoble research group LIDILEM, and the Université de Page 102Bordeaux II research group Psychologie de l’Education et du Développement. More information about these French research groups and activities can be found at http://comppile.tamucc.edu/wiki/CompFAQsInternational/InternationalWritingStudies .
3. I will not enter here into the grand debate about arbitrary dichotomies such as literary-nonliterary. I use the distinction here only because that is the distinction that has tended to dominate French education. In recent years, the dichotomy has been melting away as “literary” texts are studied for their construction of arguments, and “nonliterary” texts for their literary style. The category of creative nonfiction has also been introduced.
4. For a full discussion of this complicated process, see Daunay.
5. I find this commentary particularly telling. We often speak with disdain of the old-fashioned perspective that the idea can come before the writing and the writing simply expresses transparently that idea. The French rejection of the possibility of paraphrasing literary work makes me wonder whether we understand the degree of complexity of the act we ask students to perform in their research, reading, and writing.
6. How do we determine at what point something is “owned”? French scholars O. Dezutter and F. Thirion suggest that there is not that much difference at the university between appropriating another’s speech (say, a lecture) and appropriating another’s writing (109). Students come to learn and we want them to appropriate knowledge and be comfortable in the discourse of the field; at what point does something—class discussion, a professor’s discourse—no longer get cited?
7. There is less flexibility for experts. Boch and Grossman say that experts know both the implicit and the explicit rules and are likely using deliberate strategies when they mask quoted material or erase frontiers between source material, paraphrase, and their own words (102). This is a fascinating reversal.
9. This student’s text is treated in detail in Donahue, “Lycée to University.”
Bakhtin, M. M. Speech Genres and Other Late Essays. Trans. V. W. McKee. Austin: University of Texas Press, 1986.
Barnstone, Willis. The Poetics of Translation. New Haven: Yale University Press, 1993.
Boch, Françoise, and Francis Grossman. “De l’usage des citations dans le discours théorique.” Apprendre à Citer le Discours d’Autrui 24 (2001): 91–112.
Daunay, Bertrand. Eloge de la paraphrase. Versailles: Presses Universitaires de Versailles, 2002.
Delcambre, Isabelle. “Formes diverses d’articulation entre discours d’autrui et discours propre.” Apprendre à Citer le Discours d’Autrui 24 (2001): 135–66.
Delcambre, Isabelle. Interview with author. May 30, 2006.
Dezutter, Olivier, and Francine Thirion. “Comment les etudiants entrants s’approprient-ils les discours universitaires?” Spirale 29 (2002): 109–22.Page 103
Donahue, Christiane. “The Lycée to University Progression in French Students’ Development as Writers.” In Writing and Learning in Crossnational Perspective, ed. David Russell and David Foster, 134–91. Urbana, IL: National Council of Teachers of English Press, 2002.
Donahue, Christiane. “Student Writing as Negotiation: Fundamental Movements between the Common and the Specific in French Essays.” In Writing in Context(s): Textual Practices and Learning Processes in Sociocultural Settings, ed. Fillia Kostouli, 137–64. Amsterdam: Kluwer Academic Publishers, 2004.
François, Frédéric. Le discours et ses entours. Paris: l’Harmattan, 1998.
Guibert, Rozenn. “”Citer et se situer.” Apprendre à Citer le Discours d’Autrui 24 (2001): 29–48.
Guigue, Michèle, and Jacques Crinon. “L’usage des lectures dans l’elaboration et l’exposition des mémoires professionnels d’IUFM.” Apprendre à Citer le Discours d’Autrui 24 (2001): 71–90.
Pollet, Marie-Christine, and Valérie Piette. “Citations, reformulations du discours d’autrui: Une clef pour enseigner l’ecriture de recherche?” Spirale 29 (2002): 165–80.
Reuter, Yves. “Je suis comme un autrui qui doute.” Apprendre à Citer le Discours d’Autrui 24 (2001): 13–28.
The Dynamic Nature of Common Knowledge
When teachers discuss source citation with their students, inevitably the subject of common knowledge comes up. Students struggle to understand which information they should cite and which their audience will consider common knowledge. In response to this struggle, teachers tend to define common knowledge in terms of form (is it a fact?) or availability (how many sources have the same information?). Unfortunately, these limited definitions do not take into account the dynamic nature of common knowledge and discourse communities. In addition, teachers who consult professional literature in an effort to solve this dilemma will find virtually no discussions about the nature of common knowledge in composition studies. With the availability of information increasing daily, the diversity of the college student population, and the growing popularity of pedagogical strategies such as theme courses, our current approach to common knowledge is inadequate for our students’ needs. In this essay, I argue for a more dynamic definition of common knowledge and suggest pedagogical strategies to enact this new approach. My purpose is to expand our current definition of common knowledge by analyzing the assumptions underlying this definition and by applying theories of discourse communities. My goal is to encourage teachers to move beyond believing that common knowledge is a stable entity that remains consistent regardless of rhetorical concerns and toward a new conception of common knowledge that takes into account the evolutionary nature of literacy and knowing.
While conducting research on how teachers represent source use and plagiarism to their students, I had the opportunity to read dozens of student essays from two first-year composition classes and one junior-level literature class and became intrigued by the idea of common knowledge. In Page 105order to code the students’ essays to determine incidences of patch-written or plagiarized material from secondary sources, I first had to eliminate common knowledge information, a time consuming and sometimes difficult process. This elimination process was further complicated by the fact that both of the first-year composition classes were organized around themes; as such, the students spent most of the semester discussing a specialized area of knowledge. In one section, the class discussions and readings focused on work, while the other section’s theme was memory and erasure. Because the classes focused on these themes, the students developed a common field of knowledge that they often displayed in their essays. As the semester progressed and the students grew in their understanding of the class theme, the amount of uncited common knowledge material in their essays increased.
The popularity among students of researching via the Internet further complicates common knowledge. Just as it is often defined based on the type of information, common knowledge is often defined by the availability of information. I will discuss some of these definitions in more detail in a moment, but for example, one popular rule of thumb is that if the exact same information can be found in four different sources, it can be considered common knowledge. Since each URL indicates a separate source, the same information disseminated on the Internet can easily be found in multiple sources, depending, however, on how we define a “source.”
For example, in an essay on the importance of strikes in the early labor movement, one student wrote:
One of the most well known of these [strikes] was the Bay View Tragedy, May 5 1886, where workers who were peacefully marching to get their 16 hour work day reduced were shot at by police, seven marchers died.
This information is not cited in the student’s essay. Using a word string search on Google, I found more than four different sites had this same information but not the same phrasing that the student used. Each of the sites I viewed was an electronic version of a different newspaper account of the Bay View strike, yet each was the same story from the same wire service. So did that count as four sources or one? In the traditional sense of the word, “source” equates with a particular publication, but as the availability and duplication of electronic information increases daily, that definition and the assumptions that accompany it are not as effective as they once Page 106were. However, because of the general nature of the information and its availability on the Internet, I classified this passage and others like it as common knowledge.
At times, it was difficult to differentiate between common knowledge and a student’s argument. In the same essay on unions, the student wrote:
It is important to note though, that it is the union that has the power to strike. Employees working without a union find it not only nearly impossible to strike, but worthless. A union allows enough workers to strike that it hurts the company, however it also limits your ability to get paid more than the other workers. The unions have their good and bad points much like strikes, but a strike will almost never occur unless it is union organized.
Is this information the student gleaned from sources and class discussions or is the student making an argument? Without talking directly to the student, it is impossible to say for sure. I ultimately classified this passage as common knowledge, both because the topic of the strikes had been extensively discussed in class and the information in the passage is very vague. (The student refers to unions and strikes in general, not specific unions or events.)
Both of these examples illustrate the importance of discourse community context in determining whether or not particular information can be considered common knowledge. My initial response to the first passage was to label it patch writing because the student used the name and date of the event without citing the source. Only after investigating the possible sources of the information did I see that it could also be considered common knowledge. For the second passage, the classroom context and the evolution of that particular discourse community provided the swing vote for my decision. Had I simply read the paper as an outsider, I would have been more likely to classify that material as patch-written as well.
For students and teachers alike, deciding what is and what is not common knowledge can be both crucial and extremely frustrating. An error in judgment can result in a verdict of plagiarism from the teacher, and common knowledge is at best a slippery concept. The resources available to students offer limited help in this matter; handbook advice tends to be formulaic or nonexistent. For example, in Doing Honest Work in College, a text devoted to ethical academic behavior, Charles Lipson never mentions common knowledge, focusing all of his attention on various styles of citation Page 107and academic honesty, including a detailed discussion of avoiding plagiarism, both deliberate and “accidental.”
In Rules for Writers, Diana Hacker defines common knowledge as “general information that your readers may know or could easily locate in any number of references” (403). She adds, “As a rule, when you have seen certain general information repeatedly in your reading, you don’t need to cite it. However, when information has appeared in only a few sources, when it is highly specific (as with statistics), or when it is controversial, you should cite it” (403). This same advice is in both the MLA and APA sections of the handbook. However, the examples Hacker uses differ in each section. In the MLA section, she uses the facts that “Toni Morrison won the Nobel Prize in 1993 and that Emily Dickinson published only a handful of her many poems during her life” as examples of common knowledge (403). But the examples she uses in the APA section are quite different. She states, “For example, the approximate population of the United States is common knowledge among sociologists and economists, and psychologists are familiar with Freud’s theory of the unconscious” (458). What’s different in these two sets of examples is the specification of discourse community members, which I will discuss in more detail in a moment.
Robert Harris, author of The Plagiarism Handbook, defines common knowledge as “whatever an educated person would be expected to know or could locate in an ordinary encyclopedia” (19). He specifies three types: “easily observable information,” “commonly reported facts,” and “common sayings,” each with several examples (19). He also explains that in particular instances, such as using common knowledge in a direct quote, common knowledge still needs to be cited. In a flowchart that maps the decision-making process of whether or not to cite material, Harris differentiates between material the writer thought of (a problematic distinction in itself) and information that would be considered common knowledge. Later in the book, Harris reminds his readers that “any item of background information you mention must be cited unless it is common knowledge” (23).
There are several assumptions underlying both Hacker’s and Harris’ approach to common knowledge:
Assumption Number 1: Students will be able to determine what their audience considers to be common knowledge. Hacker equates common knowledge with “general information . . . readers may know,” while Harris uses the phrase “whatever an educated person would be expected to know.” The fail-safes built into these phrases are qualifiers like general, may, educated, and Page 108expected; these vague terms require writers to make judgments about their readers’ knowledge about the topic. However, without explicit experience with a discourse community, students really aren’t able to make this decision. Beginning writers in particular also have difficulty with audience analysis, making it almost impossible for them to gauge what their audience does or does not know.
Assumption Number 2: The use of examples in explanations of common knowledge provides sufficient information for students to make judgments about the commonness of the information they include in their essays. The strategy of providing examples as substitutes for detailed explanations is fairly common in handbooks. The belief being enacted here is that students will be able to internalize the strategies associated with the examples and then transfer those strategies to their own writing. In Hacker’s examples, one explanation mentions specific discourse communities and the other does not. The discourse communities she does mention are sociologists, economists, and psychologists, professional communities to which the majority of our students do not yet belong. However, as we can see from the examples of student work I mentioned before, knowledge about the discourse community is necessary in order to judge the commonness of the examples. Sometimes even those of us considered expert can lack the necessary knowledge base; for example, while I knew Toni Morrison had won the Nobel Prize, I didn’t know in what year she won it. Does that mean I’m not an expert member of the discourse community that uses MLA for its documentation?
Assumption Number 3: Successfully integrating common knowledge into a text only involves deciding whether or not the information should be cited. In handbooks, common knowledge is defined and explained in terms of what action the writer should take—to cite the material or not. Yet studies of citation analysis show us that expert writers approach common knowledge differently, basing their decisions not on whether the information is or is not cited, but rather on how that common knowledge is rhetorically cued in the text. In her analysis of common knowledge in scientific essays, Koutsantoni details the various markers of common knowledge expert writers employ and the effect those markers have on an audience. These markers generally fall into two categories: “evaluative adjectives, such as well-known or common” and “expressions of generalized attribution, such as it is known [or] it is widely accepted” (Koutsantoni 175). These markers have multiple functions: they “stress the author’s commitment to certain commonly held beliefs,” they “add to the argumentative force by presenting the view as Page 109one which is not theirs alone, but one which is shared with the wider community or with relevant experts,” they indicate “endorsement of sources which are highly respected in the field,” and they allow the authors to “emphasize their own status as members of [the community] by showing awareness of these sources and by their relevance to their work” (Koutsantoni 176). By using these rhetorical cues, expert writers indicate which information is held in common by the community and which is new information.
Assumption Number 4: Common knowledge is an established, static set of facts. None of the reference resources I consulted portrayed common knowledge as something other than what is “known,” ignoring the fact that what is “known” evolves over time. New information enters the knowledge base; old or faulty information fades out. As Hunt argues, “Information and ideas are not inert masses to be shifted and copied in much the same way two computers exchange packages of information, but rather need to be continuously reformatted, reconstituted, restructured, reshaped, and reinvented and exchanged in new forms” (2). Our cultural knowledge base increases daily; therefore, our common knowledge base increases as well. It’s also true that some of what used to be common becomes uncommon: it is forgotten. Common knowledge also changes from community to community and within a community. It is not a static entity, but one that grows with the society, the group, and the individual.
Assumption Number 5: Students will be familiar enough with the field of study to be able to tell the difference between ideas that are “common” and ideas that are “controversial” (Hacker 403). When initiates enter a field of knowledge, familiarity with the dominant concepts is marginal at best. As the student continues to work and learn in a specialized field, her knowledge of the dominant ideology and information increases. The longer she remains active in the field, the more that knowledge base increases. However, undergraduate writers are at the beginning of this learning cycle and may be hard pressed to determine which ideas are common and which are not.
Assumption Number 6: The concerns of a specific discourse community are secondary to the location and prevalence of the common knowledge. Apparently where and how often we find the information overrides discourse community requirements. The majority of handbooks make no attempt to include discourse convention specifics when defining common knowledge; in-stead, handbooks tend to define common knowledge by where it’s found, how often it’s found, and whether or not the audience is likely to recognize it as common knowledge. However, as we’ve already seen, the context of Page 110the discourse community and the knowledge base it develops continually evolves and plays a profound role in determining what information its members hold in common and what is new information to all or some of the members.
In addition to these assumptions, the information missing from these discussions is also quite revealing. For example, there is no mention of using common knowledge to establish solidarity and credibility with readers such as Koutsantoni describes. As Ann Johns points out, members of a discourse community have shared genre knowledge, and one aspect of this is “shared knowledge of text content,” which includes “the types of content and vocabulary that are brought into the text, the ways in which the content is organized, the assumptions about prior knowledge of readers and . . . appropriate use of details” (31). Certain words, ideas, and theories become repeated so often in a discourse community’s communications that every other member recognizes and understands their significance. Indeed, a writer announces her membership in a particular community by employing these commonplaces appropriately. Writers who are experienced community members recognize that these commonplaces don’t need to be cited because they have a more thorough understanding of the shared textual knowledge of the group; inexperienced members, on the other hand, are forced into a guessing game: to cite or not to cite?—or, following the advice of most handbooks, overcite. While this latter practice allows them to avoid plagiarism, it also announces their novice status and thus diminishes their credibility or authority with their readers. If these novice members are fortunate, they have access to more experienced members who can guide them through this decision-making process. Unfortunately, as Johns claims, “Many students receive little or no instruction” in discourse conventions and are left to discover the rules through trial and error (68). Error in this case can be an extraordinarily risky proposition for the student.
Also absent from discussions of common knowledge in handbooks and other reference texts is the effect different readers can have on a text. Handbook advice tends to portray all readers as being the same, requiring the same approach and responding in the same way. Nowhere is this less true than in the academic world, where the teacher is not only reader, but peer reviewer, judge, and sometimes executioner.
When a teacher takes it upon herself to decide whether or not information in a student’s text is or is not common knowledge, she is asserting her authority over that student’s text. This authority has more weight than the Page 111authority a lay reader asserts. When a lay reader makes judgments about a text, those judgments affect only her interpretation of or response to the text. A teacher, however, wields an additional authority that the average reader does not. If an average reader rejects a text, the effects on the writer are minimal. The reader might refuse to read the rest of the text, or tell a few acquaintances that she didn’t like it, or she might respond to the text in writing via a letter or some other form of discourse. On the other hand, the teacher has the authority not only to reject a text she perceives as faulty, but also to prevent further dissemination of that text to other readers and impose some sort of penalty on the writer. A verdict of plagiarism or sloppy citation practices from the teacher imposes sanctions on both the writer and the text that stem from the teacher’s perception of the author’s strategy. If, for example, one of these sanctions is to fail the paper, then the writer’s text is stopped in its tracks. Even a less severe punishment, such as requiring the student to revise the text, requires the writer to alter the text before it is read again. My argument is that this position of authority leads the teacher away from the role of reader and toward the role of judge in situations where the role of reader would be more beneficial to the student. The role of reader allows the teacher to mentally inquire into the student writer’s possible motives and take into account discourse community conventions, while the role of judge requires a purely evaluative response. If teachers assume the role of reader, they can be more flexible in their responses to questions regarding common knowledge. They can suspend their judgment while reading essays, similar to what Peter Elbow encourages in the believing game, allowing different possible interpretations of common knowledge in a text rather than judging it by the standards of a discourse community with which students may have only marginal or intermittent contact.
As participants in the classroom discourse community, teachers also have the unique opportunity to introduce and prompt discussion of the conventions of discourse communities and the role common knowledge plays in community communications. Setting discussions of common knowledge in this larger context allows teachers to move beyond the formulaic handbook advice to more complex rhetorical issues such as the textual cues Koutsantoni describes and the idea of using common knowledge to establish solidarity and authorial authority with the reader.
In addition to changing the reader position they assume, teachers can also borrow inspiration from other forms of common knowledge. One of these is how common knowledge is utilized in the corporate world. Nancy Page 112Dixon’s Common Knowledge: How Companies Thrive by Sharing What They Know details the systems and strategies major corporations use to share common knowledge. While Dixon takes great pains to point out that her use of the term common knowledge refers to the “‘know how’ rather than the ‘know what’ of school learning” (11), her analysis of how companies create and disseminate information still provides us with valuable insights into new ways to view common knowledge. For example, in her discussion of how knowledge is transferred from one team to another, she describes three changes in perspective that accompany these transfers:
- The first is a shift from thinking of experts as the primary source of knowledge to thinking that everyone engaged in work tasks has knowledge someone else could use to advantage.
- The second is a shift from thinking of knowledge as residing with individuals to thinking of knowledge as embedded in a group or community.
- The third is a shift from thinking of knowledge as a stable commodity to thinking of knowledge as dynamic and ever changing. (148–49)
Each of these shifts relocates common knowledge from the individual to the community, from the static to the dynamic, to a “reciprocal model in which all contribute and all receive” (152). This corporate view of common knowledge supports the idea that common knowledge in composition can be viewed as a more complex proposition than the current characterization of it allows.
By framing conversations and instruction about common knowledge in the larger context of discourse community conventions and expectations, we can help our students move beyond the formulaic handbook approach to resolve questions on common knowledge in several ways. They will be able to approach common knowledge and citation practices from a more informed perspective, one that takes into account the effect of their audience on how and what they cite. Students will gain a more realistic picture of how information is created and transferred from one community to another, and the emphasis will shift away from the individual toward collaboration with other individuals and texts. Finally, resolving questions about the dynamics of common knowledge can promote critical thinking, discussion, and reflection about the larger issues of source citation and intertextuality. In short, we can help students develop the qualities of academic thinkers and writers we set as goals for our classes.
Dixon, Nancy. Common Knowledge: How Companies Thrive by Sharing What They Know. Boston: Harvard Business School, 2000.
Elbow, Peter. Writing without Teachers. New York: Oxford University Press, 1973.
Hacker, Diana. Rules for Writers. 5th ed. New York: Bedford/St. Martin’s, 2004.
Harris, Robert. The Plagiarism Handbook: Strategies for Preventing, Detecting, and Dealing with Plagiarism. Los Angeles: Pyrczak, 2001.
Hunt, Russell. “Let’s Hear It for Internet Plagiarism.” Teaching and Learning Bridges, November 2004. http://www.usask.ca/tlc/bridges_journal/v2n3_nov_03/v2n3_internet_plagiarism.html, consulted December 1, 2003.
Johns, Ann M. Text, Role, and Context: Developing Academic Literacies. New York: Cambridge UP. 1997.
Koutsantoni, Dimitra. “Attitude, Certainty and Allusions to Common Knowledge.” Journal of English for Academic Purposes 3 (2004): 163–82.
Lipson, Charles. Doing Honest Work in College. Chicago: University of Chicago Press, 2004.
Instinctual Ballast: Imitation and Creative Writing
In his Handlist of Rhetorical Terms, Richard A. Lanham defines mimesis as “imitation of gesture, pronunciation, or utterance; self-conscious role-playing, as when a rhapsode reenacts the poem he is reciting” (102). As defined by Lanham and discussed by thinkers from Plato to Erich Auerbach, mimesis and imitation are inseparable from the endeavor of representation itself; most creative arts are distinctly mimetic in their practice. In our contemporary landscape, however, creative writing is almost never taught with mimesis at the forefront of students’ or teachers’ minds. Instead, the pedagogical method in many workshop courses seeks to enable the student to “discover” her own voice, as if she existed in a form of literary vacuum. Students in such courses might be asked to do an occasional imitation exercise, but the serious practice of imitation is seldom pursued in any focused manner in most creative writing programs.
Even in a literary culture that continues to prize “originality,” however, imitation is a viable apprenticeship for a writer. In the past few years under the auspices of the Northwestern University creative writing program, I have taught undergraduate creative writing courses that consisted only of reading and imitating a handful of major American poets: Robert Frost, Elizabeth Bishop, Louise Bogan, Gwendolyn Brooks, and James Merrill; and though this sort of course goes against the grain of many curricular expectations, I have been astonished at the caliber of poetic work that imitation yields from students.
Because the imitation course is an amalgam of what we might, in other circumstances, think of as discrete “literature” and “creative writing” courses, it rejects the way in which institutions cordon off complementary aspects of the mind into separate disciplines. This helps students, in turn, Page 115to begin to reject the myths and clichés of who the scholar and the poet should be: those discrete and supposedly mutually exclusive perimeters that determine how we identify ourselves as producers of literature, whether “critical” or “creative.” The course thus cultivates the writer, to parse Luce Irigaray, “which is not one.” It’s built upon a radical valuation of the writing act itself—what Stevens called “the poem of the mind in the act of finding / What will suffice”—and the ways in which such an act emerges both steadily and unpredictably from a lifelong act of reading.
The task of the writer who is not one writer, then, is to reinscribe disciplinary boundaries that are fluid as well as rigorous. There’s a way in which the straight workshop format, as practiced in some programs and institutions, can relegate the reading act to what is “not said”—almost to the realm of the unconscious. A poem might have been “influenced” by another, and we may learn as much over the course of workshop discussion; but that influence is thought to lie, almost indiscreetly, outside the artificial boundary that contains what is thought to constitute creative production. In such courses, reading is ground but not figure; the assumption, but not the task at hand. Yet this is precisely the task that writers need to consider in their own work, since text necessarily generates text. Many creative writing courses may not actively ask how to read as a writer: how should I be reading; what can I be reading; and especially: how, in this culture of images, can I line my life with words, with print? These questions are not only crucial for undergraduates, who are still very much in the stage of formation, but also should be vital to any writer for whom the re-formation of self and work remains a perennial value. By making literary texts the centerpiece of our courses rather than the background, we can teach our students not only to read as writers—“poetry is an art that reading, at its best, can imitate,” Mary Kinzie explains (2)—but also to write as readers. This is a viable practice that literary critics from Helen Vendler to Judith Ryan have discussed. (Indeed, Ryan’s Rilke, Modernism, and Poetic Tradition re-creates Rilke’s writing desk.)
Italo Calvino knew quite a lot about the Reader, whom he allegorized as a character in If on a Winter’s Night a Traveler. The male writer goes in search of this female Reader, Ludmilla by name, who keeps a crowd of picture frames in one corner of her wall:
The frames are all different, nineteenth-century Art Nouveau floral forms, frames in silver, copper, enamel, tortoiseshell, leather, carved wood; they may reflect the notion of enhancing those fragments of real Page 116life, but they may also be a collection of frames, and the photographs may be there only to occupy them; in fact some frames are occupied by pictures clipped from newspapers, one encloses an illegible page of an old letter, another is empty. (Calvino 144)
What is the import of that last, superfluous, melancholy frame in the Reader’s house? Perhaps it constitutes a certain moment of transformation that Calvino did not fully envision—in which the reader, steeped and saturated in text, opens a portal to her own writing. The empty frame becomes incipience, or the blank page. Then the beautiful distinctions—man/woman, writer/reader—must themselves be blurred, be productively confounded, and all the genders mixed up. For the reader can only be courted by the writer within the self that is not one.
Saul Bellow said that the writer is a reader moved to emulation. Certainly the performing arts place a high value on emulation, or imitation, as do many pedagogical practices in the visual arts (think of aspiring painters who copy the masterpieces hanging in museums). Despite the perennial literary-critical debates regarding the role of mimesis within literary representation, however, few educators think of literature as a practice that a writer must learn by performing mimesis of previous writers. Nevertheless, the ballet student learns his art through a muscular, bodily mimesis of the teacher’s equally muscular gesture; and here the analogy becomes more than strictly conceptual: because we need to feel poetic meter in our breath and heartbeats, we can’t write iambic tetrameter without learning to walk in tetrameter first. Imitation forces us to confront the poem not as an ethereal emanation of our personal wish, but as something distinctly material: something we make through the labor of arrangement and rhetorical manipulation.
A comparison to the other arts can often bring this particular pedagogy home to skeptical students in the early days of an imitation course. That, of course, would be the time when they learn the course requirements: reading and discussing five twentieth-century poets, as well as writing both a weekly imitation poem and an analytic paper that makes an argument, via close reading, about one of the poet’s poems. This is serious work—and the imitation poems are serious imitation, not parody: they are, in other words, what Nicholas Delbanco calls a “sincere imitation” (xxvi). As Delbanco elaborates, such an imitation can never be accomplished without intensive reading and study of the work to be imitated:Page 117
You cannot copy what you glance at nor remember what you speed read nor repeat what you half heard; the reason one writer chooses semi-colons, or another elects an apposite comma, or a third prefers the absence of standard punctuation marks, has a great deal to do with the world view expressed, and a complex or compound sentence or parenthetical observation (such as the one we’re engaged in) will represent a different way of looking at the linkages of things—the way the past impinges on the present as does the present on the future in an unbroken line of descent or argument if represented with a dash—than does a simple or short. (xxvi)
Delbanco aptly describes the way in which the imitation poems necessitate—are, in fact, constitutionally impossible without—intensive and sometimes self-changing reading of the poet to be imitated. I have told the students: Put on the nerves and musculature of the poet before you begin. This is not about biography, the poet’s or yours. It’s about taking your life into the poem—a different way of taking your life into your hands. For one quarter, the students learn to be sibyls: to let the poet in question speak them. This is not a mystical transformation; it is instead the natural outgrowth of attentive reading. Moreover, it involves much more than retaining a certain meter or line length, though it does require that, too: it also involves assimilating the ways in which a certain poet builds sentences incrementally, syntactically, across lines; the wild geography of what I call that poet’s “diction universe”; what the poet would include or exclude from a particular poem. (I want to be able to pick the poem out of a line-up, I have told the students—and this is how the poems are evaluated and discussed in the imitation workshop.) In one particularly memorable class discussion, we debated whether or not James Merrill would have actually used the phrase “reality TV” in his work, had he lived to see it. Contrast, too, is paramount: the precise degree of microscopic sheen in Bishop’s “The Bight” or “Sandpiper”—what Richard Wollheim would have described as “seeing-in”—is unthinkable in a poet like Frost. Only by dwelling within the poet’s work can we access the caul of preverbal synergies that Seamus Heaney called the “instinctual ballast” of a particular poet: “What kinds of noise assuage him, what kinds of music pleasure or repel him, what messages the receiving stations of his senses are happy to pick up from the world and what ones they automatically block out” (62). For Heaney, instinctual ballast is what causes the later Yeats to clatter with consonants while Wordsworth remains the smooth and receptive oar in water, the glittering circles inscribed by the young boat-thief in book 1 of The Prelude.
Perceiving how shape emerges from the half-shaped background provides the reader with a lens, or vantage, similar to the writer’s. But this does not require us to say much about the lives of the poets or how they went about making their works; I am more interested in how the poems themselves wrestle with their tasks and occasions. For task and occasion arise only from a clear sense of poetic mission, a mission that articulates itself most strongly when responding (among other spurs) to a poetic tradition. (14)
Such an emphasis on the material and making of the poem also gives students the freedom to cross over—to cross purportedly indelible lines that separate different races, genders, and sexual orientations: not biography, again, but the conditions or threshold of production. By its very nature, imitation challenges the received notion that writing must arise from, or be somehow ratified by, personal experience. One of the most fascinating movements in the imitation class, for me, was the pivot from the work of James Merrill to Gwendolyn Brooks, a movement that required many of the students to consider the limitations of their whiteness and to figure out how to mobilize particular aspects of African-American vernacular in a way that would have to remain “sincere,” in Delbanco’s terms. Brooks herself, having mastered both vernacular and more conventionally “literary” registers of speech, is a terrific model for the variegations of a writer’s voice—or a writer, again, who is not one.
All of this certainly flies in the face of such credos as “Write what you know,” “Find your own voice,” “Your experience is the best subject for writing.” But as someone who came to writing through and with a doctorate in literature, none of those instructions seemed right to me in the first place. With so much of my life vested in reading, in writing, how could I separate it into book and nonbook? What of my voice, or my plural voices, really belongs to me, and how would I be able to gauge the degree or percentage of that ownership? Perhaps because I did study literary theory, these ideas don’t reduce me to despair; instead, they may have actually given me permission to write in the first place, despite so many creative writers’ indignation over the very title of Foucault’s “The Death of the Author.” If I had ever found writing to be an act of the ego alone, I think my inchoate sense of modesty—or a certain love of privacy—would have prevented me from doing it. (In an essay entitled “The Uses of Doubt,” Page 119Stacey D’Erasmo has written forcefully against the often unspoken assumption that writing must be ego-driven.) If indeed there is a way in which poetry functions as Eliot’s “continual extinction of personality” (2076), can it also be a concomitant enlargement of what we consider to be the singular, limited personality as such? “Enlargement” is, of course, a world away from “inflation.”
Keats’s notion of “negative capability” is closely related to such enlargement. For him, the ability to be “in uncertainties, mysteries, doubts, without any irritable reaching after fact and reason” (70–71) is what Shakespeare possessed in droves, and a capacity that every poet should cultivate in herself. This is certainly a marvelous description of the writing process, but isn’t it also a dead ringer for the reading act? We could say much more about the play between agency and self-dissolution in the case of the reader who is also a writer; but considered in the light of negative capability, the seeming strictness of the imitation assignments is revealed as something more than literary apprenticeship: it can constitute some of the most vertiginous artistic freedom imaginable.
An imitation course thus refines the boundaries of what we categorize as “the creative.” It requires a student to do something more dangerous than to trust his own experience or to tell the story she thinks she wants to tell. Imitation unmoors the writer from her comfort zone of familiar syntax, diction, and line. If there is a philosophy subtending imitation, it is surely globally similar to that of deconstruction: both practices suggest that writing is never transparent, or innocent, or a straightforward means of self-expression.
Does anyone own his writing, then? Are imitation and plagiarism commensurate? At first blush, I’m inclined to separate them—to agree, that is, with Christopher Ricks’s admonition, “Plagiarism is a dishonesty” (223). Clearly, however, plagiarism has a much more ambiguous role in the creative arts than in criticism, as poets have incorporated other poets’ lines into their own work for millennia. The genre of classical poem known as the cento, which comprises one hundred borrowed lines, is an excellent example of what we might now call naturalized plagiarism. For some, Eliot’s The Waste Land, despite its footnotes, also constitutes plagiarism writ large. The imitation course, however, does not ask students to incorporate particular lines from the master poets’ work. Students are asked to put on strategies and verbal proclivities, as opposed to “lifting” pieces of text from the poet to be imitated. Indeed, such cutting and pasting would interfere with the generative writing—in another’s voice—that they are Page 120being asked to do. If plagiarism has any role at all in the course, perhaps it would be the creeping and paradoxical sense of self-plagiarism described by William Gaddis in Agape Agape: “I’ve never seen my, seen this plagiarist because I am the other one it’s exactly the opposite, I am the other” (22). I am the other: the writer who is not one.
Lastly, pedagogy seeks practical outcomes. Some might wonder how such concentrated imitation affects creative writing students and whether such a course actually allows them to remain “creative,” in the popular sense of the term. In my experience, it does. Some students told me that they came to depend on the imitations: that they took great pleasure in that relinquishing of self. Many of these students also went on to write senior thesis projects in creative writing—projects that may have germinated in some of the imitation poems, but that grew in ways that exceeded the strict boundaries of the imitation course. What’s more, the students also learned enormously from their own resistance to imitating particular writers. Clearly, some imitations feel easier or more “natural” than others, and these experiences help students to begin to unearth and to articulate their own “instinctual ballast,” in Heaney’s terms. If imitating Frost feels like the proverbial walk in the park, it’s almost certain that Merrill will be more of a struggle, and this very contrast will reveal something important about the student’s emerging goals and capacities as a poet.
Perhaps most importantly, the challenge of imitation spurs students (in an almost Bloomian sense) to produce poems that are fine poems in their own right, even if taken out of the strict imitation context. A couple of years ago, one of my students wrote a superb Frost imitation that was later published in a small but nationally distributed literary magazine. Thus imitation doesn’t always announce itself as such to the reading public; neither, of course, does an imitative inception disqualify a work from standing as its own autonomous entity. Robert Lowell’s Imitations volume, for example, famously troped the boundaries of imitation and “autonomous” artistic conception. More recently, Susan Stewart’s Columbarium, winner of the National Book Critics Circle Award for poetry in 2003, has been discussed in the context of imitation.
However gratifying to the student and teacher, publication is not the ultimate goal of the imitation course. Instead, imitation allows undergraduate students to be what they are: apprentice writers. When they imitate, these students are apprenticing to the very best and are thus slowing down their own writerly gestation process in an age when the rush to publish is infecting even the undergraduate population. Writers are not made in an Page 121instant; and no matter what form our writing may eventually take, there is a very real sense in which we are the verbal concatenation of what we have read: whether our work be experimental or traditional is immaterial. Imitation recognizes and mobilizes this essential element of literary learning, and it allows students to learn viscerally from the tradition in which they strive to make their mark.
Calvino, Italo. If on a Winter’s Night a Traveler. Trans. William Weaver. New York: Harcourt, 1979.
Delbanco, Nicholas. The Sincerest Form: Writing Fiction by Imitation. Boston: McGraw-Hill, 2004.
D’Erasmo, Stacey. “The Uses of Doubt.” Ploughshares 28, no. 4 (2002–3): 24–35.
Eliot, T. S. “Tradition and the Individual Talent.” In The Oxford Anthology of English Literature, ed. Frank Kermode et al., 2011–19. New York: Oxford University Press, 1973.
Gaddis, William. Agape Agape. New York: Viking, 2002.
Heaney, Seamus. “The Makings of a Music.” In Preoccupations: Selected Prose, 1968–1978. New York: Farrar, Straus and Giroux, 1980. 61–78.
Keats, John. “Negative Capability.” In The Modern Tradition: Backgrounds of Modern Literature, ed. Richard Ellmann and Charles Feidelson Jr., 70–71. New York: Oxford University Press, 1965.
Kinzie, Mary. A Poet’s Guide to Poetry. Chicago: University of Chicago Press, 1999.
Lanham, Richard. A Handlist of Rhetorical Terms. 2nd ed. Berkeley and Los Angeles: University of California Press, 1991.
Ricks, Christopher. Allusion to the Poets. Oxford: Oxford University Press, 2002.
Ryan, Judith. Rilke, Modernism, and Poetic Tradition. New York: Cambridge University Press, 1999.
Stevens, Wallace. The Collected Poems. New York: Vintage, 1982.
The Anthology as a Literary Creation: On Innovation and Plagiarism in Textual Collections
A quick glance at almost any bookshelf, and it is obvious that anthologies are legion. Anthologies do not necessarily have “anthology” in their titles—take the tremendously popular Chicken Soup for the Soul series of books, for instance—but nevertheless anthology is the word most often used to mean a “textual collection” or “collection of excerpts.” Today, the best- recognized academic anthologies are published by companies such as Norton and Longman and are aimed at college literature courses. But just as often the title anthology generically designates a collection of texts pertaining to almost any field. Strangely, anthology originally was a Greek word meaning a “literary bouquet,” and referred for many centuries only to a very limited kind of textual collection, namely gatherings of short lyric poems. (The idea was that this “bouquet,” like the sonnet sequences of the Renaissance, would be something you would gather and give to someone special.) This original meaning of poetic collection began to change slowly in the early decades of the twentieth century, alongside the beginnings of the “Great Books” movement, and then took a decisive turn after World War II. From that time to the present day, several thousands of works have been published bearing the title of anthology, when before there had been merely dozens. This seems to reflect the twentieth century’s growing need for a basic-level term to categorize an increasingly important kind of published work—the textual collection—a need that has only accelerated into the present day, especially now with the awesome proliferation of media delivery and storage technologies. And so we have anthologies, the pragmatic concatenations of selected “original” works.
Or so it would appear to the casual book store browser who is well schooled in the meaning of “original work” and “copyrighted material.” Page 123However, the promulgation of anthologies since the mid–twentieth century, epitomized by the ambitious goal of the Chicken Soup for the Soul creators to sell one billion copies worldwide, has occurred with scant attention to the unique issues of originality, imitation, and plagiarism associated with the editing of such textual collections. From the perspective of literary creativity, the work of even the Chicken Soup anthologists can be understood as something more than the repackaging of texts “used by permission.” In order to explore the nature of anthologies and their production, this essay will pose a series of cases that illustrate the two extremes of anthology construction. These are the same extremes we associate with textual and artistic production at its most general: aesthetic innovation on the one hand, and plagiarism on the other.
Can the anthologist be considered an author of some kind? Putting aside for a moment the conditioned sense of what “copyright” and “originality” mean, a closer connection begins to emerge between what a creative writer does and what an anthologist does. Artistic creation, for humans at least, never begins ex nihilo. Rather, literary creativity, like all kinds of art, is a process that has several distinct phases. These may of course overlap and work cyclically, but even in its most mundane incarnations the artistic process entails at least these three basic steps:
- The selection of certain preexisting materials or media with which to work (words, musical notes, paint, stone, clay, etc.)
- The arrangement or shaping of these materials into some unique form
- The presentation or final production of some fixed and unique version of the work (publishing a text, cutting a record, framing and displaying a painting, etc.)
Many common words for kinds of art borrow from one of these stages of the artistic process: there are written pieces and com-positions (“placings-together”); or musical selections, arrangements, and orchestrations; and dramatic presentations. The making of anthologies is a variation of this rudimentary creative process—it is the facsimile, not the anthology, where texts are republished or reprinted verbatim. Even a photocopied course packet, perhaps one of the simplest of anthologies, will exhibit some unique shaping principles.
It follows that the first creative step of the anthologist is selection: the choosing of which texts (and for foreign works, which translation of a text) Page 124will be included, and, a parallel and equally creative choice, how best to excerpt longer works. The anthologist’s second creative step is arrangement of those selections into a greater whole. While some anthologies may have straightforward arrangements, such as alphabetically by title or author’s name, or by the year of first publication, there are limitless possibilities for arrangement of the selections, such as by genre, theme, or other aesthetic variations. Finally, the presentation of the completed anthology often involves additional creative activity: introductions, titles, headnotes, footnotes, and “further reading,” along with a host of design choices, such as how various typefaces will differentiate these editorial decisions from the “original” texts. Often, even the accurate presentation of original texts demands careful editorial work.
An editor may have significant influence over the final publication, but it often appears to the contemporary mind that editing is always ancillary and somehow “unoriginal” compared to the author’s “original” labors. But anthologists are editors and much more as well. Even the gathering of selections under a relatively limited rubric can be a process fraught with intellectual difficulties. Cary Nelson, the editor of Oxford University Press’s Anthology of Modern American Poetry, is one of a number of anthologists who have recently written engaging accounts of their experiences, showing how much skill and ingenuity is required to manage the long process of anthologizing selections and getting permissions. In order to make such omnibus textbooks more accessible, I assign students in an introductory literary survey to take our unwieldy course anthology and to select out of it their own anthology of passages that relate to some theme that interests them, and then to comment briefly. This “commonplace book,” as such a collection was once called, is an exercise that often proves to be just as “original” as the more familiar, not to say hackneyed (and not to say plagiarized!), term paper.
The fact that I evaluate these student anthologies in part based on the accuracy of their transcriptions suggests a delicious irony of the anthologist’s work. Whereas someone who has plagiarized is more seriously condemned based on how closely the lifted passages resemble the original work, the anthologist is someone who must “copy word for word,” and deviations from the original are what reflect poorly on an anthology. The anthologist must “adhere to the original,” as the saying goes, at every point. Yet consider how “original” an anthologist must be in order to re-present the selected text and to assemble as much of the original context as possible so that the reader of the anthology can be in the closest possible position to the reader of “the original.”
Page 125Since the process of selection is undertaken furthest from the eventual readers of an anthology, some of the greatest and perhaps most unrecognized anthological artistry resides there. Many times anthology editors must locate the best original texts or the best translations of those texts. Under the editorship of the Romantic scholar M. H. Abrams, for instance, The Norton Anthology of English Literature has published versions of Romantic poems that improved upon other critical editions available at the time, with the avowed belief that students deserved the best texts possible. Other Nortons have published original translations of works—as in the scoop of Seamus Heaney’s verse translation of Beowulf for the seventh edition of The Norton Anthology of English Literature (“Editors”)—or have gone to great lengths to vet existing translations, as when multiple translators are used to represent the works of an individual poet.
Sometimes “selection” implies locating a work in the first place, and this in itself can be a creative endeavor. In their polemical Pamphlet against Anthologies, even Laura Riding and Robert Graves find time to praise those anthologists who perform “literary rescue work,” the thankless unearthing of neglected authors or other worthy “fugitive pieces” that were more ephemerally published and are no longer available to the general reading public. Another kind of creative anthologizing can be found in the self-selected collections of especially influential writers. These “selected essays,” “new and selected poems,” and so forth are acknowledgments of the simple canonical fact that not every single production of any single author will ultimately have the same worth, yet that there is significant value in a survey of the highlights of any author’s works, if only to show the evolution of theme, technique, or style. There is even more value in having a group of landmark works that are out of print or otherwise hard to come by.
While texts are still being selected, the problem of arrangement is already in the anthologist’s mind. The most obvious and common kinds of anthology arrangements are alphabetical and chronological. Chance and art are often inseparable, and so even alphabetical arrangements may introduce a measure of aesthetic variation into a collection. Chronological arrangements, however, are less straightforward, and can be handled in more self-conscious ways. What date, exactly, should be used? The date of the author’s birth, or the date of a work’s composition, or first publication, or the revised publication? The mere establishing of all these possible dates is a labor unto itself. And once the historical dates are established, there are still ways to vary if not deviate from the arrangement, as has happened even in various anthologies from Norton, a publisher otherwise known for Page 126strict chronological ordering of selections. For instance, in the most recent edition of The Norton Anthology of Modern Poetry, the new category of “contemporary” has been added, and the anthology broken into two volumes to reflect this division, which nominally occurred around World War II. Interestingly, the first, “modern,” volume ends with the poetry of Keith Douglas, born in 1920, and the final poem of his to be included is “Aristocrats” of 1946, a poem that seems to encapsulate a Modernist temper more characteristic of World War I. The first poet of the second, “contemporary,” volume, on the other hand, is Charles Olson, born in 1910, and the first poem of Olson’s in the volume is “Pacific Lament,” also from 1946, but a poem that instead typifies Olson’s more avant-garde “projective” verse that in turn would influence the phenomenon of Language Poetry.
There are other ways to arrange selections that also introduce signifi-cant levels of creativity as editors set off both parallels and variations among the chosen texts. Recently in the many anthologies or, “readers,” devoted to composition and writing courses, as well as in many introductory literary survey texts, editors have tried to differentiate their offerings by including more diverse choices not only of genres (especially with varieties of nonfiction), but also more diverse choices of authors, in order to acknowledge the wide ethnic diversity of today’s world and its writers. Arranging such diverse selections is a problem that many anthologists have begun to solve with rearrangements of the texts under thematic rubrics, such as “family,” “love,” “death,” and so on. These sections in turn include examples of poems, plays, stories, essays, and other nonfiction that illuminate the given theme. By contrast, the traditional division of such anthologies, namely the canonical triptych of fiction, poetry, and drama, seems to encourage far less editorial originality. On the other hand, even as the thematic divisions expand, many categories appear to have been imitated: given the relative openness of thematic over generic divisions, why else do various anthologies suddenly have sections devoted to such similar themes—such as “family,” “love,” and “death”? Strikingly, these suddenly generic headings often appear in the same order (whether such editorial imitation crosses the line to plagiarism will be considered below).
The presentation of texts within anthologies often leads back to the creativity of selection itself. It is no accident that Jahan Ramazani chose certain poems to open and close the volumes of The Norton Anthology of Modern and Contemporary Poetry. Just as in any creative literary work, the beginnings and ends are ripe for special effects. For instance, in the section on the English Romantic poets in the latest Norton Anthology of World Literature Page 127(Lawall), there are several pages of excerpts from Dorothy Words-worth’s Grasmere Journals. By the chronologic of the anthology, she must be preceded by her brother William and must be followed by Samuel Taylor Coleridge. But this “fixed” ordering must have suggested the final words to be chosen from Dorothy—that she and William have just received a letter from Coleridge—words now appearing immediately before Coleridge’s own section. More than just an anthological nicety, this clever presentation reminds readers that there was an intellectual community among these poets. In the same volume, the seemingly chance placement of Emily Dickinson next to a section featuring the Urdu poet Ghalib suggests that there really is something to the venerable concept of a “world” literature, since the spare but imagistically voluptuous poems of the recluse of Amherst resonate so closely with the tight but lavish ghazals of the classical Mughal court poet.
Where there is creative originality, there are ways of plagiarizing, and so it is in the realm of anthologies. This is remarkable indeed when coming from the position that the best anthologist is the one who adheres as closely as possible to the original text. However, the adherence to the original entails only the transcription of the original texts, which may not even be carried out by the editor. As Cary Nelson reminds us, transcription often happens today thanks to typesetters who work from photocopies of the original texts (320). Textual transcription aside, then, wherever there is an element of editorial creativity in the anthologizing process, there can be what might be called “anthology plagiarism.”
The possibility of plagiarism by anthologists was raised not long ago by David Damrosch, editor of Longman’s groundbreaking anthology of British literature of 1998. When Norton published its seventh edition of its English literature anthology in 1999, under the new head editor Stephen Greenblatt, Damrosch publicly deplored the Norton’s choices as plagiarism (in his words, “wholesale lifting”), since its resemblance to the Longman anthology was far closer than to previous Norton editions (“Editors”). Norton, however, responded that plagiarism in this realm seemed nonsensical. Interestingly, by the time of its second edition, Longman was imitating a selection practice earlier pioneered by the Norton: the parallel publication of novels with ancillary critical material to be assigned (and even packaged) with the anthology, thereby freeing up significant space for other selections.
As a more clear case of plagiarism by selection, there is Louis Untermeyer’s inimitable editorial stunt. An early-twentieth-century poet now more remembered as a leading anthologist of the period, Untermeyer Page 128edited a series of enormously popular collections that did much to help canonize modern poetry as well as pave the way for the “critical” anthologies now ubiquitous in the classroom. Wondering whether anthologists really do copy each others’ selections—“There were many instances,” he recalls, “where it seemed that anthologists read only anthologies”—Untermeyer planted pseudonymous poems of his own writing in several of his own anthologies and a poetry handbook (332). With some consternation, and some glee, he found that this same poet, pseudonym and all, began appearing in other competing anthologies. One editor, whom Untermeyer does not name, went so far as to add “data available” to this mysterious author’s poetry (Untermeyer 332). At least this editor may have done some checking, but none got the poetry from an “original source.”
When selecting texts, if truth be told, anthologists often lean directly on other anthologists who have already made such selections. A common if unacknowledged starting point for many editors is to examine the tables of contents of similar anthologies already on the market. Here is one anonymous case: when contracting to edit a literary period anthology, one of my colleagues along with some coeditors were told in no uncertain terms by their publisher that they were not allowed to have less than 80 percent of the selections contained in the current market-leading anthology for that period. Is having 20 percent “new” selections really an “original” collection? I suppose at that point it matters how often my colleague and coeditors went out of their way to procure better texts of the selections, different subselections of longer texts, and so on.
Besides plagiarism by selection, there are many cases of plagiarism by arrangement. In this unoriginal mode, the collector copies not only the original texts, but also the ordering of those texts used in another collection. This may be one of the oldest kinds of anthological plagiarism. The Greek Anthology, the medieval compendium of epigrams and other short lyric poems that became a model for all later collections of the name, was based directly on a series of earlier collections (Paton). Epigrams are typified by being brief, often no more than a couplet or two, and the Greek Anthology contains thousands of epigrams. Why reorganize them, especially in the laborious, copyright-free manuscript culture, and especially when the originals had cogent and even artful arrangements? Thus, although the earliest sources for the Greek Anthology have long been lost, scholars have observed that long “runs” of selections have been so faithfully preserved that a source anthology from centuries before can be fairly easily reconstructed (see Gutzwiller). It as if the necessary work of transcription has run amok, Page 129cutting across the divisions of selection. A more recent counterexample can be found in an anonymously edited A Golden Treasury of English Verse (1935), whose title page claims it is “the selection of Francis Turner Palgrave revised and enlarged.” Closer examination reveals that the collection actually reproduces all of Palgrave’s famous selections from 1861 and adds none; it is “enlarged” only by virtue of the engravings scattered throughout the text. The order of the selections, however, has been changed—effectively ruining many of Palgrave’s careful arrangements—and so it is “revised” in this sense. Only by its arrangement, then, not its selections, does this collection have any claim to copyright protection.
And a thin claim it is, since even Palgrave’s own original titles for otherwise untitled poems (such as Shakespeare’s sonnets) have all been reproduced in this “revision.” Plagiarism in anthologies might extend to the theft of footnotes and other ancillary material, but most often and unrecognized are the taking over of titles of works that originally lacked them. Of course such works must be assigned titles when they are collected so that they can be conveniently listed in tables of contents and indices. Thus deliberately untitled poems (by, e.g., Emily Dickinson and e. e. cummings) are dutifully reheaded with their own first lines, but what about untitled prose works? Take the frequently anthologized short essay by Gloria Naylor that discusses her personal experience with, and possible ways to define, the word nigger. It was originally published without a title as an op-ed piece, but in many anthologies it appears as “‘Mommy, What Does ‘Nigger’ Mean?’” While it does capture Naylor’s references to her childhood, this title completely destroys the surprise that Naylor had originally sprung in her essay when that shocking word makes its first appearance part way through. Other anthologists have used the more milquetoast title “The Meaning[s] of a Word.” Still other editors use the more academic turn of phrase “A Question of Language,” perhaps from Naylor’s own introductory comments on this topic, but this gives the delaying setup without a hint that there is a punch line. It is striking that there is only one editor that I have found who actually creates an entirely unique title—“Taking Possession of a Word”—and then gives a note indicating that this title has been deliberately supplied (Meyer 1077). In other words, this anthologist was probably the first in a long time who actually bothered checking into the “original text” rather than borrowing the title of another editor, who had likely borrowed it in turn from someone else.
Similar cases of original anthologizing and anthology plagiarism might be multiplied, and they beg the question of why it is so automatic to conceive Page 130of anthologies as uniformly “unoriginal,” rather than as sites allowing considerable editorial innovation on the one hand and possibilities for unacknowledged borrowing on the other. One deep-seated conceptual frame that holds the anthology as a debased thing is the ancient organic metaphor for textuality. Dating at least to Socrates, and famously stated in the Phaedrus, this metaphor suggests that a properly executed text is an organic whole or even a “living body.” In the light of this organic metaphor, any collection, anthology, or encyclopedia that is composed of parts, selections, or “articles”—a word whose etymology, “limbs,” is itself a reflection of the organic metaphor—can only be a heap of disjointed members. A closely related concept is the “unit of analysis” of textual originality. That is, considerations of originality in writing tend to operate at the rather limited scale of the sentence to the paragraph. Below this scale are the word and short phrase, which are very hard to “steal” in any conceivable way, and beyond lie the chapter and the entire work, the plagiarism of which is held up as laughable in its daring. The fact that search engines like Google also operate best at the level of the phrase or short sentence explains why these tools are so often useful in detecting unoriginality. As if with this unit in mind, most plagiarists do stick to shorter passages, and frequently perform sentence-level tinkering at transitional points to hide the plagiarism. One term sometimes given to this phenomenon, namely patch writing, underscores how hard the organic metaphor is to avoid in the common understanding of plagiarism: here are patches of stolen clothing, stitched together like a fig leaf cover-up for the guilty “body” of a text.
But at certain crucial points the organic metaphor collapses. Try for instance the following thought experiment. Imagine whatever article, book, or other piece that you have written of which you are most proud. Would you rather have the entire thing plagiarized word-for-word and someone else’s name put on it, or have just a fraction of it stolen and integrated seamlessly into someone else’s work? Assuming that the profit to the plagiarist is proportional to the size of the theft, we would probably prefer the latter. However, in the pure organic mode, it makes more sense to prefer the former. This plagiarism of the whole work would be, as textual organicism would have it, something like getting kidnapped, but at least the work is out there in the same “perfected form.” The latter, according to the organic metaphor, is more like losing an arm. Given the choice in these terms, getting kidnapped seems better than losing a limb, since kidnapping does not necessarily involve a catastrophic bodily injury.
But this is foolish. To understand how compilations and anthologies Page 131can be original, it is essential to stop thinking of texts as fixed, unified bodies, shaped and breathed to life by semidivine authors, each with a uniquely encoded genetic identity to be defended. Obviously it is worse, even far worse, to have one’s entire work stolen rather than just a piece of it. What fills the spaces between texts on the page is not like the open air that stands between bodies: often the text’s surroundings, whether titles, notes, or even the plain white around a stanza, are not extraneous but essential to that text. The organic metaphor is thus a seriously misleading concept of what texts are. Textuality is multiple and fluid, and we never can step into the same text twice. The anthology is a salutary reminder of this. It is one place where some of the most cherished ideas about plagiarism, originality, and textual production itself simply fall apart.
1. Jahan Ramazani, a coeditor of The Norton Anthology of Modern and Contemporary Poetry, has indicated to me personally that this often unremarked rearrangement of the strict chronological order was indeed very much part of his editorial purpose.
2. Nelson also notes that it is thus wrongheaded to critique the relative numbers of pages allotted to individual authors, since before the appearance of the finished product the anthologist has little idea exactly how many pages this will be.
3. Take for instance the Library of America’s recent anthology American Poetry: The Twentieth Century. According to an interview with the editors, tables of contents of various similar anthologies comprised the first step in the board’s lengthy decision-making process (see http://www.loa.org/article.jsp?art=100, consulted July 9, 2007).
“Editors of Two Anthologies Engage in War of Words: Norton’s Coup Is a Translation of ‘Beowulf.’” Chronicle of Higher Education, November 19, 1999, A23.
A Golden Treasury of English Verse: The Selection by Francis Turner Palgrave Revised and Enlarged. New York: Hartsdale House, 1935.
Gutzwiller, Kathryn J. Poetic Garlands: Hellenistic Epigrams in Context. Berkeley and Los Angeles: University of California Press, 1998.
Lawall, Sarah, et al., eds. The Norton Anthology of World Literature: 1650 to Present. 2nd ed. 3 vols. New York: Norton, 2003.
Masters, Edgar Lee. Spoon River Anthology: An Annotated Edition. Ed. John E. Hallwas. Urbana: University of Illinois Press, 1992.
Meyer, Michael, ed. Thinking and Writing about Literature: A Text and Anthology. 2nd ed. Boston: Bedford/St. Martin’s, 2001.
Nelson, Cary. “Murder in the Cathedral: Editing a Comprehensive Anthology of Modern American Poetry.” American Literary History 14 (2002): 311–27.Page 132
Paton, W. R., trans. The Greek Anthology. 5 vols. 1916. Cambridge: Harvard University Press; London: Heinemann, 1960.
Ramazani, Jahan, Richard Ellmann, and Robert O’Clair, eds. The Norton Anthology of Modern and Contemporary Poetry. 3rd ed. 2 vols. New York: Norton, 2003.
Riding, Laura, and Robert Graves. A Pamphlet against Anthologies. 1928; New York: AMS, 1970.
Untermeyer, Louis. From Another World: The Autobiography of Louis Untermeyer. New York: Harcourt, 1939.
Economies of Plagiarism: The i-Map and Issues of Ownership in Information Gathering
I-map is our term for a structured process that requires students to keep track of their research activities, to record their thinking processes and activities while engaged in the gathering, evaluating, selecting, and presenting of information drawn from diverse sources. It encourages reflective practice and a self-critical examination of information-handling strategies and skills, and it results in an assessable outcome that rewards process rather than product. Among its many uses, the i-map has proved valuable in addressing those many issues of ownership and citation that cluster under the portmanteau word plagiarism.
Although we are specifically interested in plagiarism, in keeping with the themes of this collection, our discussion ranges widely. Before returning to the pedagogical benefits of the i-map, we will explore the challenges faced by higher education teachers. The current concerns both within educational circles and in the media about plagiarism are understood to be, in part, a manifestation of a change in our underlying relationship with information. This change is itself a consequence of economic and cultural shifts, such as the move to knowledge or information modes of wealth creation, and the widespread adoption of digital information technologies. In our discussion we use the metaphor of the “economy” because it seems to us that information is traded through gathering, refining, and presenting activities, through transactions of effort in networks of values, and that trade brings benefits through the assessment of work and the conferment of awards. We suggest that this economy has changed significantly in recent years, and it may be that its modes of operation no longer represent a shared culture across the groups who utilize and who maintain the academy.Page 134
In recent years, and in many places, the cultural economies of information handling and academic practices, as well as the ways in which they dynamically interrelate, have changed. Several factors account for those changes, including
- the deployment of information communication technologies in their myriad forms and functions
- political initiatives seeking to increase the numbers of people gaining higher-education qualifications, and broadening the access to higher education
- shifts in the way that education is funded, and changes in the modes of delivery that can be managed within the resources available (including increased student numbers and corollary reductions in time available for teaching delivery and assessment activities, distance and blended learning initiatives)
- the increasing corporatism of higher-education institutions, and the change in ethos that comes with a customer/consumer role for students
These changes, and concomitant shifts in the intellectual infrastructure of attitudes, skills, and performances through which education operates, have affected concepts of the ownership of knowledge and its expression, as well as the ways that the worth or value of knowledge is understood. We contend that recent changes have disrupted higher education’s historical intellectual infrastructure; clearly some parts of the current model sit at odds with it. We note that the preexisting model of a shared intellectual community lingers on in many ways; one effect is that for adherents to the older model, plagiarism has come to represent the worst consequences of the new consumerist model of higher education. We also note that its incidence has increased (both in actual acts and in the perception of the acts), and there have been changes in the understanding of its meaning and consequences.
Although commonly described as a form of cheating, plagiarism can be understood as a behavioral activity within a community concerned with the worth of knowledge and the values of academic activities. In particular plagiarism is about attitudes to the ownership of knowledge, and taking appropriate responsibility for the expression of ideas. Plagiarism does not stand in isolation. Where it is found it exists as a pattern of transgressive behaviors, relative to other patterns that are conforming. Plagiarism is the Page 135behavioral and concrete response to traditional academic attitudes about the ownership of ideas, and about the expression of ideas, about the use and understanding of conventions of citation, reference, quotation, acknowledgment, bibliography, allusion, and intertextuality, as well as about the value of doing these things in the way the academy requires and the worth of the academy itself.
Particular ways of dealing with the ownership of ideas and the worth of expression characterize cultural activities and distinguish one from another, and are declared through sign systems of diverse kinds. Academic practice “owns” one set of attitudes and maintains a sign system through which they are demonstrated. That sign system marks the academic out among other cultural activities through the codes and modes of reference and citation that express and consolidate the academic infrastructure in both form and presence. This academic sign system performs an explicit citation function in that it marks out extracts from other texts, signaling where information and ideas have been found, through typographic differences and the ways that names and dates are used. Within these academic codes repetition creates a redundancy of utterances that, themselves, signify a form of ritual.
Using the sign system of academic citation embodies a cognitive position; a way of thinking about knowledge, and of expressing our relationship with information. As a set of marks, citation inscribes beliefs about the ownership of knowledge by others and by ourselves, about the worth of the author, the value of the academy, and the cultural systems in which those activities take place. Failure to use, or to use correctly, the codes of citation is taken as a failure in the cognitive position, and is taken to demonstrate improper attitudes about information. In turn this is understood as a form of appropriation, a taking of ownership that is not due, a form of theft, deception, or cheating, and constitutes plagiarism. At the very least, a failure to use the signs of ownership and expression is taken as an indicator of ignorance of the system, and that ignorance is seen as a failure of the individual.
In the same way that a coin or banknote has a monetary value in one country, but becomes only a souvenir or keepsake in another, so attitudes about knowledge and information circulate within cultural practices. Across the broader culture many activities embody and inscribe attitudes about ownership of knowledge that are markedly different from those of the academy. This may create eddies of resistance and flows of concordance within the experiences of groups and individuals when they engage with the academy’s codes. As an example, the use of sampling in music where Page 136the pleasure of the text may in part derive from getting the reference. This is a form of implicit citation, and it can be seen to be oppositional in form and cultural meaning to the explicit citation required by the academy. Similarly, we see the complex intertextual referencing of films and computer games, those knowing, allusive in-jokes that thicken the pleasures of those texts through implicit citation. And here we note, in passing, the Modernist tradition of borrowing, best seen in the poetry of Ezra Pound and T. S. Eliot’s The Waste Land.
This concern with ownership, expression, value, and worth supports our economic metaphor as a means of understanding plagiarism in higher education. It directs attention to networks of exchange and transaction; to cultural economies where values, behaviors, and moral judgments are inscribed in material objects such as essays, posters, and performed spoken presentations; and to an individual’s expenditure of effort balanced against anticipated outcomes, rewards, and gains. In broad terms we characterize the academic as someone who balances effort and values (Szabo and Underwood; Collins, Judge, and Rickman).
- Energy required to complete task (physical and cognitive, time taken, resources needed)
- What else the energy and time could be used for (personal and social life, part-time work, other academic tasks)
- Energy available to complete
- Apprehension of task: understanding of what is required, prior experience of similar tasks, reward level from prior experience, feeling of preparedness (precursor learning, established knowledge), detailing of outcomes (format, conventions, presentation)
- Motivations of plagiarism: the effort saved by taking shortcuts (reframing task, less-than-best effort, plagiarism, other cheating)
- Opportunities for plagiarism: likelihood of detection, consequences of detection, attitudes of teaching staff, moral opinions
- Relevance of task to future career aspirations (“necessary” knowledge, transferable skills)
- Worth of this task as a scholarly activity (process versus expression)
- Worth of scholarly activities generally (desire to learn, intrinsic motivation, Page 137curiosity, valuing knowledge of others, valuing knowledge for itself)
- Importance of this task in relation to other activities (before or after)
- Role of higher education: functional attainment of qualification versus opportunity for betterment of self
The “intellectual infrastructure” of the academy, including its ethos and myths, sustains a particular effort:value ratio that is inscribed in the behaviors of students and teachers and in the regulations of institutions. It holds an understanding of what is normal behavior in terms of acknowledging and claiming ownership of ideas and their expression, and, by extension, an understanding of what is transgressive behavior, and what that means, in terms of the likelihood of detection, sanctions, punishments, and so on. For individuals who share the ethos, the motivations and opportunities for plagiarism are minimized, and plagiarism, when it happens, is seen as the outcome of a deliberate act that constitutes deception, cheating, gaining of unfair advantage, an evasion of the benefits of learning for oneself, and a denial of the virtuous efforts and learning of others. As the academy engages with groups that do not share that ethos, or do not understand it, or who find it contradicts value:effort balances that are embedded elsewhere and have important cultural significance for the other group(s), then incidences of plagiarism may occur inadvertently (unknowing transgressions), or may be expressions of resistance to an erosion of an alternative, preferred effort:value balance. For instance, the implicit citation strategies of popular media or the detailed knowledge web of sports fans show few signs of what academics would see as necessary and appropriate.
The intellectual infrastructure is a product of wider cultural systems than the academy alone. Broadening access means including groups that have historically had little or no access to the academy, who bring their very different cultural experiences, that is their “meme-pool” (Blackmore 41) to the intellectual community of the academy. The cognitive processes involved in maintaining, for example, a positive view of the worth of scholarly activities may require considerable additional effort for a student whose cultural milieu does not otherwise view them so positively, or holds an ambiguous view of their worth. Similarly, broadening access may mean that the need to explain and justify academic criteria to new groups leads to exposing rather than strengthening the academy’s intellectual and moral standards. And that may reveal internal contradictions within the Page 138infrastructure, or open out its conflicts with other codes, modes, and values in the wider culture. The recent widespread adoption of information technologies has disrupted higher education’s traditional effort:value ratio in a number of ways. We center our discussion here on two aspects in particular—shifts in the signs of ownerships of texts produced by students, and in the signs of ownership and authority in the source materials they use.
Our media habitats include myriad signs of ownership: the unique signs of a person’s voice, the way a musical instrument is used, the way paint is spread on a surface, how light is manipulated, or the camera angle used. All of these are indexical signs of original ownership in the sense that they are existentially tied to the creative and expressive acts of individuals, even if they are working through mechanical or digital processes. These “autographic” (McCullough), or process, signs are as distinct and personal as, say, manuscript handwriting.
While it is banal to say that the word-processed essay has replaced the handwritten one, it is important to note that this has come with a marked shift in the signs of ownership of the material written object. Handwriting, an autographic process, inscribes personal ownership throughout the material object in the idiosyncrasies of letterforms and in minor crossings out and amendments that litter the surface. For those who will remember them, the typewritten pages of an essay, dense with white blobs of correcting fluid or the backspace overtyping of a spelling error, carry in their material form an indexical sign field of personal effort and ownership. The word-processed text, say Times Roman 12-point with double-spaced lines (even, perhaps, the format supplied as a macro), is an allographic text, one produced by the instructions sent to a machine. While such a text is a field of signs, it is not so indexical of the author as one produced by an autographic process. Personal ownership is less clearly signed in the object itself, and the evidences of cognitive ownership are equally diluted. It is possible that acts of “compilation” that appeared owned when autographically inscribed, seem less clearly owned when allographically presented. While copying out a section of a source text by hand signifies cognitive engagement of some kind, copying when done mechanically is more readily identified as plagiarism than it may have been before.
“Prior to the widespread use of the Internet,” say Collins, Judge, and Rickman, “plagiarism principally entailed physically assembling hard copies of sources to plagiarise from and then transcribing and integrating them into a coherent, hopefully seamless essay format” (5). Copy and paste, an integral part of the authoring of word-processed texts, amplifies Page 139acts of compilation because it changes the economy of effort:value within the allographic relative to that which was available within the autographic. Handwriting a text, laboriously and accurately copying a section from a source text (and academic practice does require accurate quotation), may well require more effort than rephrasing the section in one’s own words. Putting it in your own words is taken as a clear signifier of ownership, a demonstration of cognitive engagement. However, such intervention re-quires skills of summary, paraphrase, and précis, as well as an extensive vocabulary of terms, phrases, and words. Bernstein’s work on elaborated and restricted codes suggests that those may well be sociolinguistic performances and cognitive skills indigenous in some social groups, but not all. A student with little sociolinguistic experience of, and expertise in, rephrasing to a uniform authorial voice will relate to rewording a section of a source in a way very different from a student who finds rewording it straightforward and who also very likely shares the effort:value position of the academy.
The resources of the Internet, and other information available in electronic form, are often experienced, and their ownership thought of, as a “commons.” That is to say, they are experienced like a public park, say, rather than a cinema. Websites are like a park because access is free and requires no simple payment and because what happens there is unstructured—in a park you can picnic, play games, lounge, chatter, do what you will. In a cinema a particular event takes place; it is organized, structured, and provided for you at a given time. A park is made up of air, sky, grass, the natural world (and increasingly signed as “natural” as styles of municipal gardening shift from formal beds and clocks to simulated wildernesses), while the cinema experience, the darkness, volume of sound, brightness of light, construction of narrative, is markedly artificial. The pleasures of a park are largely a product of one’s own actions; the pleasures of the cinema are provided for you. Set against the park, the cinema is more readily identifiable as a consumable product. Set against the cinema, the park is difficult to understand as a consumable object.
The sign systems of activities and pleasures, ownership and payment, for a park or a cinema distinctly communicate different concepts of product and ownership. The film-viewing experience is clearly identifiable and so can be clearly owned and purchased through payment. The less distinct ownership of the park, and of the experiences there, models the apparently freely accessible digital resources available online, and the user experience of being there. If we think of payment for the Web, it is as a payment to a Page 140phone company or to a broadband provider for the line not the content, rather like paying the bus fare to the park. And when we get there, as in the park, the pleasures come from what we do, through our own effort, from our own ergodic activities (Aarseth 1). A key concept in the current discussion of hypertext and hypermedia, ergodic is derived from the two roots of ergos, “work,” and hodos, “path.” It describes the path through a hypertext that is formed by the reader’s work, his mainly intellectual effort in following links, making choices between them, understanding how this-that-is-here-now relates to that-which-has-been-before, and which constructs the particular instance of a hypertext. In terms of our discussion of effort:value balance, this is a useful concept, as it reminds us that when using hypertexts, and the Web especially, the effort involved seems to emphasize the personal effort of the reader, and the uniqueness of her experience, which, of course, she feels she owns.
The park experience itself is not readily identifiable; it is intangible, indistinct, and particularly individual. Ownership of the place, and the experiences had there are unclear. The signs of ownership in a cinema are at once identifiable and tangible and can be shared with many others. Access is ritualized (often architecturally, certainly in the exchange of money for ticket), and there is a clear and distinct organization, structure, provision—an identifiable product that is owned somewhere. In the clarity of its signs of ownership and its implicit acts of provision the cinema models the “book and library” and the canon as a source of information, while the park models online information gathering.
While the historical intellectual infrastructure of the academy references the “cinema” model of ownership in its implicit understanding of effort:value, the increasing use of Internet and digital resources exposes students to the “park” model of the ownership of the material they work with. Access is free, the place is unstructured, and what comes from being there is the outcome of your personal activities and effort. When compared to the “book and library,” the sign systems implicit in the experience of the Web make ownership less distinct, harder to be clear about; it may create the illusion that the stuff is unowned, and that what is found is somehow the product of the user’s efforts and so owned by him. This confusion of ownership is compounded by the incunabula nature of the Web itself where conventions of declaring identity and ownership are not established, where the stable sign system of ownership needed for citation is not necessarily present, and where the concept of ownership collides with ideas about authority, reliability, or standing of a source. Confusions of ownership Page 141such as this mark a shift in the intellectual infrastructure and in the play of effort and values. We suggest that often that shift requires of the student a greater effort, and of a different kind, than required in a “book and library” structure. That additional effort may not be readily accommodated in assessment tasks that reward content and product rather than practice and process; in turn, it creates conditions in effort:value ratios such that plagiarism may appear to be to the individual’s advantage.
Within the broader economy, effort required to take ownership of information is balanced against effort required to locate the information. This equation has shifted from acts of finding books, often named within a canon and distributed on shelves, to acts of searching for information sources—and this has implications for ownership in significant and subtle ways. Library books, as tangible objects, are clearly owned, often inscribed with library index numbers and institution stamps; they have authority embodied in their presence. The process by which they have come into being and into place gives, of itself, the imprimatur of an authoritative and reliable source. And the same extends to individually owned copies of the library book; the signs inscribed by the library on its book are carried as ghostly echoes on the ones students own and carry around. Online information is not only less clearly owned and ownable, but it also has less clear authority partly because we have, as yet, no sign system for that authority. Finding a book brings the authority of the source, while searching for information online means having to gauge, evaluate, and establish the value of the source itself, a significant shift in the play of effort within acts of studentship.
This is made more complex by the fact that information can change and become outdated. Books change relatively slowly and stay out-of-date longer. Internet resources potentially change very rapidly but maintain currency. In terms of how memes are understood, these are the relative balances of fecundity, felicity, and longevity. From the library of books to the Internet, knowledge has become transient and contingent, as it can be superseded tomorrow by a newer version, and so the older version is no longer valid. Given that it needs less effort to find the new version than to recall the older one, because memorizing and recalling take more effort, and, besides, what was memorized is no longer valid, it makes sense economically not to own, as such, but to know how to find when needed. However, the academy asks for quotation and reference partly to show that a student has taken ownership of ideas. But if powerful parallel sign systems indicate those ideas are contingent and transient, then the purpose of Page 142quotation and reference is reframed and may seem questionable. The historical ethos of the academy values a play of fecundity, felicity, and lon-gevity that is antithetical to online information sources, and possibly to the aspirations of many students and their perception of the skills needed for employment. In a time of rapidly changing knowledge, and a shifting currency of what it is valuable to know, how do students understand the relevance of their studies, how can they gauge their “need for knowledge in the future,” or judge the “future usefulness of knowledge gained through sincere work” (Szabo and Underwood 182)?
In educational systems whose response to rapid change is (quite rightly) to emphasize transferable skills, the balances of the intellectual infrastructure shift significantly. Transferable skills are inherently about knowing how to rather than knowing about, about processes rather than content, because content is contingent but processes can be used in many places. However, it may be quite difficult for students to identify the relevance of transferable skills in learning and assessment processes that emphasize the assessment of product and content (about) rather than practice and process (how to), if they do not understand the context of their learning of transferable skills and are not able to see what knowing how to means. These thoughts, and others, led us to develop ways we could enhance students’ information-handling skills, to enable them to recognize and value transferable skills, and to be rewarded for process as well as product. That developed into the i-map.
The i-map is a way of recording the research stages of a project, focusing on the information-handling process. It produces an artifact that can be assessed against stated criteria, and so can be used to reward the information-handling skills involved in many academic activities. An i-map logs such things as finding sources, reading and evaluating them, taking ownership of ideas, formulating a response or argument, citing sources when appropriate, and building a bibliography, in a visual account of the process.
An i-map may include the following:
- Annotated book-lists, articles, website URLs, databases, electronic journals, media sources (newspapers, newsgroups, blogs, discussion boards) Page 143
- Diagrams: brainstorms, spiders, flow diagrams, pie charts showing connections and relationships between elements
- Graphic elements: symbols, drawings, boxes, circles, arrows, colors, highlights that organize elements into relationships
- Words: keywords, search term strings, definitions, quotations, bon mots
- Images: book covers, film stills, screen grabs, case studies, and any illustrations that are useful to an understanding of the subject
It uses space, layout, typography, lines and arrows to build sequence, links, and interrelationships within the visual representation. The act of creating an i-map requires reflective thinking about the process, and inscribes that reflection in the visual representation. The i-map is a pedagogic strategy that enables teachers to identify transferable process skills, and to reward them by shifting the emphasis away from a single-end-point, content-led submission. It enables the assessment of information-handling skills based on evidence rather than inferred from the qualities of a written text. The i-map rebalances the play of effort and values in the economies of academic Page 144activities, lessening the motivation to plagiarize, as well as reducing the opportunities for plagiarism, while providing a place to develop information-handling skills and to discuss the myriad issues around the ownership of knowledge, the uses of information, and the values of the academy. More information about the i-maps and examples of i-maps created by some of our students are online at http://www.art-design.herts.ac.uk/a/mihs/index.htm .
Aarseth, Espen J., Cybertexts. Baltimore: Johns Hopkins University Press, 1997.
Bernstein, Basil, “Elaborated and Restricted Codes: Their Social Origins and Some Consequences.” American Anthropologist, n. s. 66 no. 3, pt. 2 (December 1964): 55–69. The Ethnography of Communication. Online at http://www.jstor.org/view/00027294/ap020359/02a00040/0
Blackmore, Susan, The Meme Machine. Oxford: Oxford University Press, 1999.
Collins, Alan, Guy Judge, and Neil Rickman. “Thinking Economically about Plagiarism.” Proceedings of the 39th Annual Meeting of the Canadian Economics Association/Association canadienne d’economique, McMaster University, Hamilton, May 2005. http://economics.ca/2005/papers/0308.pdf, consulted July 4, 2007.
Graham, Roz, and Mike Hart. “Plagiarism Is a Complex Issue, but—Universities Must Articulate a Moral Vision and Live up to It!” http://mike-hart.com/cv/papers/plag_com2.doc, consulted July 9, 2007.
McCullough, Malcolm. Abstracting Craft: The Practiced Digital Hand. Cambridge: MIT Press, 1998.
Szabo, Attilla, and Jean Underwood. “Cybercheats: Is Information and Communication Technology Fuelling Academic Dishonesty?” Active Learning in Higher Education 5, no. 2 (2004): 180–99. http://alh.sagepub.com/cgi/content/abstract/5/2/180, consulted July 9, 2007.
“Fair Use,” Copyright Law, and the Composition Teacher
In our roles as writing teachers, we have been asked to adopt postmodern practices, including releasing old-fashioned notions of single authorship and an obsolete pedagogy that forbids plagiarism under a “detect and punish” regime (DeVoss and Porter 198; DeVoss and Rosati). Instead, we are to teach “digital ethics” and fair use. What exactly is “fair use”? This is a doctrine writing teachers need to understand because, while public figures such as Lawrence Lessig, Jessica Litman, and Siva Vaidhyanathan argue that the law needs to be changed, we have classes to teach. Writing teachers increasingly teach writing on networked computers, and therefore our need to understand the basic doctrine of fair use is as great as our need to understand the rules against plagiarism. This essay first reviews current U.S. copyright law, and then briefly traces the concept of fair use from its inception as “fair abridgment” in eighteenth-century England to its current interpretation in U.S. case law.
Overview of Current U.S. Copyright Law
U.S. copyright law has become a confusing mix of statutes and rulings that can encompass invention, imitation, compilation, and appropriation. A variety of stakeholders have fought to establish control over intellectual property (IP) for commercial purposes; in the process, the noncommercial, educational uses have come under increasing pressure. These influential interactions include the habits of writers, agents, and publishers, and such varied secondary uses as film and recording companies (>Vaidhyanathan; Porter; DeVoss and Porter; Hart-Davidson; Bartow). The tension between stakeholders who wish to share and stakeholders who wish to contain and Page 146control information is viewed as a “battle,” “war,” and “fight” (Litman; Yu; DeVoss and Porter 185). The writing student and teacher have become actors, willingly or not, in determining how copyright operates (Porter). Indeed, writing teachers are key players in these “battles” because students often have an unclear notion of what constitutes appropriate use and citation; too often their only knowledge of copyright comes from the current publicity over downloading music.
U.S. copyright law is a statutory law; therefore one must always begin by reading the statute. A full copy of copyright statute, Title 17, U.S. Code, is readily available on the Web (United States Copyright Office). Underlying the U.S. Code, the Constitution grants Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (Art. 1, Sec. 8). Under Title 17, copyright holders receive a limited monopoly with respect to certain uses of their work. Section 102 of the the Copyright Law of 1976 (effective 1978) states that all original, fixed works are protected, including literary, musical, and dramatic works, dance, pictures and sculptures, movies and other audiovisual works, sound recordings, and architectural works. As of 1978, works that are original and fixed do not need to be registered in order to receive copyright protection. Instead, a limited monopoly is automatically granted to the copyright owner. Because copyright protection is automatic, all works are copyrighted unless an owner opts out of the system by taking affirmative steps, such as marking his work with language that gives up any of the copyrights. To completely opt out of our current copyright regime, an author donates her work to the public domain. To partially opt out, an author might license for money or donate one or more of her “copyrights” to others. For example, a Creative Commons Attribution-ShareAlike license (Creative Commons) allows others to use the designated work noncommercially, as long as they give the copyright owner credit and allow others to use their work. The ShareAlike license divvies up the copyrights held by the owner, and makes the use of those rights conditional on certain requirements.
“Fair Use” from Its Inception to Current Interpretation in U.S. Case Law
Copyrights can be divided among different stakeholders because a copyright is a bundle of rights. While copyright law defines the kind of work Page 147protected, it also defines the strands in this bundle of protections. Section 106 gives copyright holders exclusive rights to reproduce, prepare derivations, distribute, publicly display, and perform the copyrighted work. It is this bundle of rights that copyright holders may parse out to others, or donate completely to the public domain. To say or write, “I own the copyright in that piece” is vague. When I hear this, I wonder, which right of copyright? Instead, to be clear, one might say or write, “I own all rights conferred to me by copyright law,” or, “I reserve all rights,” or, “I have licensed the right to copy, perform, distribute, and display my work, but I’ve retained the right to create derivative works.” For example, the Creative Commons ShareAlike license creates a hybrid license that conditionally gives away strands in the bundle of rights: to make derivative works, perform, publicly display, and make and distribute copies, as long as the users of those rights credit the copyright holder, and use the material for noncommercial purposes. However, a license to use is not fair use. It is a contractual arrangement set up by copyright holders. “Copyright” could become worthless under a clever publisher’s agreement. It is not unheard of for publishers to offer authors contracts that give publishers all rights under the copyright statute, but leave the author with the “copyright”—an empty shell with no rights attached.
Fair use is a doctrine that preserves certain types of uses not protected by copyright. Therefore, to use a work under fair use is never to infringe on the owner’s copyright. Section 107 defines fair use as codified by the courts and contains the prose we as educators so often rely on as we venture into the digital writing realm with our students:
§ 107. Limitations on exclusive rights: fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords [sic] or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(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;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; andPage 148
(4) the effect of the use upon the potential market for or value of the copyrighted work. (U.S. Code, Title 17, Sec. 107)
Section 107 defines four elements to be used by the courts when making a fair-use determination. It also clearly states that fair use is a “limitation”; plus, the statute says the listed uses are “not an infringement.” Section 107 provides the exception to the copyright owner’s right to use. However, court interpretation has complicated this clarity. Legal scholars tell us fair use is nothing more than a skimpy sliver, or a concept now being compacted into ineffectuality (Lessig; Bartow).
The term fair use first arose in the American judicial system in the case of Lawrence v. Dana (1869). However, the concept, known as fair abridgment, appeared in the early English cases of Gyles v. Wilcox (1740), Dodsely v. Kinnersley (1761), Cary v. Kearsely (1802), and Roworth v. Wilkes (1807) (Duhl). While the term fair use did not appear in American courts until 1869, the English concept was appropriated in the 1841 case of Folsom v. Marsh. In the Folsom case, the defendant had written a biography of George Washington. The plaintiff claimed the defendant used excerpts of letters from the plaintiff’s earlier published and copyrighted biography. While the defendant had copied 353 pages of the plaintiff’s multivolume work, the copied material amounted to less than 6 percent of the total. However, the court held for the plaintiff, finding that the defendant had copied the most important material in the plaintiff’s earlier volumes. In the opinion, Justice Story set out the framework that was codified over 130 years later in Section 107 of the 1976 Copyright Act. Judge Story included concerns about how much of the original work was taken, and stated that the issue was one of whether “piracy” occurred; he factored in comparative use as well as “the nature, extent, and value of the materials thus used; the objects of each work,” considered whether there were “common sources of information” and asked if the alleged infringer had used the “same common diligence in the selection and arrangement of the materials” as the author of the original work (Folsom). Judge Story emphasized that writers should be able to use others’ work for “purposes of fair and reasonable criticism,” but noted that the court must “look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.” Judge Story’s discussion in the Folsom case sets forth the elements that were later folded into the four-factors fair-use test of Section 107.Page 149
Judge Story’s 1841 opinion is accepted as part of our current fair-use analysis (Bartow; Duhl). However, judges struggle with case-by-case fact-specific analyses, applying the doctrine inconsistently, and they thereby increase public confusion (Duhl). This uncertainty permeates composition and rhetoric pedagogy and policy, culminating in what DeVoss and Porter describe as a potential floundering effect reflected in inconsistent teaching and professional practices (197). By studying the history of fair use along with current court interpretations, we can further our knowledge of this important doctrine and help our students contextualize both their use of the Web and their Web-composing practices. Fair use has only been considered four times by the Supreme Court since the enactment of the Copyright Act of 1976. Those four cases and their holdings are Sony Corp of America v. Universal Studios, Inc. (1984), Harper & Row, Publishers, Inc. v. Nation Enterprises (1985), Stewart v. Abend (1990), and Campbell v. Acuff-Rose Music, Inc. (1994).
In Sony the Court held that sale of VCRs did not equal contributory infringement of the plaintiff’s copyrights. The Court concluded that since most VCR use was private, legal taping for later viewing, and that the plaintiffs had failed to establish harm to the potential markets for Universal Studios, that VCRs fell under fair use. In Harper & Row, former president Gerald Ford’s memoirs were being prepared for publication by Nation Enterprises. Harper & Row published a magazine article containing excerpts. Using a fact-specific analysis, the Court held that the publication by Harper & Row, prior to the memoir release by Nation Enterprises, harmed the potential market. The Court held the use was not fair use. In Stewart the Court focused on copyright protection of the owner’s exclusive right to create derivative works. Cornell Woolrich is the author of the story “It Had to be Murder.” Rear Window is based largely on Woolrich’s story. When MCA rereleased the film, suit was brought. The Court held that the film was not a “new work” falling under the protection of fair use. Other factors taken into account by the Court were the commercial nature of the work, the fact that the original work was creative rather than factual, and the fact that the rerelease harmed the copyright holder’s ability to find new markets. In the final Supreme Court opinion, Campbell, 2 Live Crew created a parody of the Roy Orbison song “Pretty Woman.” Balancing the four factors set forth in the fair-use doctrine, the Court held that the defendant’s use was fair. The Court noted that the public-interest benefits of transformed songs were important, but remanded the case to the lower court for consideration on the issue of harm to the copyright holder’s market.Page 150
To these four Supreme Court cases, I am going to add a fifth: MGM v. Grokster (2005). Even though Grokster did not directly consider fair use, it did directly interpret and narrow the holding in Sony. Disturbingly, the majority opinion failed to mention fair use as a factor in its considerations, while Justices Ginsberg and Breyer (in their respective concurrences) only mention the concept in passing (Porter and Rife). In Grokster the Court discussed the Sony case as it considered whether P2P (person-to-person) software distributors StreamCast and Grokster were vicariously liable for the copyright infringing uses of individual users of their software. The Court vacated the judgment of the lower court and found Grokster and StreamCast could be liable for damages and subject to injunction. The Court narrowed the protection of Sony (and thus the protection of fair use), stating that the Ninth Circuit holding in favor of Grokster was imbued with a misreading of Sony. Thus a determination of infringement in P2P contexts (dual-use distribution technologies) depends on a two-part test pursuant to Grokster. First one looks to the Sony safe harbor to see if there is substantial noninfringing use. If the use passes this standard, one then looks to whether the distributor showed intent to induce others to infringe.
In Grokster, the Court said that the supposed central question in Sony, whether or not substantial noninfringing uses exist for a certain product, is not the sole determining question on the issue of legal liability. The question instead is What is the intent of the distributor? If it is to cause others to infringe, then the distributor is liable regardless of whether or not substantial noninfringing uses are possible. In his concurrence Justice Breyer stated that the Court had gone from an environment of certainty (are there substantial noninfringing uses?) to an environment of uncertainty (what is the intent?). It is important to note that Justice Souter, who wrote the main opinion, never mentioned fair use. We could read Grokster as saying that what was once fair use, the private copying via taping of copyrighted materials (TV programs, music) is no longer defined as fair use. On the other hand, we might read Grokster as placing a lot of stock in “intent.” We might draw the conclusion that as long as we as educators do not intend to break the law we are safe from liability (Porter and Rife). In Grokster, the Court rhetorically read a number of organizational communications in order to make its determination on whether or not intent to induce infringement was present. I conclude from the Grokster case that it is not enough simply to hold our good-faith intent in mind; we must also document and reflect on how we teach others to use technology that includes replicating work by others.Page 151
According to Duhl, the first four cases show the Supreme Court’s reluctance to define clear boundaries for the fair-use doctrine. As a result, both copyright holders and users/remixers like us and our students are held in a legal limbo. And why should the Court make any concrete, universal determinations when no pressure is applied? The industry stakeholders would rather the educational institutions live in fear, adopting limiting and restrictive IP policies; these interests would rather we did not know exactly how to operate, and that we work under concerns of infringement liability. The uncertainty of the fair-use doctrine in educational settings is amplified by the lack of a Supreme Court opinion. On the other hand, because of quickly changing information streams and technological innovation, the uncertain, open-ended language of the fair-use doctrine may serve us well (Rife). To gain a better grasp of the language that is there, to push on the boundaries of legal interpretations of that language, to exploit the slipperiness of the U.S. fair-use doctrine for purposes of education, is to give ourselves and our students the critical agency we and they need in order to compose robust texts, including multimedia texts, in the digital age. Our understanding of the fair-use doctrine can be improved significantly by looking not only at the Supreme Court opinions, but also at the lower-court judicial opinions, some of which have dealt directly with determinations of fair use in an educational-copying context. In the 1914 case of Macmillan v. King, the court held that it was not fair use for a tutor to create an outline, incorporating quotes and following the organizational structure of a Harvard University professor’s economic textbook. In a later 1962 case, the court held that when a teacher distributed a musical arrangement adapted from a copyrighted musical composition, it was not fair use (Wihtol). In Encyclopedia Britannica Educational Corp. v. Crooks (1982) the court held that the practice of a nonprofit educational services cooperative, in taping educational, state-funded television programs for collection and nonprofit, scholastic viewing later, was not a fair use. The next year the court held it was not a fair use for a home economics teacher to make “fifteen copies of an eleven page excerpt of a thirty-five page cake decorating booklet for her students” (Bartow 11).
Pursuant to a line of cases commonly referred to as the copy-shop cases (Basic Books, Harper & Row v. Tyco, Addison-Wesley, Princeton University Press v. Michigan Document Service, Inc. [MDS]), settlements have been made such that course packs cannot be copied unless accompanied by written permission of the copyright holder, or a statement from faculty members certifying the copies were in compliance with guidelines. Universities have thus Page 152agreed to adopt guidelines, and if faculty do not follow the guidelines, they face personal liability. The Princeton v. MDS is worth special remark since it includes three major presses, Princeton University Press, Macmillan, and St. Martin’s Press suing a photocopy shop, Michigan Document Services (MDS). The court found MDS’s copying to be a willful infringement. Damages against MDS were $30,000 statutory damages, $326,318.52 attorney’s fees, and injunctive relief. In MDS the publishers targeted Mr. Smith (like MGM targeting Grokster), a fair-use crusader and owner of MDS, and brought him down. The MDS case reminds us always to do a complete rhetorical evaluation of case law and consider all stakeholder interests when making a fair-use determination. We are stakeholders on both sides of the issue, the copyright holders and those who need to use others’ works in order to do writing and research. Ann Bartow asserts that under current court rulings, the reproduction of copyrighted materials for educational purposes is a “commercial” use; since any commercial use creates a presumptive harm to the copyright holder’s market, and market harm is the single most important factor in current judgments, reproducing copyrighted material for educational use no longer falls under fair use.
Bartow reminds us that the Internet has so blended public and private, commercial and noncommercial, that every use is deemed “commercial.” How these photocopying cases translate to other kinds of copying or remixing that go on in the classroom and beyond, remains uncertain. We can suspect that big media and publishers, once their attention is had, will unify for strength. Bartow argues that the courts could easily find faculty members as liable, if not more liable, than the copy shops. She speculates that the reasons that faculty members are usually not sued might be fear of bad press, or because under Section 504 of the Copyright Act, multiple-copying educators are only liable for actual damages, which are usually nominal. In order to maintain such limited liability, educators must be acting under a good-faith belief that they are not infringing. How can any of us be acting under “good faith” if we do not understand basic copyright law and fair use? And how can we expect our students to act in “good faith” if we do not teach them what the issues are? Additionally, if our institutions have restrictive guidelines that we disobey, you can bet that the courts will not listen to our pleas when we explain. Judges love to use “official guidelines” as heuristics for evaluation. Our institutional guidelines will be used, and the courts will tell us that, if we do not approve of the guidelines, we should change them rather than engage in blatant civil disobedience.Page 153
While Bartow recommends active assertion of our copyrights, even subversion of overly restrictive rules, Lessig tells us that our overreliance on fair use restricts our ability to freely exchange information without fear of legal liability (139–45). Lessig rightly points out that since under our current law, every use is a regulated use (because of automatic copyright protection on all fixed works), our only justification for unauthorized use is “fair use.” Because the fair-use doctrine was not created to bear this burden, he argues (145), the law should be changed.
Yes, the law needs to be changed, but it seems unlikely at the present moment especially since automatic copyright protection is needed for the United States to be in compliance with international IP treaties. In the meantime, as educators we must operate under some understanding of the doctrine as it stands. Of course we should be concerned with fair-use policy and the trend of recent U.S. courts that repeatedly emphasizes the “property rights of the author as the paramount purpose of copyright law” (Vaidhyanathan 80). At the end of the twentieth century and the beginning of the twenty-first, U.S. courts have repeatedly emphasized the protection of property rights of the publishers and media conglomerates as the paramount purpose of copyright law. For example, the recent post-Grokster Seventh Circuit fair-use case, BMG Music, et al. v. Cecilia Gonzalez (December 2005), held that private downloading of music from the Internet was not a fair use even though the individual already owned some of the CDs featuring the downloaded songs because doing so impinged on the copyright holder’s ability to enter new markets. Courts are increasingly focusing on the market impact of any use. Pursuant to Gonzalez, even though money or profit is not sought by the user of copyrighted works, the user can still be held to infringe on others’ markets. U.S. copyright law has almost been rewritten by the courts and Congress so as to eliminate any consideration whatsoever based on public good.
Writing scholars and teachers are in a unique position to engage in civic participation, advocacy, and teaching, so as to emphasize the public good in sharing information as fully as possible, while still giving credit. It might be that we as educators need to convene and craft our own fair-use guidelines that will allow us to be able to teach in digital environments. After all, our students are not normally selling their classroom assignments for money, and yet under Gonzalez, their cutting and pasting of images and texts off the Web could be interpreted as impeding the copyright holders’ ability to enter the “new” market of new media composing in the educational setting.
I encourage digital literacies if students can situate their fair use of material within the current copyright regime. Students should be introduced to basic IP concepts and categories such as trademark, service mark, copyright, and plagiarism, and should know where to find needed definitions effectively and efficiently. Students should be able to make at least cursory evaluations regarding where information comes from, who owns it, and what rights are offered. Working with students to uncover the intricacies of IP law and fair use, focusing on key legal cases, helps students understand the economic, legal, and social issues surrounding the use of information. By discussing legal damages assessed in various infringement cases, by talking about lawsuits such as Folsom, Sony, Campbell, Napster, Grokster, Google Print, and Kelly v. Arriba Soft, students can understand the potential implications of using others’ work. By looking at culturally significant perspectives embodied in law and governmental agencies, such as the United States Patent and Trademarks Office’s database of Native American insignia, students can make autonomous decisions about their own comfort level and definition of ethical and legal use. There are no fixed lines or rules here. Students need to know what their options are in order to act responsibly and within their own political, social, and personal beliefs. Studying the history of fair use helps them understand the impact of recent court decisions. As educators, the discourse of fair use should be just as much ours as is the discourse of “writing.”
1. Google Print and Kelly are both search engine fair-use cases. Kelly held that the use of thumbnail images as search tools was a fair use (Band). The American Association of Publishers lawsuit against Google Print is still being decided at this writing; however on January 25, 2006, Electronic Frontier Foundation carried a story reporting that the Nevada District court ruled that the Google cache is a fair use. This holding could influence the larger Google Print case (see “Google Cache”).
A&M Records, Inc. v. Napster, Inc. (9th Cir. 2001). 239 F.3d 1004).
Addison-Wesley Publishing Co., Inc. et al. v. New York University, et al., 1983 Copyright L. Dec. ¶ 25,544 (S.D.N.Y. 1983).
Band, Jonathan. “The Google Print Library Project: A Copyright Analysis.” 2005. http://www.policyband.com/doc/googleprint.pdf, consulted February 2, 2006.Page 155
Bartow, Ann. “Educational Fair Use in Copyright: Reclaiming the Right to Photocopy Freely.” University of Pittsburgh Law Review 60 (1998): 149–230. http://ssrn.com/abstract=506983, consulted April 10, 2005.
Basic Books, Inc. v. Kinko’s Graphic Corp. 758 F. Supp. 1522 (S.D.N.Y. 1991).
BMG Music, et al. v. Cecilia Gonzalez. 430 F.3d 888 (7th Cir. 2005) (No. 05–1314).
Breyer, Stephen, and Sandra O’Connor. Concurring Opinion, MGM v. Grokster, 545 U.S. 1 (2005). http://w2.eff.org/IP/P2P/MGM_v_Grokster/04-480.pdf, consulted July 9, 2007.
Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569, 583–85 (1994).
Cary v. Kearsely. 4 Esp. 168, 170 Eng. Rep. 679 (1802).
Creative Commons. June 7, 2006. http://www.creativecommons.org, consulted July 5, 2007.
DeVoss, Dànielle Nicole, and James E. Porter. “Why Napster Matters to Writing: Filesharing as a New Ethic of Digital Delivery.” Computers and Composition 23 (2005): 178–210.
DeVoss, Danielle, and Annette C. Rosati. “‘It Wasn’t Me Was It?’ Plagiarism and the Web.” Computers and Composition 19 (2002): 191–203.
Dodsely v. Kinnersley. 27 Eng. Rep. 270 (Ch. 1761).
Duhl, Gregory E. “Old Lyrics, Knock-off Videos, and Copycat Comic Books: The Fourth Fair Use Factor in U.S. Copyright Law.” Syracuse Law Review 54 (2004): 665–738.
Electronic Frontier Foundation. http://www.eff.org, consulted June 6, 2006.
Encyclopedia Britannica Educational Corp. v. Crooks. 542 F. Supp. 1156 (W.D.N.Y. 1982).
Folsom v. Marsh. 9 F. Cas. 342, 6 Hunt Mer. Mag. 175 (C.C.D. Mass. 1841). http://www.faculty.piercelaw.edu/redfield/library/Pdf/case-folsom.marsh.pdf, consulted April 17, 2005.
Ginsberg, Ruth Bader, William Rehnquist, and Anthony Kennedy. Concurring Opinion, MGM v. Grokster, 545 U.S. 1 (2005). http://w2.eff.org/IP/P2P/MGM_v_Grokster/04-480.pdf, consulted July 9, 2007.
“Google Cache Ruled Fair Use.” http://www.eff.org/deeplinks/archives/004344.php, consulted July 9, 2007.
Gyles v. Wilcox. 26 Eng. Rep. 489 (Ch. 1740).
Hart-Davidson, Bill. “On Writing, Technical Communication, and Information Technology: The Core Competencies of Technical Communication.” Technical Communication 48, no. 2 (2001): 145–55.
Harper & Row, Publishers, Inc. v. Nation Enters. 471 U.S. 539 (1985).
Harper & Row v. Tyco Copy Services, 1981 U.S. Dist. LEXIS 13113, Copy.L. Rep. (CCH) P25230 (D. Conn. Jan. 19, 1981).
Kelly v. Arriba Soft. 336 F.3d 811 (9th Cir. 2003).
Lawrence v. Dana. 15 F. Cas. 26, 40 (C.C.D. Mass. 1869) (No. 8136).
Lessig, Lawrence. Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. New York: Penguin, 2004.
Litman, Jessica. Digital Copyright. Amherst, New York: Prometheus Books, 2001.
Marcus v. Rowley. 695 F.2d 1171 (9th Cir. 1983).
Macmillan Co. v. King, 223 F. 862 (D. Mass. 1914).
MGM v. Grokster. 545 U.S. 1 (2005). http://w2.eff.org/IP/P2P/MGM_v_Grokster/04-480.pdf, consulted July 9, 2007.Page 156
Porter, James. “The Chilling of Digital Information: Technical Communicators as Public Advocates.” In Technical Communication and the World Wide Web in the New Millennium, ed. Michael Day and Carol Lipson, 243–59. Mahway, NJ: Erlbaum, 2005.
Porter, James, and Martine Courant Rife. “MGM v. Grokster: Implications for Educators and Writing Teachers.” WIDEpaper no. 1, June 2005. http://www.wide.msu.edu/widepapers/grokster, consulted June 28, 2005.
Princeton University Press v. Michigan Document Services., Inc. 1996 FED App. 0357P (6th Cir.) http://fairuse.stanford.edu/primary_materials/cases/michigan_document_services/110896cofadec.html, consulted July 25, 2007.
Rife, Martine Courant. “Global Literacies for Judges: Canadian/US Judicial Opinion Approaches to Globalization in Copyright Contexts.” May 5, 2006. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=900743, consulted June 5, 2006.
Roworth v. Wilkes. 170 Eng. Rep. 889 (1807).
Sony Corp of America v. Universal Studios, Inc. 464 U.S. 417 (1984).
Stewart v. Abend. 495 U.S. 207 (1990).
United States Copyright Office. http://www.copyright.gov, consulted June 5, 2006.
United States Patent and Trademark Office. “Frequently Asked Questions about the Database of Native American Tribal Insignia.” 2003. http://www.uspto.gov/web/offices/tac/tribalfaq.htm, consulted April 2, 2005.
United States Patent and Trademark Office. “Trademark, Copyright or Patent?” 2004. http://www.uspto.gov/web/offices/tac/doc/basic/trade_defin.htm, consulted April 17, 2005.
Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: New York University Press, 2001.
Wihtol v. Crow. 309 F.2d 777 (8th Cir.). 1962.
Yu, Peter K. “The Escalating Copyright Wars.” Hostra Law Review 32 (2004): 907–51. http://ssrn.com/anstract=436693, consulted September 20, 2004.