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URL: http://www.bailii.org/uk/other/journals/EJLT/2013/04-1/188.html
Cite as: Using Film to Enhance Intellectual Property Law Education: Getting the Message Across , Denoncourt , European Journal of Law and Technology
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Using Film to Enhance Intellectual Property Law Education: Getting the Message Across
Janice Denoncourt[1]
Cite as: Denoncourt, J., 'Using Film to Enhance Intellectual Property Law Education: Getting the Message Across', European Journal of Law and Technology, Vol. 4, No. 1, 2013
Abstract
Film is a powerful education tool because it brings alive subjects, such as law, that can seem inaccessible in the fast-paced modern creative economy. Intellectual property (IP) law has been and still is a very much a text-based discipline and IP law education continues to be dominated by recourse to textual learning resources. However, the content of mainstream films provides a unique platform for debate and understanding the modern IP law environment. This paper explores the place of film in IP law pedagogy. While the film genre has long been an important aspect of primary and secondary education, its use to enhance legal education at university level is still rare, although in the last decade a few UK law schools have attempted to integrate film and audio-visuals into legal learning. As a discipline, IP law is regarded as exciting 'new' law at the centre of the creative economy and as such, lends itself very well drawing on popular culture and film to illustrate legal principle. Further, with the advent of accessible audio-visual technology and large screens in university lecture theatres and classrooms, the film medium should be a viable method for IP law education, rather than left on the margin. This article will consider how the introduction of relevant mainstream commercial film media can enhance the pedagogy and delivery of IP law education in order to operate effectively in a complex, rapidly changing world. A methodology supporting the design, development and delivery of teaching by using relevant two-to-three minute clips from Academy Award-winning film The Social Network [2] , a drama about the founding of the social networking website Facebook by entrepreneur Mark Zuckerberg and the resulting legal actions (including copyright infringement) will demonstrate how legal educators can inspire law students to engage more fully with their IP law studies. Copyright law issues relating to the screening of film clips in the teaching environment will be examined. The author presents the results of qualitative research concerning the student experience and student feedback on the use of film in legal education which assists to evaluate the advantages and disadvantages of screening film clips as a method of law teaching and learning. Finally, given the wealth of popular culture films available, other recommended films that are especially useful for teaching IP law subject matter are briefly discussed and the author will direct IP law educators to online resources so that they can begin to create a portfolio of their own films to further enhance their IP law teaching.
1. Historical Background and Introduction
It is one of the strange paradoxes in the educational film's history that the motion picture was developed largely for education purposes, only to have that purpose engulfed in a wave of commercial exploitation, then to be 're-discovered' more than a generation later as 'the marvelous new tool of education'.
Godfrey M. Elliot, Film and Education (2007)
The first regular public exhibition of moving pictures in London began at the Old Cinema in Regent Street in the spring of 1896 where audiences were thrilled by the programmes of short 50-second films showing simple everyday events. [3] Since then, the screening of films has developed so rapidly that it has become a major influence in popular culture in the UK and around the world. The invention of the motion picture was the result of work by a number of men over many decades which led to the dawn of the creation of the cinema as a public venue for to exhibiting the films. Interestingly, on 20 February 1896, Lumière films were exhibited at the Royal Polytechnic Institute, an educational setting, in London. By the end of the century, cinemas had opened in most large towns within the UK and had secured a place in popular culture and the arts. The first film to have a legal case as a plot was probably the French film L'Affaire Dreyfus, a short silent film about the a French Army major charged with treason which was directed by Georges Méliès, and released in 1899.
Not long after in the 1920s, educational films, mainstream movies, documentaries and then television series became a mechanism for presenting hypothetical cases and problem solving, especially in Amercan law schools according to Steven Shepherd, an American legal education historian. [4] However, he acknowledges that the practice was neither widespread nor common and, 'is still lost in the mists of time'. [5] Today, however, legal education may be on the brink of a profound change due to the combination of (1) accessible audio-visual technology in university teaching settings; and (2) a cultural climate which the public reveres the film medium. Film inspires, excites and informs. It has often been described as the great art form of the twentieth century; and it has certainly been one of the most prevalent. Inspiration is a resource that law lecturers urgently need as increasingly, students expect to be entertained whilst learning. One of the most powerful influences on the traditional lecture is due to advances in technology. Consequently, many new methods of law teaching have developed by focusing on the structure of class presentation with an increase in the use of audio visual resources such as film, video/DVD, tapes, TV programmes and online resources. These are typically used as a source of hypotheticals to enhance and vary the students student experience, whether in class, out of class or even at a legal film festival. To this end, in the late 1960s the American Bar Association (ABA) published an amazingly comprehensive bibliography of eight hundred movies and film clips for law school use. The bibliography included commercially produced movies, newsreels and documentaries. [6] Nevertheless, in 1995 the ABA's Focus on Legal Education Survey indicated that only about a third of law professors were incorporating audio-visuals (including film) in their lectures, classes or for optional out of class viewing. [7] In the UK, there is no available date so we can infer that use of film in legal education was likely to be even less than in the United States.
We have established that although the use of audiovisuals such as film in legal education is not new and has been used for decades, it has also been widely underused in law schools. An educational film [8] is a film or movie whose primary purpose is to educate and is produced for that purpose. Understandably from a resources point of view, it is wholly unrealistic and impractical for law lecturers to produce their own educational legal films. So the next best option for enhancing legal education is to consider an alternative method of law teaching using carefully selected films clips derived from quality mainstream commercial films (as originally envisaged by the ABA). In the UK, the inclusion of film media in law teaching is not as developed as in the United States, however, at the primary and secondary school level the charity 'Film Education', established in 1984, is supported by the UK Film Industry to promote and support the use of mainstream commercial films, as opposed to educational films, in the school curriculum. [9] Unfortunately, 'Film Education' is not currently involved in providing resources to universities. [10] In the UK at the university level, the use of mainstream commercial films for teaching and learning purposes is minimal and remains virtually unheard of in law schools even though legal matters have been the subject of some of the worlds' most popular films.
Two institutions at the forefront of using mainstream films to enhance legal education in the UK are the University of Westminster and The Open University. [11] The former has offered a 'Film and the Law' course as part of the School of Laws' first year options on their LLB Honours programme for over a decade. Originally developed by Steve Greenfield and Guy Osborn, the module introduces the concept of the 'legal film' to students as well as the phenomena of films about law, lawyers and justice. The latter institution, given its origins as a distance learning specialist, has regularly used audio-visual material including videos, TV and documentaries to provide a rich mix of teaching materials in connection with its distance learning law programmes. The UK Centre for Legal Education (UKCLE) also provides access to webcasts, podcasts and other audio-visual legal education resources, although there is no resource specifically related to the use of mainstream commercial legal films. [12] Finally, the University of Sutherland's Ben Livings has been involved in leading an extra-curricular 'Law on Film' sessions where a group of law students meet during the academic year outside the classroom setting to watch films that have legal themes and discuss them. [13] Therefore, it is safe to conclude that UK experience differs from that in the US and UK law schools benefitting from mainstream movies to teach law and legal principles are the atypical exceptions, not the norm. [14] Nevertheless, in 2013 young adults arrive at university with expectations from their experience at primary, secondary school and college by teachers who have already introduced them to a variety of film genres to increase their engagement with the subject matter when learning. Law students love movies with legal themes because although they portray fictitious legal issues, they nevertheless provide an opportunity for legal analysis and perspective. This is borne out by the qualitative research in the form of a pilot study that will be discussed later in this paper.
1.1 General legal education issues
In law schools in the UK and elsewhere around the world, the traditional method of educational delivery is via lecture accompanied by power point presentations, followed up with text-based resources that enable the students to learn how to articulate and justify their legal reasoning using written language. This law teaching technique is valid as the law itself is text-based. However, as any lecturer, lawyer or law student knows, reading legislation is not an exciting read. Reading a well-written judgment is rather good, but there are also many dull cases that have not been carefully edited, not to mention those cases written in archaic English language. In my view, which is echoed by other academics [15], exclusive reliance on textual resources does not provide law students with the full spectrum of skills they need to become professional practitioners. University lecturers need to use a range of teaching methods and not just traditional 'chalk and talk' methods. Law students also need to develop non-textual reasoning skills. Legal educators continually strive to improve the law student experience and there are opportunities to enhance teaching and learning with imagination. Using carefully selected films clips which dramatize legal issues is a highly effective method of engaging students and strong visual aids promote novelty. If the law lecturer is able to engage students using relevant key scenes of well-produced contemporary films that depict IP law issues, this inspires them to seek out and access the detailed black letter law available in the text-based resources in order to satisfy their increased thirst for knowledge. In other words, giving the students the opportunity to watch and listen to legal issues, rather than just read about them, assists students to transfer their curiosity and interest in IP law subjects to learning more from the text-based resources such as the legislation, case law and law journal articles. The use of film in IP law education enhances the student's ability to move into text-based IP law resources in the first place, while also developing the broad spectrum of the students' cognitive processes. While documentaries may be good teaching aids, they may need to be screened in their entirety for full effect which can take up too much teaching time. With mainstream commercial films however, the IP educator is able to incorporate key scenes with as little as 2 - 5 minutes length to provide sufficient narrative to make the legal point without sacrificing undue teaching time.
1.2 Literature on film and the law
Existing literature relating to film and law (and other audio-visual media such as TV programmes, videos, tapes etc. [16]), while not extensive, offers some insight into the tremendous potential of film as a powerful educational tool. [17] As mentioned previously, in terms of legal education, early pioneering research took place in the United States, the global centre of the film industry, when the ABA investigated the rise of multimedia and the potential to integrate different media within law practice. [18] Bergman and Asimov (1996)[19] clearly expressed legal education as a goal, despite the fact that Hollywood often twists legal rules in order to inject drama or humour into courtroom dramas. Black (1999)[20] presented the view that film is a vehicle for enlightenment as a result of its availability and apparent accessibility to student lawyers. Each of these American authors mentioned the issue of 'livening up' their teaching through the inclusion of film as a teaching tool and there is clear support for the integration of film into legal education. In 2007, another American, Kent Kaufman, published a helpful teaching aid book entitled, Movie Guide for Legal Studies which describes forty movies of a legal, judicial or public policy nature which can be incorporated into law teaching. The Guide includes a synopsis of each film, its key facts, actors, length and overall rating. The author identifies key legal themes within each movie and correlates films to specific legal topics. Scenes are broken down into five to fifteen minute pieces and a discussion guide is presented. While this publication is extremely useful to legal educators who wish to access legal films for their law teaching, the author does not include any films that give rise to IP law themes. This article attempts to fill this gap in 'legal film' coverage.
Meanwhile, as mentioned briefly above, in the UK in 1995, Greenfield and Osborn designed and developed a 'Film and Law' course devised as a first year undergraduate elective aimed at providing a medium to introduce of form of critical jurisprudence at an early stage in the undergraduate law programme at the University of Westminster. This led to the publication of a seminal book entitled, Film and the Law [21] in 2001 about the phenomena of films about law, lawyers and justice ranging from the classic film Young Mr Lincoln in 1939 to the contemporary environmental law film Erin Brokovich. The focus of Greenfield and Osborn's book is exclusively on films originally made for cinema, rather than television movies, and is dominated by American-made movies. [22] The authors set out the evolving terrain for the teaching and study of what they term and classify as 'legal films' [23] which encompasses the majority of the law syllabus. The authors also investigate how films have been used as an aid specifically for law teaching. By way of illustration of the content, at page 6 of their book the authors state:
Perhaps the most obvious use of film in the study of law is as an audio-visual teaching aid to illustrate particular points. On a practical level, these might be in areas of legal practice such as advocacy, skills or ethical issues. Examples of how film could be used at this level could include using Philadelphia (1993) to illustrate discrimination in employment, or perhaps A Civil Action (1999) to discuss environmental law and causation in tort. [24]
The authors conclude that there is a developing body of scholarly work that has legal film as its critical core. [25] Once again however, the discussion and films used to illustrate teaching methodologies in Film and the Law do not specifically identify or directly address IP law themes. Clearly, the use of film to enhance IP law teaching and learning is a developing area of research and scholarship and therefore the boundary of what falls within the 'law film' genre needs to be extended to include films that deal with IP law subject matter. As IP's place in popular culture becomes more prominent as a result of the creative economy, the new 'IP law film' genre will develop and academics will debate and cultivate a rationale for including particular films that offer a screen characterization of IP law themes which should extend to include inventors and other creators. The canon of what we understand as a 'legal film' will mature to include IP law topics separated into distinct IP law themes such as copyright, design, patents, trademarks and confidential information, among others.
Ultimately, it is legal knowledge and legal skills that comprise the core of legal education, going beyond the black letter approach and centring on information transmission and problem-solving. [26] An effective way to transform IP law content into knowledge that IP law students can ably use in new contexts is to anchor that new knowledge to things they already know through film clips that are pedagogically useful. The author hypothesizes that in order to find the most pedagogically useful movie clips, those that contain plots with express references to particular types of IP rights and law, together with popular actors and memorable dialogue would have the most compelling capacity for anchoring an IP law topic in the student's mind. Accordingly, the movie clips the author has employed for teaching and learning IP law are chosen primarily for the IP right portrayed in them. The secondary consideration is the clips' movie appeal - although the better the movies' appeal, the better to inspire and inform students. For example, The Social Network film which will be discussed in more detail, has high utility in relation to digital copyright law issues as well as a high degree of appeal to university students given the plot involving students at university setting. Other films may have high utility but low appeal to a typical young adult university law student audience.
1.3 Copyright law considerations when using mainstream films as pedagogical tools
In terms of copyright law and fear of copyright infringement, in the UK fair dealing in a copyright work such as a film for the purpose of private study or research is permitted by s29 of the Copyright Designs and Patents Act 1988. This means that showing a film, either in its' entirety or film clips, in a university setting is usually not an infringement of the owners' copyright. In other words, the copyright law exempts the screening of a movie or movie clip from being an infringement of copyright when it is for educational or research purposes. However, as a guide, the screening of the film should be part of a teaching activity by either a lecturer or a student; the education institution must be not-for-profit and no admission fee charged to watch; and finally the teaching environment should be a place used for educational instruction. Consequently, if the IP law lecturer is employed to teach at a UK public university and is showing the film clip as part of teaching, there should be no need to obtain copyright clearance nor any risk of copyright infringement for screenings on site. However, the issue of distance learning education is less certain given there is no traditional educational setting and the fact that the films could be broadcast anywhere to a potentially unlimited number of people. [27]
The material to follow in this article has benefitted from opportunities to present the work in a number of academic settings including: the British and Irish Legal Education and Technology Association (BILETA) 2012 Conference, the European Intellectual Property Teachers Network (EIPTN) Fifth Annual Conference, the Chartered Institute of Patent Attorneys (CIPA) Annual Midlands Meeting [28]; and the University of Trento (Italy) Law and Technology Research Group Law Tech IP Seminar Series.
2. Enhancing Intellectual Property Teaching Using The Social Network Film
Intellectual property (IP) law is a dynamic, engaging and complex area of legal education usually offered as an optional subject in the final stage of an undergraduate law degree. It provides opportunities for delivering some of the most crucial lessons law students can learn, yet it can be a challenging subject for law teachers to deliver. This is largely because teaching IP laws can be conceptually difficult, since they involve abstract ideas. Further, key IP case law can be lengthy, complex and written in highly technical IP-oriented language.
Accordingly, from a legal education perspective, The Social Network film is enormously valuable as a tool for engaging IP law students who are learning about the IP law system and their future role in it. The Social Network is a 2010 drama directed by David Fincher about the founding of the social networking website Facebook and the resulting legal actions. The screenplay was written by Aaron Sorkin and is adapted from Ben Mezrich's book The Accidental Billionaires: Sex, Money, Betrayal and the Founding of Facebook. [29] The film has received widespread acclaim, with critics praising it for its editing, acting, score and screenplay so it is acknowledged as a quality film. Intellectual property law modules typically introduce students to the main IP law regimes with a focus on legislation and case law (in the common law countries) usually via a series of lectures and class seminars on a university campus. The lectures often include some images used in the lecturer's power point presentation, but no sound or action. The IP law syllabus usually includes the principles of copyright, designs, patents, trademarks, knowhow and confidential information. A program of study with so many areas of importance and interest to address, and so many abstract notions to make concrete, can be greatly enhanced through the use of film. The aforementioned legal topics arise expressly in The Social Network film and this is what makes it highly useful as an IP educational tool. The combination of moving image and sound in a feature film is a familiar format for most students and one that can help to contextualize issues that may be difficult to study in isolation. By way of example, drawing on existing professional legal practice, a barrister uses his or her ability to create visual aids to explain complex evidence to the judge and/or jury. [30] Like a master chess player, the barrister uses audio-visual intelligence to 'relate' an abstract legal issue or to explain aspects of complex technology, say for example in patent litigation. In a similar vein, with respect to IP law education, the combination of an engaging plot, images, sound and action are what make the film medium so compelling and able to draw students more deeply into the subject. After all, a film is carefully edited to condense into a few minutes an event that in reality would take much longer to occur. This hyper-reality is particularly captivating for students who engage in the learning process via a simulation of reality of a 'real' world legal problem, in other words, reality by proxy.
Using The Social Network film to demonstrate the variety of entrepreneurial and IP issues faced by an enormously successful web-based business at the cutting edge of IP law is grounded in reality while also being a fun, non-traditional and innovative way to engage students and encourage them to learn more about the IP legal environment. It is a different approach to the traditional 'chalk and talk' teaching method described earlier. Importantly, the subject matter of the film hits the mark in terms of the primary IP studies and case law being undertaken by the students as a requirement of the syllabus. Simply put, the story of the global success of Facebook from its inception by Mark Zuckerberg whilst a student on Harvard University campus is an inspiring story for the students. Inspiration ignites students' desire to learn and achieve both academically and their own personal goals. In my view, and that of many colleagues who are members of the EIPTN [31], teaching IP law is not just an exercise in getting students to memorise provisions from the Copyright Designs and Patent Act 1988 and quote from judgments to apply to fact scenarios. IP law students also need to develop their knowledge of the law in such a way that it will facilitate their understanding of entrepreneurship and commercial success, rather than hinder it. My professional background as a commercial solicitor and in-house counsel of both a public and private companies has given me a solid understanding of how innovative IP is developed and commercialised. A key teaching aim is to reinforce the traditional relationship between legal advisors and business people and so my teaching ethos involves showing IP law students the relevance of the business environment to the ultimate success or failure of their future clients' business endeavours. What is the methodology for achieving these aims? Set out below is a way to disseminate learning using the film medium as a different type of channel to reach IP students and get the message across.
3. A Methodology for using The Social Network Film as an Education Tool
In this instance the term 'methodology' is not used in the research sense, rather in the sense of execution of steps and good practice. Why The Social Network film? Having seen it in the cinema, the author immediately recognised that the plot of the movie was directly relevant to the IP law field and that key scenes from the film could be used as educational tools. Since then, the author has made a list of other films that will enhance IP law teaching and these will be shared later. It is probably unrealistic from a resources point of view for a law lecturer to a create a purpose-made film, so the most practical option is to draw on mainstream commercial films already available to the public. The author arranged for her university law library to purchase two DVD copies of The Social Network film for students to borrow to view. The author also has her own copy in her personal IP teaching toolkit. In order to use The Social Network film as a teaching aid, the author carefully selected the key relevant scenes from the actual film and screened these to the students during lectures and seminars. The screening of the key scene is followed by a tutor-led discussion with the students about the intellectual property law issues arising.
Why this film works so well in connection with IP law issues is because the film is framed around legal actions against Facebook founder, Mark Zuckerberg. One legal action is the claim that Zuckerberg stole the idea for Facebook from fellow Harvard students and/or was employed as a programmer of their website, Harvard Connection. Certain key scenes in the film are directly relevant to copyright law issues. As copyright is usually taught as the first topic in the IP law syllabus, this neatly follows the films' plot. The process of commercialising Facebook as depicted in the film, mirrors other IP considerations such as trademarks, patents and confidential information. These IP law issues continue to flow through the IP syllabus so that key scenes in the film can be used at many junctures in IP law teaching. Further, The Social Network story is intercut with scenes from depositions (similar to affidavit evidence) taken from the legal actions against Zuckerberg and Facebook. This provides an avenue for discussing the legal issues encountered in relation to protecting creative endeavour. Additionally, it introduces the role of the legal profession, the role of ADR, negotiation and out of court settlements to the IP law students. It is envisaged that this teaching method could be delivered in a variety of ways:
- In a lecture embedded in a power point presentation;
- On an online platform;
- Screened in a tutorial or seminar for more direct discussion; or
- Reside on an e-learning platform for use by distance learners or for self-study (subject to any copyright restrictions).
The availability of audio-visual technology and large film screens has increased greatly over the last decade and are easily accessible in the vast majority of university lecture theatres and seminar rooms. In fact, the availability of beautiful new cinema style screens in the newly re-furbished lecture theatre at the Nottingham Law School is what led the author to think about how to make optimal use of the expensive technology her university had invested in, beyond a simple power point presentation.
In terms of engagement with IP law study, students immediately relate to the main characters in The Social Network as they are they are also university students. The plot of the film centres around university study at the world-renowned Harvard University in the United States. The film is contemporary; it is only two years since it was released to the public. Through the subject matter of the film, the original idea for and ownership of a newly created social networking website, the law lecturer is able, at the outset, to immediately demonstrate the relevance of IP law to modern society. This greatly assists to engage the students so that they will be more amenable to reading the black letter law of the legislation, cases and textbooks and thus form an integrated understanding of the IP law framework system. Further, as university students are highly computer literate, not to mention avid FaceBook users, they have a connection with, understand and actually regularly use the website that is the focus of the legal wrangling in the film. Students are also much less intimidated about discussing legal issues arising in a film or about Facebook than they are when discussing the provisions of the Copyright Designs and Patents Act 1988 or the Patents Act 1977. This makes for much more lively interaction and discussion during seminars during which the lecturer is able to introduce the legislation and case law to illustrate the legal issues raised in the film. The discussion is lecturer-led and the students' energy and intellectual appetite is channelled toward IP law principles and their application in a simulated entrepreneurial situation. This methodology is a more satisfying learning experience for both the student and the lecturer. It has been established that simulations offer the benefits of experiential learning and provide the most efficient and cost effective method of teaching skills in law schools. [32] They work best when there is a fine balance between the element of pedagogical control through design and opportunities. [33]
4. Two Sample Lesson Plans for Using The Social Network Film
Set out below are Lecturer's Notes before seeing the film and two sample lesson plans. The following two lesson plans have been developed to follow the film's plot from start to finish. Each lesson plan gives a brief summary of the key scene followed by the identification of the relevant IP law issues arising for elaboration and discussion. As in real life, the IP law topics arise in a multifarious way as events in the film unfold. The lecturer can determine the degree of pre-reading on substantive law required to meet the module syllabus.
4.1 Lecturer's Notes - Before seeing The Social Network
Before seeing the film, the lecturer may wish to give students a biography of the key character of the film, entrepreneur Mark Zuckerberg, and information about Facebook, Inc. and a brief summary of key facts is provided below.
Mark Zuckerberg was born on 14 May 1984 and is an American computer programmer and Internet entrepreneur. He created the social networking website Facebook, launching it from his Harvard dormitory room on February 4, 2004. An earlier inspiration for Facebook may have come from Phillips Exeter Academy, the preparatory school from which Zuckerberg graduated in 2002. The Academy published its own student directory, 'The Photo Address Book,' which students referred to as 'The Facebook.' Such photo directories were an important part of the student social experience at many private schools in the United States. With them, students were able to list attributes such as their class years, their proximities to friends, and their telephone numbers.
The development of the Facebook website business also involved his Harvard University classmates Eduardo Saverin, Dustin Moskovitz and Chris Hughes while they were students. A private company was formed in 2004. Zuckerberg is chief executive officer (CEO) of Facebook. In 2010, he was a 24% majority shareholder in the company. Also in that year, Zuckerberg was named Time magazine's Person of the Year. As of 2011, Zuckerberg's personal wealth was estimated to be £7 billion. Facebook now has approximately 901 million active monthly users of the website. In May 2012, the privately owned company controlled by Zuckerberg issued an Initial Public Offering Prospectus offering shares to the public listing on the NASDAQ stock exchange in the United States. Zuckerberg remains a company director. According to its prospectus, Facebook says its competitors include Google, Microsoft, Twitter, and regional social networks, including Cyworld in Korea, Mixi in Japan, Orkut (owned by Google) in Brazil and India, and Kontakte in Russia.
Facebook is one of the most popular social network website in existence in the United Kingdom and in the world. A brief surfing of the net to the www.facebook.com website would also assist contextualise the film. Zuckerberg also has a Facebook profile page that the students can view. The lecturer may also wish to note that society is in the midst of a global evolutionary period with developments in sophisticated communication mediums such as Twitter.
It would also be useful to introduce the legal case that formed the basis for the Mezrich's novel, The Accidental Billionaires (which may be suggested as further reading). The seeds of the global controversy were sown in a Harvard College dormitory room. Tyler Winklevoss, Cameron Winklevoss, and Divya Narendra (the Founders), then Harvard undergraduates, hatched the idea of creating a social networking website for college students. Lacking the programming expertise necessary to bring this idea to fruition, the Founders asked Mark Zuckerberg to help them complete the proposed website's source code and aid in the development of their embryonic website. The request, which was made and accepted in November of 2003, yielded a horrific harvest. According to the Founders, Zuckerberg not only failed to carry out the assignment but also stole their idea, business plan, and rudimentary (unfinished) source code in order to launch a competing social networking website. Zuckerberg acted in secret. By the time that the Founders learned of actions, completed the source code through other means, and inaugurated their own social networking website (originally called harvardconnection.com and later renamed connectU.com), Zuckerberg's venture (originally called thefacebook.com and later abbreviated facebook.com) had obtained an insurmountable lead in user traffic. On September 2, 2004, ConnectU LLC, a Delaware limited liability company (the LLC) commenced an action in the United States Federal District Court claiming $140m USD damages premised on diversity of citizenship and the existence of a controversy in the requisite amount, 28 U.S.C. § 1332(a) (1), against Zuckerberg and five other defendants associated with him, namely, Dustin Moskovitz, Eduardo Saverin, Andrew McCollum, Christopher Hughes, and Facebook itself. [34] The complaint linked the three Founders with the LLC and asserted an assortment of state-law claims arising from the alleged misappropriation and unauthorised use of the LLC's confidential source code and business plan. In other words, the causes of action were for breach an oral employment agreement, unlawfully using source code intended for the Harvard Connect website and the website design concept. An expert witness, Jeff Parmet of DisputeSoft was engaged by ConnectU LLC to compare its source code to the source code of TheFacebook and to determine the validity of these claims. The court eventually ordered the parties to mediate their dispute and the case was eventually settled in 2008, reputedly for $65m USD. With the settlement appeal from the U. S. District Court for the District of California upheld by the 9th Circuit, and the recent dismissal of the original case in the U.S. District Court for the District of Massachusetts, this lengthy litigation is finally over. [35]
The above facts are summarised from the actual judgments in the American litigation. Although the film is a dramatisation and there are liberties with the facts, the key IP issues in the case are depicted in the film. The film can be used as a stimulus for discussion and debate of the relevant IP law principles, for group work and role-play, helping students understand how IP law rights are enforced by means of litigation, the role of mediation and out of court settlement of disputes. Students may wish to view the whole film in advance but this is not crucial. Transcripts of the dialogue from the relevant scenes can then be studied during the lesson. This mirrors legal practice in that witness statements and transcripts of evidence are available to the parties. Although this article provides two sample lesson plans for using The Social Network film to enhance IP law education, the author has developed several more lesson plans covering additional IP law topics including confidentiality, information technology and copyright, trade mark law, patents and IP rights enforcement. The first sample lesson plan focuses on copyright, namely, authorship, ownership and employees and the second deals with the idea- expression dichotomy in copyright.
4.2 Lesson Plan - Copyright (Authorship, Ownership and Employees)
Pre-reading: Holyoak & Torremans, Intellectual Property Law (6th Ed) OUP 2010, Chapter 13 Authorship and ownership of copyright.
Key Scene: Chapter 2 of The Social Network DVD - Mark is invited by the Winklevoss Twins to the Porcellian Club to discuss a business project.
Materials: Transcript of movie dialogue between Mark, the Winklevoss twins and Narenda
Introduction to the film and key scene
The film is set in 2003. Harvard University student Mark Zuckerberg is dumped by his girlfriend Erica Albright. Upset, Mark returns to his dorm where he gets drunk and writes a scathing blog entry about her, which inspires him to create an on-campus website called Facemash that allows the users to rate the attractiveness of female students. However, Mark is caught and receives six months of academic probation after the traffic to the site brings down parts of Harvard's network. His prank also causes him to become vilified among most of Harvard's female community. However, the popularity of FaceMash and the fact that Mark created it in one night while drunk, brings him to the attention of fellow students Cameron and Tyler Winklevoss and their business partner Divva Narenda. The Winklevoss twins invite Mark to their club, the Porcellian [36], where a brief discussion ensues. Mark allegedly accepts a job as programmer to work on a proposed dating website they call 'Harvard Connection' which will be exclusive to Harvard alumni.
Tutor-led discussion after viewing the key scene - Authorship and ownership of copyright
According to the Copyright Designs and Patents Act 1988 s9 (1), the person who creates a work is the author of the work. The rule that the creator of the work is the author of it has to be combined with the requirement to record or fix the work in a permanent form. Ideas are not protected, rather their expression is protected only when it is fixed. A similar problem to that depicted in movie arose in the case of Springfield v Thame in which a journalist supplied the idea for an article written by his editor. [37] His idea did not attract copyright; he was not the creator of the literary work, rather his editor's expression of the idea attracted copyright. The editor was the creator of the expression of the idea and thus as creator of a literary work, its' author. The starting point in law is that the author of a copyright work is its first owner: CDPA 1988, s11(1). However, contracts of employment undermine this general principle. The first owner of copyright in source code / software created by an employee in the course of his or her employment, will be the employer. Agreement to the contrary may be negotiated. During the key scene in the film, merely ideas for potential webpages and software are being discussed.
Establishing whether a contract of employment exists between Mark and the Winklevoss twins and Narenda is crucial to establishing ownership of future copyright in the source code and elements of the web design that Mark eventually writes. Has Mark entered into a contract of employment? Potentially. An oral agreement is possible in the law of contract. If so, what were the terms of that agreement? Was the software that he wrote in his dormitory room following the meeting made in the course of the contracted employment? [38] If the answer is affirmative, the software will have been created in the course of employment and the employer will be the owner of the first copyright in it. If not, the ownership of the copyright will reside with Zuckerberg as creator and the original author. It is in the interest of both the employee and the employer that there is no doubt as about ownership of copyright. Ownership of copyright is even less obvious if the author is freelance or a consultant. A clause in the contract for service with the freelancer or consultant setting out that the ownership of the work produced will be transferred is advisable. Otherwise, one can only rely on the concept of an implied licence. The key scene of the Social Network film, set in the Porcellian Club, cleverly leaves the question of whether a contract has been entered into between Zuckerberg, the Winklevoss twins and Narenda open. There is no certainty as to whether Mark has entered into a contract which is why it is a powerful scene for the students to critically analyse.
4.3 Lesson Plan - Copyright (Idea-Expression Dichotomy)
Pre-reading: Holyoak & Torremans, Intellectual Property Law (6th Ed) OUP 2010, Chapter 9 An introduction to Copyright
Key Scene: When the Winklevoss twins and Narendra learn of Thefacebook website Mark has created, they believe he has stolen their idea, business plan and rudimentary (unfinished) source code in order to launch a competing social networking website, while stalling on writing the programmes for their HarvardConnection.com website. Tyler and Divya want to sue Mark for IP infringement (unauthorised use or theft) of their Harvard dating website idea, but Cameron convinces them they can settle the matter as "gentlemen of Harvard" without going to court.
Tutor-led discussion: Idea -Expression Dichotomy
In terms of copyright law, students explore whether the 'idea' for a dating website attracts copyright protection. One of the fundamental concepts of copyright law is that copyright does not protect ideas, information or facts, but instead protects the form in which those ideas, information or facts are expressed. The idea-expression distinction has been accepted and applied by the courts in the UK throughout the history of copyright, although it is not explicitly stated in the CDPA 1988. This concept is, however, explicit in Article 2 of the Agreement on Trade Relates Aspects of Intellectual Property (TRIPS) which provides that copyright protection extends to 'expressions and not to ideas, procedures, methods or operation or mathematical concepts as such.' Where an idea can only be expressed in one particular way, that expression will not be protected since to confer copyright protection would monopolise the idea: Kenrick & Co Ltd v Lawrences & Co (1890). [39] So although copyright protection is broad, it is not without boundaries. At times, it is difficult to state with precision the extent of the creator's copyright.
A more advanced analysis of the scene from the film will guide students to consider whether: (1) the Harvard Connection.com dating website idea was sufficiently developed to attract copyright protection; and (2) Mark's Thefacebook.com infringes (i.e. copies or makes unauthorised use of) the dating website idea. What are the copyright principles involved? How would a judge analyse these facts in order to arrive at a decision? In relation to (1) above, a theme running through copyright law is that it is constantly adapting in response to advances in technology. Computer technology develops with which copyright has had to grapple include computer software programs. An international consensus that computer programs should be protected by copyright emerged during the 1980s and was confirmed by Article 4 of the TRIPS Agreement and Article 4 of the WIPO Copyright Treaty and so are afforded copyright protection under ss1 (1) and 3(1)(b) CDPA 1988. [40] This means that in the UK normal copyright rules apply to computer programs. For example, in order to be an original literary work, the computer program must be the product of a substantial degree of skill, labour and judgement by the author. [41] Case law suggests that for 'originality' to be found in a computer program, the court is particularly concerned with certain aspects including the algorithms or operational sequences and the structure or architecture of the program. Nevertheless, even with computer programs, copyright only protects expression and does not protect ideas. For example, the idea for a program to electronically manage a dental laboratory and the functions the program is to achieve are not protected by copyright: Whelan Associated Inc v Jaslow Dental Laboratory Inc. [42] However, the code lines of the program, its algorithms, operational sequences, file structure and architecture may be once it is 'recorded in writing or otherwise': s3 (2) CDPA 1988. This principle was explained in more detail in the case of Ibcos Computers v Barclays Mercantile High Finance (1994) [43] when Jacob J stated that 'UK copyright cannot protect the copyright of a mere general idea, but can protect the copyright in detailed ide3as.' Fixation on a hard or floppy disk or hard-drive will meet the fixation requirement under the Act.
Throughout the film, the story is intercut with scenes from witness statements (US terminology 'depositions') taken in legal actions against Zuckerbeerg and Facebook®-one filed by the Winklevoss twins, the other by Eduardo Savarin. At the end of the film, Marylin Delpy, a junior lawyer for the defence, advises Mark that it would be wise to settle the claims, since the sordid details of Facebook®'s founding and Mark's callous attitude would make a US jury highly unsympathetic. After everyone leaves, Mark sends a friend request to Erica Albright on Facebook®, and refreshes the page every few seconds waiting for a response. The legal effect and advantages of 'out of court settlements' for IP disputes can be discussed. In law, a settlement is a resolution between disputing parties about a legal case, reached either before or after court action begins. Settlement, as well as dealing with the dispute between the parties, is a contract between those parties, and is one possible (and common) result when parties sue (or contemplate so doing) each other in civil proceedings. The claimant(s) and defendant(s) identified in the legal proceedings can end the dispute between themselves without proceeding to a public trial by signing a confidential agreement. Students will be introduced to comparative UK /US law in terms of jury trials and damages awards. A jury is a sworn body of people convened to render an impartial finding of fact on a question (verdict) officially submitted to them by a court or to set a penalty or judgment. Modern juries in the United Kingdom are limited to ascertaining the guilt, or lack thereof, in a crime and therefore no longer used for civil business law matters. Juries are almost never used in civil cases outside the United States and Canada. Civil law countries generally do not use civil juries.
4.4 Lecturer's Notes - After seeing the film
This would be a good opportunity for the students to critically analyse the traditional justifications for the existence of the monopolistic copyright system of intellectual property protection in relation to IP. Do the students regard Zuckerberg as being a creator who has been justly rewarded for his innovation and creativity as originally envisaged by John Locke's Labour Theory? [44] One of the most basic justifications for IP rights is that a person who puts intellectual effort into creating something should have a natural right to own and control what he creates. This is derived from the 'Labour Theory' in which philosopher John Lock argued that everyone has a property right in the labour of his own body, and that the appropriation of an un-owned object arises out of the application of human labour to that object. Such an entitlement is recognised under Article 27(2) of the Universal Declaration of Human Rights which states that 'Everyone has the right to the protection of moral and material interests resulting from any scientific, literary or artistic production of which he is the author'. Contrast this with the question, 'Is Zuckerberg an ethical business person'? Moral questions raised within the film's narrative can prompt students to express opinions and consider alternative viewpoints.
Having attempted to persuade readers that The Social Network is a highly effective film for introducing and teaching IP law topics, this does not mean the film is without criticism. Some reviewers hold the view that the film played loosely with the facts of the legal actions. Joe Morgenstern in The Wall Street Journal praised the film as exhilarating but notes, 'The biographical part takes liberties with its subject. Aaron Sorkin based his screenplay on a contentious book, Ben Mezrich's The Accidental Billionaires, so everything that's seen isn't necessarily to be believed.' [45] This may be the case, nevertheless, from a teaching point of view, the film enhances and humanises the student's ability to embrace and learn about IP law concepts, legislation and case law. Learning can be defined as any change in behaviour that results from experience. The film both arouses and satisfies the students' interest in exploring and applying IP law principles.
5. Student Feedback and the Student Experience
Whilst informal feedback from students and colleagues is that the inclusion of The Social Network film clips in IP law teaching was valuable, in December 2012 the author collected feedback [46] from her students in order to critically analyse and evaluate the advantages and disadvantages of using mainstream commercial film clips to enhance legal education within a university setting. In order to gather information about the opinions and behaviour of the participants who experienced the film clips teaching and learning methodology, the author adopted a pragmatic approach and designed a questionnaire containing twenty-two questions that was completed by a group of twelve law students at the end of the academic term. Participation in the research was voluntary and not linked to academic grade or any other form of evaluation. The primary purpose of the questionnaire was to develop an understanding of the effect that the teaching methodology using The Social Network film clips had on the students in a university law school setting. The questionnaire was completed by the students themselves during the first half hour of the last two hour seminar of the term in their usual class room setting. The questionnaire contained both open ended and closed questions. The open-ended questions were useful for identifying a range of responses and opinions where no previous data existed. Qualitative investigations tend to be small [47] particularly in relation to a pilot study using a convenient sample of the most accessible subjects (students). [48] The aim of the qualitative study is to provide illumination and understanding of answers to humanistic questions such as, 'should we use film clips to teach law?' and 'how should we do it?' in order to confidently make inferences and identify common views. The questionnaire and data collection process provided a lens for data analysis, conclusions and recommendations. In summary, the observed commonalities were consistent and able to provide a portrait of the positive impact of using film clips as a teaching and learning tool, particularly due to the heterogeneity of the students surveyed.
5.1 Descriptive data analysis
The questionnaire was entitled, 'The Use of Film in Law Teaching Student Feedback Questionnaire 2012' which began with the following introductory paragraph:
This term during our law seminar we watched a short clip (5mins) from the film The Social Network about the creation of the Facebook social networking website by Mark Zuckerberg. Please give feedback regarding your learning experience.
What does the dataset capture? In terms of the students surveyed, the first five questions dealt with the student population. The students surveyed were evenly mixed with respect to gender with half women and half men. As at 1 December 2012, all the students were in their first year of a three year degree course and ranged in age from 18 - 20 years old, with 75% being 18 years old. Ninety-two per cent of the students were UK citizens studying in the UK. This evidence demonstrates a homogenous group of young adult UK university students. Questions six and seven related to prior experience of film as a teaching tool. All of the students (100%) had experienced the use of films as a teaching and learning tool before they arrived at Nottingham Trent University. Eighty-three (83%) had experienced films for educational purposes at college; fifty-eight (58%) at primary school and fifty (50%) in other educational settings. This indicates a high degree of exposure film as a teaching method in education generally.
The remaining questions related to the student experience and feedback concerning the use of The Social Network film during their seminars. In question eight, a closed yes or no question, one hundred per cent (100%) of the students agreed that it was a valuable learning tool that assisted them to learn how to apply legal principles and rules to a realistic, albeit, dramatized scenario. Question nine was an open question inviting the students to describe the specific advantages of using this method of teaching in contrast to reading a summary of a legal case from a textbook. The students' feedback and reflections on their learning experience is set out in table one below. Almost without exception students reported some way in which their understanding of the legal issues became clearer or deeper. Therefore the concept of employing carefully selected relevant mainstream move film clips as a way of engaging the students was also consistently positive.
Table 1 Specific advantages of using film clips as a method a teaching
More involved and allows you to see a real life application of the law.
Could relate to characters / actually see the people involved. More engaging.
Real life example, helped to apply knowledge.
Easier to access, variety of teaching tools.
Practical learning - easier to remember - see how the law works in real world and also the way in which law can be portrayed across America in comparison to the UK.
Break from reading, real life examples, easier to understand than pages of text.
Something different, provides variety, more interesting, easier to understand.
Application - see it in use, can be compared to questions.
Practice example, breaks up the seminar.
Remember it better.
Seems more relevant to real world. Allows application of knowledge
Ninety-two per cent of students believed that watching a film scenario and then analysing the legal issues was easier that reading a written account of the same scenario. Further all the students (100%) agreed that watching the film clip was more than simply entertaining and that it was a useful way to learn about the law. This is an illuminating insight which assists to deflect criticism that mainstream commercial films have entertainment value only. Forty-two per cent (42%) commented that it was a memorable way to learn about law. While more study is needed on this particular point, film clips which are a blend of audio, visual and action seems to contribute to enhance memory retention. While watching and listening to the film clip, the young adult university students were drawn into the facts of the story unfolding and undertook the cognitive modelling that Bandura refers to as mental rehearsal, putting themselves in the stories of their peers as the protagonist (e.g. placing themselves in the position of a university student such as Mark Zuckerberg, or his fellow students, or the lawyers in the film). [49]
Question twelve was another open question inviting the students to describe the specific disadvantages of using this method of teaching. Sixty seven (67%) per cent perceived some disadvantages are described in the record of students feedback in Table 2 below.
Table 2 Specific disadvantages of using film clips as a method a teaching
Exaggerated the truth.
Some can be irrelevant.
Sometimes it is more difficult to take notes while watching films as speech is faster than written text.
It is a film so it must have been dramatized a bit for entertainment purposes.
Potentially neglect reading on topic due to watching the film clip.
Getting distracted.
Exaggeration, other non-law factors may be apparent.
People might not see where the law applies unless they are guided through it.
These comments and reflections on the learning provide useful insight for improving the teaching methodology. The comments confirm that students recognise the film clip is a dramatization and of actual events and so the lecturer should make student aware of the existence of the actual transcript of the court case. Students are keen to ensure that the film clips are relevant to the legal issues being studied so lecturer need to be fastidious in selecting film clips for relevance. Interestingly, students also recognised that they needed the lecturer's guidance and input as to the legal issues arising which is similar to the guidance required even though lecturer sets required reading or takes students through a problem question. Whether reading a case or a case summary in a law textbook or watching and listening to a film clip, the students still require the illumination, explanation and contextualisation by an experienced lecturer.
Question thirteen focussed on how the use of film and audio visual material in class could be improved. A third of the students said it could not be improved, a third did not respond and the remaining third offered the following suggestions: (1) At least some film and audio visual per module, providing it is relevant; (2) Give a brief summary (written), along with the film [50] (3) More examples; and (4) Use more frequently, group work centred around clips. In essence, these comments were encouraging, constructive and positive, indicating that the use of further relevant film clips would be welcome.
In question fourteen, the issue of the transaction costs in terms of time involved in setting up the film clip and watching it were explored. In particular, the students were asked, 'Do you think the time involved setting up the DVD/film and watching it was too long or was it sufficient?' Ninety-two per cent (92%) of the students responded that the class time used was sufficient and no student felt the transaction time was too long. Obviously, this will depend on the lecturer' familiarity with the classroom technology. In terms of how much of a film should be incorporated into the two hour seminar, feedback demonstrates that the optimum length of a film clip is between 5 - 20 minutes in a two hour seminar. The survey results are set out in Table 3 below.
Table 3 How much of the film should be incorporated into the seminar?
1 - 5 minutes_____________________8%
5 - 10 minutes____________________42%
10 - 20 minutes___________________42%
20 - 30 minutes___________________8%
30 minutes plus___________________Nil
The next part of the questionnaire dealt with students' reflections on their learning experience. Just under half (42%) discussed their learning experience with their classmates following the seminar which indicates a reasonable level of interest, although the author had hoped this figure would have been higher. Importantly however, following the seminar in which the film clip from The Social Network was shown, a substantial seventy-five per cent (75%) of the students went on to read the relevant law chapters from their textbooks. Sixty-seven (67%) of students believed that seeing the film clip motivated them to learn more about the law. These are very pleasing results from a teaching and learning perspective. All the students (100%) would welcome the use of carefully edited clips of other mainstream films to assist teaching and learning in future law modules and believed that it was important for students to receive a rich mix of teaching styles during their law modules. Eighty-three (83%) of students agreed that law teaching should regularly include the use of carefully selected film clips to learn about law. One student commented that it 'makes learning more interesting with a number of different teaching styles, if relevant / useful'. Another student commented, 'not every week'. On the whole, the student feedback is very positive in terms of engagement with learning. Nevertheless, all the students (100%) found that it was still vitally important for the law lecturer to guide the legal discussion related to the film clip following the screening, which is also the case with other teaching methods such as reading or problem questions and the like.
5.2 Implications and recommendations for future research
As discussed earlier, over the past decade there has been a growing interest in applying the methodology of using mainstream film clips in to enhance legal learning and the research in this article has helped to inform alternative methods of law teaching practice. The evidence from the questionnaire responses indicates that that a facilitated film clip teaching methodology can play a meaningful role in moving students to access their textbooks, case books, legislation and other written resources. The author therefore feels strongly that using film to enhance IP law teaching holds significant potential. This research and pilot study only begins to deepen our understanding of the power of using mainstream film clips in IP law teaching in a higher education setting. The pilot study has clear implications for faculty and their students despite the small sample size. It would be possible to distribute this questionnaire on a wider scale to further cohorts of students in order to further test the results and general conclusions. The author would encourage other law lecturers to replicate the facilitated film clip teaching method, customised to meet their own particular syllabus and elicit student feedback. As this teaching methodology is further disseminated and reaches a wider audience, it would also be of interest to research the uptake of the facilitated IP film clip teaching methodology by legal educators in higher education.
6. Advantages and Disadvantages of Using Film to Enhance IP Law Teaching and Learning
There are several benefits for using film to enhance IP teaching and learning, but the key one is that the film medium appeals to visual and auditory learning styles beyond text, on several levels. In terms of psychology, this combination of communication conspires with imagination and also works on the unconscious mind so that the students make sense of the film and the IP law issues on a number of different cognitive levels. Watching (rather than reading about) the events giving rise to IP law issues clearly engages students, even if it is sometimes difficult to fully assimilate the profound issues raised on first viewing. In this vein, there is affective congruence which is a type of cross-modal confirmation in which the student matches the narrative of the film clips to the IP law shading introduced by the lecturer. This produces a summating effect on the student viewing the film clips, making the degree of emotional engagement stronger than that produced by either reading or listening alone, in other words, a true Gestalt effect. [51] Moreover, film also has a profound effect on memory retention as it facilitates attentional mechanisms, improving retention of events by illuminating important elements in the scene in the film. In terms of learning about IP law, the film medium also assists to promote the analytical skills needed at the moment when people encounter IP law issues and situations. Film also humanises IP law education through valuing and nurturing multiple intelligences by making a complex area of law dynamic, engaging and abstract legal principles concrete, contextualising issues that may be difficult to study in isolation. [52] Using relevant film clips is a neat way to lead into to IP rights problem-based learning.
An important practical matter is that the lecturer only need present 5 - 20 minutes of the relevant film in order to illustrate the IP law point in issue to the students. There is no usually no need to screen the whole film during a lecturer or seminar. Effective design of the lecture, incorporating appropriately relevant film clips, will hopefully leave more time to cover additional aspects of the IP law syllabus, a syllabus which is already very crowded. The students can access course material and watch the film in full if they wish by borrowing the DVD from the library whenever it is convenient for them. Students can review the materials at their leisure before the session in order to prepare or after the session to conveniently review. Students are no longer constricted by a conventional timetable of lectures and may make use of multiple viewings in their own time should they wish.
There are also problematic issues when using film to enhance IP law education, but the author holds the view that the advantages of this teaching method outweigh its disadvantages. Nevertheless, the author has identified potential disadvantages that require discussion. Firstly, watching a film clip is not two way communication, it is a passive activity. Having said this, however, one should point out that in a seminar or tutorial, all but the student answering the question is an exercise in listening, resulting at best in 'vicarious participation'. It is, however, the discussion following the film clips becomes two way communication and a form of active learning. The lecturer's input and role in guiding and facilitating the discussion is still crucial. The film clips assist the lecturer to invoke stimulating real world experiences to more actively engage the students in the learning process, so that they are better able to retain new knowledge. Unfortunately, it is not always easy to find readily available film clips to use for every element of the syllabus. Where nothing obvious is available, the lecturer will have to revert to traditional teaching methods and consequently, the use of film in university education is currently inconsistent. There is presently a dearth of professional development for university educators in non-film and literature disciplines although this article and those cited are starting points. Neither are there agreed teaching approaches for introducing film into IP education, the approach presented in this article is one however they may be others. However, as the practice of using mainstream film clips in teaching IP law advances, issues to be addressed will include coherent programs of learning with clear progression routes, and systematic means of using film education to explore the full spectrum of IP principles and subject matter. There will be a need for further research as to what constitutes good practice in using film for legal education and agreed measures for evaluating impact and quality. Against this backdrop of reflection, in terms of professional development, the law lecturer will need to develop skill in identifying the key scenes of the mainstream films and critically analysing the content in order to select carefully edited film clips with a high level of relevance to the IP law curriculum. In terms of allocation of course development time, the legal educator will need to watch the entire film in order to select the key scenes that have pedagogical value. To this end, the author has provided a selection of additional movie resources that may be of interest specifically for IP law teaching purposes.
7. Other Mainstream 'IP Legal Films' to Enhance IP Law Education
There are several additional mainstream, high quality films that that depict splendid fictional and non-fictional stories that may also be deployed to enhance IP law education. Using a similar methodology to that set out in the sample lesson plans, by choosing relevant film clips and marrying them with a particular IP law topic or issue, the lecturer can provide students with a quality learning experience that will improve learning, memory and problem solving. A brief summary of six potentially useful commercial films for IP teaching purposes are provided below.
7.1 The Medicine Man (1992) USA, English language
Key IP law themes: patent law, pharmaceuticals, bio-prospecting and traditional knowledge
Best classroom use: discovery versus invention, patentable subject matter
Cast: Sean Connery and Lorrain Bracco
Plot Summary: A pharmaceutical company sends biochemist Dr Crane into the Amazonian Rainforest to check on Dr Campbell after he cuts off outside contact. Campbell reveals he has found a cure for cancer by isolating a mysterious chemical compound connected to a species of flower, but subsequent attempts to recreate the formula have failed. Campbell originally learned about the flower from the village's previous medicine man. Crane accidentally discovers that the source of the cure is not the flower, but a species of rare, indigenous ant.
7.2 The Spanish Prisoner (2003) USA, English language
Key IP law themes: Patent Law and Confidential Information
Best classroom use: Section 1 Patents Act 1977 requirement of novelty; equitable doctrine of confidential information; rights to employee inventions and ss39-43 Patents Act 1997.
Cast: Campbell Scott, Steve Martin, Rebecca Pidgeon, Ben Gazzara and Ricky Jay.
Plot summary: Joe Ross, a corporate engineer who has recently invented a very lucrative industrial process not yet been patented, is convinced by Jimmy, that his boss will not compensate him fairly. The con has made it appear that Joe has sold his process to the Japanese and he is also framed for the murder of his co-developer of the process, George Lang
7.3 The Last Station (2010) US/ UK, English language
Key IP law themes: Copyright law, transmission of copyright and moral rights by testamentary disposition as personal property.
Best classroom use: Duration of copyright, expiry of copyright, public domain, section 90(1) CDPA 1988 Assignment and Licences of copyright
Cast: Christopher Plummer and Helen Mirren
Plot summary: This is the story of the last year Leo Tolstoy's life and struggle over copyright in his literary works on his death. Tolstoy's favourite disciple Chertkov wants the works to pass into the public domain for the people. Tolstoy's wife, the Countess Sofya, believes in private property rights and that copyright in his life's work should belong to the family. Note that the copyright in Tolstoy's works have now expired and are freely available.
7.4 Winter Passed (Après la neige) (2012) - Canadian, French language
Key IP law themes: Copyright infringement, digital copyright and illegal downloading
Best classroom use: Digital copyright, regulating digital media, the Digital Economy Act (2010)
Cast: Émile Schneider-Vanier, Benz Antoine, Isabelle O'Brien
Plot summary: A music video producer is forced shut down his production company (NuFilms) due to the illegal downloading of music and loss of income stream. He tries to reconnect with his father and his teenage son who lives with his mother, but realises he has lost much more that he had ever imagined.
7.5 Duplicity (2009) USA, English language
Key IP law themes: Patent law, invention, know how, confidential information, theft of trade secrets, corporate espionage
Best classroom use: Section 1 Patents Act 1977 requirement of novelty; equitable doctrine of confidential information
Cast: Clive Owen and Julia Roberts
Plot summary: A romantic spy comedy which concerns sophisticated corporate espionage - unauthorised use of confidential information and a lucrative new formula for a cure for baldness. The plot follows two corporate spies, former MI6 agent Ray and CIA agent Claire, who share a romantic history and now work as corporate spies. They collaborate to carry out a complicated con involving competing consumer product conglomerates Burkett & Randle and Equikrom. In other words, the protagonists work for multi-national companies like Proctor & Gamble, purveyors of toothpastes, ointments and oils. In this film, however, Ray and Claire attempt to sell the secret formula that cures baldness to a Swiss company for $35m USD.
7.6 The Man in the White Suit (1951) UK, English Language
Key IP law themes: Patent law and Confidential Information
Best classroom use: Section 1 Patents Act 1977 requirement of novelty; equitable doctrine of confidential information; rights to employee inventions and ss39-43 Patents Act 1997.
Cast: Alex Guinness, Joan Greenwood and Cecil Parker
Plot summary: A satirical comedy in which brilliant young man, Sydney Stratton, whilst working as a labourer at the Birnley Mill in the North of England, accidentally becomes an unpaid researcher and invents an incredibly strong fibre for a fabric that repels dirt, resists wear and stain and never wears out. A suit is made from the new fabric that is brilliant white because it cannot absorb dye. This would appear to be a major benefit for society and at first Stratton is recognised as a genius, however the established garment manufacturing mills and their trade unionized employees soon realise that once consumers have purchased enough cloth, demand with drop and the textile industry will wither away. Accordingly, they wish to safeguard their livelihoods and suppress the invention for economic reasons. The mill manager tries to trick Stratton into signing away his rights to the invention but he refuses.
No doubt there are many other mainstream films that have potential value as IP law teaching resources that the author has not yet identified. Apart from mainstream films, t here is also a documentary entitled, Patent for a Pig: The Big Business of Genetics (2006) relevant to the patenting of living organisms and the boundaries of patent law. In addition, the WIPO Channel on YouTube now has over one hundred short reports on IP law topics that would also be wonderful teaching aids. Although probably not as accurate as legal research undertaken via legal databases such as Lexis Nexis® or Westlaw®, there are several online Internet resources that can assist IP law educators to find more IP themed films with key scenes that will be useful for educational purposes. These best are: the Internet Movie Database (http://www.imdb.com); AllMovie (http:// www.allmovie.com) and Rotten Tomatoes (http://www.rottentomatoes.com). Use the website search features to search for keywords such as 'patent', 'trademark', 'copyright' and the like to find themes.
As more IP law lecturers develop this teaching and learning method, knowledge of relevant films and the key scenes for IP law teaching will lead to a bank of IP-related film and audio-visual resources that will continue to grow as ever more films are produced. The author is currently compiling this material for future a future publication with the working title, Film Guide to Intellectual Property Law and Innovation Studies.
8. Concluding Remarks About the Future Development of Modern Teaching Strategies for IP Law Education
In 1996, Moliterno predicted that, by 2010:
As the law becomes more complex…the final remnants of the mid-20th century notion that Law Schools could somehow teach in three years all the law a lawyer would need to know were reduced to ash. The emphasis of legal education…has finally and fully shifted to teaching fundamental legal principles and philosophies, perspectives on law's pace in society and the thought processes and judgements inherent in lawyering. The intent is to graduate lawyers who will be capable and flexible learners in a remarkably wide variety of settings. [53]
Accordingly, in order to meet the changing needs of our IP law students and society, and to operate effectively in a complex, rapidly changing world, it is important to develop more suitable teaching strategies. In other words, a change in pedagogy and delivery to include the facilitated use of film to enhance IP law education is the next step and follows developments that have already transpired in the United States law schools and in the UK's primary and secondary school education system. Within the law school, this will involve designing, developing and delivering an enhanced university level learning experience for IP law students using main stream film media and screening technology whilst decreasing reliance on print. An important outcome of this approach is to increase flexibility and offer innovative opportunities for IP law module production and presentation. Film is already a much-admired part of the UK's cultural heritage and the greatest art form of the twentieth century. It is clear to me and to others who support this approach within UK and EU law schools, that film can also be a powerful education tool, whose reach lies far beyond simply being a popular form of entertainment. [54] The value of the cinematic experience, which can be replicated to modern university lecture theatres, provides a unique platform for debate and understanding the IP legal environment in a business context. The dynamism of moving pictures practically guarantees that any given scene will have some visual interest for students. [55] Using film as a form of IP law 'in action' encourages learning, critical understanding, debate and conversation about the legal issues. It provides the students with a vehicle to further explore the substantive law in IP law textbooks as well as the more traditional law sources of law. Drawing on film in IP law education also reconciles the different approaches to teaching and learning that students have already encountered in different contexts outside the university sphere. Through the suggestions in this article, it is hoped that IP law educators will be encouraged to use appropriate mainstream films to improve teaching strategies to develop a high quality learning experience for our IP law students. The law lecturer must continue to act as a wellspring to inspire the law student during their introduction to the world of law. Finally, there is no reason why relevant scenes from mainstream popular films should not become a regular feature of a rich mix of teaching materials that are able to support a diverse range of learning opportunities to meet the needs of an increasingly diverse range of IP law students.
[1] Janice Denoncourt, BA (McGill), LLB (W. Aust) LLM (Bournemouth), Senior Lecturer in Law, Nottingham Law School, Solicitor England and Wales
[2] The film also won Best Picture from the National Society of Film Critics, the New York Film Critics Circle, the Los Angeles Film Critics Association, and the National Board of Review, making it only the third film in history to sweep the 'big four' critics.
[3] Thomas, D.B. The Origins of the Motion Picture: An Introductory Booklet on the Pre-history of the Cinema. (1964) Her Majesty's Stationery Office, London, p 3.
[4] Films were used particularly for American military training purposes and then after WWII, a few enterprising law professors began to include film strips to their law lectures.
[5] Shepherd, S. (Ed.) The History of Legal Education in the US : Commentaries and Primary Sources. (199) Vol 1 Salem Press, Inc. California, USA, pp42-45.
[6] American Bar Association, Film and Film Strips on Legal and Law-Related Subjects (Revised Ed. 1974).
[7] Shepherd, S. (Ed.) The History of Legal Education in the US : Commentaries and Primary Sources. (199) Vol 1 Salem Press, Inc. California, USA, p 42.
[8] Many educational films shown in British schools are part of long series - for example, films demonstrating scientific principles and experiments tend to be episodic, with each episode devoted to a specific experiment or principle.
[9] Educational films have been used as an educational tool alongside other teaching methods in primary schools, secondary school and colleges for decades.
[10] Film Education does provide some law resources that could be adapted for use in in university law schools. A good example is the use of the film Skin to discuss how the human rights of the main character, Sandra Laing, have been infringed.
[11] Studying with the OU has always involved more than reading texts and writing essays or assignments. Virtual microscopes, interactive laboratories and online collaborations have taken the place of home experiment kits sent through the post, while late night TV programmes have been replaced by DVDs and online videos.
[12] UKCLE is closed in July 2011 but its website and legal education materials are still available at http://www.ukcle.ac.uk
[13] Senior Lecturer in Law
[14] Shepherd, S. (Ed.) The History of Legal Education in the US : Commentaries and Primary Sources. (199) Vol 1 Salem Pressw, Inc. California, USA, pp42-45.
[15] Bankowski, Z. and Rogalska, A. Beyond Text in Legal Education, a paper presented at Learning in Law Conference held at the University of Edinburgh in 2009 accessed at http://www.ukcle.ac.uk/resources/teaching-and-learning-practices/bankowski/ on 2 October 2012.
[16] Masats and Dooly. Rethinking the use of video in teacher education: A holistic approach, Teaching and Teacher Education (2011), Vol 27(7), pp 1151-1162
[17] Frey, CA. Put Some Movie Wow! In Your Chemistry Teaching, Journal of Chemical Education, 2012, Vol.89(9), pp.1138-1143.
[18] ABA Focus on Law Studies Report (1995)
[19] Bergman, P. and Asimov, M. Reel Justice - The Courtroom Goes to the Movies (1996) Andrews and McMeel, Kansas City:
[20] Black, D. Law in Film: Resonance and Representation (1999) University of Illinois Press, Chicago.
[21] Greenfield, S., Osborn, G. and Robson, P. Film and the Law (2001) Cavendish Publishing, London.
[22] This over-dependence on American made films is also an practical problem for IP law films.
[23] For example, gangster, police films, detective stories, murder mysteries, courtroom dramas which are regarded as a sub-genre of crime files.
[24] Greenfield, S., Osborn, G. and Robson, P. Film and the Law (2001) Cavendish Publishing, London.
[25] Greenfield, S., Osborn, G and Robson, P. Film and the Law (2001) Cavendish Publishing, London, p 12 and Greenfield, S and Osborn, G 'The Living Law: Popular Film as Legal Text' (1995) 29 The Law Teacher 3
[26] Maharg, P. Transforming legal education: learning and teaching the law in the early twenty-first century (2007) Ashgate Publishing Company, London; Barton, K., McKellar, P. and Maharg, P. Authentic Fictions: simulation, professionalism and legal learning. Clinical L.Rev. 14, 143. Ashford, C 'Law, Film and the Student Experience' [2005] 4 Web Journal of Current Legal Issues. Livings, B. 'Film as a Pedagogical Tool' (2010) Web Journal of Current Legal Issues available at: http://webjcli.ncl.ac.uk/2010/issue3/livings3.html. Masats and Dooly. Rethinking the use of video in teacher education: A holistic approach, Teaching and Teacher Education (2011), Vol 27(7), pp 1151-1162. The author has also been advised that the Jindal Law School, Jindal Global University India has developed an innovative film and law course.
[27] The author recommends that IP educators wishing to use film for distance learning educational purposes seek their institutions' approval before uploading a film or film clip to an online teaching platform to ensure that only enrolled students are able to access the material.
[28] One aim of the presentation was to assist CIPA to develop a strategy for encouraging more students to enter the patent attorney profession.
[29] Mezrich, B. (2009) (London: Arrow, The Random House Group).
[30] Martin, J. Multiple Intelligences and the Practice of Law: A New Framework at http://www.abanet.org/lpm/newsletters/articles/newsarticle12305_front.shhmtl accessed on 2 October 2012.
[31] European Intellectual Property Teachers' Network. See www.eiptn.org
[32] Some Law Schools, including my employer, Nottingham Law School, regularly hire actors to simulate clients and witnesses on their professional legal training programmes.
[33] Maharg, P. and Owen, M. (2007) Simulations, Learning and the Metaverse: Changing Cultures in Legal Education. Paper presented at Learning In Law Annual Conference, University of Warwick 2007; Barton, K., McKellar, P and Maharg, P. (2007)Authentic Fictions: Simulation, Professionalism and Legal Learning. 14 Clinical L. Rev. 143; and Maharg, P. (2003) Virtual Communities on the Web: Transactional Learning and Teaching.
[34] ConnectU, Inc v Mark Zuckerberg and The Facebook, Inc et al (2004) United States District Court for the District of Massachusetts. Nature of suit: copyright and intellectual property
[35] FACEBOOK V CONNECTU, Inc. Nos 08-16745, No 08-16873, No. 09-15021 (2011) United States Court of Appeals, Ninth Circuit before Chief Judge Kozinski.
[36] The Porcellian Club is a men-only final club at Harvard University, sometimes called the Porc or the P.C founded in approximately 1791.
[37] (1903) 19 TLR 650
[38] Ultra Marketing (UK) Ltd & Thomas Scott v Universal Components Ltd [2002] EWHC 2285.
[39] 25 QBD 99
[40] The Computer (Computer Programs) Regulations 1992 amended the CDPA 1988 to apply to computer programs whenever created.
[41] University of London Press Ltd v University Tutorial Press Ltd (1916) 2 Ch 601
[42] (1987) FSR 1
[43] FSR 275.
[44] An English philosopher and physician (1632-1704) regarded as one of the most influential Enlightenment thinkers who argued that property is a natural right and it is derived from labour ('The Labour Theory').
[45] October 1, 2010. "Social Network: Password is Perfection". The Wall Street Journal. Accessed at http://online.wsj.com/article/SB10001424052748704483004575523822326312414.html?mod=WSJ_LifeStyle_Lifestyle_6 . on 15 October 2012
[46] Brennan, J. and Williams, R. Collecting and Using Student Feedback: A Guide to Good Practice (2004) Centre for Higher Education Research and Information.
[47] Student feedback with even greater precision would benefit from increasing the sample size.
[48] A questionnaire is the least costly in terms of time, effort and money.
[49] Bandura, A. Social Foundations of Thought and Action: A Social Cognitive Theory (1986). Although Bandura's work began with an interest I how children learn, he demonstrated a link between his social cognitive theory and adult learning.
[50] The students were in fact provided with a Seminar Worksheet which was posted to the relevant learning room on the Nottingham Online Workspace.
[51] Gestalt is a school of psychology that explains how people perceive patterns and how the mind interprets experiences in predictable ways rather than simply reacting to them. This school is central to cognitive psychologist ideas about learning, memory and problem solving. Notable Gestalt psychologists include Max Wertheimer, Kurt Koffka and Wolfgang Kohler. Closure is a Gestalt psychology term referring to the perception and/or feeling of being finished or closed or completed. In a scene or storyline closure involves strong finality. A storyline in a film is weak if continuation is still expected but doesn't materialize. The Social Network Film provides closure given the legal settlement.
[52] Burridge, R. (ed.), Hinett, Karen (ed.), Paliwala, Ab. (ed.), Varnava, Tracey (ed.) Effective Learning and Teaching in Law (2002) Kogan Page, London. See Chapter 9 Space, time and (e)motion of learning by Paliwala at pp178-197 in which he considers ways in which creative teaching /learning strategies can protect and promote values in legal education.
[53] Moliterno, M. (1996) Clinical Legal Education in the Year 2010, Journal of Legal Education, 46.
[54] Ashford, C 'Law, Film and the Student Experience' [2005] 4 Web Journal of Current Legal Issues. Greenfield, S., Osborn, G and Robson, P.Film and the Law (2001) Cavendish Publishing, London. Livings, B. 'Film as a Pedagogical Tool' (2010) Web Journal of Current Legal Issues. Pascuzzi, G. How to become lawyers and able to do so: Teaching the ethics of the legal profession through narrative. Trento Law and Technology Research Group Research Papers (2012) No 11.
[55] Frey, CA Put Some Movie Wow! In Your Chemistry Teaching Journal of Chemistry Education (2012) Vol.89(9), p1140.