June 2008
“If nature has made one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess themselves of it... no one possesses the less, because everyone possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and the improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement, or exclusive appropriation.”
(VI WRITINGS OF THOMAS JEFFERSON, 1790-1826, at 180-181 (H.A. Washington ed., 1854) (letter to Isaac McPherson, August 13 1813).
Like fire
Technology has separated many forms of media from any kind of physical product. Instead of CDs in plastic cases, books with different sorts of bindings, paintings done on stretched canvas, or myriad other traditional forms of media which must be physically exchanged, allowing the producer(s) of the media to profit, data can be traded infinitely between any two people with internet access.
The digitization of copyright property and the proliferation of file sharing interrupted the process of exchange; high-demand copyright property like entertainment media is affected the most. CDs in stores have had to compete with free illegal downloads. Legal backlash from the entertainment media industries has included lawsuits against individual downloaders, programmers who make filesharing software, fierce lobbying for stronger IP policy, and ad campaigns vilifying piracy.
But what’s happened is a fundamental change in the architecture. “Digital technology is detaching information from the physical plane, where property law of all sorts has always found definition.” IP has traditionally focused on the expression of an idea; one could own “a precise turn of phrase used to convey a particular idea or the order in which facts were presented,” but the idea itself belonged to the commons. Invention (patent) and authorship (copyright) ownership was intrinsically related to physical activites: “One didn’t get paid for the ideas but the ability to deliver them into reality... the value was in the conveyance and not
the thought conveyed.”
Barlow, John Perry. “The Economy of Ideas: Selling Wine Without Bottles on the Global Net.”
1993. Accessed 20 May 2008 at homes.eff.org/~barlow/EconomyOfIdeas.html
Intensive legal action and debate has sprung up around the problem of digital copyright. Some of the major stakeholder groups now lobbying IP policy include professional legal organizations, accountancy institutes, media and related industry associations, security defense organizations, and nonprofit organizations.
Calton, Jerry and Singer, Alan E. "Dissolving the Digital Dilemma: Meta-Theory and Intellec
tual property." Human Systems Management. 2001, Vol.20 Issue 1 p.19.
“There are two competing visions of the fundamentals of copyright law: a ‘private property’ vision and a ‘public policy’ vision.” The private property vision sprouts from a vision of copyright law as the “natural law property right of authors...emphasis on the private interests of authors in controlling the use of copyrighted works as their property.” The public policy vision “not[ing] that copyright has historically developed as a grant of limited monopoly,” argues that “the rights of authors must be weighed against the freedom of everyone else to use
the work.” Any potential solution to the conflict should fit three conditions: “it must accurately reflect the way people produce creative works... serve the private interests of creators... and serve the public interests of users.”
Kim, Minjeong. "The Creative Commons and Copyright Protection in the Digital Era: Uses of
Creative Commons Licenses." Journal of Computer-Mediated Communication. 2008,
p.187-209.
Private property vision proponents favor extending the terms of copyright’s limited monopolies and finding a way to enforce these new controls digitally. Part of this movement pushes to change the fundamental nature of copyright law to cover the idea and not just the expression of the idea. “The power through property to produce a closed society - where to use an idea, to criticize a part of culture... one will need the permission of someone else” has been underplayed or ignored by these movements.
Lessig, Lawrence. "Reclaiming a Commons." Keynote address, The Berkman Center's "Build
ing a Digital Commons" 20 May 1999. Cambridge, MA.
“[T]he threat to free speech that the propertization of ideas presents” is the slow extinguishment of expression, a situation not unfamiliar to journalists and citizens living in regimes that don’t allow a free press. It has been pointed out that when the first amendment to the U.S. Constitution was written, the wording was careful: the final telling version did not suggest that congress make a law to protect the freedoms the first amendment describes. Instead, we have “Congress shall make no law...” to restrict these freedoms. “Copyrights and patents… were traditionally only supposed to confer property rights in expression and invention respectively. The layer of ideas above, and of facts below, remained in the public domain for all to draw on, to innovate anew” from a manifesto addressing the World Intellectual Property Organization (WIPO). Calling the backlash of support for stronger IP policy “the maximalist rights culture,” the manifesto points out several ways in which the conversation (and thus resulting policy decisions) have been unbalanced.
Boyle, James. “A Manifesto On WIPO and the Future of Intellectual Property.” Duke Law and
Technology Review. 8 September 2004.
New laws could easily “hamper the ability of the internet to generate intellectual activity, encourage new methods of innovation, and distribute culture and education worldwide.” Boyle underlines the economic and social impact of IP policy , calling it “the sinews of the information age” and listing a broad range of effects, from “the availability and price of AIDS drugs… to the patterns of international development… to the communication architecture of the internet.”
It seems unnecessary to stress just how powerful a tool for innovation that the Internet has been since its inception. It has catalyzed intellectual growth and innovation to such rapid rates that cataloguing may never catch up; it has done so in a decentralized way, empowering wide swaths of individuals from diverse economic, social, religious, and ethnic backgrounds who had not participated in the production of media to write, sing, publish, debate, and simply be heard.
Commons
Lawrence Lessig’s 2001 primer on digital commons, The Future of Ideas describes Commons as resources held in joint use or possession, to be held and enjoyed equally by a number of people; some examples in the book are public streets, parks and beaches, Einstein’s theory of relativity, and writings in the public sphere such as the U.S. Constitution. Rivalrous (with a limited supply and non-rivalrous (with unlimited supply) resources can both be commons. Lessig calls the internet a new form of commons, an Innovation Commons: he attributes it’s unique tendancy to drive innovation to be the combination of layers which are free and not controlled.
Lessig, Lawrence. The Future of Ideas: The Fate of the Commons in a Connected World. 2001:
Random House, New York. p.14
Through this lens, the physical layer (the computer, the wires, the phone lines) is quite controlled, and the content level was partially controlled (some content is accessable only with payment), but the code level was liberated; new ways to access and distribute this content could be developed without restriction.
“[A]lways and everywhere, free resources have been crucial to innovation and creativity… without them, creativity is crippled. Thus, and especially in the digital age, the central question becomes not whether government or the market should control a resource, but whether a resource should be controlled at all.” An abolishment of intellectual property isn’t being suggested; instead, a return to the balance that was lost in a way that reflects the true condition of digital life.
In January of 2008, the American Library Code of Ethics was revised from “We recognize and respect intellectual property rights” to “We recognize and advocate balance between the rights of intellectual property owners and the rights of information users.”
Skala, Matthew with Bonfield, Brett and Torpey, Mary. "Enforcing Copyright." 15 February
2008. Library Journal. Vol. 133 Issue 3, p28-30.
This change in the library code is significant; librarians and library staff often act as gatekeepers controlling access to information that may or may not be held under copyright. Founded officially in 2001 in San Francisco, Creative Commons is a chartered nonprofit organization; their stated goal is “to build a layer of reasonable, flexible copyright in the face of increasingly restrictive default rules” which “aim not only to increase the sum of raw source material available online, but also to make access to that material easier and cheaper.”
"Creative Commons." Wikipedia Accessed 22 February 08 http://en.wikipedia.org/wiki/Creative_commons "'Some Rights Reserved': Building a Layer of Reasonable Copyright." Creative Commons. 13 July 2007. Accessed 22 March 2008 at http://wiki.creativecommons.org/History.
Lawrence Lessig founded the organization the same year as publishing The Future of Ideas, from which a new source of creative innovation, inspiration, and a sort of cultural trust has sprouted. The first set of Creative Commons licenses was published on December 16, 2002. Traditional copyright law holds “all rights reserved;” these rights have been “expanded exponentially in breadth, scope, and term… the fundamental principle of balance between the public domain and the domain of property seems to have been lost.”
"Creative Commons." Wikipedia Accessed 22 February 08 http://en.wikipedia.org/wiki/Creative_commons
Lessig, Lawrence. "Reclaiming a Commons." Keynote address, The Berkman Center's "Building a Digital Commons" 20 May 1999. Cambridge, MA.
Creative Commons seeks to counterbalance by developing a series of “some rights reserved” licenses which allow the licensee to configure what if any rights they would like to keep to themselves. Examples of rights sometimes reserved under CC licensing are the right to attribution (links to the original licensee’s webpage, or other forms of attribution chosen by the license holder), the right to produce derivative works (such as remixes), the right to commercial use (making a profit from the work), or “sharealike” which requires users of a given work license whatever they produce in the same way.
Licensing one’s own work at www.creativecommons.org is free and simple; since it’s inception, Creative Commons has expanded internationally and licenses have been developed within the systems of 46 countries (8 are currently in progress).
“Intenational.” Creative Commons. Accessed 8 June 2008 at http://creativecommons.org/international.
In 2006 the licenses met their first test in a legal court, as a celebrity whose Flickr photos were published without permission sued the tabloid. The photos were licensed under Creative Commons for non-commercial uses; the court ruled in favor of the celebrity. “The Dutch Court’s decision is especially noteworthy because it confirms that the conditions of a Creative Commons license automatically apply to the content... and bind users... even without expressingly agreeing to, or having knowledge of, the conditions of the license.”
Marson, Ingrid. “Creative Commons license upheld by court.” Cnet. 21 March 2007. Accessed 1 June 2008 at http://news.cnet.com/2100-1030_3-6052292.html.
“Some rights reserved” may not be specific to someone unfamiliar with Creative Commons licensing; but this case showed that the onus is on the user of the work to find out what rights are reserved, contacting the author if nessicary. Since it’s inception, Creative Commons has made a lot of quantifiable progress as far as the goal to “increase the sum of raw source material available online... (and) to make access to that material easier and cheaper;” Wikipedia’s list illustrating the breadth of organizations now using the licensing includes archives like Flick and DeviantArt, formal publications like the Public Library of Science, instructional materials like MIT’s famous OpenCourseWare, journalistic outlets like Blast Magazine and Democracy Now, and no less than 16 record labels.
"Creative Commons."Wikipedia Accessed 22 February 08
http://en.wikipedia.org/wiki/Creative_commons
Science Commons, a project within the Creative Commons organization, was launched in 2005 to developing flexible licensing for scientific data; the goal is to “speed the translation of data into discovery, unlocking the value of research so more people can benefit....” The value of a digital database of scientific knowledge open to all researchers everywhere with internet access is immense.
“Science Commons." Wikipedia Accessed 22 February 08 http://en.wikipedia.org/wiki/Science_commons
“Scientists may be justified in retaining privileged access to data that they have invested heavily in collecting... but there are also huge amounts of data that do not need to be kept behind walls... by making their data available under a Creative Commons license, they can stipulate.. rights and credits for the reuse of data, while allowing it’s uninterrupted access by machines.” It’s this uninterrupted access by machines that is so important; it would allow other researchers anywhere in the world to draw from that data.
"Let Data Speak to Data." Nature. Vol.438:7068. 1 December 2005.
When a certain work is licensed with Creative Commons, the author is given an icon representing the kind of license its published under, online with the work and the words “some rights reserved.” The icon serves to link the user who clicks to a page explaining the type of license the work is held under, and then if they like, the full legal version. It is thereby possible to find content licensed in a certain way by searching with conventional search engines for the text of the link for a given license, for example, one stipulating attribution (http://creativecommons.org/licenses/by/3.0/). All webpages containing works licensed in this manner should contain the text of the license; creativecommons.org also contains a search function to this effect.
Commons licensing may not be a complete solution to the dilemma of digital intellectual property, but it does help. The real cultural contribution of this type of licensing is not an end to the debate, but it’s amplification; and a pool of sources that can be drawn from freely for the generation of new expression, information, and ideas.
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