Creative Commons: Spearhead of Copyright's Perestroika

Singapore.
The keynote lecture this afternoon at ISEA 2008 is by Creative Commons co-founder Lawrence Lessig, speaking on the proper place of copyright. He begins in 1906, when John Philip Sousa went to Congress to rail against the recently invented record player. The new technology, he suggested, would undermine cultural participation (a kind of read-write participation) - record players were 'infernal machines' which would promote the development of a 'read-only' culture, driven by commercial agendas. (Sousa was taunted in response with the suggestion that copyright already prevented participation in a read-write culture, however - a suggestion he strongly rejected.)

Later, during prohibition times in the U.S., wiretapping was used in the fight against illegal alcohol production. The question here was whether such wiretapping was legal - whether wiretapping constituted an unreasonable search or seizure. Courts ruled that wiretapping did not constitute a form of trespassing, as wires were outside of people's houses and wiretapping thus did not invade the private space. However, a dissenting opinion suggested that such physical protections should be translated into the emerging electronic age - that the right to privacy also extended to private communications in electronic media. Prohibition was portrayed as a moral and economic war against alcohol dependence, with its costs: the rise of organised crime and the loss of civil rights. These costs were eventually seen to outweigh the benefits, and in 1933 prohibition was repealed. (The fight against alcoholism continued, but the war was ended.)

There are obvious links with the copyright wars - described by Jack Valenti as his own 'terrorist war' (largely against children and adolescents). Are the costs of this war greater than its benefits as well? In the first place, the benefits of copyright are that it enables creators to be rewarded for their work - copyright is a restriction on speech to avoid less speech. The right regulation for copyright will depend on current technology, however - as technology changes, the means of copyright regulation must also change. How can copyright be adjusted to current and future technological frameworks, then?

Larry suggests a distinction between the amateur and the professional. There must be enough restriction to support the professional, and enough freedom to encourage the amateur. The Net does more than extend the commercial and professional read-only culture of the 20th century (in which iTunes has become the 'celestial jukebox' of read-only culture); it has also revived the read-write, non-commercial and amateur culture that Sousa celebrated. Here, the idea of the remix is prominent - amateurs creating a variety of content including anime music videos (AMVs), contributing their own music video remakes en masse to YouTube, and creating many other clips. Such clips are about conversations between creators - responding to one another's creations.

This is not about developing new creative techniques, but about the democratisation of the means of production and distribution for content which utilises such techniques. However, such remixes come with significant complications in the relationship between copyright law and read-only and read-write cultures. Copyright law supports the business model of read-only culture: it controls copies. It conflicts with read-write culture, however, which is inherently based on copying.

In digital technology, however, every single use creates a copy - so every single use is regulated. This is a radical change from the previous, pre-digital environment. For example, to read a book or to gift a book is a free use of a book (not merely a fair use); to publish a book is a use protected by copyright. Between them is a thin sliver of 'fair' uses which do not require written permission even though they use copyrighted works in ways which are protected by copyright. In today's digital world, however, to use is to copy: every use is protected by copyright - free and even fair use has been effectively sidelined, and there is very limited opportunity to escape the purview of copyright. There is an urgent need to update copyright, then.

Further, there is a problem with the inefficiency of current copyright law. This was highlighted by Google Print (more recently renamed to Google Book Search), whose aim it was to digitise the contents of the world's libraries. Some 16% of its contents were in public domain; some 75% were copyrighted but out of print; the rest were copyrighted and still in print.

Google's approach was to digitise all content, and provide access differently depending on the copyright status of each item (full access, snippet access with links to second-hand stores, limited access as determined by the current publisher of a book). Google was sued in 2005 by the Authors' Guild and Association of American Publishers for this approach - rendering not only the 9% of in-print books, but indeed even the 75% of currently out-of-print books inaccessible as it has become almost impossible to track down the current copyright owners for such content.

Has the war of prohibition against copyright infringement worked, then? No, clearly not if its aim was to prevent further infringement. Since p2p filesharing was declared illegal, there has been not only no decline, but in fact even a small rise in filesharing. There are a number of solutions to this issue, then: first, a change in norms. Lawrence encourages us to reject the default 'all rights reserved' regime, and instead to embrace the 'some rights reserved' model enshrined, for example, in the Creative Commons licencing suite which allows authors to clarify users' freedoms in engaging with their content with more flexibility.

Why do this? Because it helps content to spread further, thereby increasing the standing of the creator; because it enables cheaper and more effective forms of distribution; because it creates new business models (such as on-demand printing services for CC-licenced books); because it clarifies the underlying rights and obligations for content uploaded to media sharing sites. There is also a more political motivation - CC is used because its individual and institutional users believe that they have an obligation to ensure universal access to certain (e.g. publicly funded) materials, or because authors give up the freedoms that they themselves want to enjoy in engaging with other creators' materials.

Additionally, there need to be further changes in the law. The law needs to give up its obsession with the copy as the fundamental issue - working with the concept of the copy is an insane approach in a digital environment. The copy is no longer a meaningful unit here. Copyright law may still be useful in a professional context; at the same time, amateur remixing should be not only fair, but free use. In between these two extremes are harder cases (amateurs sharing whole copies of creative work, professionals remixing creative work), which require a mixture of copyright-governed and copyright-free approaches.

Further, the inefficiency of the intellectual property system needs to be recognised. If it is possible to know who owns the copyright over what content, there should be an obligation for copyright owners to maintain their interest in their copyright; this could happen perhaps through a registration system that kicks in a certain period of time after publication.

This still does not address the issue of p2p filesharing. Here, already a decade ago there were proposals for solutions - compulsory or voluntary licences for the operators or users of filesharing services, for example (which, had they been in place a decade ago would have produced a significant amount of money for artists and would have stopped the criminalisation of filesharers.

The war on copyright infringement must be ended; we cannot kill this technology, and will only end up criminalising its use, driving filesharers, remixers, and other cutting-edge content users underground as 'pirates'. This is extraordinarily corrosive; it undermines the very rule of law itself as this criminalisation makes it more likely that these 'criminals' will also offend in other areas of the law.

A recent New York City Bar Association event highlights these issues. Descriptions of the copyright system as it applies to artistic 'fair use' highlight the insanity of the present system, the inapplicability of the system to the current digital technological environment. The defenders of copyright need to recognise the growing abolutionist movement - but simply removing copyright cannot be the answer, as it would destroy too much. Lawrence compares his stance here to the perestroika of Michail Gorbachev: an approach which aims not to dismantle the system altogether, but to reconfigure it for the new environment.

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