February 2013: The Openness Edition

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First published on ethnographymatters.net.

Last month on Ethnography Matters, we started a monthly thematic focus where each of the EM contributing editors would elicit posts about a particular theme. I kicked us off with the theme entitled ‘The Openness Edition’ where we investigated what openness means for the ethnographic community. I ended up editing some wonderful posts on the topic of openness last month – from Rachelle Annechino’s great post questioning what “informed consent” means in health research, to Jenna Burrell’s post about openaccess journals related to ethnography and Sarah Kendzior’s stimulating piece about by legitimacy and place of Internet research by anthropologists. We also had two really wonderful pieces sharing methods for more open, transparent research by Juliano Spyer (YouTube “video tags” as an open survey tool) and by Jeff Hall, Elizabeth Gin and An Xiao in their inspiring piece about how they facilitated story-building exercises with Homeless Youth in Boyle Heights (complete with PDF instructions!) Below is the editorial that I wrote at the beginning of the month where I try to tease out some of the complexities of my own relationship with the open access/open content movement. Comments welcome!

On Saturday the 12th of January, almost a month ago, I woke to news of Aaron Swartz’s death the previous day. In the days that followed, I experienced the mixed emotions that accompany such horrific moments: sadness for him and the pain he must have gone through in struggling with depression and anxiety, anger at those who had waged an exaggerated legal campaign against him, uncertainty as I posted about his death on Facebook and felt like I was trying to claim some part of him and his story, and finally resolution that I needed to clarify my own policy on open access. Continue reading

Does Creative Commons preserve copyright?

Ok, I really should be doing my statistics assignment right now but I’m just bursting after discovering the most juicy back-and-forth on the question of whether ‘Creative Commons preserves copyright’ between David Wiley and Stephen Downes. Stephen makes an excellent point – albeit couched in a significant dose of paternalism – that people in developing countries don’t need CC because it wouldn’t help them in getting access to learning materials that are currently – and probably will always be – inaccessible via CC. He then extends this by making a pretty strong statement:

The upshot is that, by preserving copyright, open licensing may have actually made it harder to obtain such texts. Since the alternative of Creative Commons exists, there is much less pressure toward shorter copyright terms, and much less pressure for exceptions to copyright, particularly those involving fair dealing.

David Wiley responds with the headline ‘No Stephen…’ After saying that the argument is ‘just plain silly’ he rightly points out that we need evidence to point to such a thing:

This sounds like pure conjecture. I would love to see even a single statement from a person in position of influence over national intellectual property policy along these lines. I doubt one exists, but am always happy to be proved wrong.

I have absolutely no influence over national intellectual property policy, but let me point to an example of exactly how Creative Commons preserves – and in some cases actually helps support – the status quo of copyright.

This story comes from my own experience and my own discomfort at the kinds of conversations that I was having in my previous life with CC in South Africa. CC volunteers and staff are invited to do similar talks around the world where we are invited to talk to artists, students, educators, authors, creators about this new thing that had something to do with ‘copyright licenses’. My talk would basically go something like this:

1. Copyright is broken. Look at all the things you can’t do! Look at all the people who are getting sued! Look how expensive everything is!
2. CC is the solution! It is an alternative to copyright where you can license the material under ‘some rights reserved’ rather than ‘all rights reserved’
3. Look at all these other people who are using CC – some of which are sound businesses. You should too.

After I’m done, I open up to questions. Turns out no one really wants to license their own work, they want to find out what they can USE that is cc-licensed – they want to know what’s available (CC made it a policy not to curate content – they invite volunteers to do this now on their wiki but it’s limited to a listing of just the site title) and why they can’t just carry on using stuff in the same way they always did. The conversation would go something like this:

Audience person: Yes, I have a question. So you’re saying that I can’t just take an image and change it and then use it? I thought there was this 30% rule that you could change something by 30% and then it’s ok…

Me: Turns out that 30% rule doesn’t exist. The fair dealing provisions are really complex and available only in certain circumstances. Blah blah blah about fair dealing…

Audience person: Also, I thought you could make personal copies of things without paying anyone. But now you’re saying that actually I can only use CC-licensed stuff.

CC person: Yes, there are conditions in our copyright law that enable us to use copyrighted materials for personal use but you can’t technically put that stuff on your blog or your own site. I mean, it’s debatable whether you can or not and surely you want to be legally secure?

Audience person: Ah ok. So it looks like I really need to learn more about copyright law.

Jeez. I would feel a bit sick afterward. Here I was telling people about Creative Commons – hoping that they’d join the movement, add stuff to the pool and join the conversation – and I ended up telling them how the copyright cops were out to get them and they should use CC just to be legally sure because actually they can’t be legally sure about anything else on the Internet. Since so little content that people practically consume is available under CC, they end up finding out about the problem (copyright) and then about *the solution* which incidentally doesn’t attack the problem but provides what David Wiley calls a neat “bandaid” (Creative Commons).

More information is definitely better, I’m sure (at least that’s what I’m telling myself) but really, it got my asking myself: what is the value proposition here, really?

This is not only a problem that exists in Africa and China – it’s a great place to look at what the problem is but just because it has this effect in Africa doesn’t mean it doesn’t have the same effect elsewhere. I’ve given so many of these talks so many places and I feel like the key problem was that we were listening too hard to the publishers who were criticizing CC for all the wrong reasons – and in doing that, we stopped hearing anything else.

I guess the ultimate question is: we’re using this bandaid to stop a gushing wound… maybe we need to use something more effective? Maybe we’re putting all this energy into making the bandaid available in more countries without imagining that something else might do the trick more effectively.

Lessig talks about 4 ways in which copyright can be regulated: laws, norms, architecture and markets. In my next post, I’ll argue that norms of sharing are perhaps more effective in actually getting to the heart of the problem: affecting change in copyright law on the Internet.

Now to that assignment!

 

Has Creative Commons become ‘inevitable’?

(This is Part I of a series I’m drafting as I organise my thoughts around this topic)

Campbell's Soup Cans by Andy Warhol, 1962. Displayed in Museum of Modern Art in New York. Source: Wikipedia

I remember sitting in a Creative Commons staff meeting as a volunteer in late 2003 hearing Lawrence Lessig say that CC should be like Campbell’s Soup: we should make every possible type of license that people want. But a few years later, CC has consolidated its license offering to reflect just three license choices (do you want to allow commercial use? do you want to allow derivatives? if yes, do you want to require that those derivatives be made available under share-alike terms?). In 2007, CC ‘retired’ the Sampling License and the Developing Nations License due to low demand and, perhaps more importantly, pressure from the Free Software Foundation who complained that these were not “free” licenses since they did not permit ‘worldwide noncommercial verbatim sharing’. In around 2005/6 (there isn’t an exact date because I don’t think anyone actually made an announcement) the organisation decided not to advance the CC Education License – predominantly because certain vocal individuals believed that educational uses should be wrapped up in all CC licenses (you can find the mailing list archives from that discussion here).

CC had very rational reasons for consolidating and limiting the number of licenses offered. Licenses are complicated to understand: fewer choices mean that it’s easier not to get confused; fewer choices mean fewer products to explain and support. In my current research on the Tor project and anonymity tools I came across a wonderful paper by Roger Dingledine and Nick Matthewson describing just this tradeoff. The paper, aptly called ‘Anonymity loves company: usability and the network effect’ describes how usability affects privacy in the sense that ‘even if you were smart enough and had enough time to use every system perfectly, you would nevertheless be right to choose your system based in part on its usability for other users’. These problems of scale and usability impact a great number of online projects because they need to reduce the number of options in order to consolidate a large number of users/content, but must also ensure that there is enough diversity of options (and further options as they learn more about tackling a certain problem) to enable growing usability. Increasing options and making the network more diverse will, in turn, dilute the numbers and thus the value of the network to users, thus decreasing the numbers of users.

It is also important to understand the political landscape as the two big players in open content licenses at the time – the Free Software Foundation and Creative Commons – battled it out in a war over who would control the ultimate meaning of the term ‘openness’. CC got the idea for its licenses back in 2002 from the FSF’s GNU-GPL but injected two key ingredients into the licensing offering that the FSF hadn’t dealt with very well: 1. usability (CC made it easier to license your work and easier to discover works in the pool) and 2. choice (I mistakenly used to believe that the difference was that CC enabled users to choose their conditions while FSF had only ‘one version of freedom’ but now I recognise that the choices were just different and that CC gave a better illusion of choice than the FSF did).

In the days before Wikipedia moved from the FSF’s GNU-FDL to the CC BY SA license, the FSF was definitely in the lead of this battle. CC could show few examples of the value that comes from pooling CC-licensed materials over time into a high value collaborative product (most of their licensors were – and still are – stand-alone entities or individuals who draw successfully from the pool to create new works). By compromising with the FSF and successfully negotiating the move by Wikipedia to adopt CC licenses by making the GFDL and BY-SA licenses compatible, CC was able to gain the upper hand and radically boost its identity as the default open license provider.

The problem comes in when we start thinking that this is the only way to license materials – when it seems inevitable that this is the only way to build a space distinct from the failures of copyright on the Internet without considering the innumerable options available to builders of these kinds of products as they construct these artifacts of politics. The result is that CC starts to look like the hammer in the ‘law of the instrument‘ with the addition that when you think all you have is a hammer, then every problem looks like a nail. I’m starting to see many examples of this as other standards (like html5) are starting to build in rights expression metadata, but an obvious place where this became clear was in the furore over Facebook changing their terms to “appear” (it wasn’t really the case, said Facebook) that they were taking ownership of all the material on their users’ pages in 2009.

Alongside the thousands who protested the move at the time, a group of Creative Commons volunteers started a group asking Facebook to allow Facebook users to license their content under CC. Sounds reasonable, right? Here’s some content you’ve produced – here’s a way for you to control its use. Reasonable, that is, until you start thinking about what the problem really is here. After one of the group members created a CC license widget for users to put on their pages, I put one on my page in solidarity because I felt like Facebook shouldn’t be the only one to be given a license to use my stuff. But soon afterward I took it off when I recognised that the problem had nothing to do with copy rights and everything to do with control over private information. Unlike a photograph of a tree that I took, was proud of, found useful and licensed under CC because I thought others might find useful too, the ‘content’ of my Facebook page is not really ‘content’ in the copy right sense at all. They have a totally different audience, different norms and different objectives: I’m not on stage on Facebook; I’m at a private party with my friends and co-workers. The problem that users were responding to was not the problem that Facebook was taking worldwide royalty-free license to use your work; it was the fear that your messages were out of your control, that Facebook could take them out of the context of that private party and put them on a stage somewhere. That was frightening for people because it meant that they were no longer in control of messages that were never intended on being ‘on the stage’ in the way that Creative Commons licenses help to facilitate.

Part II coming soon!

Creative Commons critiques

Question Mark Phoenix by Roy Blumenthal on Flickr CC BY SA

It still amazes me when I read academic papers where it is clear that the author hasn’t read any critiques of Creative Commons – not necessarily critiques from the content industry declaring that Creative Commons is opposed to copyright (I don’t think those exist in academic form but please let me know if you find any) but those from people who actually care about the problem that Creative Commons was started to try and solve (that copyright – especially copyright for the digital age – is broken). We need to be more critical of these solutions so that we don’t fall prey to believing that Creative Commons – the way it is designed and run – is inevitable (more on that soon).

I will keep this updated and provide summaries as I find more material. I’ll also start a Zotero group as soon as I can resolve the problem I’m having with Zotero right now so that others who are interested can share too. Herewith follows a short but powerful list:

Berry, D. M. (2005 7). On the “Creative Commons”: a critique of the commons without commonalty. Free Software Magazine, (5). Retrieved from http://www.freesoftwaremagazine.com/articles/commons_without_commonality

Berry, D. M., & Moss, G. (2006). The politics of the libre commons. First Monday, 11(9). Retrieved from http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/viewArticle/1403/1321

Downes, S. (n.d.). What’s Wrong With Creative Commons ~ Stephen’s Web. Retrieved November 27, 2010, from http://www.downes.ca/post/54161

Elkin-Koren, N. (n.d.). Creative Commons: A Skeptical View of a Worthy Pursuit. SSRN eLibrary. Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=885466

Elkin-Koren, N. (n.d.). What Contracts Can’t Do: The Limits of Private Ordering in Facilitating a Creative Commons. SSRN eLibrary. Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=760906

Hill, B. M. (2005 6). Towards a Standard of Freedom: Creative Commons and the Free Software Movement. Retrieved November 29, 2010, from http://mako.cc/writing/toward_a_standard_of_freedom.html

Loren, L. P. (n.d.). Building a Reliable Semicommons of Creative Works: Enforcement of Creative Commons Licenses and Limited Abandonment of Copyright. SSRN eLibrary. Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=957939&rec=1&srcabs=885466

McCann, A. (2005). Enclosure without and within the ‘information commons’. Information & Communications Technology Law, 14(3), 217. doi:10.1080/13600830500376972

11/28 Update: My Zotero problem has been fixed! You can join the new public group here: https://www.zotero.org/groups/cc_critiques

“WIPO needs a ‘blue sky commission’,” says Lessig

I’m at home catching up on WIPO and copyright news with the copyright committee convening next week to discuss – among other things – exceptions and limitations to copyright. It looks like Lawrence Lessig was invited to WIPO to keynote at their ‘Facilitating Access to Culture in the Digital Age’ event on Thursday and Friday last week. Lessig called on WIPO to do two things. In the short term, to ‘actively support voluntary licensing’ schemes like Creative Commons; and secondly, for WIPO to establish a ‘blue sky commission’ to look into reforming copyright for the digital age.

In a video interview with IPWatch, responding to a question about what he thinks about activities currently underway at the WIPO SCCR around exceptions for visually impaired, libraries and universities, Lessig said:

‘I think that the particular flexibility being discussed right now is good but it all presupposes the same architecture for copyright regulation… so these are exceptions and flexibility that’s built on top of a system that presupposes that copyright out to be invoked or triggered every time there’s some reproduction made, or every time there some sharing of content made. And I think the first point of recognition that the system has got to come to terms with is that  copyright law never historically had that presumption built in… Even in the context of the Berlin Accords of 1908 it wasn’t the history that people ever imagined that every time humans would come across culture we would flip on the regulation of copyright… that instead copyright had a very tiny slice of human culture that it was trying to regulate – leaving a whole bunch of the rest of it free… and to see that now that we’ve moved into a digital  infrastructure that architecture entails that every single interaction with culture triggers copyright law. That’s the point that ought to make us skeptical of the current architecture of regulation and to think about what a different kind of architecture would be. So the current exceptions are fine clugas  in the technical sense of ‘on top of this infrastrucutre’, but what I’m saying is  we need to think of the basic infrastructure and identify a simpler and more efficient infrastructure to achieve the same objectives.’

I tend to agree. I spent the summer trying to navigate the problems with exceptions and limitations to copyright for digital education around the world for the EFF (and finished the first draft of my paper late last night) and kept coming up against the core problem that even if we could clarify exceptions and limitations for some educational materials, that we’re merely continuing the (broken) feature of copyright that every use on the network is regulated, and that fair uses – however regulated – will result in enhanced surveillance. It’s also really difficult to separate out ‘educational’ uses online when such great opportunities exist to extend learning beyond the institution, and into the world (evidenced by the wonderful remixes that Lessig shows in his talk). What we need, ultimately, is to re-establish copyright registration, to free the majority of culture from regulation and surveillance, and to establish a system that enables creators to build upon existing artifacts without requiring their permission.

Lessig’s idea to take this debate outside of the complexities of existing legislation that limits room for innovation is correct. I only hope that WIPO heeds his call. And while we wait, there are a bunch of really important organisations working really hard to tap away slowly and steadily at the monolith.

What I’m doing at the Electronic Frontier Foundation

Illustration by Tsevis CC BY-SA GB

At the beginning of the year I applied to work with the EFF via the Google Policy Fellowship. Inspired by Google’s Summer of Code, the Google Policy Fellowship is a similar program aimed at supporting developments in Internet public policy. It basically offers students interested in Internet and technology policy the opportunity to spend the summer contributing to the public dialogue on these issues, and exploring future academic and professional interests.

I’ve always respected the work of the EFF. They have defended some really important internet freedom cases in the US and I was particularly impressed at their impartiality when they supported artists, Nathaniel Stern and Scott Kildall after Wikipedia threatened them for so-called trademark abuse. The EFF had represented Wikipedia before this time so it was really heartening when I saw how brave they were in their public statement about this strange accusation.

I was thrilled to learn a couple of months ago that I’d been accepted as the EFF’s Google Policy Intern – working with the awesome international team led by Gwen Hinze, Eddan Katz and Katziza Rodriguez.

I started work at the beginning of the month at the organisation’s Mission headquarters. I’m really impressed so far – by the professional way in which the staff conduct their work, at the trust that they have in one another, at the passion that they have for the issues they work on. Most of all, I’m impressed by the fact that they actually argue with one another about different perspectives. It’s very rare to find an organisation that talks the talk *and* walks the walk. EFF seems to be one of those organisations and I’m convinced now more than ever of the absolutely critical role that they play in defending civil liberties, innovation and free expression online – not just in the United States, but internationally as well.

I am working on a project to help define how global copyright rules can support digital education across borders at the global policy-making body, WIPO (the World Intellectual Property Organisation). An agency of the UN, WIPO has until now mostly been concerned with enforcing the property rights of rights holders (most of whom reside in the developed North). A few years ago, a group of countries (including South Africa) got together to try and change the focus of WIPO in a momentous proposal for a ‘Development Agenda’ at WIPO. The Development Agenda implored WIPO to recognise the critical role of intellectual property rights in fostering creativity, innovation and economic growth in developing countries, and to embark on a new development-focused work plan to explore ways in which international laws could be used to regain such balance.

That was in 2005. As I write this, the first substantial ‘development-focused’ proposal for the rights of the visually impaired is being debated at WIPO. It’s a complicated process, and I’ve spent the last week working out the impact of each competing proposal. It will be interesting to see the outcome of this meeting. It will certainly set the stage when/if WIPO gets onto the topic of exceptions and limitations to copyright for educational purposes.

I’ll be producing a paper by the end of the fellowship in August, and will hopefully carry on working with the EFF on this issue as they work with others around the world who are calling for international policies that can better facilitate innovation in the online and distance education sector. There’s an enormous opportunity here, and it seems to be the right time for positive change. I only hope that WIPO and Member states continue to think big and start to recognise the enabling impacts of IP for improving access to and quality of education everywhere.

Much work has already been done in this area. I’m a little concerned about my ability to add anything meaningful that will propel the debate forward to achieving some much-needed action. At the very least I hope to connect some of the really great writing on this issue in making the case for why education – especially online education – needs greater clarity and support from copyright law, and how WIPO is exactly the right place for this to happen. To those old (and hopefully new) friends who have done work on this issue, I’m very keen to learn more about your ideas on the key problems and solutions. Please get in touch if you’re interested in chatting more.

Industries that survive and thrive without copyright protection

I met Johanna Blakeley in LA a while back and when we heard about her project about sharing in the fashion industry, Ready to share, we invited her to talk at the iCommons Summit in Sapporo, Japan in 2008. She rocked it then but her latest TED talk is even better. She talks about how the lack of copyright protection has enabled the fashion, food, and automobile industry to thrive, forcing them to innovate in order to become more unique, less able for others to copy.