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!

 

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.

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.