digital copyright peer production, user-generated content, access, enclosure and the public domain

Digital CopyrightPeer Production, User-Generated Content, Access, Enclosure and the Public Domain

The Internet, Digitization and the Digital Dilemma

“. . . information wants to be free, because it has become so cheap to distribute, copy, and recombine - too cheap to meter. It wants to be expensive because it can be immeasurably valuable to the recipient. That tension will not go away . . . .”

Stuart Brand (founder of Electronic Frontier Foundation), THE MEDIA LAB: INVENTING THE FUTURE AT MIT 86 (Penguin Books 1986)

19/04/23 Giancarlo F. Frosio


“The digital dilemma”

NATIONAL RESEARCH BOARD, THE DIGITAL DILEMMA: INTELLECTUAL PROPERTY IN THE INFORMATION AGE (National Academy Press, 2000)



“earlier generations of technology . . . have presented challenges to existing copyright law, but none have posed the same threat as the digital age . . . .”

John V. Pavlic, New Media Technology, 1996. John V. Pavlic is executive director of the Columbia University Center for New Media.



“notions of security and control that may have been exercisable in the non-networked, analog world cannot be effectively transferred to a realm where even a single digital copy can propagate millions of perfect clones, world-wide, almost instantaneously, and where control over the quantity and destiny of the bits that comprise digital media will be imperfect at best.”

Philip S. Corwin, legal counsel for Sharman Networks, owner of KaZaa peer-to-peer software, in a letter to Senator Joseph R. Biden, Jr., February 26, 2002



“I believe we are moving into a new kind of cultural if not economic reality. We are moving away from a world organized around centralized control, strict intellectual property rights and hierarchies of credentialed experts, to a radically different order. The new order is predicated upon open access, decentralized participation, and cheap and easy sharing.”

David Bollier, The Commons as New Sector of Value Creation: It’s Time to Recognize and Protect the Distinctive Wealth Generated by Online Commons, Remarks at the Economies of the Commons: Strategies for Sustainable Access and Creative Reuse of Images and Sounds Online Conference (Amsterdam, April 12, 2008)


The Wealth of Networks: Digitization and Peer Production

“What characterizes the networked information economy is that decentralized individual action—specifically, new and important cooperative and coordinate action carried out through radically distributed, nonmarket mechanisms that do not depend on proprietary strategies—plays a much greater role than it did, or could have, in the industrial information economy.”

YOCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS MARKETS AND FREEDOM 3 (Yale University Press 2007)


The Wealth of Networks: Digitization and Peer Production

“networked environment makes possible a new modality of organizing production: radically decentralized, collaborative, and nonproprietary; based on sharing resources and outputs among widely distributed, loosely connected individuals who cooperate with each other without relying on either market signals or managerial commands. This is what I call ‘commons-based peer production.’”

YOCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS MARKETS AND FREEDOM 60(Yale University Press 2007)


Open Access, Free Culture, UGC and Remix

“[W]e come from a tradition of “free culture” - not “free” as in “free beer” (to borrow a phrase from the founder of the free-software movement), but “free” as in “free speech,” “free markets,” “free trade,” “free enterprise,” “free will,” and “free elections.” A free culture supports and protects creators and innovators. It does this directly by granting intellectual property rights. But it does so indirectly by limiting the reach of those rights, to guarantee that follow-on creators and innovators remain as free as possible from the control of the past. […] The opposite of a free culture is a “permission culture” - a culture in which creators get to create only with the permission of the powerful, or of creators from the past’”

LESSIG LAWRENCE, FREE CULTURE: THE NATURE AND FUTURE OF CREATIVITY xiv (Bloomsbury Academic 2005)



Rip: A Remix Manifesto, http://ripremix.com/


http://ripremix.com/


“Viral spiral? Viral, a term borrowed from medical science, refers to the way in which new ideas and innovations on the Internet can proliferate with astonishing speed. […] The spiral of viral spiral refers to the way in which the innovation of one Internet cohort rapidly becomes a platform used by later generations to build their own follow-on innovations. It is a corkscrew paradigm of change: viral networking feeds an upward spiral of innovation.”

DAVID BOLLIER, VIRAL SPIRAL: HOW THE COMMONERS BUILT A DIGITAL REPUBLIC OF THEIR OWN (New Press 2009)



“We are in the midst of a revolution in the way that knowledge and culture are created, accessed and transformed. Citizens, artists and consumers are no longer powerless and isolated in the face of the content production and distribution industries: now individuals across many different spheres collaborate, participate and decide."

Charter for Innovation, Creativity and Access to Knowledge: Citizens' and Artist's Rights in the Digital Age, Barcelona Free Culture Forum, http://fcforum.net/


http://fcforum.net/

Close to Zero Marginal Cost

“the limited scope of the copyright holder’s statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an “author’s” creative labour. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. ‘The sole interest of the United States and the primary object in conferring the monopoly,’ this Court has said, ‘lie in the general benefits derived by the public from the labours of authors.’”

Fox Film Corp. v. Doral, 286 U.S. 123, 127 (1932)


The Public Domain

“The public domain has been, for the most part, an uncharted terrain.”

Pamela Samuelson, Mapping the Digital Public Domain: Threats and Opportunities, 66 LAW & CONTEMP. PROB. 147, 147-148 (2003)


The Public Domain

“Whether the public domain is a virtual wasteland of undeserving detritus or the font of all new creation is the subject of some debate. Those who adhere to the former perspective do not worry about "threats" to this domain any more than they would worry about scavengers who go to garbage dumps to look for abandoned property.”

Pamela Samuelson, Mapping the Digital Public Domain: Threats and Opportunities, 66 LAW & CONTEMP. PROB. 147, 147 (2003)


The Public Domain

“recognition of new intellectual property interests should be offset today by equally deliberate recognition of individual rights in the public domain.”

“ . . . sanctuary conferring affirmative protection against the forces of private appropriation . . . .”

David Lange, Recognizing The Public Domain, 44 LAW & CONTEMP. PROBS. 147 (1981)


The Public Domain

“[t]he public domain will change its shape according to the hopes it embodies, the fears it tries to lay to rest, and the implicit vision of creativity on which it rests. There is not one public domain, but many.”

James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 LAW & CONTEMP. PROB. 33, 52 and 62 (2003)


The Public Domain

“the place we quarry the building blocks of our culture”

BOYLE, JAMES, THE PUBLIC DOMAIN: ENCLOSING THE COMMONS OF THE MIND 40 (Yale University Press 2009)


The Public Domain

“[t]he old dividing line in the literature on the public domain had been between the realm of property and the realm of the free. The new dividing line, drawn as a palimpsest on the old, is between the realm of individual control and the realm of distributed creation, management, and enterprise.”

James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 LAW & CONTEMP. PROB. 33, 66 (2003)


The Public Domain

“ . . . like the environment the public domain must be ‘invented’ before it can be saved.”

James Boyle, A Politics of Intellectual Property: Environmentalism for the Net?, 47 DUKE L. J. 87, 110 (1997)


The Public Domain

“Consider the preservation of the public domain within WIPO’s normative processes and deepen the analysis of the implications and benefits of a rich and accessible public domain.”

Development Agenda for WIPO, Recommendation 16

“To promote norm-setting activities related to IP that support a robust public domain in WIPO’s Member States, including the possibility of preparing guidelines which could assist interested Member States in identifying subject matters that have fallen into the public domain within their respective jurisdictions.”

Development Agenda for WIPO, Recommendation 20


Commodification, Enclosure and Cultural Diversity

. . . our intelligence tends to produce technological and social change at a rate faster than our institutions and emotions can cope with . . . we therefore find ourselves continually trying to accommodate new realities within inappropriate existing institutions, and trying to think about those new realities in traditional but sometimes dangerously irrelevant terms . . . .

GWYNNE DYER, WAR: THE LETHAL CUSTOM 253 (Crown 1985).



“Today, the greater capacity for the dissemination of knowledge, for cultural creativity and for scientific research carried out by means of the enhanced facilities of computer-mediated telecommunication networks, has greatly raised the marginal social losses that are attributable to the restrictions that those adjustments in the copyright law have placed upon the domain of information search and exploitation.”

Paul A. David and Jared Rubin, Restricting Access to Books on the Internet: Some Unanticipated Effects of U.S. Copyright Legislation, 5 REV. ECON. RES. COPYRIGHT ISSUES 50 (2008)



“we are in the midst of an enclosure movement in our information environment.”

Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on the Enclosure of the Public Domain, 74 N.Y.U. L. Rev. 354, 362 (1999)

“second enclosure movement”

James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 LAW & CONTEMP. PROB. 33, 52 and 62 (2003)

“information feudalism”

PETER DRAHOS WITH JOHN BRAITHWAITE, INFORMATION FEUDALISM: WHO OWNS THE KNOWLEDGE ECONOMY? (Earthscan Publications 2002)



“[T]he public domain is under pressure as a result of the ongoing march towards an information economy. Items of information, which in the 'old' economy had little or no economic value, such as factual data, personal data, genetic information and pure ideas, have acquired independent economic value in the current information age, and consequently become the object of property rights making the information a tradable commodity. This so-called 'commodification of information', although usually discussed in the context of intellectual property law, is occurring in a wide range of legal domains, including the law of contract, privacy law, broadcasting and telecommunications law.”

P. Brent Hugenholtz and Lucie Guibault, The Future of the Public Domain: An Introduction, in THE FUTURE OF THE PUBLIC DOMAIN: IDENTIFYING THE COMMONS IN INFORMATION LAW 1 (Lucie Guibault and P. Brent Hugenholtz eds., Kluwer Law International 2006)



“[i]nformation that used to be “free” is now increasingly being privatized, monitored, encrypted, and restricted. The enclosure is caused by the conflicts and contradictions between intellectual property laws and the expanded capacities of new technologies. It leads to speculation that the records of scholarly communication, the foundations of an informed, democratic society, may be at risk.”

Charlotte Hess and Elinor Ostrom, Introduction: An Overview of the Knowledge Commons, in UNDERSTANDING KNOWLEDGE AS A COMMONS: FROM THEORY TO PRACTICE 3-26 (Charlotte Hess and Elinor Ostrom eds., MIT Press 2006)



“the tragedy of the commons”

Hardin Garrett, The Tragedy of the Commons, 162 SCIENCE 1243 (1968)



“The best prescription for connecting authors to their audiences is to extend rights into every corner where consumers derive value from literary and artistic works. If history is any measure, the results should be to promote political as well as cultural diversity, ensuring a plenitude of voices, all with the chance to be heard.”

PAUL GOLDSTEIN, COPYRIGHT'S HIGHWAY: FROM GUTENBERG TO THE CELESTIAL JUKEBOX 236 (Stanford University Press 1994)



“the comedy of the commons”

Carol M. Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711 (1986)



“[i]t is choosing to increase the costs of academic scholars, whose libraries must decide whether to buy more publications or more access rights to a smaller number of publications, to increase Reed Elsevier's returns. It is choosing to increase the costs of amateurs—like children who would put together web-based projects about their favorite cartoon characters—in order to increase the returns to Disney. It is choosing to raise the economic barriers facing participants in the Free Republic forum in order to increase the returns to the Washington Post.”

Yochai Benkler, A Political Economy of the Public Domain: Markets in Information Goods vs. The Marketplace of Ideas, in EXPANDING THE BOUNDARIES OF INTELLECTUAL PROPERTY: INNOVATION POLICY FOR THE KNOWLEDGE SOCIETY 273-74 (Rochelle Dreyfuss, Diane L Zimmerman, and Harry First eds., Oxford University Press 2001)



Through a relatively swift transformation in the basic elements of the network, the network is increasingly recognizing a permissions layer, layered onto the original Internet. This permissions layer will enforce the permission the law establishes by default. It will require, in a physical sense, the permission that the law now requires by rule. This will be the consequence of the set of technologies ordinarily referred to as "DRM"--digital rights management technologies. DRM technologies enable fine-grained control over how content is used in a digital environment. They control whether the content can be copied, or how often; they control how long the content survives; they control whom the content can be shared with, or whether it can be altered or transformed. DRM thus uses technology to enforce control of content, independent of whether the law authorizes that control.”

Lessig, Re-crafting a Public Domain, supra note […], at 62.

Giancarlo F. Frosio


“the public domain represents our free speech concerns within the realm of copyright law.”

Michael D. Birnhack, More or Better? Shaping the Public Domain, in THE FUTURE OF THE PUBLIC DOMAIN: IDENTIFYING THE COMMONS IN INFORMATION LAW 62 (Lucie Guibault and P. Brent Hugenholtz eds., Kluwer Law International 2006)

Giancarlo F. Frosio


“[f]ocusing on the duty side of intellectual property clarifies that we are free to communicate at a given moment only to the extent we communicate using information that is in the public domain, we own, or we have permission to use for the proposed communication. An increase in the amount of material one person owns decreases the communicative components freely available to all others. Obtaining permission to use already assumes a prior state of unfreedom, lifted at the discretion of a person with authority over our proposed use. Only an increase in the public domain--an increase in the range of uses presumptively privileged to all--generally increases the freedom of a society's constituents to communicate.”


Giancarlo F. Frosio


“In a digital environment where distribution costs are very small, the primary costs of engaging in amateur production are opportunity costs of time not spent on a profitable project and information input costs. Increased property rights create entry barriers, in the form of information input costs, that replicate for amateur producers the high costs of distribution in the print and paper environment. Enclosure therefore has the effect of silencing nonprofessional information producers.”


Giancarlo F. Frosio

The Public Domain as the Very Goal of Copyright Law?

“[i]f nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea.... 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.”

Letter from Thomas Jefferson to Isaac McPherson (August 13, 1813), in THE WRITINGS OF THOMAS JEFFERSON (Albert Ellery Bergh ed., The Thomas Jefferson Memorial Association of the United States 1907).

19/04/23 Giancarlo Frosio, LL.M. - www.it-law.it


"[i]n a word, I have no difficulty to maintain that a perpetual monopoly of books would prove more destructive to learning, and even to authors, than a second irruption of Goths and Vandals."

Hinton v Donaldson, Mor 8307 (1773) (Lord Kames)



“science and learning are in their nature publici juris, and they ought to be as free and general as air or water.”

Donaldson v. Beckett, 2 Brown's Parl. Cases 129, 1 Eng. Rep. 837; 4 Burr. 2408, 98 Eng. Rep. 257 (1774) (Lord Cadmen)



“Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. [ . . .] It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.”

Thomas B. Macaulay, A Speech Delivered in the House of Commons (Feb. 5, 1841), in VIII THE LIFE AND WORKS OF LORD MACAULAY 201 (Longmans, Green, and Co. 1897)



“The most sacred, the most legitimate, the most indisputable, and […] the most personal of all properties is the work which is the fruit of a writer’s thought [ . . . ] [b]ut it is a property of a different kind from all the other properties. [Once the author has disclosed the work to the public] the writer has affiliated the public with his property, or rather has fully transmitted his property to the public. However, because it is extremely just that men who cultivate the domain of ideas be able to draw some fruits of their labors, it is necessary that, during their whole lives and some years after their deaths, no one may, without their consent, dispose of the product of their genius.”

Archives parlementaires (Assemblée nationale), January 13, 1791, at 210 (report of Le Chapelier)



“the public domain is not an unintended by product, or ‘graveyard’ of copyrighted works but its very goal.”

Michael D. Birnhack, More or Better? Shaping the Public Domain, in THE FUTURE OF THE PUBLIC DOMAIN: IDENTIFYING THE COMMONS IN INFORMATION LAW 60 (Lucie Guibault and P. Brent Hugenholtz eds., Kluwer Law International 2006)



“In short, the public domain would be a place like home, where, when you go there, they have to take you in and let you dance.”

David Lange, Reimagining The Public Domain, 66 LAW & CONTEMP. PROBS. 463, 470 (2003)



“[w]hat am I then? Everything that I have seen, heard, and observed I have collected and exploited. My works have been nourished by countless different individuals, by innocent and wise ones, people of intelligence and dunces. Childhood, maturity, and old age all have brought me their thoughts, their perspectives on life. I have often reaped what others have sowed. My work is the work of a collective being that bears the name of Goethe.”

Johann Wolfgang von Goethe, cited in Martha Woodmansee and Peter Jaszi, The Law of Text: Copyright in the Academy, 57 COLLEGE ENGLISH 769, 769 (1995)


Reinventing Copyright in the Digital Environment

“in the absence of the old containers, almost everything we think we know about intellectual property is wrong”.

John Perry Barlow, Selling Wine Without Bottles: The Economy of Mind on the Global Net, Wired 2.03 (1994)



“copyright law is totally out of date . . . it is a Gutenberg artifact . . . since it is a reactive process, it will have to break down completely before it is corrected.”

NICHOLAS NEGROPONTE, BEING DIGITAL 58 (Alfred A. Knopf 1995)



“in the digital world copying is such an essential action, so bound up with the way computers work, that control of copying provides, in the view of some, unexpectedly broad powers, considerably beyond those intended by the copyright law.”

NATIONAL RESEARCH BOARD, THE DIGITAL DILEMMA: INTELLECTUAL PROPERTY IN THE INFORMATION AGE 140 (National Academy Press, 2000).



“The social condition of global interconnection that we call the Internet makes it possible for all of us to be creative in new and previously undreamed-of ways. Unless we allow ‘ownership’ to interfere.”

Eben Moglen, Anarchism Triumphant: Free Software and the Death of Copyright, FIRST MONDAY, August 2, 1999



“[the] fundamental impulse that sets and keeps the capitalist engine in motion is the process of creative destruction which incessantly revolutionizes the economic structure by incessantly destroying the old one, incessantly creating a new one”

JOSEPH SCHUMPETER, CAPITALISM, SOCIALISM AND DEMOCRACY 83 (Harper Perennial Ed. 1976)



“The social and technological basis of creation has been radically transformed. The time has come for us to finally become aware that in our post-post-industrial age, the long route which used to lead the work from its creator to the public by passing through different categories of businesses is gradually being replaced by a short route, which puts in direct contact creators and the public.”

Marco Ricolfi, Copyright Policies for Digital Libraries in the Context of the i2010 Strategy, paper presented at the 1st COMMUNIA Conference (July 1, 2008), at 12


digital copyright peer production, user-generated content, access, enclosure and the public domain

Documents

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