Copyfight
Candace Hare

Introduction

Increasingly broad copyright laws and stronger legislation regarding the use of digital information technology are giving way to fears that the public domain is becoming something long forgotten and no longer cared for. Without rich and reusable resources of technical and cultural information, there is the thought that whole portions of culture will fade from our memories long before the copyright expires. In addition to this is the reality that scores of useful information is prevented from being freely used and accessed by individuals though it is no longer commercially viable to the creator.


Copyfight

The response to this state of affairs has been varied; activities range from outright piracy by those unwilling to accept digital lockdowns, to an attempt at some sort of balance with the emergence of new kinds of copyright licenses, such as Creative Commons. The “copyfight,” as it is known, is far from over, as the issues at stake refuse to be resolved easily. Through digital restrictions, and despite dominant corporations, there are an increasing number of people aiming to bring information to the public and have it free for use.

It has often been said that we are living in the “Information Age”. Swift advances in technology over the past decades have vastly changed how many of the world’s inhabitants search for, retrieve, use, and share information. Communication networks have changed all aspects of our society, from personal exchanges to international business. Now with the ubiquity of digital technology: the Internet, affordable home computers, photo-quality printers, and so on, the rate of information exchange is greater than ever before. Much has been made of the “Digital Divide”, a phrase describing the “haves” and “have-nots” of the digital world, as access to this wealth of fast information relies on a connection to the global network. There seems to be an unfair advantage for those in the world with the means to access this technology, as they reap all the benefits from a countless supply of knowledge, while others are effectively barred. The digital divide can take place within communities or even on a national level, but it seems to be always due to economic factors. From the poor members of North American communities to the struggling citizens of lesser developed countries, if there is a lack of funds, there is little way to get access to the network which is gradually becoming the world’s main avenue for current information.

Even within the sphere of society which has access to all the latest technology, there still exists a barrier which prevents much of the available information from being internalised, used, and shared. Lawrence Lessig, Professor of Law at Stanford University, claims that another type of digital divide exists not in accessing information and technology, but in the ability (or lack thereof) to use that information and control the technology that makes it available. Lessig addresses this in his book Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity: “The greatest digital divide is not in access to the “box” but the ability to be empowered with the language of the “box” – otherwise only a few people can write, and the rest are read only” (Lessig, 2004, p. 37). What Lessig is speaking to in this case, are the increasingly restrictive laws and limitations to technology aiming to shape the way users access and use information. Many of these measures have been instituted at the behest of large media corporations such as the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA), in efforts to combat piracy. Where the technology exists to transmit information for very little cost, new additions such as Digital Rights Management (DRM) technology are being installed on hardware, in software, and other electronic devices in order to impose restrictions on how digital information can be used, copied, transferred, and shared. Additionally, rulings such as the Digital Millennium Copyright Act (DMCA), which took effect in the United States in 1998, make it a criminal offence to bypass DRM technology, even on electronic equipment owned by the user personally (U.S. Copyright Office, 1998, p. 3).

Quite obviously the question at stake is not whether or not the RIAA is allowed to aggressively combat piracy. What Lessig and other “copyfighters” take issue with is the fact that potentially liberating technology is being crippled by the assumption that everyone using it will exploit it to steal, pirate, and otherwise compromise the commercial endeavours of copyright holders. As James Campbell notes in his article “Reactions to the Enclosure of the Information Commons: 2000-2004”: “Laws such as the DMCA have emerged because forms of property have changed in the digital age, while the conceptualisation of the nature of property has not” (Campbell, 2005, p. 14). In such a situation there are concerns as to whether or not there can truly be any real benefits to either party. The corporations are unleashing a stream of lawsuits which do not appear to be effectively halting online piracy. Likewise, the average users—pirates or otherwise— must live in a digital world where a large portion of their technology is prevented from operating at full potential.

There are some people and organisations which wish to work alongside the new technology. They recognise that the Internet and its “universal access” to cheap and instantaneous distribution will not disappear in the near future, and so work with the technology’s potential to open up more possibilities and opportunities. As mentioned by Alex Aylett in an interview with writer and intellectual property activist Cory Doctorow, “those on the copy-left are trying to make sure that the technology, and our relationship to it, have a chance to develop to their full extent and to take full advantage of the new processes of creation and consumption now possible” (Aylett, 2005, ¶ 16). One of the major figures in the “copyfight” movement is the aforementioned Lawrence Lessig, along with the Creative Commons licensing organisation which he co-founded.


Creative commons

The Creative Commons is an alternative copyright system, which allows the creators of works to choose the extent to which they wish to exercise their copyright. The goal of Creative Commons is not to undermine or usurp current copyright laws, but rather to add to the system which is already in place. Creative Commons licenses give creators and users of information more freedom, through legally viable copyright assertions which clearly define the extent to which the information can be used. As Lessig himself stated in Free Culture, “The Creative Commons is a non-profit corporation established in Massachusetts, but with its home at Stanford University. Its aim is to build a layer of reasonable copyright on top of the extremes that now reign” (Lessig, 2004, p. 282).

The extremes in copyright law of which Lessig speaks were not instituted quickly or without warning, but rather were built up over time. When the United States first instituted copyright law in 1790, the terms were for merely 14 years, with the option of a one-time renewal for an additional 14 years. This renewal depended on the condition that the creator was still living and re-registered with the copyright office within six months of the expiry date (U.S Copyright Office, 1790). By 1909, the terms had doubled, with the base term and renewal length set at 28 years and the creator given one year from the expiration date within which to re-register for renewal (U.S Copyright Office, 1909). The most dramatic copyright revisions, however, occurred in the 20th Century. In 1978 it was declared that copyright was the default status for works, so the creator no longer had to register his or her license. Additionally, the terms were extended to the life of the creator plus a further 50 years. Finally, in 1998 the Sonny Bono Copyright Extension Act was passed, which lengthened the copyright terms to the author’s life plus 70 years (U.S. Copyright Office, 2005). This extension was supported strongly by the Walt Disney Corporation, as there were concerns regarding the impending release of Mickey Mouse into the public domain.

Therefore, under current copyright terms, virtually nothing created in the last 150 years has entered into the public domain. It is not a stretch of the imagination to postulate that many of the works still protected are long-forgotten endeavours which are no longer proving to be commercially rewarding to either the creator or the creator’s children. Despite this, the knowledge and ideas contained within these copyrighted works cannot benefit anyone else. Lessig and others within the Creative Commons organisation feel that the public domain is something dwindling in today’s society, which creates a situation potentially detrimental to culture at large. Lessig (2004) maintains that human cultural expression throughout history has involved a rich tradition of recycling, reworking, and re-processing various preceding expressions and themes. An example is the Walt Disney Corporation: fiercely protecting their prized character from becoming a part of the public domain. Lessig points out that the very success of their company has rested on the use of public domain works. The iconic cartoon “Steamboat Willie” was created as a parody of a Buster Keaton film “Steamboat Bill, Jr.”. Both works use a common song as their source of inspiration: “Steamboat Bill” (Lessig, 2004). If we are to briefly consider Disney’s most popular films and characters, we would see that many of them are based upon other public domain works, most notably fairy tales and folk tales. The reworking of prominent tales such as Sleeping Beauty, Snow White, and Robin Hood has been the foundation of Disney’s success as a company, something that would not have been possible if not for the benefits of the public domain (Lessig, 2004).

Lessig aims to add to the body of creative work available for free use and distribution with Creative Commons. He maintains there is “a distinction that the law no longer takes care to draw – the distinction between republishing someone’s work on the one hand and building upon or transforming that work on the other. Copyright law at its birth had only publishing as its concern; copyright law today regulates both” (Lessig, 2004, p. 19). Creative Commons licenses offer choice to the creator of a work. There are six main forms of the licences available through the Creative Commons website, which range from the more restrictive to the very open:

• Attribution Non-Commercial No Derivatives: The most restrictive of the six main licences, often called “free advertising”.  Allows downloads and sharing, as long as proper attribution is given, with a link back to the creator’s website (if electronically distributed) and the works cannot be altered or used commercially.
   
• Attribution Non-Commercial Share Alike: Lets others remix, tweak and build upon a work non-commercially, as long as proper credit is given and they licence their new creations under identical terms.
   
• Attribution Non-Commercial: Same as above, although the new work does not have to be licensed under the same terms.
   
• Attribution No Derivatives: Allows for re-distribution, commercial or non-commercial, as long as the work remains unchanged and attributed properly to the creator.
   
• Attribution Share Alike: Lets others alter and remix even for commercial purposes, as long as proper credit is given and the new work licensed in the same way.  Since the new licence will be “Attribution Share Alike” as well, any derivatives can be used commercially.
   
• Attribution: Others can distribute and make derivative works at will, commercially or non-commercially, and are only required to give proper credit. (Creative Commons, n.d.)

In addition to these six main licences, there are other more specialised options. Creators have choices, such as placing a work completely in the public domain, retaining no copyright. There is also a Developing Nations Licence, which allows for various uses of a work in developing nations, while preserving the full copyright in the developed world.

Owing to the fact that Creative Commons licences are obtained from the Creative Commons website, the licences are perhaps most easily applied to works presented on the Internet. The system is easy to use, as Wallys Conhaim states in her article “Creative Commons Nurtures the Public Domain”: “no lawyers are needed to execute these legal documents, making the system free and affordable by all” (Conhaim, 2002, p. 53). Once the work is registered with the Creative Commons website, the licence is generated in three ways: a plain-language version for laypeople, a legal version which contains the technical aspects lawyers will be concerned with, and a machine-readable metadata version which can be added to the coding of a website. This last aspect is quite interesting, as it is one of the ways Creative Commons truly emphasises the “commons” ideal: “metadata containing the licence provisions and generated through a web-based application will be distributed, then recognised by search engines and digital rights management systems” (Conhaim, 2002, p. 53). This allows the user to search for Creative Commons materials, increasing application and collaboration between artists, as well as increasing the exposure for those who publish their works online under a Creative Commons licence. Creative Commons has a symbol which can be displayed on a website indicating the type of licence under which the given work is offered. The slogan, which is often found along with Creative Commons works, is a reworking of the traditional copyright phrase “All rights reserved”: “Some rights reserved.” The symbols given by the Creative Commons website offer links to www.creativecommons.org where interested parties can learn more about the specific type of license the work is under, and more information about the other licenses.


Viability of open licenses

Though many people and corporations consider the concept of an open licensing system foolish, it remains a fact that open licensing opportunities would not be so popular if those using them did not feel it served their interests in some way.  A popular example of the way open licensing can benefit creators economically rather than hurt them, is the way in which writer Cory Doctorow published his first novel simultaneously in print and as a free download via a Creative Commons licence. Richard Poynder points out that “in less than a month, more than 70 000 copies of his book, Down and out in the Magic Kingdom, have been downloaded. […] Importantly, it has not harmed print sales: the book was recently number 19 on the Amazon Science Fiction bestseller list” (Poynder, 2003, ¶ 19-20).  For Doctorow, offering his novel freely on the internet acted more as a means of advertising than to discourage readers from buying the book in hard copy.  By offering a free digital copy, many people were exposed to Doctorow’s book than may have been otherwise, and having gathered attention, his subsequent books have also been successful.

This is not the only example of works being published simultaneously online and in print.  Lessig’s own book Free Culture: How Big Media uses Technology and the Law to Lock Down Culture and Control Creativity is available as a free download from his website as well as in hard copy, and publisher Prentice Hall followed similar lines when they published a series of books about open source programming, available electronically as well as in print (Poynder, 2003).  It is interesting to note how the subject matter of these books relates to the methods consumers can use to approach and access the material: for Lessig to have published Free Culture under typical strict copyright rules would seem hypocritical to a certain extent, since in the work he speaks of the need to nurture the public domain and more communal sharing of knowledge. Similarly in the case of Prentice Hall, since the subject matter is open source programming, it seems hardly logical that books speaking of something free for all should be so restricted and contained.  It is difficult to say whether this form of simultaneous print/online publishing will continue to grow, though it has proven a successful means of exposing the consumer public to works they might have otherwise been unaware of.

Not every person who employs a Creative Commons license for their work is doing it solely for economic gain.  Andy Raskin maintains that “whatever the reason, every artist who embraces Creative Commons helps to build its brand.  It is a classic case of network effects: As more of the licenses appear on the web, the collective value of the Creative Commons body of work increases, which creates greater incentives for other artists to use the licenses” (Raskin, 2004, ¶ 15).  As the body of work offered through Creative Commons grows, the ideals behind such open licenses will spread and become more commonplace.  Through many of the avenues offered to creators by Creative Commons, commercial rights are maintained while other uses remain possible, allowing many people to benefit from the creativity on the global network today.


Copyfight in the developing world

Artists looking for inspiration or raw material, and readers looking for a book to peruse are not the only people who can benefit from information found through Creative Commons and the public domain. Many Lesser Developed Countries (LDCs) are unable to access potentially useful information due to the strict copyright terms designed and instituted by wealthier, developed nations.

Increased copyright laws have not only made it more difficult for people in the west to get access to information, but it has become a severe problem in LDCs. The intellectual property laws for international agreements on copyright greatly limit access of information to countries which cannot otherwise afford to pay for it. Ingrid Hering remarks in her article “Report Claims IP Harms Development”, that “the [UK Commission on Intellectual Property Rights] declared that the IP system erects barriers to many products and technologies that developing countries need” (Herring, 2002, ¶ 3). Cory Doctorow illustrates this situation in WorldChanging: A User’s Guide to the 21st Century:

For the first hundred years of its post-Revolutionary existence, America was a land of merry piracy. Every invention and artwork of imperial Europe was free for reproduction and acquisition in the USA. […] No developing nation today enjoys this privilege. A combination of international copyright, patent, and trademark laws have robbed developing nations of the autonomy that would allow them to embark on a program of self-improvement comparable to that of America’s in its first century as a nation. Even when the son of the president of South Africa lies dead from AIDS, South Africa can’t afford the economic penalties that would arise from manufacturing domestic dollar-a-dose HIV cocktails. (p.336-337)

One of the organizations put in place to protect the information rights of developing countries is the World Intellectual Property Organisation (WIPO) which operates under the United Nations.  However, despite WIPO’s humanitarian mandate, there has been evidence to suggest that “the WIPO draft laws on copyright do not provide for all the flexibilities available in the international treaties and is more restrictive than need be of public access to knowledge” (Kanniah, 2006, p. 97).

Despite international treaties which would afford developing countries a certain amount of flexibility, when LDCs join and sign the WIPO Copyright Treaty they often end up having less freedom and less access to the information they need.  Rajeswari Kanniah addresses this in “Access to Knowledge in the Public Domain”, and maintains that WIPO’s stance has more to do with pressure from the countries in power over copyright than the best interests of the countries in need:

Developed countries using their influence at the WIPO and through bilateral and regional trade agreements to further their trade and commercial interest have further expanded copyright protection for owners. The space available to developing countries to adopt policy options suited to their development needs have consequently been reduced. (Kanniah, 2006, p.98)

Kanniah describes the main draft of the contract provided by WIPO as having a reduced duration of copyright, though there is a footnote included which serves to “advise countries that ‘the present tendency at the international level is to extend the term of protection to 70 years after the author’s death’” (Kanniah, 2006, p. 99).  Kanniah maintains that this recommendation is the longest term available, and one only practiced by the United States and European Union (Kanniah, 2006).  Therefore, in light of these recommendations, “WIPO is clearly not providing proper legislative advice to developing countries so as to enable them to take full advantage of all the flexibilities available to them” (Kanniah, 2006, p.99).

Such actions do not seem to surprise people such as Lawrence B. Solum, who, in his article “The Future of Copyright” maintains that “stakeholders in the status quo will use the law – both fairly and unfairly – to protect their interests, even at the expense of progress that is manifestly in the public interest” (Solum, 2005, p.1145).  The questions which arise out of this situation are “What can be done?” and “Who will do it?” 

Doctorow and others have been engaging WIPO directly, challenging them as an organisation to live up to their mandate under the banner of the United Nations.  This challenge was formally written in a document titled “The Geneva Declaration”, owing to the location where it was drafted and signed (Doctorow, 2005, ¶18).  Since then, Doctorow and various Non-Governmental Organisations (NGOs) have been attending WIPO meetings in order to directly address the issues.

It is interesting to note the way these meetings have taken place; Doctorow describes the organisational structure among all the NGO members present.  In essence, the NGO members attending WIPO’s meetings combat the restriction on information by using various means of sharing information, collaborating knowledge, and the latest networking technology.  Accomplishing this involved setting up wireless local area networks which could be accessed by laptop computers, but were not connected to the Internet.  Through this local network, a collaborative effort of information gathering, sharing, and publishing took place at the meetings:

So we'd have teams of three or four people using collaborative note-taking software, and one would be taking notes, one would be adding commentary and another would be following behind and correcting typos and formatting and the like. Meanwhile, we're all of us checking each other as we go -- filling in the blanks, noting discrepancies and so on -- and then publishing it twice a day at lunch and dinner. […] And what happened once we started working together like this is that delegates would get calls on their lunch break about things they'd said that morning. Suddenly, they're immediately accountable for their words, which completely changed the character of the negotiations. (Doctorow, 2005,  ¶ 37-38)

Doctorow describes how the order of speakers at WIPO meetings was relatively arbitrary and rebuttals were not allowed during an individual’s time to speak.  Instead, rebuttals were crafted on the local network.  NGO members would collaboratively take notes and formulate rebuttals to arguments made by WIPO members, and forward this information to the NGO member who was next called to speak.  In this way, the people working for the rights of developing countries were able to have strength through shared knowledge and information (Doctorow, 2005).

Using methods of free and collaborative information seems a fitting way to try to bring about changes in copyright legislation for developing countries.  One does not, however, need to be a member of an NGO at a WIPO meeting to help improve developing countries’ access to information.  As mentioned earlier, there is a Creative Commons license called the Developing Nations License, which can be implemented by anyone licensing a work.  This license allows those in developing countries to use the work for creative, cultural, and developmental purposes, while still retaining full copyright in developed countries. 

The distinction made with the Developing Nations License is important, because many creators may feel uncomfortable with the thought of putting their work or ideas entirely into the public domain, especially in regards to the commercially driven developed world.  They may not, however, object to their work being used (even commercially) in nations where the benefits will be deeply felt as a positive impact on people’s lives.


Conclusion

The future of copyright and the public domain is surely still to be revealed as the war against Internet piracy continues and copyright laws gradually increase in duration.  The “copyfight” is far from losing steam, however, as Creative Commons licences are becoming more popular and prevalent throughout the Internet, and many individuals are actively campaigning for the benefits of nurturing the public domain.  Lawrence B. Solum illustrates this vividly:

Just when it looked like our copy future would be dominated by a few giant media conglomerates – vast integrated empires of publishing, music distribution, and motion picture production – Lessig announces a future modeled on the open-source software movement, a future in which small-scale enterprises and individuals build a vast intellectual commons dedicated to the propositions that information shall be free and ideas shall not be owned.  (Solum, 2005, p. 1140)

Solum’s argument is utopian, to be sure; it would be a foolish assumption to consider Creative Commons as the end of all overprotective copyright laws or the death of the media corporations’ extended hold on cultural information.  What the open licensing movement does create, however, is a space in which those interested in free information can congregate, collaborate, and share.  Through the combined efforts of concerned citizens the world over, cultural and technical knowledge can be distributed and accessed easily and legally using growing technology as a help rather than a hindrance. Such positive technological efforts build a culture and community around sharing for mutual benefit rather than withholding for personal gain.

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