May 10, 2004

Open Access and creative common sense

Intellectual property and copyright laws exist to protect creators and to encourage creative freedom. But many feel that these laws have become too restrictive for the Internet era and are now stifling creativity and innovation. Lawrence Lessig, an expert on the law of cyberspace, spoke to Open Access Now about new projects to help remove the burden of intellectual property law from authors and scientists.

There are two ways to get hold of Professor Lessig's latest book, Free Culture. Either you can purchase a hardcover copy from your nearest bookstore for US$24.95 or you can download it for no charge from his website. The publisher, Penguin Press, agreed to release Free Culture under a new type of copyright license being championed by Lessig and by Creative Commons, a non-profit corporation that he founded. Creative Commons promotes the use of copyright to encourage the creative re-use of intellectual works, rather than to prevent it. The organization provides a free set of copyright licenses that creators can use, which explicitly allow re-use while protecting certain rights.

"Penguin adopted the licence because they believed that if they did that they would sell more books," explains Lessig, a professor at Stanford Law School and founder of the school's Center for Internet and Society. "Some publishers are beginning to see these licenses as a strategy for increasing sales." When asked whether it was hard to convince Penguin Press to adopt this unconventional tactic, Lessig chuckles. "Actually, they raised the idea first. I wrote about it in my book with respect to someone else's book. And during the editing process my editor said to me 'should we do this with your publication?' I was intending to suggest this later in the cycle. But they raised it first and I was excited to do it," recalls Lessig.

The Creative Commons licenses indicate that copyrighted works are free for sharing, but only on certain conditions. In the case of Lessig's book, the license specified that derivative works can be made and distributed, as long as they are for non-commercial purposes and the source is attributed. Within days of the launch of Free Culture derivative works and copies had sprung up all over the Internet. "It has produced an extraordinary number of remixes of the book in different forms and formats. There is even an audio MP3 version," says Lessig, who is delighted to see how other people's creativity is helping to bring his work to a wider audience. "People have made a lot of changes that were enabled because of the freedom attached to the license."

"Whether in fact publishers need to control access the way that they control it today is a contestable assertion," notes Lessig. "They don't really know themselves." Lessig admires Penguin Press for having the guts to experiment with the new license. "The fact that they needed to experiment with it signals that there is a lot of learning to be done. So far the experiment has been very successful. But we need a lot more data and a lot more time to get a better sense of how well it works. I can understand that traditional publishers will view this as competition with their model - and my view is that competition is something that we should encourage, so let's have more of it!"

In the book's introduction Lessig writes about how the Wright brothers' invention and the growth of the aviation industry led to changes in American property laws. In 1945, Justice Douglas of the US Supreme Court ruled against the traditional doctrine that common law ownership of land extended to all the airspace above that land, so those flying airplanes could not be sued for trespassing. "Common sense revolts at the idea," wrote Douglas. Lessig is a big advocate of common sense. He reminds us that "the law adjusts to the technologies of the time. And as it adjusts, it changes. Ideas that were as solid as rock in one age crumble in another."

"My view is that the law has, for unintended and intended reasons, radically changed the burden on creators and producers of knowledge who wish to share and make their work available to a larger public," explains Lessig. "My objective is to work to find ways to reduce that burden. Creative Commons was started with that as its objective. The basic intuition was that the law, as it is right now, makes the default in the Internet 'No' (so one must seek permission first), whereas the technology screams 'Yes'. Initially people thought that would be the end of the law, but what happens is that the law finds its revenge, finding ways to reinforce the default as 'No'."

The license is expressed in three ways: the 'Commons Deed' is a simple, human-readable, plain-language summary of the license that says what may be done with the content; the Legal Code ensures that the license will stand up in court; and the Digital Code is a machine-readable translation of the license that helps search engines and other applications identify the terms of use.

"I think that the third layer is the most important," says Lessig. "You can begin to imagine the Internet developing an intelligence around content, so that you could search the Internet and say 'give me all the pictures of the Empire State building that are available for non-commercial use'. It increasingly makes the user aware of the freedoms associated with the content, as opposed to being afraid of the potential liability."

This led to the Science Commons project. "Numerous scientists have pointed out ... that, right at the historical moment when we have the technologies to permit worldwide availability and distributed processing of scientific data ..., broadening collaboration and accelerating the pace and depth of discovery, we are busy locking up that data and slapping legal restrictions on transfer," states the project website. The Board feel that its experience in creating licensing solutions will be useful in developing new strategies for sharing scientific information. Commons hopes to address issues related to patents and database sharing. "The general idea is that every time there is a burden that is created by intellectual property that is unrelated to the underlying purpose of the field of research, then we should find a way to remove that burden," explains Lessig.

Lessig cites the music industry in the United State as a classic example of how creativity was stifled by copyright and lawsuits. "There was a huge amount of innovation of content that was effectively quashed by a very powerful recording industry. And we are still recovering from that." He feels that the best away to get around this is to compete and to demonstrate that the industry can produce high-quality material with an alternative business model.

The scientific publishing industry is less aggressive than the recording industry, notes Lessig. "There is less of a war in this context. But the alternative modes of publishing, supported by scientists or universities, have a lot to compete against. In some ways it will be harder to crack it. And it's not certain what the business model is to crack it," comments Lessig. "There are obviously huge expenses associated with entry and new technology, and how you support that expense is going to be difficult. But that's an appropriate challenge for the competitive market."

Lessig has drawn much inspiration from Richard Stallman and the Free Software Foundation. "I think that the big lesson from Open Source Software is that you can support a platform of software development that provides great positive externalities to the world because it carries source code that people know how to change. But on the other hand you can still make money from it by bundling it or tying it into some other suite of services," says Lessig. "There is an equivalent struggle that is going to be necessary in the context of Open Access publishing."

Open Access publishing needs to be more creative, suggests Lessig; "In some sense, that first stage of Open Access publishing has taken some obvious steps. Public Library of Science, for example, is trying to be extremely conservative in its approach by basically replicating high-quality printed journals supplemented with an online version that is free. But I think that we all need to spend more time with technologists who can help us think through some of the technical opportunities that might reduce the costs of producing work and might actually increase its value," Lessig proposes. This might include mechanisms for gathering feedback that work effectively to add another layer of peer review from the consumers of the content, says Lessig.

Historically, new technologies have often been conservative, notes Lessig. "Look at the very beginning of the film era. Films were initially just staged plays with cameras put in front of the stage. It took a long time before filmmakers began to think about the special genre of filmmaking rather than just remaking plays. The same thing needs to happen with online publishing."

"Another reason why [the uptake of Open Access] is slow is that Open Access publishers have to convince a traditional market that this new form of publication is as valuable, and has an equivalent set of credentialing signals. So, it's going to take some time to begin to develop a culture that supports online Open Access publishing, from the norms as well as the financial perspective. We need stamps of approval, and how we are going to create them is going to be a challenge. Yet it's clear to me that there is more than one way to create them."

Lessig isn't against copyright. "Everyone needs copyright. Open Access publishing isn't publishing without copyright. It's publishing with copyright exercised in a way that makes material open and available for others to build upon. It still uses copyright, but for a reason different than the reason used by proprietary publishers who exclude people from getting access to the content."

Of course, there will always be people who resist changes to the system, agrees Lessig. "But technology has changed radically, and in the face of a radical new technology we should rethink the business model. I can understand how every business wants to avoid that, but nobody has the right to prevent progress."

www.lessig.org
www.creativecommons.org