Mary Wong on Copyright & Access to Knowledge
Mary Wong of Franklin Pierce Law Center at Berkman Center for Internet & Society (where I work), March 20, 2007.
On Copyright & Access to Knowledge: Rights/Rhetoric, Openness/Opacity, Future/Fears
Professor Wong is working on research at the intersection of copyright policy & knowledge (Access to Knowledge or “A2K”). She says that copyright and IP law are exclusive in the form of private property. What does it mean? Where does it apply? And what risks are there for access to knowledge?
(The following = my notes/mostly her words)
There are lots of labels & fashionable terms being thrown around these days. They are rooted in legal doctrine, but are either misconceived or have become convenient political labels with which to rally the troops.
Openness v. Opacity:
Opacity = entrenched interests who have no reason to change existing copyright regime. They can present roadbloacks and obstacles in greater access to knowledge.
What is the future of copyright & access to knowledge if we have a situation of openness v. opacity?
Let’s take a look . . .
Presentation/Slides
Copyright as Private Property Right
This is not about doing away with property rights. Trying to find a compromise or resolution to the impasse we’ve found in copyright law.
* From a censorship tool to trade regulation to individual property - from Age of Enlightenment/Reason to the Romantic Era
* Recently some of these tropes have been “deconstructed” (Barthes, et al) & questioned, but unlikely to change as a framework.
QUESTION: What to do if concerned about continued expansion of copyright & need to increase A2K (Access to Knowledge)?
A few attempts that have tried to achieve that balance:
* Recognize spectrum of alternative property rights
* Establish balance thru “user rights”
* Create flexible mechanisms within property?
Fair use could be elevated/reconfigured as rights - as a type of user rights as a balanced alternative.
Copyright as Alternative Property
The “Public Domain” & The “Commons” -
They lead to the risk that as they gain in popularity there is an increased chance to be misunderstood or shaped to a specific agenda.
We need:
* “The presence of a strong robust public domain is an essential precondition for cultural, social, and economic development, and for a healthy democratic process” (Hegenholtz & Guibault (2006).
* “The “public domain” and the “commons”: is it private, public or common property?
The public domain: do we know what that means? You may get different answers depending on who you ask? Wong says she doesn’t find a consensus on what this means specifically.
What do we mean by the commons?
- First usage: Creative Commons people may say, “well, the commons means Creative Commons”. But, it may something completely different to somone else?
- Second usage: Commons is something that’s owned by a group of people.
- Third usage: Commons is owned by the public generally, by society.
While these (above three usages) are useful hooks & they are certainly very useful, they are certainly not a stage where we’re at consensus.
* Can there be a true commons?
- Free software/open source (FOSS) & the Creative Commons (CC) as partial mechanisms/alternatives
FOSS = a software focus
CC = applies it to non-software content
Not to get into a critique whether they work or not, but they are partial mechanisms rather than full solutions.
CC is so successful, with licenses that applies to 30 licenses around the globe, than it becomes the de facto solution.
* So far, the rhetoric has been useful but (except for FOSS & CC) hardly a concrete result
* Though encouraging to see increased civil society/NGO participation & interdisciplinary studies
CHALLENGE:
* How can the current discourse be refocused toward workable results and changes? How do we encourage greater participation among a wider group of people.
Copyright as Authorship
* Romantic individualized conception inadequate conception to deal with collaborative communal & social forms of creativity.
* It also contributes to a “one size fits all” copyright model & unintended effects of an overly-robust “public domain”.
CHALLENGE:
* In some way, can we try to manipulate the notion to better serve the greater understanding of creating something in this world really means - have it be more inclusive.
A Broader View Beyond Property:
Human Rights Considerations
What can we learn from Universal Declaration of Human Rights in understanding our current copyright regime?
if you create something, you own it. Because that’s the best incentive to get you to create.
If you then look at UDHR, “The right to freely participate in the cultural life of the community…and to share in scientific advancement and its benefits.”
Also, the European Convention on Human Rights: Everyone has the right to freedom of expression . . .
Ultimately
* Adopting a human rights framework does not mean recognizing copyright (IPRs) as human (universal rights)
* Use to justify departure from a “one size fits all”; broaden concepts of fair use (elevate to a “user’s right”?); create/extend public interest defenses
* Does not conflict even with primarily utilitarian framework of US copyright
* Fits into the call to integrate development policy into the international framework
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Q & A
Charles Nesson is looking at these issues in terms of University and asks,
Nesson: The burden of proof is on the user/rather than on the holder and that’s unfair. It’s tremendously constraining.
How could one focus this increasingly powerful sensibility on something really practical? As lawyers, can we get in back of law that sees University as client to relieve it of the burden of proof on university?
Wong: This has been the concern of librarians (and others). What we need to do is to change the way it’s done. User rights might be the way to do it. But, before we can do it we need to change the mindset of what it means.
One of the ways that the Human Rights (HR) framework can help, is that it can build in the concept that university is first and foremost. A2K = Access to Education.
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David Weinberger: How can we reconfigure copyright to play out in the library environment?
Wong: Great and difficult question. Haven’t thought thru the mechanism. What we will see is a battle between right holder & another right holder (user) not just Google, but other digitization projects. This is a challenge.
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Ethan Zuckerman: I worry a great deal about framing along the lines of HR. UDHR is not legally binding. That has know become a huge intellectual battle ground. If you are going to build this on user rights, this is like building it in Palestine. Why would you look to build this on HR?
Wong: Great question. I’m not proposing swapping out copyright law with HR. I think I need to be more specific in thinking about HR considerations. It provides a useful basis, but a good hook. It allows us to tap into the development framework. But, you’re right and if we take it as a starting point - can we use it to help us? I think so because the disputes are not over Article 27 specifically. Article 27 gives us the ammunition. But, this is still a very real problem.
(Round Two)
Zuckerman: What is it that we actually do (here at university)? We are copying large amounts of texts and handing them out? Why don’t we instead find a set of aspirational law and look at what we actually do and tackle that?
Wong: Lawyers like starting points that are neat, definable and can be generalized. Rather than change specific laws, I am recommending a change of mindset first before moving forward.
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Note: audio and video from this conversation will be available soon @ MediaBerkman.
