Protection of the public domain does not, at least not yet, lend itself to outrage and fear-mongering. Unlike the environmentalist narrative, it does not induce anxiety in most people about the world our grandchildren will inherit in quite the same way as images of polluted rivers, smog-choked cities, devastated rainforests, scorched earth and stranded polar bears. Trying to get broad public engagement with the inequities of intellectual property law in the digital age is a tough challenge.
Actually, there is plenty of engagement on individual topics; the problem of engagement only really exists when the topic is discussed in the aggregate or in the abstract. The terms public domain, and intellectual property do not really connect with people at an intuitive or empirical level. Tell people that the vast majority of 20th century culture is commercially unavailable, and many, if not most, will give a shrug of the shoulders and say: ‘maybe it isn’t any good?’.
People need examples, metaphors, stories, and a coherent framework which helps them intuitively link the examples to see that there may be a social imbalance in intellectual property law, the consequences of which (intended or unintended) they might actually care about quite deeply if they understood it better. For now at least, the master narrative of the commons has not been unequivocally established.
There is no shortage of individuals and organisations who have been championing the public interest in response to new technologies and to try to redress the disequilibrium that, it is argued, remains in favour of content-owners and corporate interests. These communities are variously and informally aligned under umbrella ‘movements’ such as Access to Knowledge (A2K) and Open Access (OA) amongst many others, each with their own priorities. So, for example, the A2K network is run by Consumers International and covers a broad range of consumer interests, including privacy and surveillance.
Open Access has its roots in software development but OA is now mostly recognized to refer to the context of scientific and academic publishing, with aims to make scholarly journal articles freely accessible for consumers by changing the traditional concepts of the publishing business model. Public Knowledge and the Open Rights Group are active public interest groups in the US and UK respectively who campaign on a wide range of issues relating to freedom of expression, privacy, innovation, creativity, consumer rights and preservation of an open internet.
To go into detail on all such champions of public interest would be a large and distracting undertaking, but it is worth mentioning a couple of pioneers who became ‘centres of gravity’ in the emerging alternative discourse of intellectual property.
The Electronic Frontier Foundation, with its motto ‘defending your rights in the digital world’ is one such pioneer. It was founded in 1990 and its roots are in concerns for the protection of freedom of speech, rather than in the reform of intellectual property rights. It is now almost 30 years since its co-founder the late John Perry Barlow wrote a seminal piece for Wired magazine called The Economy of Ideas (1994) which massively boosted an alternative discourse of intellectual property. He called for a new social contract for ‘cyberspace’ (a term he coined) where protections should be based more on ethics and technology than on practically unenforceable laws and rules. He also proposed a new ‘taxonomy of information’ to differentiate the essential characteristics of ‘unbounded creation’ in the digital age from previous forms of industrial property. This new taxonomy regards information as an activity, a verb rather than a noun, a life form (which wants to be free), and as a relationship. As a source of discourse genealogy The Economy of Ideas remains relevant and valuable today, and will resonate with people even more after decades of being challenged, derided, expanded and built upon by thousands of articles and blogs.
Wired magazine itself has been a very significant source of new discourse, and the ecology background of its pioneering editors (Kevin Kelly and Stewart Brand) is indicative that leveraging tropes from the environmental movement can be effective.
The second discursive ‘centre of gravity’ I want to mention is US law professor Lawrence Lessig. His 1999 book Code: and Other Laws of Cyberspace, updated in 2006 as Code Version 2.0, was a cautionary argument against the then common view of techno-utopians like John Perry Barlow, that cyberspace was beyond the reach of government regulation. That view is best exemplified by Barlow’s 1996 Davos speech, or rather declaration, which rejected any government claim of sovereignty over cyberspace. Lessig is equally concerned and passionate, but more politically pragmatic in his scepticism of government intervention on the internet. He is a strong opponent of the influence exerted by large media companies over policy-making, maintaining that entrenched commercial interests mean that the internet is ever more tightly regulated, even hegemonic, thereby constraining its innovative potential. In this respect, he argues that recent extensions to copyright law are fundamentally unconstitutional in favouring rightsholders over the public interest.
Practically speaking, his focus is the unnecessary restrictions on the usage of copyright material by consumers and creators in their own endeavours. The irony implicit in Lessig’s argument is that the old intellectual property system, which was originally designed to promote culture and creativity, has become, through corporate protectionism, unnecessarily restrictive and now stands as an obstacle to the creative possibilities of new media and technologies. Lessig’s analogy that the law has been re-written so that ‘no-one can do to the Disney Corporation what Walt Disney did to the Brothers Grimm’ (2002) is widely quoted. In his explicitly titled Free culture: how big media uses technology and the law to lock down culture and control creativity (2004), he expounds the alternative copyright system of Creative Commons (www.creativecommons.org), of which he was a co-founder in 2001.
Creative Commons offers creators an alternative to the traditional ‘all rights reserved’ by offering content producers a free and flexible licensing mechanism of only ‘some rights reserved’,thereby unlocking the creative output of hundreds of millions of works. As an alternative licensing system which tries to at least partially reconcile the old and new world copyright conflict, and which has been recognised and adopted by so many people worldwide, Creative Commons really is a remarkable achievement, the historical significance of which may not yet have been fully recognized.
As influential as Barlow, Lessig and many other articulate visionaries and scholars of the digital age have been, a clear master narrative of the public domain remains elusive. One of the challenges is that there is little consensus on the denouement of the plot nor on the characters, especially the protagonist. The techno/cyber-utopian camp had a very promising revolutionary plot opening of ‘a new Home of Mind, naturally independent of the tyrannies’ which the ‘weary giants of flesh and steel’ seek to impose. Barlow’s antagonist was clearly, if broadly, outlined, but the protagonist was a hazy and undefined ‘we’, implicitly huge and homogenous in its desire that knowledge should break free from the control of two centuries of an industry-government alliance.
His declaration is rhetorically powerful but lacks a narrative framework on which others, including policy advocates, might sensibly build. Another weakness is that, because the majority of peer-to-peer filesharing does not involve the creation of new work, the discourse has been vulnerable to being dismissed as a discourse of ‘dotcommunists’ or ‘freetards’ , the latter being a derogatory term for a person whose ability to make rational decisions is impaired by the possibility of receiving something for free.
At first glance, Lessig’s antagonists of big media and government look the same as those personified and demonised by the cyber-utopians. However, Lessig, like Boyle, is more pragmatic,recognising that an anarchic dismantling of copyright is not a desirable end, as it fails to reflect the essential societal dilemma of promoting and protecting cultural exchange and production. His plot is therefore more about striving to moderate, and to achieve a better balance of stakeholder interests.
The aim is to reduce the way in which ‘all-rights reserved’ copyright thoughtlessly locks up all creative works as if they were finished products with no metamorphic or reincarnated afterlife, just in case they might be valuable later, or in case other people’s derivative adaptation of them might dilute their exclusively-controlled asset value. This might be achieved by, amongst other measures, significantly shortening copyright term, though making it renewable, and losing rights where owners do not make the works available. These are strong arguments but, being moderate and balanced solutions for problems which are diverse, complex and contested, they are often expressed in subtle, intellectual and esoteric language. They do not lend themselves to having polarised or colourful protagonists and antagonists, nor to having an accessible master narrative which can appeal to a wider public through anger or through fear-inducing tales of life-diminishment and injustice.
Having apparently recognised the futility of striving further for copyright reform under the current system of lobbying politics, Lessig himself has changed strategy in recent years, and has taken on a more powerful and emotive antagonist: the US political system itself and how it has become corrupted such that it would be no longer recognizable to the Founding Fathers, nor to the Framers of the Constitution. The scope of this book prevents further analysis of this development, but Lessig’s 2013 TED Talk is a narrative masterclass, illustrating the self- protecting nature of the funding and voting system and how it has become hard-wired to maintain the status quo and resist reform of any kind from left or right.
The public domain has some way to go before it achieves the same kind of universal recognition and common sense acceptance of its need for protection. In the meantime the narrative landscape remains one of private property. Unless there is a radical shift In public perception towards the alleged injustice, inefficiency or corruption of intellectual property law, originators and their corporate patrons and protective-curators will continue to tell more successful tales than the liberal- curators and disseminators, the more radical of whom will remain characterised as troublemakers, thieves or pirates.
In the next chapter I look at the narrative history of copyright law in the context of the contested legitimacy of authorship and its protection, and offer some thoughts about the current status of calls for the reform of copyright.