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«Principal Editor Professor Brian Fitzgerald Head of School of Law, Queensland University of Technology, Australia With the assistance of Jessica ...»

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That is the first consequence, and the second, more profound consequence is: we cannot begin to teach this type of literacy within our schools. It is totally obvious that a teacher of English literature is allowed to take the children and say, “take the texts, mix them together and write an essay from them”. That is what we learned ‘freedom of text’ to mean. But you cannot take a film class and invite the children to take the work of George Lucas and mix it together with Hitchcock and produce a demonstration of how the work of these two film makers worked and interacted. You cannot do that because that is called piracy under the regime of understanding that exists in intellectual property law today. We cannot begin to teach this literacy in our schools, so the capacity, the potential, is destroyed because we call it illegal. That is the critical point.

People say, “well people will always be breaking the law”. Sure they will be breaking the law; they will be thinking of themselves as criminals, but we will never incorporate this practice into our ordinary school. But the consequence today is tiny compared to the consequence tomorrow. For right now it is possible to break the law. You can take these images, mix them together. You can do it because the technology allows you to do it.

Tomorrow that possibility will be taken away. It will be impossible. There are always kids from MIT, or maybe from this University too, who will be able to crack the code and do whatever they want to circumvent the protection measures. But for ordinary people, it will be impossible because digital rights management technology will have been mandated by the law to be incorporated in every feature of this network, so that the permission to engage in these acts of creative remixing needs to be sought from the content owner, and guess what? Their permission will not be granted. We will build into this architecture a technology – digital rights management technology – that will take away the ability to engage in this kind of expression. It will remove it and there will be no capacity for the ordinary people to circumvent that. We will return, using these technologies, to this couch potato culture. They will feed us stuff; we will consume it; criminals will remix it, but the rest of us will be happy in our passive relationship to this culture.

When they started this digital rights management technology this idea that remix would be impossible was not part of the debate. Digital rights management technology was first suggested and people started fighting for something called ‘fair use’, and what they thought fair use meant was the right to make an extra free copy of the CD. That was the critical right, that you got an extra bite at the apple. You buy the CD but you can copy it and put it on your computer. That is freedom for that part of the debate, and there is now a very important settlement that I think is going to become dominant. The settlement is we have strong digital rights management through all of our content, but a liberal quote ‘fair use policy’, where by fair use we mean we get to make 3 or 4 free copies.

If you buy this content, you get to make whatever number of free copies but those copies live only within the home. That is the settlement. But notice what this settlement does: it solves the architectural revenue problem for the current content industry; the twentieth century content industry gets it problem solved. They get to sell copies. They are going to adjust the price because to sell one copy is to sell really two and a half copies, but, they still get to sell copies. We solve their problem. But the weapons, both legal and technical, that have solved their problem have simultaneously destroyed the potential for this remix culture to occur because what remix culture needs is not the freedom to remix within your home; that is not what you need; you need the freedom to remix and to express it to others – the freedom which our tradition guaranteed to us when it came to text, but which we are not giving our children when it comes to anything beyond plain text.

What is the problem here? I do not think the problem is technology. I do not think the problem is something called ‘copyright’. The problem here is a regime of copyright that does not fit to this technology. It is a regime of copyright which is, for this technology, too cumbersome, too bloated, too expensive, too lawyer-centric, which is just begging for reform. The costs of doing right under this regime of copyright are just too high and the scope of control under this regime of copyright is just too great.

Historically, in response to new technologies that challenge existing copyright regimes, we have had a fairly traditional response. The historical response has been balance. But perhaps because my country leads this response today, our present response is not balance but a kind of extremism, and it is an extremism that exists on both sides of the debate – ‘they’ refer to the ‘terrorist war’ that they are fighting; ‘we’ (I do not mean me, but people think this is me) – the other side – respond to this by basically rejecting intellectual property. Both responses are mistakes.

After Napster collapsed, Apple released a new advertisement to launch their new iTunes music store. They thought they would put together a hip new vision of what freedom would be in the digital age. You can imagine the advertising executives pride in the way they had captured the spirit of the age, which is the right to download music so long as you were drinking a Pepsi. You would think the health authorities would have been worried about that, because one in seven Pepsis gets you one song. Imagine the health consequences of people drinking all those Pepsis just to be able to download their song. Apple spread that advertisement out there on the Web, like that was their cool image of how they understood what the generation was about. It immediately produced a counter advertisement.

The point is that extremism on one side begets extremism on the other side, and both extremisms are wrong. It is sort of IP McCarthyism that lives in the United States right now, where if you question IP, you are called a ‘communist’, literally. It destroys the opportunity for any of the traditional historical balance in the legislative process to occur. This potential for what this technology could be is lost.

What do we do in response? We need to find a way to wage peace. That is what we need in the middle of any war, a way to wage peace. We need a way to use intellectual property to enable remix, to enable it to occur without threatening intellectual property. We need to make this system of creativity co-exist with the system of intellectual property regulation. The solution is found in an insight, which Richard Stallman had twenty-one years ago this year – a way to use IP to enable free software. We want to use IP to enable free culture. That is the aim of creative commons – to find a simple way to mark content with the freedoms that the author intends the content to carry, so that when you encounter such free content, you know what you are allowed to do consistent with the law.

You go to the Creative Commons website (http://creativecomms.org); you pick the opportunity to select a licence: do you want to permit commercial uses or not? Do you want to allow modifications or not? If you allow modifications, do you want to require a kind of copyleft idea that other people release the modifications under a similarly free licence? That is the core, and that produces a licence. That licence comes in three separate layers.

The first, most important layer perhaps, is a commons deed, which expresses in a human readable way what the freedoms are that go with this content. Second, is a lawyer-readable licence – which actually guarantees the freedoms that are associated with this content. Third, critically, a machine-readable expression of the freedoms, that makes it so computers around the world can begin to gather content on the basis of the freedoms.

We have a search engine that is now fantastically great at collecting content on the basis of the freedoms that are associated with that content. These three layers together are crucial. We need to find a way to make the freedoms understandable, unchallengeable and usable in a digital age – understandable by ordinary people, unchallengeable by lawyers, and usable by computers. That is the objective.

My favourite example of how this is works is a guitar track composed by Col Mutchler, called ‘My Life’, who donated it to Opsound (www.opsound.org), a sound resource that makes all of their content available under creative commons licence. That inspired Cora Beth, a 17year old violinist to add a violin track. She then released that back to the Internet, calling it ‘My Life Changed’. This hauntingly beautiful song now lives freely out there, free for other people to remix. Just last week, I came across a further remix, this time by Triad, a group that is dedicated to the public domain. They added an extraordinary vocal track and called it ‘Our Lives Changed’. I like what they have done with it.

Of course, everything is not amazing. There is no guarantee of quality.

Anyway the critical point about this is that these remixes are all legal. And here is the part that it is hard for my colleagues, my lawyer friends, to recognise: these remixes are legal, and yet there was no lawyer required to make them possible. No lawyer stood between these creators. People who had never met each other were allowed to create, legally, consistent with the intellectual property regime and release their content because the freedom had been built into the content first. This is what remix culture could be, and we want to build the tools the make it possible, both the legal and the technical tools, to make it possible, to make it flourish.

What next in this process? Let us recognise what is the general principle, or we should say, the general principles; there are two that Creative Commons stands for. The first is that we want to find a way to lower the cost of the law, not eliminate the law, but lower the costs associated with the law in making creativity possible. Second, we want to enable ‘commonses’ wherever they might help innovation, not in contrast to property, but complementing property, recognising that the complement of commons and property is what makes the greatest creativity possible. For example, the iCommons project is the most important part of this project right now, as 70 countries around the world port the licences to their local jurisdictions to establish a common standard for expressing freedom internationally. In addition we have projects within the culture space to increasingly open the content that is out there to creative re-use. We have a project which we are about to announce called ‘Save a Book’ project, where authors whose books are out of print, but still under copyright, can release the content under our creative commons licence. We will guarantee that they are digitised and made available. The licence is non-commercial so that if the book becomes a hit again, they can re-release it in a commercial form. The aim of this project is to make the content available digitally, just the way libraries were intended to make the content available originally.

We are also talking about a project called the ‘Remark the Public Domain’ project. The problem with the public domain right now is that nobody knows what it is. Who knows what is in the public domain? In the United States we have an insanely complicated system for figuring out what is in the public domain and what is not. You have to pay hundreds of dollars to figure out whether a particular thing is in the public domain. It is the sort of project, a database-like driven project, which we could do collaboratively to begin to understand what is and what is not in the public domain.

The most important next project is the launch of something we did in early January 2005: the Science Commons. This project aims to take the same two principles and extend them to science, lower the cost of the law and build commons where commons might encourage innovation. We are looking at open access publishing, which of course has taken off internationally, and to support that with the licences that are necessary. We are looking at the problem of databases, which increasingly are bound up by restrictive covenants that make it impossible for that data to be used in the way data must be used today – meaning massive parallel processing on data to find insights about the underlying material. And also in the context of patents, to find ways to building patent commonses, as IBM has just announced with respect to 500 software patents, so that innovation can occur without confronting the extraordinarily high cost of dealing with patents.

Those are ideas that we have launched already. Increasingly we are beginning to toy with the idea of something called the Business Commons, which is to recognise that even business, commercial enterprise, depends upon certain features being un-owned as a way for them to build their commercial proprietary stuff. The point in all of these contexts is to find this common standard for expressing ‘free’. As Richard Stallman has struggled to explain, not ‘free’ in the sense of ‘free beer’ but ‘free’ in the sense of ‘freedom’, express freedom associated with content, to encourage this extraordinary range of creativity that could be realised.

Is there hope for this project? Last Christmas there was this wonderful article published in Billboard magazine, which is a kind of apologist for Hollywood, about our project. Here is what the article said: “A copyright theory [a theory] called Creative Commons promoted by an organisation of copyright practitioners and academics, has emerged as a serious threat to the entertainment industry” says Michael Suskind, member of the International Association of Entertainment Lawyers (IAEL). A serious threat, right, by the non-profit organisation, also known as Creative Commons.

We are not even creative enough to have a distinction between our theory and our name. We urge creators to give up their copyright protection (you might wonder where you would have seen that in anything we have been talking about but that is what Billboard reports it as). This position has “spread like a virus onto the international stage”, Suskind explained, with anti-copyright forces adopting these arguments against the music industry.

If that theory is accepted by legislators, copyright laws could change;

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