Repositioning Creators’ In The Digital World: Introduction and Part I
This report is the result of a survey of the two main streams of thought framing the current debate on copyright law – the Open Source software movement, and the Copyleft movement. Historically, Open Source (variously called Floss, for Free/Libre and Open Source Software, shareware and Open Source) came first, evolving parallel to, and in opposition to, Microsoft’s method of producing and marketing software. The experience led to conflict over the vision of the emerging Internet, and ultimately focused on questions of how copyright should work in cyberspace. Copyleft was the result, dubbed in counter distinction to copyright owners, or content providers, who are variously characterized as Copyright Maximalists, Copyright warriors, and dinosaurs.
Moreover, if Open Source evolved from an underground of nerds, hackers and independent software creators who insisted on participating in evolution of the Internet, Copyleft emerged from academia and public interest advocacy groups. Copyleftists are concerned more with the content of the evolving world wide net than the structure and technique of its constituent elements. While Open Source can be described as both a theory and a practice, Copyleft is a critique which focuses on the law. In particular, the Digital Millenium Copyright Act (“DMCA”) in the United States, the World Intellectual Property Organization (“WIPO”) treaties being discussed internationally and in Canada in connection with our own domestic reform process, and questions about technical prevention measures (“TPMs”). Copyleft as a set of ideas is part communications theory, part business model, and part political ideology. In so far as it is a movement of ideas, it is in a state of flux.
In general, Copyleft proponents call for a re-conceptualization of the old relationship between information and the public, which is to say, of cultural expression and communication as reconfigured in the digital world. The emergence of the Internet provoked discussion about the place and importance of content in cyberspace, and the so-called the cultural wars, are in large measure a battle over the vision of what the ‘net should be like, and how (for whose benefit) it should be used. So it is, above all, a debate about fundamental principles and values.
The period under scrutiny is marked by a sharp increase in the public’s access to and personal interest in computers and the Internet. Over the last fifteen years, the Internet has brought us e-commerce and P2P file-sharing, and words like zine, blog, cashe, spam and googlewash have entered the lexicon. The downloading phenomenon has presaged a huge public controversy focused on the recording industry and its relationship to fans and artists alike, copyright being the flashpoint. The underlying question is not always mentioned, but is has to do with the extent to which the trade-off for the monopoly granted by the state has paid off in new inventions. As a concept, does copyright work to encourage continued creativity and culture? But it also draws attention to the big picture and the erosion of creators’ rights happening at both ends of the equation, pressure publishers and distributors (the cultural industries) and from the general public (individuals). The purpose of this report is to identify the place accorded creators and issues of creativity in the debate.
I think the most important political battle that is being fought today in the technological, economic, social and cultural fields has to do with free software and with the method digital freedom has put into place for the production of shared knowledge… The most interesting feature of all of this is that this movement emerged from society, and not from corporations, from political parties, from institutions, from traditional modes of representation or organization – and that implies a deep structural change, not only of content, but of form, of process, reflected in the things we say, the things we propose, as well as in the way we say those things and the way we propose.
- Gilberto Gil, Brazilian Minister of Culture
The Open Source concept originated in the technological world, specifically the world of computer programming. The term refers to the original response of young software engineers and programmers who were concerned about their inability to access program source codes which they needed in order to examine, fix and build on them. Consequently, they began to build their own programs and their own code, sharing freely with others. With the advent of the Internet, global sharing of code became possible, and eventually, the development of a multiplicity of free software networks. Open Source is best known for the early Open Source platform, Linux.
The ideas flowing from this movement were spawned from practice and related to experience. The principles that developed to support the practice have permeated modern culture, naturally, they are focused on the Internet, which is to say the rules and protocols governing it. The main thrust of this approach incorporates both a concern for the public interest, and for individual rights. (Eg. The idea of organizing and developing a public domain on the Internet and of expanding it with material still under term of copyright, the notion of not protecting content and leaving creators to develop their individual distribution systems through the net).
The Open Source approach is rooted in a simple quid pro quo. Code creators and other individuals are given access to the entire body of code for their own personal use in exchange for any contributions they may make to the overall code. In other words, the body of information collected comprises the shared knowledge of hundreds of contributors. The contractual relationship that underlies this model can contain negotiable terms and is based on voluntary contributions. However, in all instances, in order to be considered an Open Source licence, the licence must contain terms that provide for, among other things:
Though the terms Copyleft and Open Source are not synonymous, a licence that meets these requirements is now often referred to as Copyleft.
With the evolution of a global Open Source culture, two marginally competing lines of thought emerged in the Open Source model, represented on the one hand by the Open Source Institute (“OSI”) and on the other by the Free Software Foundation (“FSF”).
The OSI was best defined by the ‘Open Source Definition’, which provides that the agreement for the distribution of the Open Source software must contain the following elements: a) free redistribution; b) the inclusion of source code; c) allowance for modification and derived works; d) the maintenance of integrity on the author’s source code; e) no discrimination against persons or groups; f) no discrimination against fields or endeavors; g) the ability for distribution of the licence; h) no licensing to a specific product; i) no licensing that restricts other software; and j) no licencing that is not technologically neutral.1
The FSF, is primarily defined by the application of its four freedoms, described by some as the philosophical cornerstone of the free software movement:
Freedom 0: The freedom to run a program for any purpose
Freedom 1: The freedom to study a program and adapt it for new needs
Freedom 2: The freedom to redistribute copies and thus help partners and neighbors; and
Freedom 3: The freedom to improve program and to share innovations with the community.2
The primary point of divergence between these two groups was the FSF’s General Public Licence (“GPL”), the Open Source licence that is tied to the GNU/Linux Open Source software.
While the GPL is praised on many fronts, primarily for allowing developers to retain control over their code, and offering individual developers protection from exploitation by large corporations, it is not without its critics. Despite the protection GPL offers, some developers are concerned about the exclusive nature of the licence and the inability to reapply the code that they contributed to the GNU/Linux model in other systems. This concern is reflected in the comments of Bjorn Rees and Daniel Stenberg:
Our most fundamental problem with the GPL was its extensive scope. The GPL required that the source code of everything that went into the executable should be made publicly available under terms that were compatible with the GPL. There was not notion of proportional fairness; the quid pro quo was in reality a quodquo pro quo….The GPL disallows combinations of GPL-covered code with code covered by other licenses, if those licenses have “further restrictions”. In the absence of legal precedence, the compatibility between the GPL and other licenses is being decreed by the Free Software Foundation.3
The community’s solution to this conflict was the development of the Free/Libre Open Source Software (“FLOSS”) model, which was eventually the inspiration for the Creative Commons licence, discussed in greater detail below.4 Popularized in a June 2001 letter to the European Commission, FLOSS was created by combining key theories behind the FSF and OSI. In the FLOSS model, Libre is used to connote that "free as in freedom" is the intended understanding, rather than "free of charge", ie. gratis.5
One of the fundamental pressures driving the grass-roots development of the Open Source model, and likewise the evolution and success of the Creative Commons, was the general distrust of corporations. Among the Internet generation of computer programmers, there was a general fear that corporations would exploit their code, without appropriate recognition or the ability to access and utilize their own contributions.
This fear also permeated the creator community, as evidenced by the comments of Janis Ian, the independent and self-publishing musician and journalist:
I do not pretend to be an expert on intellectual property law, but I do know one thing, if a music industry executive claims I should agree with their agenda because it will make me more money, I put my hand on my wallet…and check it after they leave, just to make sure nothing’s missing.6
Through the development of the Open Source community this fear is translated into a widespread practice based on a hands-on relationship with technology, an ethic of sharing and cooperation, and a kind of public (or public spirited) enterprise. A number of corporations including Apple Inc. and RedHat have embraced an Open Source model and have created very successful cooperative protocols.
As the Open Source model became more successful in the Internet community, it was a natural step to employ the concepts underlying the Open Source model to the creative and artistic communities. The move led to a re-branding of the term to capture the creative ideas, called “Open Content”.
The term Open Content was coined by Eben Moglen, professor of law at Columbia University and solicitor to the FSF, who has taken one of the most extreme approaches to the application of Open Content. This position is detailed in his famous article “The dotCommunist Manifesto”,7 which can be read as a model for creative communism.
Despite its radical position, this work effectively incorporates the principles underlying the Open Content model. Moglen argues that creative works should not be owned by a creator, publisher or employer, but should be created for the benefit of the community. This model, in its pure form, has no place for creators who require financial remuneration for their creative acts; remuneration for creation would reside in intellectual reward of ‘cultivating the mind and developing skills.’ Moreover, it requires the creation of a new class of creators who have no interest, financial or moral, in the works they create. The idea therefore takes Open Source a step further, removing the contractual and voluntary agreements that facilitate use.
Professor Moglen sees the transformation in the cultural structure as a necessary consequence of the advent of digital technology. He asserts that within a culture dictated by technology there is no place for an exclusionary intellectual property regime.
Digital technology transforms the bourgeois economy. The dominant goods in the system of production – articles of cultural consumption that are both commodities sold and instructions to the worker on what and how to buy – along with other forms of culture and knowledge now have zero marginal cost. Anyone and everyone may have the benefit of all of the works of culture: music, art, literature, technical information, science and every other form of knowledge. Barriers of social inequality and geographic isolation dissolve. In place of the old local and national seclusion and self sufficiency, we have intercourse in every direction, universal inter-dependence of people. And as in material, so also in intellectual production. The intellectual creations of individual people become common property.
With the rise of digital common property, Moglen places the onus on the creator to reform their perception of entitlement to remuneration from and ownership interest in their creative works.
With this change, man is at last compelled to face with sober senses his real conditions of life and his relations with his kind. Society confronts the simple fact that when everyone can possess every intellectual work of beauty and utility – reaping all the human value of every increase of knowledge - at the same cost that any one person can possess them – it is no longer moral to exclude….
Throughout the digital society the classes of knowledge workers – artists, musicians, writers, students, technologists and others trying to gain in their conditions of life by copying and modifying information – are radicalized by the conflict between what they know is possible and what the ideology of the bourgeois compels them to accept. Out of that discordance arises the consciousness of a new class and with its rise to self-consciousness the fall of ownership begins.
Moglen’s theory implies that all creators would prefer to have access to a bounty of creative information from which to derive inspiration rather than the right to integrity of their own creations. His is presented as an either/or choice.
He also suggests that once the creative community sees it is morally improper to exclude the greater community from using a work, they will then determine that financial remuneration for their works will not be necessary. Reward for creative endeavors simply will be derived from the internal gratification that comes with creation and the luxury of time to cultivate creative thought.
Creators of knowledge, technology and culture discover that they no longer require the structure of production based on ownership and the structure of distribution based on coercion of payment…Free information allows the worker to invest her time not in the consumption of bourgeois culture, with its increasingly urgent invitations to sterile consumption, but in the cultivation of her mind and her skills.
Under the purist model of Open Content, there is an absolute destruction of creative industry both for the creators, and the publishers, marketers and agents who commodify it. Consequently, not only does the model preclude any consideration of artists who may find its necessary to seek financial remuneration for their works, but also, the model precludes the development and success of cultural industries which rely on the protection of intellectual property as a source of income production.
In the Open Content regime material can be openly copied and freely used and modified by anyone. Some creators have embraced this model of creative communism and applied it to works in the public domain, or to the licensing of their own materials. Licenses in the Open Content regime are generally based on GNU’s Free Documentation Licence, which imposes no restrictions on the manner of use.8
Though “The dotCommunist Manifesto” effectively captures the underlying principles of the Open Content model, other commentators and advocates of the Open Content model have moderated the position taken by Moglen, and have adopted the strategy to one that provides a mechanism for creator remuneration. This moderation can be seen in the writings of David Bollier and J.P. Barlow.
John Perry Barlow, a former songwriter for the Grateful Dead, is the co-founder of the Electronic Frontier Foundation (“EFF”), a lobbying group that focuses, in part, on protecting users rights in cyberspace. Barlow shook up the cyber world with his 1994 text “The Economy of Ideas”9, wherein he asked the critical question:
The enigma is this: If our property can be infinitely reproduced and instantaneously distributed all over the planet without cost, without knowledge, without its even leaving our possession, how can we protect it?
Barlow found the answer he was seeking, at least in part, in Open Content, and eventually, the Creative Commons. As a creator, however, Barlow was not willing to abandon the need for remuneration, nor the need for creators to be able to gain sufficient remuneration within their creative careers exclusively.
All the same, there remains a general and passionate belief, that in the absence of copyright law, artists and other creative people will no longer be compensated, I am forever accused of being an anti-materialistic hippie who thinks we should all create for the greater good of mankind and lead lives of ascetic service. If only I were so noble. While I do believe that most genuine artists are motivated primarily by the joys of creation, I also believe we will be more productive if we don’t have to work a second job to support our art habit.10
Though Barlow’s career was successfully born out of traditional industry models, he looks to models supported by Open Content, rather than traditional means of remuneration to ensure creator payment. Citing in one instance, Courtney Love, Barlow suggests that creators will be able to derive remuneration from a patronage and a tip-based economy.
Think of how the emerging digital conveniences will empower musicians, photographers, filmmakers and writers when you can click on an icon, upload a cyber-dime into their accounts, and download their latest songs, images, films or chapters all with out the barbaric inconveniences currently imposed by the entertainment industry.11
True to the Open Content model, Barlow believes that other values will motivate creators to continue down the path to creation, including relationships, conveniences, interactivity, service and ethics. He advocates the ability for end users to determine the uses of information and that in empowering this use, users will have a stronger inclination to pay creators than corporations ever had.
Though David Bollier is not a creator in the traditional sense, he has, however,made a career commenting on digital technology and its impacts on modern life. He is particularly known for his commentary related to the library and scientific communities. He focuses on the alternative motivations that would drive creation within the scholarly community when a Open Content model is employed.
He suggests that under an Open Source model, where information is freely accessible to end users, the research that is generated by universities would be available to a wider audience and, thus, more influential that ever before. In turn, he suggests that this strategy would lead to a larger readership for scholarly works and a greater impact among peers, adjacent disciplines and the general public.12
Bollier shares Barlow’s concern for securing remuneration for the creator. However, he suggests that this is a secondary motivation in the salaried scholarly community where scholarly communications are considered a contribution to their fields generally. At the end of the day scholarly contribution provides the writer with a quid pro quo through access to the greater body of scholarly work and through academic credit that is translatable into promotion and salary increases.
Thought the commentators on this issue suggest different approaches to the Open Source/ Open Content model, the goals of the Open Content model, as expressed by Eben Moglen remain consistent throughout:
It is clear from the Open Content goals outlined above, that the Open Content movement sees no future role for traditional copyright law. As expressed by Barlow, proponents of this model believe that traditional copyright law is dead, and that eventually it will be replaced by a system of unwritten codes and ethical systems.
While there is a certain grim fun to be had in it, dancing on the grave of copyright and patent will solve little, especially when so few are willing to admit that the occupant of the grave is even deceased, and so many are trying to uphold by force what can no longer be upheld by popular consent….
After all, people do business. When a currency becomes meaningless, business is done in barter. When societies develop outside the law, they develop their own unwritten codes, practices and ethical systems. While technology may undo law, technology offers methods for restoring creative rights.14
Total abandonment of traditional legal structures is riddled with pitfalls including the possibility of empowering content industries such that they are able to determine the terms by which created information can be used.15 This concern has been reiterated by advocates of the Creative Commons:
Lawrence Lessig has said that “code is law”, suggesting that what we can and cannot do with technology is governed not by acts of parliament but by policy embedded in computer software. We need to ask accountability and transparency questions around who sets that policy and whether that policy is under the control of citizens or software vendors.16
The need for a clear and applicable rule of law is one of the major points of divergence between Open Content and the Creative Commons.
Within the business community, there is a growing appreciation of the basic business advantages of Open Source software and open technology, including less cost, faster deployment and flexibility. These benefits are forcing business and governments alike to seriously consider Open Source and Open Content models.17
Many commentators are suggesting that corporations need to employ the Open Source strategy in order to be successful in the new digital economy. This is seen particularly in the comments of Gilberto Gil has he contemplates the role of Open Source in the development of the Brazilian economy.
Of course I accept this challenge; I want indeed for the Ministry of Culture of Brazil to be a laboratory for new ideas, capable of inventing new procedures for the worlds’ creative industries, and capable of proposing suggestions aimed at overcoming the present dead ends…
A global movement has risen up in affirmation of digital culture. This movement bears the banners of free software and digital inclusion, as well as the manner of endless expansion of the circulation of information and creation, and it is the perfect model for a Latin-American developmentalist cultural policy….
The issue of free software is also an issue of collective and therefore national sovereignty. It is fundamentally a cultural issue, and for this reason it has to do with the sorts of nations we are building for ourselves with our autonomy and with our capability to respect differences, whether as individuals or as social groups, as a national society and as a global society.
The models for Open Content communications that have been successful in application depart on one particular point from the model initially suggest by Eben Moglen – they all rely on the voluntary contributions of the creators.
One of the successful applications of the Open Content model are Open Access journals started by libraries and scientific disciplines associations. The creation of these journals is inspired by the Open Source ideals of voluntary contribution and free use of materials by end users. The success of the Open Access journal strategy can be seen at the web site of the Directory of Open Access Journals.18 This web site claims to be a directory of quality controlled scientific and scholarly open access journals. This web page provides a portal to approximately fifteen hundred such journals.
This strategy is also being employed by university communities. Instead of employing the traditional knowledge acquisition strategy purchasing information from publishers, universities are taking steps to develop their own digital commons. An example of a successful digital commons is MIT’s D-space model, which has been adopted by a number of Canadian universities including the University of Calgary.19
A consequence of this model, which has been noted by Canadian commentator Russell McOrmond, is the transfer of control over creative product and the tools for dealing with that creative product to the hands of the end user.
I believe that in a democratic society, in order to protect communications rights such as freedom of speech, we need to ensure that any hardware assist for communications, whether it be eye-glasses, VCR’s, or personal computers, must be under the control of citizens and not a third party.
Not only does this model transfer control to the end user, but the theories and logic behind Open Source have spawned a generation of Internet users that perceive an entitlement to freely use material that is found on the Internet, even if this material is expressly protected by copyright law.
The problems perpetuated by the culture of misinformation on the Internet are best expressed by Kathy Biehl in her article “Bloggers Beware: Debunking Eight Copyright Myths of the Online World”:
Misinformation has a way of taking root online and turning into virtual kudzu… A handful of myths has spawned practices, particularly among bloggers and web site owners, that turn copyright on its head. These myths are rooted in the assumption that everything is up for use online unless and until it is proven otherwise. It doesn’t help that technology made it so easy to take and share images text and files. Those myths and that ease have fostered a presumption of entitlement that causes Netizens to treat the Internet as a buffet spread of photos, articles, sounds and multi media files free for the plucking and posting.20
This sentiment is echoed by creators, who believe that they deserve to be paid for their works and that their works should be communicated to the public under the terms and in that circumstances that they deem appropriate.
A post hoc rationalization for taking something for nothing may ease the consciousness of file sharers, but it does little to address the heart of the problem – artists and creators deserve to get paid for their works. Justifying theft is no better than calling a twelve year old who uses the Internet to get free music a pirate. 21
Open Content is an attempt to import the Open Source model into the artistic realm.
Advocates of this system argue that creative works should not be owned by a creator, publisher or employer, but should be created for the benefit of the community. This model in its pure form has no place for creators who require financial remuneration for their creative acts; remuneration for creation would reside in the intellectual reward of cultivating the mind and developing skills. This model requires the creation of a new class of creators who have no interest in ownership of the works they create. The idea therefore takes the Open Source idea a step further, removing contractual and voluntary agreements.
A pure Open Content model would strip the rights of individual creators, removing all property rights and restrictions on the manner in which their creations may be used. This is very different from the sharing model that drove development of Open Source, and has drawn criticism from of some Open Source advocates.
Implementation of Open Content calls for a radical cultural shift away from a market economy that could destroy commercial publishing. Though the practical application of this model in its purist form may be far from probable, the impact of the Open Source/Open Content concepts on the evolution of copyright law are present and cannot be discounted.
© 2005 Susan Crean and Virginia Jones. This study was produced by the Creators' Rights Alliance / Alliance pour les droits des créateurs for Canadian creators. You may reproduce this work for non-commercial purposes, without alteration or amendment, in whole or part, provided you give credit to the authors and source, so please feel free to disseminate and share freely. A licence for commercial use of this work is required and may be obtained from Access Copyright, Copibec or the Creators' Rights Alliance/Alliance pour les droits des créateurs, or the authors. This study was conducted with funding from the Department of Canadian Heritage • Webpage design: Patrick Davidson • The outline map of Canada used in the logo is from The Atlas of Canada, as compiled and produced by Natural Resources Canada, and is used with permission.
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