Copyright, Cultural Production and Open Content Licensing: Copyright, Cultural Production and Open Content Licensing Lawrence Liang Alternative Law Forum


INTRODUCTION: INTRODUCTION The CD Writer as a Weapon of Mass Destruction (but please don’t tell George Bush) The Daily Life of Copyright Language of Criminality, Piracy and Terrorism The Transition to the Information Era and the Conflicts and Anxieties The Language of Openness as An Alternative Paradigm


Slide3: STRUCTURE OF PRESENTATION Contextualizing the history of copyright and licenses FLOSS and the GNU GPL Conceptual challenges posed to copyright by free software movement Translating the GPL into the realm of cultural production A brief survey and reading of open content licenses Reading the license beyond the legal framework Moving beyond the liberal discourse that pervades the open content debate


COPYRIGHT AND LICENSES: COPYRIGHT AND LICENSES Copyright’s troubled relationship with Technologies of Reproduction and Dissemination: From the Print Revolution to Photography to Radios to Televisions to VCR to other similar weapons A Genealogy of the Print Revolution and Authorship What was a book The value of the copy itself


Slide5: The Print Revolution


Birth of Romantic Authorship: Birth of Romantic Authorship The Book revolution and the Response of the literary community The romantic artist was therefore deemed to have property in an uncommodifiable imaginary self, so originality was elevated to being located in and belonging to the self of the author. Because the artist owns his original person or spirit, works created by such authors were also deemed to be original; and they could thus distinguish their personality from the expanding realm of mass produced commoditiies Establishment of the Pillars of Copyright Authorship Originality Lockean Theory of Incentive Theory


Slide7: Initial Nature of Copyright Limited interest: Primarily in protecting the copy itself, so restricted to the right of reproduction However book sellers attempted to extend the scope of their right by including licensing terms that extended beyond their right to produce the book and attempts to control the book even after it had been sold "Software is not the first time that they have attempted to restrict user rights via a license and even book publishers have attempted to do so. Book publishers and sound recording companies once tried to restrict what purchasers of their products could do with them by "licenses", but fortunately the courts didn't let them get away with it” - Pamela Samuelson Bobbs-Merrill v. Straus and the Doctrine of First sale or Exhaustion Copyright did not exists as something that people were critically conscious of, and the public domain was like the default rule


Expansion of Copyright: Expansion of Copyright We can understand the expansion of Copyright in three ways Term of Copyright Reach of Copyright Scope of Copyright The Term of Copyright When Copyright began in 1709 it was for a period of 14 years and as of today the term of Copyright varies from 60 to 90 years Thank You Mickey Mouse The Sonny Bonno Act and Eldred v. Ashcroft “Copyright should be for eternity minus one day” - Jack Valenti The Reach of Copyright The originality requirement in Copyright law De Minimis Originality and Arthur Andersen


Slide9: The Scope of Copyright The Movement from the Copy itself as valuable to the idea of derivative rights Margaret Mitchell’s Gone with the Wind v. Alice Randall’s Wind Done Gone Copyright and the increasing threat to Free Speech The John Wayne Case The Gay Olympics McDonalds "Clint Eastwood doesn't want the tabloids to write about him. Rudolf Valentino’s heirs want to control his film biography. The Girl Scouts don't want their image soiled by association with certain activities. George Lucas wants to keep Strategic Defense Initiative fans from calling it "Star Wars". PepsiCo doesn't want singers to use the word "Pepsi" in their songs. Guy Lombardo wants an exclusive property right to ads that show big bands playing on New Years Eve. And scads of copyright holders see purple when their creations are made fun of. Something very dangerous is going on “ - Alex Kozinski


Slide10: Copyright and Media Empires The core copyright industries are serious business: the top three exports of the US for instance are movies, music and software. In 2001 the value of the Copyright industries stood at $535 billion and exports form the same accounted for $88-97 billion, while that of chemicals were $74.6 and automobiles were $56.52. Media Empires- Empires of Convergence The Disaggregated Media Commodity (“Derivative Rights”) The Centrality of Licensing for Media Empires


Slide11: Emerging of the Licensing Framework From the idea of the Book to Software and from sale to License Revisiting the doctrine of First Sale: A Media Commoidity is never sold, unlike a book It is only Licensed A license is a limited grant of a right to use a Commodity on Specific Terms and Conditions Intial history of Software The License is the Product - Robert Gomulkiewicz, Microsoft Licenses as the Invisible Norms of The Digital Era The Invisible norms of daily life- Traffic signals and other Mundane laws that one sees on a day to day basis such as “Do Not Pluck Flowers”


Slide12: Friendly License in A Digital garden Do not pluck flowers, in fact do not even smell them, and if you do smell them remember to leave behind your royalty payment, and do not even think of taking a photograph as the rights are already owned by FlowerPics corporation.


Slide13: Sample License from Disney Site "If . . . despite our request that you not send us any . . . creative materials, you send us creative suggestions, ideas, notes, drawings, concepts, or other information (collectively, the "Submissions"), the Submissions shall be deemed, and shall remain, the property of DISNEY. None of the Submissions shall be subject to any obligation of confidence on the part of DISNEY, and DISNEY shall not be liable for any use or disclosure of any Submissions. Without limitation of the foregoing, DISNEY shall exclusively own all now known or hereafter existing rights to the Submissions of every kind and nature throughout the universe and shall be entitled to unrestricted use of the Submissions for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Submissions"


Slide14: Electronic End User License Agreement For Viewing Illegal Art Exhibit Website And For Use Of Lumber And/Or Pet Ownership notice To User: By Metabolizing You Accept All The Terms And Conditions Of This Agreement Including, But Not Limited To, Use Of Your Home And Car By The Authors Of This Agreement 1.2 You may make and distribute unlimited copies of the Website, including copies for commercial distribution, as long as each copy that you make and distribute contains this Agreement and is created in one of the following media: carved out of ice, as in an ice sculpture centrepiece; smeared in mustard on the side of a white or off-white panel van; or taught to a parrot who is then condemned to fly the earth for eternity, incessantly repeating the mantra of this Website. The Website is also protected by United States Copyright Law and a group of big, scary goons who will happily beat you until you're ejecting teeth like a winning slot machine COMPARE TO HOTMAIL END USER LICENSE


Licenses and the Colonization of Imagination: Licenses and the Colonization of Imagination Licenses not merely as particular legal transactions but as a way of thinking about information and knowledge production When a Book Starts becoming Software Conceptually "No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without permission in writing from the publisher." From A Legal Textbook The Adobe E Reader Controversy: When Adobe launched its E reader it chose Alice in Wonderland which was in the public domain, and imposed the following restrictions You were not allowed to copy, not allowed to lend, not allowed to give, and, as the "permissions" indicated, not allowed to "read aloud"! What would happen if I developed a program which circumvented the technological protection to allow a blind person to hear the book read aloud?


Slide16: Para Copyright and Meta Copyright There is increasingly a move towards the use of Digital Rights Management (DRM) or Para Copyright and Contract Law (Meta Copyright) to regulate information This subverts even the few substantive safeguards that may exist within copyright law The Battle for Souls Copyright and the Collapse of Common Sense Copyright Education as the thrust for the future www.copyrightkids.com Ippy - The copyright character


WIPO Copyright Comic: WIPO Copyright Comic


Slide19: FLOSS and the Emergence of an Alternative Licensing Paradigm For want of a Printer Driver, a Movement was born Richard Stallman and the birth of the GNU General Public License (GPL) The Legal Innovation of the GPL If the traditional software license specifically denies you certain rights, the GNU General Public License (GPL) is a license that that is designed to grant you certain fundamental freedoms. These are: Users should be allowed to run the software for any purpose. Users should be able to closely examine and study the software and should be able to freely modify and improve it to fill their needs better. Users should be able to give copies of the software to other people to whom the software will be useful. Users should be able to improve the software and freely distribute their improvements to the broader public so that they, as a whole, benefit. Provided any person creating a derivative work based on something licensed under the GPL also has to license out the work under the GPL


Slide20: LEGAL INNOVATION OF THE GPL The GPL does not relinquish Copyright, but uses copyright innovatively to protect against a work being taken outside the “public domain” What would happen if Stallman had merely relinquished any Copyright Claim? The Creation of a Positive Rights Approach to Copyright


Conceptual Challenges posed by FLOSS to Copyright: Conceptual Challenges posed by FLOSS to Copyright Revisiting the three pillars of Copyright Authorship Originality Incentive From Authors to Collaborators The Death of the Romantic Genius Author In Literary theory the declaration of the death of the author (Barthes, Foucault and Derrida) Romantic Authorship presumes the centrality of the authorial figure as being the sole mode through which the meaning of the text was organized, and identified it as emerging from theological presumptions of the author-god Barthes proposes the idea that "a text consists not of a line of words releasing a single 'theological' meaning (the 'message' of the Author-God), but of a multi-dimensional space in which are married and contested several writings, none of which is original: the text is a tissue of quotations drawn from the innumerable centers of culture." The movement away from the binary of the Author/ Reader to a new model of a User / Producer


Slide22: The User Producer Model is best exemplified in software "Works of software are no longer considered units of closed language best expressed through closed source code, but rather as open pieces forming a complete discussion by virtue of the combination and participation by multiple evolving components” What Barthes said of the Text could certainly be said of the consumption of software. Software, like Text, exists only if used. In such a paradigm, use is creation. The User-Producer must appropriate the work. The intent of the GPL is to open access and authorize use by the largest number of users possible. Enjoyment of the work is increased by the multiple potential uses and users, stimulating new conditions of creation that amplify the possibilities of recreation.


Slide23: The idea of granting freedoms/ rights to the user in a free software scenario radically reconfigures the idea of the user as an important contributor in the eventual evolution of the work, and the free software movement's extraordinary success has been this ability to inspire thousands and thousands of software programmers across the world, who constantly share, critique and add to the code which is a product of collaborative authorship. This is however not a ‘new’ idea introduced by the Free Software Movement but actually the basis through which all creativity has been historically possible, and the GPL serves as a reminder of the return of the repressed memory of Creativity


Slide24: The Challenge to Originality Copyright constructs an absolute binary of Original/ Copy Moving away from the idea of the Copy as a taking, and looking instead at the idea of Rescensions The Ramayana and Mahabharat as works that get created through various retellings A rescension is a work that is created through a modification, adaptation, addition, or use of an existing work but each rescension stands in relational autonomy to every other rescension, and it is not treated as a replacement of another work even if it modifies the reading of another work


Translating FLOSS into the Domain of Cultural Production: Translating FLOSS into the Domain of Cultural Production The Open Content Licenses have emerged as ways through which people are attempting to replicate the FLOSS Model of production into the domain of cultural production But it is not merely a distribution question alone, some conceptual questions that are raised Can there be a straight forward translation of the terms of FLOSS into cultural production? What are some of the conceptual challenges when we move beyond the world of software into music, art, literature, film etc? Software based in a certain possibility of the universal, has a certain disembodied character and also the strong functional character element Finally software as a practice has not been as strongly hauted by the figure of the Author as the world of cultural production in which it is almost impossible to move away from the Authorial Myth There is also the question of aesthetics: what does it mean to write a ‘good’ collaborative novel or create a ‘collaborative’ work of art


Slide26: One of the advantages of the entire debate on copyright has been to open up a realm or an area of analysis which poses the questions of what dos it mean to be an author or a creator in the contemporary context and in what ways does the situation different form the 18th century ideas of author ship and creativity If there is an area where the user producer model can be most democratized it is in the realm of media production: In the FLOSS movement the producer is still the somewhat elitist techie and the entire discourse of the rights of the user are framed in terms of the rights of techies who code, whereas the rights of the end user are free as in free beer alone But in the realm of media production, cheap digital technologies has transformed every computer into a media lab, a film studio and a sound recording studio at the same time: Example low cost films (Vox Populi, Kaun Mile Dekho Kisko) A new ethos of work and play that is increasingly happening outside of the media professionals lab is that of tinkering culture, from downloaders of MP3 and the freedom that installing your own softwre3 does to tinkering o around with the various media toys that are available in your computer or through the grey market, there is an entire generation of users who are learning a new grammar


Slide27: If the grammar of the 18th- 20th century was one that was heavily based on literacy, then there is a decided move and shift now to learn the new grammar of the 21st century which is a grammar of media and media technologies, what does this emerging landscape mean for us when we contemplate the future of technologies and cultural production Tinkering cultures reconfigure the idea of knowledge of learning and play and also offers modes of entering a new sphere which is divorced form the cultural assumptions of heavy modernity: by heavy modernity I am referring to the various developments that took place during the industrial revolution and the cultural assumptions that these revolutions created including those of authorship and originality to a new internet based generation, where the favorite exercise that we have is the Ctrl C and Ctrl V buttons on our keyboards Tinkering cultures are heavily dependent on a recognition of the User Producer model, which requires that a work be freely available for use, appropriation etc. It is however important to recognize that this is not only an internet phenomenon any longer: shared footage in India after the Gujarat riots: he remix videos in India and the kind of industry that they cater to


Slide28: We are moving away from a read only culture of heavy modernity to a read write rip burn culture The real challenge or us is to look at what the FLSS model does for us not only in terms of access and distribution but look at what the idea of a collaborative model of production means in the realm of the arts and mead etc P2P for instance has changed the rules of access completely but very often we don’t look at the question of the content, where the p2p system is an underground system of distribution of content which s primarily produced by the mega content industries: from Disney to dc comics etc


Slide29: DANCING CODE/ CODING DANCE What for instance does it mean to think of an ‘Open Source’ model when we think of something like dance? Some choreographers who model their instructions in the form of algorithms, and in such cases it might be easy to look at the analogy. For instance Trisha Brown, Accumulation and Locus This approach attempts at an easy translation and privileges the Open Content License over actually looking at the different modes and terms of collaboration So in the case of dance for instance, if we move away from looking at Rules based systems of choreography and look instead at the histories of how Dance evolves The Mimetic Body: A body learns by watching and and incorporates the memory of other bodies, the way they fall without hurting themselves, the way they adapt to new positions that they did not initially know how to, and the way they adapt these new know ledges with what the body already knows to combine them to create new dance movements, new languages which the body begins to speak in


OPEN CONTENT LICENSES: A BRIEF SURVEY: OPEN CONTENT LICENSES: A BRIEF SURVEY Three Broad ways in which we can classify the licenses 1. Chronological Account 2. As per media – General content, music, academic, 3. As per class or families of licenses EFF Licenses (directly inspired by GNU GPL) 1. GNU Free Documentation 2. EFF Free Audio 3. EFF Free Art 4. EFF Free Media Open Licenses 1. Open Audio 2. Open Publication 3. Open Content


Slide31: The Emerging Creative Commons (empire) Various Creative Commons Models Open game Library of Science License Other Licenses Design Science License Ethymonics Free License Wide Open License Academic Free License Simputer GPL OPUS Commons License


Slide32: Some questions that have to be posed to the open licenses How do new licenses reconceptualize the traditional assumptions of copyright , authorship, incentive, originality and collaboration How do they conceptualize the idea of the public domain How do they address the issue of Ownership What are the Rights granted and restrictions imposed by license How do they translate the terms of the Gnu GPL What models of incentive and innovation do they advocate What are the philosophical assumptions of the license?


Slide33: General Characteristics of Open Licenses Right to access or use Right to make copies Right to make modifications Right to distribute Right to create derivative works The right to create derivate works and the right to create distribute are however subject to certain conditions, depending on the license. Right to perform the work Commercial and non commercial uses Right of attribution and strict maintenance of record of authorship Asserting a right through the language of copyright Mere aggregation does not bring other works within the scope of the license Warranties/ Liabilities Other Conditions Inclusion of all copyright legends and notices All disclaimers and warranties to be included Notice of the license should be given


Slide34: The movement away from the first generation to the second generation licenses The role of the Preamble Preamble of the Free Art Licence, version 1.2) Knowledge and creativity are resources which, to be true to themselves, must remain free, i.e. remain a fundamental search which is not directly related to a concrete application. Creating means discovering the unknown, means inventing a reality without any heed to realism. Thus, the object(ive) of art is not equivalent to the finished and defined art object. This is the basic aim of this Free Art License: to promote and protect artistic practice freed from the rules of the market economy


Slide35: Preamble to the Creative Commons License THE WORK (AS DEFINED BELOW) IS PROVIDED UNDER THE TERMS OF THIS CREATIVE COMMONS PUBLIC LICENSE ("CCPL" OR "LICENSE"). THE WORK IS PROTECTED BY COPYRIGHT AND/OR OTHER APPLICABLE LAW. ANY USE OF THE WORK OTHER THAN AS AUTHORIZED UNDER THIS LICENSE IS PROHIBITED. BY EXERCISING ANY RIGHTS TO THE WORK PROVIDED HERE, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. THE LICENSOR GRANTS YOU THE RIGHTS CONTAINED HERE IN CONSIDERATION OF YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS. 1. Definitions "Collective Work"means a work, such as a periodical issue, anthology or encyclopedia, in which the Work in its entirety in unmodified form, along with a number of other contributions, constituting separate and independent works in themselves, are assembled into a collective whole. A work that constitutes a Collective Work will not be considered a Derivative Work (as defined below) for the purposes of this License.


Slide36: For a soft copy of the Guide to open Content Licenses see: https://pzwart.wdka.hro.nl/mdr/pubsfolder/liangessay https://pzwart.wdka.hro.nl/mdr/pubsfolder/opencontent/view


NOT BY ONE ROAD ALONE: NOT BY ONE ROAD ALONE Floss is often read as a legal and specifically a copyright innovation, but in a very technical and narrow entry point When you read it from a legal point of view you end up looking at a very narrow domain of issues and important to move beyond this account Zizek story of the Chinese lunch Map is not the city and license is not the story: the complexity of a city etc never captured from a synoptic view that maps provide and maps always end up distorting experience and the possibilities of tensions, contradictions etc that may persist What are the ways in which we can carve out alternative modes of reading the open source movement/ licensing model Mapping out some entry points and opening up the area Gift Communities Narrative contracts Public discourse Complexity and copyright Free as in America- critique of this strand: Emphasis on transformative authorship in this segment


Slide38: Open Licensing and the repressed memory of Gifts Mauss: Gift and reciprocity, nothing such as a free gift literally true Non monetized and non commoditized alternative to exchange transactions The scientific community for instance is a gift community which are organized around principles of gift giving rater than in the form of a commoditized community: compare this with the scenario of paid for research for works for contact the highest form f alienation of labour How does a gift community sustain itself Precisely through the circulation of the gift where individuals see themselves simultaneously as recipients, givers and carriers of the gift Not necessarily a utopian ideal community in any sense of the term: even during or after the appearance of the community there may be fragmentation, differentiation and dissent: not unhealthy at all Gifts and contracts: Mauss’s essay can also been seen as an attempt / initial speculation on the origin of the modern contract but one that deals with anarchistic property Gift exchange takes place within the realm of being a ‘total social phenomenon’ in which religions, legal and moral, economic and aesthetic institutions appear simultaneously Only when disaggregated does the modern legal form of contract emerge


Slide39: Only when the subject of contract as a commodity has a life of its own or its own rationality does the contract metaphor make sense: to become a legal instrument it needs to shift its foundational principles away from the many sets of ideas and into a principle of justice, but surely justice is not the only basis upon which we lead our lives: we forgive, empathize, have sorrow: a court of law for instance would be perplexed if asked to deal with a ‘case of ingratitude’ As modern contract law tended to move more and more into the domain of the heart as it were and secure through law what were earlier secured through word and deed, it has also eroded the spirit of the gift itself Anarchists have always believe that the codification of anything is a diminishing of life: Thus it is interesting that every revolution sees the burning of official debt records as one of the first steps or actions that are taken The burning of the written document or the debt can be seen as a move not only to bring back some equality but also e to preserve the ambiguity and inexactness that makes the gift exchange social: if gratitude is, as Simmell says ‘ the moral memory of mankind, then it is a move to refresh a memory dulled by property and contract’


Slide40: Narrative Communities Context of nationalism and the movement from a fuzzy community to a enumerated community The citizen subject was an omnibus category which worked primarily as a transactional site and a mechanism for all other actions that are we collectively call democracy, in short as precisely the beginning of a narration The narrative structure sometimes aspires to be a contract; the telling of a story brings into immediate play some story conventions invoking a narrative community. Ordinarily theses are coincident in terms of their frontiers with social communities of some form. To some extent all such communities from the stable to the emergent use narratives as a technique of staging together, redrawing the boundaries or reinforcing them. Participating in a movement includes or involves something like accepting contractual obligations and I suspect some of the affiliation of the individual to movements counteracting a monadic individualism is accomplished by narrative contracts


Slide41: The movement from a fuzzy to an enumerated community is taking place at the site of constitutionalism and nation building In the present context the open community is and arguably will be and remain in a state of constant fuzziness without a referent like the nation or constitutionalism Projects such as the CC are attempts as providing a more enumerated sense but it has also been trapped within its own constitutional logic, which demands a particular enumerated community/ enumeration which may not be universal or shared


Slide42: Free as in America The entire open source and open licenses discourse currently tied very strongly to a peculiarly American flavour of freedom and for those of us working on the periphery of empire, free as in America may be as scary a proposition as free as in freedom This vision of freedom is grounded in ‘American values’, particularly constitutional values such as free speech and of course free market Lessig for instance says that the debate on copyright is a very important one as it deals with the future of American values What are some of the dangers of this: The proposition reads that we all American : (call center) Then what does tying down the entire open system within the American context mean There is a great danger that when the only options that you have are of pitting the constitutional value of freedom of speech against he value of the free market, free market will prevail as we have seen in the Eldred v. Ashcroft case where the US Supreme Court refused to prevent a further extension of copyright term under the CETA


The Progress Myth that underlies both Copyright/ Copyleft: The Progress Myth that underlies both Copyright/ Copyleft Common to both copyright and copyleft is the idea of progress and creativity, with each offering a competing narrative So Figures like the transformative author, user producer etc mediate the world of the Public Domain What happens to conflicts around Intellectual Property which do not have the romance of the transformative author The unromantic Asian Pirate The Danger of the Public Domain being narrated in a manner as to exclude the Pirate


Slide44: RECAP 1. Contexualising the history of copyright and licenses 2. FLOSS and GNU GPL 3. Conceptual challenges posed by GNU GPL 4. Translating GPL into cultural production 5. A survey of open content licenses 6. Reading the license beyond the legal framework