Authors and owners
Andrew Katz traces the origins of the problems of copyright legislation and practice when confronted with the natural, human, social mode of creative endeavour. Building on developments in open source software, he outlines how designers could benefit from a similar model and reveals the differences between the digital and the analogue realm.
We are reaching the end of a great historical experiment. Printing (starting with Gutenberg-style presses PRINTING and leading to huge industrial Heidelberg printing machines), radio broadcasting, 78s, vinyl, CDs, cinema, television: all these discoveries formed the technological backdrop for this experiment. All are (or were) media based on the principle of one-to-many distribution. To understand how this experiment was initiated, and how it is reaching its end, we need to understand a little of the nature of the businesses involved in these activities, and how the law enabled them to attain, and retain, that nature. WYS ≠ WYG
As the public grew accustomed to the idea of passive consumption, creativity became increasingly marginalized.
The one-to-many broadcast distribution model distorted our perception of creativity. A key characteristic of one-to-many distribution is the role of the gatekeeper: the corporation which decides what we, the public, get to read, watch or listen to. The roles of creator and consumer are starkly defined and contrasted. As the public grew accustomed to the idea of passive consumption, creativity became increasingly marginalized, at least in those areas covered by copyright. ACTIVISM Creativity was perceived as capable of flourishing only through the patronage of the movie studios, the record companies or the TV stations.
The industrial technology behind printing, broadcasting and vinyl duplication is expensive. Copyright law grants a monopoly which enables the distributors of media to invest in the capital infrastructure required for their packaging and distribution. These are the businesses which grew fat on the monopolies so granted, and they succeeded in convincing the public that it was the corporations’ role to provide, and the public’s role to pay and consume.
The original social approach to creativity did not become extinct as the dominant producer/consumer mode became established, even for media (like music, for example) where it applied. Andrew Douglas’s film Searching for the Wrong-Eyed Jesus shows that a visitor to the late 20th century Appalachians of the American South may well be asked: “What instrument do you play?” If the visitor answers: “I don’t play any”, the questioner will go on to say: “Ok, so you must sing.”
Steven Johnson in Where Good Ideas Come From makes the convincing case, based on a mass of evidence, that the social mode is more effective at maximizing creativity than relying on lone inventors and creators sitting in their garrets and sheds. Lone creators make good central figures in a compelling narrative – one reason why this meme is so popular. However, examining the truth behind the narrative often reveals that any creative work has much broader parentage than the story suggests. James Boyle in The Public Domain reveals the story behind the Ray Charles song I Got a Woman, tracing it backwards to Gospel roots, and forwards to the YouTube mashup George Bush Doesn’t Care About Black People, which sprang to prominence in the aftermath of Hurricane Katrina. To be sure, companies sometimes tried to foster a social model within the organization, but as Johnson points out, the benefits of social creation increase very dramatically with the size of the pool of participants, due to network effects. Until company silos are able to combine, the beneficial effects are relatively small.
Technology is Expensive
The internet has proved hugely disruptive. TREND: NETWORK SOCIETY The sharing and social nature of Web 2.0 has enabled the rediscovery of the natural, human, social mode of creative endeavour. The social side of the internet is dominated by individuals acting in their private capacity, outside the scope of businesses. Companies were initially wary of losing control over the activities of their staff, and regarded internet social activities as time-wasting at best. In the worst-case scenario, businesses saw online social networking as a potential channel for employees to leak the company’s valuable intellectual property, and were therefore often slow to see the benefits of social interaction in terms of benefits to their creativity. As they have seen the benefits accrue to their competitors, however, compa-nies are starting to embrace a more open mode of business.
A return to the social mode is not without its setbacks. The internet radically lowered the barrier to entry for collaborative participation, and consequently increased the number of potential contacts that an entrant can make. SHARING This immensely powerful engine of creativity comes with a brake that inhibits its full capacity: the effect of unfit-for-purpose copyright laws.
The copyright laws of the broadcast era do more to assist the incumbent gatekeepers (the film companies, music companies and so on) than to promote the social mode of CO-CREATION collaboration. A side effect of the digital world is that almost every form of digital interaction involves copying of some sort. Whereas copyright law had nothing to say about sharing a book with a friend by lending it to her, in the digital realm, lending her a digital copy of Nineteen Eighty-Four to read on her e-book reader or computer involves a form of copying which may potentially violate copyright law.
The broadcast-model gatekeepers have used this unintended side effect of copyright law to their advantage, taking action against private individuals who had no intention of monetary gain, including mash-up artists, REMIX home video enthusiasts and slash fiction authors. Incumbent rights holders, fearful of losing their profitable monopoly-based businesses, have sought to extend their rights ever further by lobbying governments (frequently successfully) to legislate for new and increased intellectual property rights, extending such rights far beyond their original purpose and intention. To put the issue in context, it is necessary to ask a fundamental question: what is copyright for?
Thomas Jefferson was one of the most lucid writers on the topic. He understood well the unique nature of knowledge:
“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.” 1
A Monopoly is a Bad Thing
Jefferson did admit that creative people should be given a limited right of exclusive control over their creations. A monopoly is inherently a bad thing, a fact that was recognized in the late 18th century, as it is today. Nonetheless, a monopoly of control in the form of copyright or a patent was the most convenient way of enabling the creators to be remunerated for their work. And once the monopoly expired, the idea would be freely available to all and would become part of the common heritage of mankind, to be used without restriction by anyone. The necessary (but limited) monopoly includes ‘copyright’. The principle that the restrictions should be the minimum possible to achieve that aim should be copyright’s golden rule.That golden rule has been repeatedly ignored. The scope of protection has increased steadily over the last three hundred years, to the extent that the protection granted in Europe to the author of a novel, for example, lasts for seventy years after his or her death. Materials that are not restricted by intellectual property are considered to be ‘in the public domain’. Commentators have become increasingly strident in arguing that the public domain is a public good; it is likely that Jefferson would have agreed. In the same way that common land is an area where anyone can allow their animals to graze, the public domain has been described as a commons of knowledge, where potentially anyone can graze on the intellectual creations of others. The public domain has one crucial difference from a commons in the tangible world: a meadow open to all can easily be over-grazed and ruined, so that it becomes of use to no one (sometimes referred to as the ‘tragedy of the commons’). It is impossible to exhaust the commons of knowledge and ideas.
The Tragedy of the Commons
The modern ‘tragedy of the commons’ is that, just as the internet makes it easier to pass ideas and knowledge KNOWLEDGE from one person to another (for “the moral and mutual instruction of man, and improvement of his condition”), it seems that legislation and the more extreme activities of the rights holders are making it more difficult for those ideas and knowledge to enter the commons in the first place. This is because the duration of intellectual property is constantly being extended (will the early Mickey Mouse films ever enter the public domain?), and so is its scope, as evidenced by the patenting of genes or plants. Increasingly, people are becoming aware of the value of the commons and are seeking to protect it. At the same time, we are gradually realizing that the monopoly granted by intellectual property laws is a blunt instrument, and that people are prepared to create for reasons other than the expectation of payment for the use of their creation. Copyright law does not always have to work against the commons. Free and open source software has been an undeniable success. Gartner confidently states that all businesses today use at least some free software in their systems; the Linux Foundation is predicting that free software will underpin a $50 billion economy in 2011. Following from these and other successes, the applicability of the open source model has been considered in other contexts.
The Creative Commons Licenses
One of the most prominent open source models has been the Creative Commons CREATIVE COMMONS movement. Founded in 2001, Creative Commons has written a suite of licences which were inspired by the GNU/GPL, but which are intended for use in relation to a broad range of media, including music, literature, images and movies. The licences are drafted to be simple to understand and are modular, in that the rights owner can choose from a selection of options. The attribution option requires that anyone making use of the work makes fair attribution to the author; the share alike option is akin to the GPL, in that if a licensee takes the work and redistributes it (whether amended or not), then the redistribution needs to be on the same form of licence; the no derivatives option means that work may be passed on freely, but not modified, and the non-commercial option means that the work can only be used and distributed in a non-commercial context.
There are now millions of different works available under a Creative Commons licence: Flickr is just one content hosting site which has enabled Creative Commons licensing as a search option. There are, at the time of writing, nearly 200,000,000 Creative Commons-licensed images available for use on Flickr alone. Similar sites provide music and literary works under a Creative Commons licence. Creative Commons provide a legal infrastructure for designers and other creatives operating within the digital domain to adopt this model. They also offer an effective choice as to whether an appropriate model is GPL-style share-alike, or BSD style. Where designers’ DESIGNERS work moves into the physical world, matters become much less straightforward. The movement of hardware design into the commons has been difficult. The fundamental issues can be summarized as follows:
→ In the digital world, the creator has the choice of whether a GPL or BSD model is appropriate. This choice does not translate well to the analogue world.
→ Digital works are relatively easy to create and test.on low-cost equipment. Analogue works are more difficult to create, test and copy, which creates barrier-to-entry problems.
→ Digital goods are easy to transport; analogue goods are not. This creates a barrier to the communication necessary to get the maximum benefit out of network effects.
The barrier to entry for any participant in a digital project is remarkably low. A low-cost computer and basic internet access are all that is required to have a system capable of running the (free) GNU/Linux operating system, accessing (free) project hosting sites like sourceforge.com or koders.com. A vast range of tools required to develop software (such as GCC – the GNU Compiler Collection) are also available as free software. Copying purely digital works is trivially easy. Physical (or ‘analogue’) objects are a different matter.
Hardware development is likely to require more intensive investment in equipment (including premises in which the hardware can be placed), not just for development, but for testing. Electronic digital hardware is probably closest to software in terms of low barrier to entry: for example, the open-source Arduino microcontroller project enables an experimenter to get started with as little as $30 for a basic USB controller board (or less, if the experimenter is prepared to build the board). Arduino’s schematics, board layouts and prototyping software are all open source. BLUEPRINTS However, Arduino-like projects represent the lowest barrier to entry in the hardware world.
Complications of Analogue
An Arduino-style project is essentially a hybrid of the analogue and the digital domains. Prototyping software makes it possible to develop Arduino-based hardware in the digital domain, where it retains all the characteristics of the digital world: ease of copying, the ability to upload prototypes to fellow contributors for commentary, assistance and the chance to show off. These are characteristics which enable network effects, and which make the open source model very powerful. It is only when the project is implemented as a physical circuit board that these characteristics are lost.
The analogue world is not always so simple. One of the most ambitious open source projects is the 40 Fires/Riversimple hydrogen car project, which has developed a small urban car (the Hyrban) powered by hydrogen, using a fuel cell/electric drivetrain. Elements of the design (such as power control software or the dashboard user interface) can be developed largely in the digital domain, but the development of motors, brakes, the body shell and so on are strictly analogue only. WYS ≠ WYG Not only do these analogue elements present a large barrier to entry for interested tinkerers, but they also tend to restrict their ability to participate in the development community: a necessity if network effects are to work. It is, clearly, difficult to upload a car to a development site and say “can you tell me why the windscreen leaks?”
Copyright protects the expression of an idea. Retaining the same idea, but recasting the expression of it in a different form, does not infringe on the copyright.
Another significant issue is the lack of access to design software at a low cost. Software developers have access to high-quality tools like development environments and tools available for free under free software licences. There is no similar suite of CAD software, and proprietary CAD software is notoriously expensive. The barrier to entry is raised once again.
Many of these issues are surmountable, given time. Ever-improving simulation software means that more and more testing and prototyping can be undertaken in the digital domain. The introduction of 3D printers PRINTING like the RepRap means that it is becoming increasingly affordable and feasible to print physical objects, such as gears, from a variety of plastics. The lack of suitable CAD software is being addressed by a number of projects.
For designers, progress in open source tools, increased connectivity and so on makes the establishment of open source communities ever more feasible. The legal issues, however, are less straightforward.
So far, we have concentrated on copyright issues. In some ways, other forms of intellectual property pose greater challenges. Copyright protects the expression of an idea. Retaining the same idea, but recasting the expression of it in a different form, does not infringe on the copyright. The story of two people from warring tribes meeting, falling in love, and dying in tragic circumstances can be told in a myriad of different ways, each with their own independent copyright, none of which infringes on anyone else’s copyright. This has two practical consequences. The first is that if a creator creates something which he or she has not copied from something else, then the creator will not be in breach of copyright, even if their creation turns out to be very similar, or even identical, to someone else’s. The second is that if a component of something is found to be infringing on a copyright, it is possible to salvage the project by recasting the same idea in a different expression. REMIX
Copyright also has the advantage of being (reasonably well) harmonized worldwide, and has also proved amenable to hacking (e.g. by Richard Stallman) HACKING so that it can be used to guarantee openness in the code it covers. However, other forms of intellectual property protection are more problematic for designers.
This issue is linked to the distinction between the analogue and digital domains. Designs almost invariably start with some sort of drawing or description, which is protected by copyright as a literary or artistic work. Often, this material will be digital in nature. At this point, it is similar to software. Licensing options include the suite of Creative Commons licences. Once an item is created in the physical world, a different set of legal considerations applies.
The most obvious is design right. Unfortunately, design right is complex and uncoordinated. There are many different types of design rights, and they differ from country to country. In the UK, for example, there are four separate design right regimes operating simultaneously. Depending on the right in question, they cover aspects such as shape, texture, colour, materials used, contours and ornamentation. Registered designs are in many ways similar to patents; in fact, they are sometimes called petty patents or design patents. Infringement can be unintentional, and independent creation is irrelevant. Unregistered designs are more in the nature of copyrights, and are vulnerable to infringement only where copying has taken place. The very fact that registration of design rights is required in itself provides a barrier to entry for collaborative projects, whereas copyright arises automatically and without the necessity of registration. On a collaborative project, who will pay for the preparation of a design registration, and who will make the application and maintain it?
Patents provide a particular problem for both programmers and designers, as they can impinge on both the digital realm and the analogue realm. Patents are a protection on the idea itself. Regardless of how that idea is expressed, its expression would represent patent infringement. Independent invention does not excuse patent infringement. The only way to be sure that an invention does not infringe a patent is to do an exhaustive check in patent offices worldwide. Such checks are very rarely carried out, since the expense is enormous and creates a vast barrier to entry for small businesses. US law in particular applies a positive disincentive to search: if a search is undertaken, then the searcher can be deemed to have knowingly infringed a patent – even if their reasonable determination was that the patent was not infringed – and will be liable to triple damages as a consequence. Pressure groups are lobbying worldwide for a reform of the patent system and process, but at present it is clear that the system benefits incumbent large companies with an existing patent portfolio.
The upshot of the intellectual property issues is that the BSD model is the only viable option in the hardware, analogue world. In contrast, those operating wholly in the digital domain (which includes programmers, but which can also extend to digital creatives such as filmmakers, novelists or graphic designers) have the ability to choose whether they prefer the GPL model to the BSD model, for a number of reasons. In brief, the two main reasons are as follows:
Copyright, being largely universal, automatic, unregistered and long-lasting, is better suited to the development of a copyleft model than other forms of intellectual property. The difference in cost between copying and reverse engineering WYS ≠ WYG (which is vast in digital world, but much smaller in the analogue world), makes the copyleft a less compelling problem. A more detailed discussion of these reasons is needed to clarify why they are pertinent.
The system benefits incumbent large companies with an existing patent portfolio.
If a GPL model were applied to hardware designs, in order to be effective, it would need to impinge on the ideas underlying the design (patents), or on the visual characteristics of the design (design rights). A GPL-style model based on patents would likely fail because of the cost, complexity, and time involved in applying for the patents – not to mention the necessity of keeping the invention secret prior to its publication, since part of the application process squares badly with the open source ethos. If the model were based on design rights, it would fail in relation to registered design rights, for the same reasons as for patents. If it were based on unregistered design rights, it would be unlikely to work because the scope and length of protection would be too short, and because the rights are insufficiently universal (although there is some scope for a limited GPL-style model in relation to unregistered design rights). Even if a GPL model were feasible in the world of hardware, there is an economic reason why it would be unlikely to work. The reasoning is as follows: the digital world makes things extremely easy to copy. Imagine a programmer wants to create some software based on a program with similar functionality to a word processor released under the GPL. The options are either to take the original GPL program, modify it, and release the result under the GPL; or to take the GPL program, reverse-engineer it, and rewrite a whole new program from scratch, which would be unencumbered by copyright restrictions. There is a vast difference in the amount of work involved in the two scenarios, and any programmer is likely to consider very seriously adopting the easier, cheaper and quicker option (modifying the original), where the ‘cost’ is licensing under the GPL. However, to offer a different example, even if there were a functioning mechanism for applying share-alike to a mechanical assembly, an engineer wishing to reproduce the mechanical assembly would, in effect, have to reverse-engineer it in order to set up the equipment needed to reproduce it. Copying a digital artefact is as simple as typing:
cp old.one new.one
Copying an analogue artefact is vastly more difficult. REPRODUCTION Consequently, there is little difference between slavish copying, which would invoke GPL-like restrictions, and reverse-engineering and re-manufacturing, which would not. In this case, it is much more likely that the ‘cost’ of GPL-like compliance would be greater than the benefits of having a GPL-free object. In conclusion, even if GPL-style licences were effective in the physical world, economics would tend to disfavour their use.
It can therefore be stated that designers operating in the analogue realm are likely to be restricted to an openness model more akin to BSD than to GPL. Their challenges are to make this model work, and to discourage free riders with a combination of moral pressure and a demonstration that playing by the community norms will be beneficial both to them, and to the community as a whole.
Benefiting from Connected Creativity
Designers and creators are increasingly able to benefit from the promise of the connected, social mode of creativity. The way was paved by free software pioneers, who skilfully hacked HACKING the copyright system to generate a commons which has not only generated a huge global business, but also provided the software which runs devices from mobile phones through to the most powerful supercomputers. It provides the software which gives the developing world access to education, medical information and micro-finance loans and enables them to participate in the knowledge economy on similar terms to the developed nations.
Designers and creators are increasingly able to benefit from the promise of the connected, social mode of creativity.
The challenge for designers and creators in other fields is to adapt the model of software development to their own field of work, and to counter the extensive efforts of incumbent beneficiaries of the broadcast era to use ever more draconian legislation to prop up the outmoded business models. Ultimately, the social mode will win: it takes one of humanity’s defining characteristics, the fact that we are highly social and community-oriented, and uses it as the foundation of the entire structure. One-to-many works against this fundamental trait, but Nature will ultimately triumph.
- Jefferson, T. Letter to Isaac McPherson, 13 August 1813. The Writings of Thomas Jefferson. Edited by Andrew A. Lipscomb and Albert Ellery Bergh. Washington: Thomas Jefferson Memorial Association, 1905. Vol. 13, p. 333-334. Available at http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html , accessed 11 January 2011. ↩