copyright law

For nearly twenty years, the idea of “openness” for Internet content has been seen as the gold standard for progressive scholarship. If content can be freely shared, goes the thinking, then it will improve the quality of our scholarly and scientific inquiry, democratic debate, and cultural creativity. It will empower individuals and yield a richer collective wisdom. 

Well, it hasn’t really worked out that way. While corporate publishers initially resisted open platforms, most have conceded the inevitability of open networks and shifted to clever business models that allow for a version of openness. Closed and proprietary content has often become (more) open and shareable, within limits. 

But that shimmering mecca of emancipation symbolized by “openness”? It has proven to be a mirage. Academic publishers have shown themselves adept at adapting to open access publishing models while consolidating their proprietary market power and control. The benefits to scholars, students, academic disciplines, university budgets, and freedom of expression have not been what they were cracked up to be.

It was with great pleasure, therefore, that I recently encountered a major statement by some British open-access renegades calling for a “commonifidation of open access.” The call to action is entitled “Labour of Love: An Open Access Manifesto for Freedom, integrity, and Creativity in the Humanities and Interpretive Social Sciences,” by Andreas E. Pia, Simon Batterbury, and eleven other colleagues.

The manifesto essentially makes the point that openness is not the same as commoning. My colleague Silke Helfrich and I had this epiphany when writing our book Free, Fair and Alive. In a section called, “How Commoning Moves Beyond the Open/Closed Binary” (pp. 68-72), we note how the open/closed binary focuses on the supposed status of the content itself – open or closed – and not on the social dynamics by which a community generates the content in the first place. (The chapter with these pages can be found online here.)

If the culture industries wonder why people have so little respect for copyright law these days, they need look no further than the Warner Music Group’s claimed copyright of the song “Happy Birthday.”  It’s a grotesque mockery of the avowed principles of copyright law and a scam on the public that has persisted for decades.  But with a revenue stream of $5,000 a day, or $2 million a year, Warner Music is not about to stop charging people for the right to perform “its” song.

Thanks to a courageous filmmaker, however, this travesty may soon come to an end.  Jennifer Nelson had been making a documentary about the “Happy Birthday” song when Warner said it would cost her $1,500 to use it in her film.  Nelson filed a lawsuit two years ago, a remarkable challenge in itself to the usual legal bullying by copyright owners. After all, who has the money or stomach to battle large corporations with well-paid lawyers or to lobby Members of Congress whose minds have already been made up by campaign contributions from music, film and publishing companies? Most TV shows simply forbid their hosts and performers from singing "Happy Birthday," and various restaurants have come up with their own alternative songs, lest they incur licensing fees.

It now appears that Nelson’s legal team has uncovered hard evidence that the copyright to "Happy Birthday" has been invalid for years.  In a storage facility used by the University of Pittsburgh, lawyers found a 1922 songbook that contained the lyrics of “Happy Birthday” in a song entitled “Good Morning and Birthday Song.” This is significant because there was no copyright notice on the song in the book – a requirement for copyright protection under the law at the time – and anything published before 1923 has entered the public domain and is free for anyone to use.

One of the great advantages of a commons analysis is its ability to deconstruct the prevailing myths of “intellectual property” as a wholly private “product” – and then to reconstruct it as knowledge and culture that lives and breathes only in a social context, among real people.  This opens up a new conversation about if and how property rights in knowledge should be granted in the first place.  It also renders any ownership claims about knowledge under copyrights and patents far more complicated -- and requires a fair consideration of how commons might actually be more productive substitutes or complements to traditional intellectual property rights.

After all, it is taxpayers who subsidize much of the R&D that goes into most new drugs, which are then claimed as proprietary and sold at exorbitant prices.  Musicians don’t create their songs out of thin air, but in a cultural context that first allows them to freely use inherited music and words from the public domain -- which future musicians must also have access to. Science can only advance by being able to build on the findings of earlier generations.  And so on.

The great virtue of a new report recently released by the Berlin-based Commons Network is its application of a commons lens to a wide range of European policies dealing with health, the environment, science, culture, and the Internet.  “The EU and the Commons:  A Commons Approach to European Knowledge Policy,” by Sophie Bloemen and David Hammerstein, takes on the EU’s rigid and highly traditional policy defense of intellectual property rights.  Bloemen and Hammerstein are Coordinators of the Berlin-based Commons Network, which published the report along with the Heinrich Böll Foundation.  (I played a role in its editing.)  The 39-page report can be downloaded here -- and an Executive Summary can be read here. 

“The EU and the Commons” describes how treating many types of knowledge as commons could not only promote greater access to knowledge and social justice, it could help European economies become more competitive. If EU policymakers could begin to recognize the generative capacities of knowledge commons, drug prices could be reduced and climate-friendly “green technologies” could be shared with other countries. “Net neutrality” could assure that startups with new ideas would not be stifled by giant companies, but could emerge. And scientific journals, instead of being locked behind paywalls and high subscription fees, could be made accessible to anyone.

In the quest to imagine and build a new “sharing economy,” one factor that is often overlooked is law.  What shall be the role of formal law in a world of social enterprises, shared workspaces, cohousing, car-sharing groups, tool-lending libraries, local currencies and crowdfunding?  Who has legal rights in these various contexts, and what do they look like?  Who holds the legal liabilities?

These questions are sometimes ignored by commoners who consider the law a retrograde, irrelevant force to be avoided.  But even among those who acknowledge the inescapability of conventional law, the contours of legal rights and liabilities are not always self-evident because the law tends to be silent about commoning, or construes such activities in archaic legal categories. The law as it now stands presumes that we are either businesses or consumers, employers or employees, or landlords and tenants.  Production and consumption, and investment and usage, are "naturally" considered separate activities pursued by different people. 

But nowadays countless activities in the sharing economy are blurring old categories of law. There may be many parties involved in managing a a workspace, childcare facility or online information, or perhaps many people have ongoing relationships and responsibilities and entitlements that are collective and evolving. Should the strict letter of the (archaic) law necessarily trump our informal, self-negotiated social rules? 

Janelle Orsi, director of the Oakland-based Sustainable Economies Law Center, has tackled these and many other such questions in a terrific book, Practicing Law in the Sharing Economy:  Helping People Build Cooperatives, Social Enterprise and Local Sustainable Economies (ABA Publishing).  The book covers a monumental array of legal topics that are relevant to the sharing economy.  Most of the chapters deal with how to craft agreements that validate special forms of sharing – for example, how to form organizations, how to exchange with each other and how to invest in each other’s work.  There are also chapters for shared working arrangements, mutual provisioning, sharing rights to land, sharing rights to intellectual property, and managing collective risks.  

In a time when pop stars are most known for their silly haircuts, salacious outfits and fleeting half-lives, it is almost impossible to comprehend Pete Seeger, the legendary folk icon who died yesterday at age 94.  Seeger was a giant of a human being, a man who insisted upon living humbly but with conviction and courage. 

His commitment to the public good was aching to behold.  When Congress asked him to name names in the 1950s, he refused and was blacklisted.  Undeterred, he toured colleges and coffee houses around the country to make a living.  When his beleaguered former singing partners the Weavers endorsed Lucky Strike cigarettes, presumably to pick up a few bucks, he refused.  When he returned to network television in the late 1960s to sing on the “Smothers’ Brothers” variety show, he choose to sing a provocative song, “The Big Muddy,” lambasting the Vietnam War and LBJ – hardly the kind of song to revive his career.

And yet, Seeger was no dour nay-sayer or small-minded zealot.  He was joyful, generous and optimistic.  He lived his confidence in the power of song to bring people together, beyond politics.  Through his person and the songs he wrote, Seeger’s music came to define the American experience during the civil rights era, the Vietnam War, the environmental movement, and beyond.  It’s hard to imagine the past fifty years without If  I Had a Hammer; Where Have All the Flowers Gone?; Turn, Turn, Turn; The Lion Sleeps Tonight; We Shall Overcome; and many other Seeger songs. 

His determination to nurture wholesome action in the face of abusive power was also a wonder.  From fighting fascism and the Klan to empowering ordinary people to become active citizens, Seeger did not let up.  One of his great inspirations was the Hudson River Clearwater Sloop, which exposed thousands of people to the joys of that river – and the pollution that was endangering it.  He showed up at protests and strikes and at community centers and schools.  How many performers and activists keep at it for more than 70 years without stopping?

Hollywood and the record industry got some serious comeuppance when the European Parliament overwhelmingly defeated a copyright maximalist treaty by a 478 to 39 vote on Wednesday.  Ouch!  This is a very sweet moment to savor. 

The content industries and trade representatives had been negotiating the so-called Anti-Counterfeiting Trade Agreement for six years behind closed doors.  Civil society organizations were absolutely barred from the process even though industry players had full and complete access and participation.  The proposed changes to copyright law would have empowered copyright industries to throttle free speech on the Internet without due process; allow users to be barred access to Internet accounts; and force Internet service providers to act as copyright police by patrolling users’ web habits. 

The idea behind the ACTA treaty was to negotiate a new global standard of strict copyright standards.  It was also a sly tactical feint to use international policy venues to help impose stiff copyright rules on the US without having to go through the US Senate for treaty ratification (Obama could simply sign it as an “executive agreement”).  The point of this subterfuge was to avoid any bruising public debate about or political fallout from much-hated provisions of the agreement.

The defeat of ACTA is a sweet moment because arrogant trade reps and industry moguls had airily dismissed critics.  They thought that their insider access, lobbying dollars and propaganda campaigns could just ram the whole stinkin’ mess through.  But after last year's huge Internet mobilization against SOPA and PIPA – the Stop Online Privacy Act in the House and the Protect IP Act in the Senate – it was clear that Internet users were getting their act together as a political force.  That anti-SOPA, anti-PIPA effort stunned Congress; industry-backed legislation that had previously sailed through was stopped dead in its tracks.  The spell of the entertainment industry's cozy influence-peddling was broken, at least for a while.

The publishers of research journals don’t get much attention because their products are not very exciting.  Mentions of Science or Nature do not exactly quicken the pulse.  But that doesn’t mean that the publishers of academic journals aren’t as predatory and profiteering as any Fortune 500 bank or oil company. 

It now appears that the major universities that generate so much of the world’s research (only to buy it back from publishers at huge mark-ups) could be getting ready to fight back.  Harvard University is publicly urging its faculty members to avoid publishing in journals that require paid access, and to publish instead in open access journals.  Open access literature can be defined as works that are digital, online, free of charge, and free of most copyright and licensing restrictions.

As the Guardian (UK) reports, the Harvard Faculty Advisory Council has sent a memo to 2,100 professors and researchers informing them that “major periodical subscriptions, especially to electronic journals published by historically key providers, cannot be sustained: continuing these subscriptions on their current footing is financially untenable. Doing so would seriously erode collection efforts in many other areas, already compromised.”

Wow! The save-the-Internet protests by Wikipedia, Google, Reddit, Boing Boing and hundreds of other websites marks a watershed moment in the evolution of networked political expression. Millions of Internet users learned that Congress actually can cripple the open Internet in the manner of authoritarian regimes, albeit in the name of copyright law.

Such mass politicization is powerful stuff. Within 24 hours, Senate Majority Leader Harry Reid postponed a scheduled vote on the “anti-piracy” Web censorship legislation known as SOPA and PIPA (Stop Online Piracy Act and Protect IP Act). The abrupt turnabout was widely regarded as a face-saving move for the benefit of Judiciary Committee Chairman Patrick Leahy, a key sponsor of the bill.

Although protests had been building for weeks, the one-day shutdown of popular websites suddenly made visible a huge, alternative universe of citizens who are usually ignored in Washington, D.C. Suddenly the Old Guard could not broker their self-serving, insider deals in the shadows. Suddenly the Web demonstrated its power as a new sort of theater for organizing and representing the public to confront conventional governance.

Unbeknownst to millions of people recovering from their celebrations the night before, New Year's Day is a mini-celebration nested within a more famous holiday. Who among us realized that it was.... “Public Domain Day.” This is the date on which copyrights are supposed to expire on millions of works from a previous generation. It's the date on which the proprietary controls lapse and creative works become born again as public domain artifacts that can be freely used by anyone, for any purpose.

Alas, nothing entered the public domain this year. In fact, nothing will enter the public domain until January 1, 2019, thanks to the twenty-year extension of copyright law that Congress enacted in 1998 at the behest of Disney Co. and other media giants. This may explain why Public Domain Day remains so obscure! Nonetheless, the redoubtable host of Public Domain Day – the Center for the Study of the Public Domain at Duke Law School – annually commemorates this date to educate the public about the theft of works that rightly belong to them.

For this year's “celebration,” we learn how the public domain has been impoverished through excessive copyright terms. Last week the Center provided a wonderful survey of the cultural heritage that remains locked up. “What Could Have Entered the Public Domain on January 1, 2012?” it asks. The answers include the films The Body Snatchers, Rebel Without a Cause, Lady and the Tramp.  Then there are all the books from that 1950s that you could copy and share for free: Vladimir Nabokov's Lollita; Rudolf Flesch’s Why Johnny Can't Read; J.R.R. Tolkien’s The Return of the King, the last book of his Lord of Rings trilogy; and Edward Steichen’s famous book of photographs, The Family of Man; among many others.

Two recent developments suggest that the reactionary regime of maximalist copyright can still command a lot of raw political power to beat back commoners, flout legal principles and craft the law to its liking. Yet at the same time open networks and default norms of sharing are getting some serious traction these days, as two other developments attest. Could a post-reactionary world of free culture be at hand?

First, the bad news. A few weeks ago the EU extended the term of copyright protection for music recordings by another twenty years – an ignoble replay of what the U.S. Congress did in 1998 for U.S. copyright law. You may recall that the Disney Co. was determined to stop Mickey Mouse from entering the public domain, and the motion picture, recording and publishing industries were just as eager to reap a public giveaway worth billions of dollars.

If the copyright extension had not been adopted, lots of British music recordings from the 1960s from the Beatles to the early Stones and many others were expected to enter the public domain in 2012. Now there's a chilling thought: music that's still popular becoming free!  Alternatively, the artists themselves could begin to distribute the music themselves, rather than having to let the record labels have exclusive rights for another 20 years.