In this talk, Lessig argues that copyright laws and policies are outdated in the context of digital culture, causing problems ultimately harming democracy. He proposes legal changes and cultural practices while refusing both copyright extremism and copyright abolitionism.
Writing is “an essentially democratic form of expression; the freedom to take and use freely is built into our assumptions about how we create what we write.” The observation that follows is that digital media has also been democratized, both in one’s access to diverse cultural content and in one’s ability to create content. It is the popular medium of the 21st century, even more so than writing.
But the traditional copyright model that tries to protect works from being copied fails to reflect the aspect of digital media which necessarily involves duplication; this over-restrains amateur freedom of use. Moreover, the war on piracy is not serving its original purpose of protecting the creator’s right, but is really just criminalizing more people.
In order to preserve the positive functions of copyright of providing incentives to the professional creator, while also pursuing the democratic value which is freedom of use, Lessig argues for a law not focusing on whether something has been copied but relying on context to determine whether something is a mere duplication or a creative remix; whether it is a professional act or an amateur act. The law should provide control over professional copies and encourage amateur remix, while there should be detailed negotiations with regards to professional remixes and amateur copying.
Piracy should not be dealt with through ineffective mass criminalization but instead through legal changes that will facilitate compensation in the current state of technology; proposals such as compulsory licenses (government-granted use without permission but involving a set fee) or the voluntary collective license (subscription-based file sharing network) should be incorporated.
Alongside these legal issues, the potential for an internet-driven hybrid economy—where economic value is created from sharing acts of people—should also be harnessed, and it should be done in a just way that minimizes exploitation; his proposal on this matter is the Creative Commons Licenses.
- What are current challenges in your field that involve copyright and intellectual properties? One thing that comes to mind is the firewall of commercial databases that Micki mentioned.
- With online stores for video, music and apps seemingly stabilizing as a platform, is piracy still an important issue? What are the things to think about?
On the Fungibility and Necessity of Cultural Freedom
Benenson discusses how non-copyright licensing should be approached with regards to cultural works. Some points:
- One difference between Creative Commons and its precedents, notably the idea of Free Software and GPL, is that CCL offers more restrictive options of which the choice is up to the author; whereas Free Software puts more emphasis on keeping things open as a principle not only on the author’s side but also all along the distribution process.
- There has been arguments for extended application of free-software principles to cultural works, which would enforce free use—something that CCL offers selectively.
- Such “user-generated utopianism” assumes that cultural works, like tools, are fungible.
- The fungibility of software like kernels and compilers has been crucial in the success of free software movement; this doesn’t necessarily applies to cultural works, where authorship must be valued.
- While copyright laws must be adjusted into the contemporary context, we don’t need to completely throw them away as they do protect important values for the cultural creation.
As we are increasingly seeing works that exist across the boundaries of software/tool and cultural works, the question of articulating an appropriate mode of licensing becomes more relevant.
- Benenson’s discussion is relying on the separate categories of software/tools and cultural/creative works. As we increasingly see works that exist across these boundaries, what would be the considerations that come into play when trying to articulate an appropriate mode of licensing these works?
- While I can agree on Benenson’s argument that universal openness will not necessarily encourage the creation and sharing of works, the claim that “user-generated utopianism challenges us to believe that all cultural objects are effectively fungible” sounds like a hasty reduction of the logic behind Free Software advocates; I would like to hear your thoughts on this.
Giving Things Away Is Hard Work
Mandiberg examines the collaborative effect that open licensing can bring when applied to projects, especially physical designs. This approach to open licensing is summed up as the cycle where “participation breeds creative mutation, and creative mutation leads to better ideas through this collaborative process.” The insight here as I read it is that one should strategically consider both materiality and work process: the project’s functionality in its shared form, modes of collaboration, degree of access depending on skill levels, and methods of production.
The choice to go on Kickstarter for Bright Bikes was interesting, as crowdfunding platforms seem to have established an almost standardized practice of this type of approach.
As I was reading the texts, I also had the chance to get nostalgic about a project I did with some friends a couple years after the time of the articles. Our choice to go with a CC-BY license was partly logistic (putting the time and effort to deal with copyrights just didn’t make sense); but I also remember the optimistic vibe around free culture and the possibilities of internet which was very much a real thing at that time.
- I am curious of what Benenson’s response would be to the quote relating to Lady Ada—”this is a success: the practice has become so pervasive that the origins are no longer important.” Do Fried’s contributions count as fungible tools, or do they fall into some middle grounds?
Fred Benenson, “On the Fungibility and Necessity of Cultural Freedom”; Lawrence Lessig, “REMIX: How Creativity Is Being Strangled by the Law”; and Michael Mandiberg, “Giving Things Away is Hard Work: Three Creative Commons Case Studies” in Mandiberg, The Social Media Reader, Part V: Law.