Feb 28, 2003
I am finally home from my trip, just in time for the end of the copyright conference. Three weeks is such a short span for such a large issue; there is a great deal I would like to have addressed, and so few hours in which to address it.
This morning the fire alarm rang in my Ottawa hotel at five in the morning, having as a result not only our evacuation of the building but also my viewing of a legal affairs show on CBC Newsworld. It was an unfortunately one-sided presentation, featuring a long discussion with a representative from Access Canada on the need to extend and enforce copyright.
Between the tired old arguments (cribbed from the usual sources), however, was a picture of life under the new regime. We saw the representative spy on and bait photocopy shops. We saw an expose of schoolchildren basing a musical revue on a protected poem. We heard about buskers being shaken down for royalty payments. A parent unable to photocopy a picture of his own child because he could prove he owned rights to the photo.
Never mind all the rest; I have only one question: is this the sort of society we want to live in?
The Business Software Alliance was caught this week flagging copies of Open Office as copyright violations, sending email to system administrators demanding immediate action. Open Office is, of course, a popular and widely distributed open source application, but as the BSA robot peered into FTP sites it could find on the internet, it flagged every instance of the word "office" as a violation.
I could go on and on. Ebook readers that say it's illegal to read public domain literature to your kids. Harassment and lawsuits designed to curb fair and free criticism. Arbitrary jailings (yes, this has happened). Universities being urged to act as enforcement agencies. And on and on and on.
Yes, of course schools, colleges and universities should obey the law. That was never at issue. And of course the authors of genuinely original content, wherever it is placed, should be protected from uncompensated commercial exploitation of their work. That was never at issue either. Nor were the numerous straw men tossed our way throughout this debate. Yes, works should be attributed. Yes, plagiarism is academically dishonest.
The substantive issues in this conference revolved around two major themes: first, the burden that contemporary copyright legislation (in its many and sometimes bizairre incarnations) places on academic institutions, especially those in the South, burdens revolving not only around price (though tis is far from trivial) but the requirements of licensing and reporting. Nobody relly came to grips with the fact that the cost of content to educators, whether that content is online or off, is far greater than the actual value of the material in question.
But second, even more importantly, this conference was unable to come to grips with the essential changes to society being wrought by recent legislation and recent enforcement practices. Though some people tried, I saw the discussion turned back again and again to legal issues, matters of interpretation, and similar trivia. Such discussion, offered mostly by copyright lawyers seeking to profit from the endless litigation the current regime provides, failed utterly to come to grips with the deeper social changes and social costs being extracted by the recent practices.
In an article a couple of weeks ago the Guardian's John Naughton takes on the issue. He writes, Pretending that intellectual property is the same as any other kind of property is deeply misleading. For while there is clearly no gain to society from plundering other people's physical property, there is clearly a social benefit from the wide dissemination of intellectual property - ie ideas and their expression. As Picasso said - and Steve Jobs famously repeated when explaining how the Apple Mac came to bear such a striking resemblance to the Xerox Alto - 'minor artists borrow; great artists steal'. We make progress, as Newton observed, because we are able to stand on the shoulders of the giants who went before us. Even Walt Disney lifted the idea of Mickey Mouse from Steamboat Willie."
What is at issue here is not the protection of the authors' incomes. That was never in doubt; authors prospered long before 1710, they prosper in the open source community, and the vast majority of us make do without collecting a dime from royalties. No, what is at issue here is the very nature of the creative process, the question of whether it is legitimate to progress at all through the work of those who came before. Every time I hear someone remind me that aspirin or xeros or coke are brand names, and must therefore be capitalized, I am again faced with this essential conundrum.
In a free society, Lawrence Lessig reminds us, the future builds on the past. In a less free society, the past tries to control the future. And, observes Lessig, ours is a society that is becoming less and less free.
What is at issue here is not a question of dollars and royalties, at least, not directly. What is at issue here is a matter of power and control, a matter of freedom. And while copyright lawyers may rail at us from their comfortable offices, it remains true that our understanding of the nature of society, not their understanding of legal nuance, is what in the end must decide the matter.
So I ask again, what sort of society do we want to live in?
The real decision facing educators today has nothing to do with whether or not to comply with copyright. It has nothing to do with the subtlety of copyright legislation at all.
It has everything to do with whether we are willing to accept the continuing constraints on our education system. It has everything to do with whether we continue to rely on commercial publishers at all, whether we begin to reclaim our common cultural, scientific and social heritage, the basic elements of an education that is every person's right. It has everything to do with whether we are willing to allow private, commercial, interests to own, monitor and control what is read and studied in our classrooms.
Or whether we want to be free. As in freedom.
Open Access Initiatives
It seems to me that the best means of approaching the problem of obtaining educational materials from publishers and other sources is to circumvent these sources. These publishers prosper because they have an effective monopoly on educational content. What is needed is to break this monopoly, to create an open archive of all the materials needed to provide an education, and to create world-wide access to this archive.
Publishers are able to prosper despite creating rules and barriers that hinder the provision of an education. They prosper because we continue to pay them for educational materials. What is needed therefore is for public enterprises such as schools, education boards, colleges, universities, and government departments to fund the development and distribution of open educational materials, rather than to continue to struggle against publishers' constraints.
The situation with regard to educational materials is analagous to the situation with regard to academic journals. The cost of journal subscriptions has driven many college and university libraries to desperation. Articles in journals, though produced by academics without compensation from publishers, and therefore paid for from the public purse, cannot be accessed by other researchers or by students without the payment of considerable subscription costs and without submitting to onerous licensing conditions.
In order to counter this, one year ago this week the Budapest Open Access Initiative was formed to promote the developement and distribution of open access academic journals. It allows content producers - such as university professors - to make the choice to make their article freely available to anyone who would like to read it. The technology needed to support such an endeavour is being created by the Open Archive Initiative, a project designed to create software for the creation and use of open archives of publicly accessible materials.
There are excellent reasons to suppose that a similar initiative in the field of online learning would be worthwhile. With contributions of educational content produced by teachers, professors and governmet agencies from around the world, an open educational resources initiative could provide a much needed base of free resources that could be used by educators around the world. Already work has been done by developers involved in the Open Archives Initiative to support the creation of archives that conform to the Instructional Management Systems specifications, allowing for the easy location of educational materials through a network of open archives.
OAI and Educational Materials Paper
The Regina Declaration
Though some believe that the conversation is turning toward an acceptance of existing copyright regulations, what we have seen in this discussion resembles more a list of horror stories from working within that environment than it does any genuine desire to work within its constraints. It seems clear from the discussion in this forum that existing copyright rules and regulations - and the resulting corporate and institutional practices around those rules - are hindering education to a significant degree.
Instead of fighting against copyright, a fight that can only be fought on grounds already owned and occupied by traditional publishing interests, we must work toward the goal of making traditional copyright irrelevant. We are, collectively, able to harness the greatest wealth of intellectual and technological resources available to humanity; we already have these resources at hand, and need only direct them toward a single end.
It is within our grasp, if we assert only the will, to provide in full the resources needed to provide an education for every person on the planet. I submit that it is toward that objective that our discussion of copyright should direct itself.
So, what is needed? With due recognition of the location of the moderators (at least one of them), and therefore the virtual physical location of this conference, I offer the following for consideration and, if appropriate, support:
The Regina Declaration
1. We must stop paying for educational content.
I don't mean this in the contentious and probably illegal sense. What I mean is that schools, colleges and universities must stop purchasing learning materials from traditional publishers. Just as, in the field of academic publishing, there are thousands of freely available refereed journals available on the internet, so also, with time, will there be a substantial body of educational resources available on the internet.
Thus, just as (and in the same spirit as) many schools and institutions are now turning to open source software, our schools and institutions must begin to turn to open educational content. Nobody pretends that this can be done overnight; content will not be produced until it is clear that schools and institutions will begin to use it. But where the choice exists, our institutions ought to opt for the non-commercial and non-encumbered open content.
2. We must keep the internet free
The internet was originally built as an educational and research network. A commercial presence was allowed, with much reluctance. But the posting of commercial content has created a legal nightmare for the original users of the internet, as it is no longer clear whether resources may be viewed, much less linked to, described, quoted, or copied.
The presumption must be, if content is posted to the open internet, it was meant to be shared. The open posting of content on the internet should be interpreted as the equivalent of the provision of GNU Public Licensing. Numerous and efficient mechanisms exist for commercial content providers to protect their content from open viewing. The intent to protect and prohibit the use of online content should not be inferred unless some measure is taken to establish such limitations.
3. We must stop interpreting copyright legislation in the rights-owners' favour
The tendency among educational institutions is and has been to play it safe, to protect themselves by assuming a level of protection for materials greater than that established by law. Thus we see in this conference the fear that a mere link violated copyright. Thus we see prohibitions on the use of any copyright content, even if that use is allowed by law. Thus we see measures taken against software that might be used to violate copyright.
Educational institutions, especially public institutions, should firmly establish and defend their right to use copyrighted content. Where a right exists in the non-digital environment, it should be asserted in the digital environment. If a video may be shown in a class, it may be shown to a class online. If a book may be circulated through a library, it may be circulated through an online library.
4. We must stop clearing copyright
By this I do not mean that we should simply use content contrary to existing law. Buy that what I mean is that educational institutions should stop doing the publishers' jobs for them.
Educational institutions spend thousands, perhaps millions, of dollars clearing copyright and arranging for the payment of royalties for content used in the classroom or by students in the course of their studies. This is a task, and a cost, that should be assumed by publishers. After all, it is the publisher, not the educational institution, that profits from the sale of this material.
Educational institutions should declare an intent to cease clearing copyrights at a specified time. Insofar as copyright material us used in classes, online or offline, it should be content that can be accessed, and if necessary, purchased directly by students. In such cases where this access is not available, the content should not be used.
Related to this point, and integral to it, is the contained proposition that educational institutions, school boards, and governments should cease the practice of purchasing bundled software licenses for entire student populations. Such licenses, though offered under the guise of lowering access prices, serve to increase the cost of access. Though it may be true that a student may obtain access to a work for $0.20 a title, this is no bargain if the student must pay for access to hundreds of materials he or she may never use. Such purchases distort the market for educational software, eliminate competition, and make it more difficult for non-traditional students to obtain the same material.
5. We must produce open content
We currently spend billions of dollars acquiring content at inflated prices, content that is of limited utility. We must begin to redirect the flow of public funds from the acquisition of protected content to the production of public content.
It is worth keeping in mind that scholars and academics produce the content currently sold to schools and educational institutions. It is worth keeping in mind that these authors and creators receive very little, and in many cases nothing, from the publishers. It is worth noting that these authors typically surrender all rights to this content, both legal and moral rights, to the publishers. And it is worth noting that these authors are paid from the public payroll to produce this content.
We can offer authors a better deal, unequivocally protecting their moral rights while providing some financial compensation, if required, for the production of academic content intended to be freely and openly shared. Content released under such conditions should be the grounds for the highest academic honours, promotion and tenure, rather than overlooked and undervalued. A professor's free website or digital archive should be the primary constituent of evaluated data, not an afterthought.
After all, insofar as the public supports or subsidizes the educational system, it is fair and reasonable that the public value more highly the contributions of those members of the system who work in the public interest, as opposed to those who work merely for personal or private gain over and above their institutional salaries.
6. We must distribute open content
We should set as a priority the creation and management of a free, open and public network of educational content repositories. the basic mechanisms for these repositories already exists; we need only build on existing work and dedicate ourselves to the task of providing access to free educational content for all.
7.We must protect open content
As Carol Fripp mentioned in a previous post, we need "a legal framework to ensure works, many of which are basically free, are not subsequently commercialized and exploited." The commercial sale of open content is not in itself a problem; we see many examples where this works quite well, as in the case of Red Hat or the publication of classic works of literature.
Where significant disruption occurs is when commercial enterprise appropriates content or other assets from the public domain and subsequently prohibits their use. The best and most infamous example of this is the celebrated conditions attached by Adobe to the use of "Alice in Wonderland," including the stipulation that the work shall not be read allowed.
A branch of government or of various educational institutions must be established to act as an advocate of the public domain, to collect and catalogue open content, to respond to claims of ownership of public domain content or other assets, and to represent the interests of the public in matters where disputes arise. Where there is no defense of the public domain, there is no effective public domain, and the continuing looting of raditional knowledge and culture will continue unabated.