The Public Domain Part 29

Yet, as I have tried to argue here, beyond the failures in the decision-making process, lie failures in the way we think about the issues. The environmental movement gained much of its persuasive power by pointing out that for structural reasons we were likely to make bad environmental decisions: a legal system based on a particular notion of what "private property" entailed and an engineering or scientific system that treated the world as a simple, linearly related set of causes and effects. In both of these conceptual systems, the environment actually disappeared; there was no place for it in the a.n.a.lysis. Small surprise, then, that we did not preserve it very well. I have argued that the same is true about the public domain. The confusions against which the Jefferson Warning cautions, the source-blindness of a model of property rights centered on an "original author," and the political blindness to the importance of the public domain as a whole (not "my lake," but "the Environment"), all come together to make the public domain disappear, first in concept and then, increasingly, as a reality. To end this process we need a cultural environmentalism, an environmentalism of the mind, and over the last ten years we have actually begun to build one.

40

Cultural environmentalism is an idea, an intellectual and practical movement, that is intended to be a solution to a set of political and theoretical problems--an imbalance in the way we make intellectual property policy, a legal regime that has adapted poorly to the transformation that technology has produced in the scope of law, and, perhaps most importantly, a set of mental models, economic nostrums, and property theories that each have a public domain-shaped hole at their center.

41

The comparison I drew between the history of environmentalism and the state of intellectual property policy had a number of facets. The environmental movement had "invented" the concept of the environment and used it to tie together a set of phenomena that would otherwise seem very separate. In doing so, it changed perceptions of self-interest and helped to form coalitions where none had existed before--just as earth science built upon research into the fragile interconnections of ecology and on the Pigouvian a.n.a.lysis of economic externalities. I argue that we need to make visible the invisible contributions of the public domain, the "ecosystem services" performed by the underappreciated but nevertheless vital reservoir of freedom in culture and science.6 And, just as with environmentalism, we need not only a semantic reorganization, or a set of conceptual and a.n.a.lytic tools, but a movement of people devoted to bringing a goal to the attention of their fellow citizens.

42

I have tried hard to show that there is something larger going on under the realpolitik of land grabs by Disney and campaign contributions by the Recording Industry a.s.sociation of America.

But it would be an equal and opposite mistake to think that this is just about a dysfunctional discourse of intellectual property. In this part of the a.n.a.lysis, too, the environmental movement offers some useful practical reminders. The ideas of ecology and environmental welfare economics were important, but one cannot merely write A Sand County Almanac and hope the world will change. Environmentalists piggybacked on existing sources of conservationist sentiment--love of nature, the national parks movement, hikers, campers, birdwatchers. They built coalitions between those who might be affected by environmental changes.

They even stretched their political base by discovering, albeit too slowly, the realities of environmental racism, on the one hand, and the benefits of market solutions to some environmental problems on the other. Some of these aspects, at least, could be replicated in the politics of intellectual property.

43

Ten years ago, when I first offered the environmental a.n.a.logy, I claimed that intellectual property policy was seen as a contract struck between industry groups--something technical, esoteric, and largely irrelevant to individual citizens, except in that they were purchasers of the products that flowed out of the system. Whether or not that view has ever been tenable, it is not so in a digital age. Instead, I offered the basic argument laid out here--that we needed a "politics of intellectual property" modeled on the environmental movement to create a genuine and informed political debate on intellectual property policy.7 44

So far, I have concentrated on the theoretical and academic tools such a debate would need--focusing particularly on property theory and on economic a.n.a.lysis and its limits. But if there is to be a genuinely democratic politics of intellectual property, we would need an inst.i.tutional diversity in the policymaking debate that was comparable to that of the environmental movement.

45

Environmentalism presents us with a remarkable diversity of organizational forms and missions. We have Greenpeace, the Environmental Legal Defense Fund, groups of concerned scientists, and the Audubon Society, each with its own methods, groups of supporters, and sets of issues. Yet we also have local and pragmatic coalitions to save a particular bit of green s.p.a.ce, using the private tools of covenants and contracts.8 I think we can see the beginnings of the replication of that inst.i.tutional diversity in the world of intangible property.

46

Ten years ago, civil society had little to offer in terms of groups that represented anything other than an industry position on intellectual property, still less ones that took seriously the preservation of the public domain or the idea that intellectual property policy was a matter of balance, rather than simple maximization of rights. There were the librarians and a few academics. That was about it. This position has changed radically.

47

There are academic centers that concentrate on the theoretical issues discussed in this book--one of them at my university.

Thanks in large part to the leadership of Pamela Samuelson, there are law student clinics that do impact litigation on issues such as fair use and that represent underserved clients such as doc.u.mentarians. But beyond academic work, there are organizations that have dedicated themselves to advocacy and to litigation around the themes of preservation of the public domain, defense of limitations and exceptions in copyright, and the protection of free speech from the effects of intellectual property regulation of both content and the communications infrastructure. The Electronic Frontier Foundation did exist ten years ago, but its coverage of intellectual property issues was only episodic. Its portfolio of litigation and public education on the subject is now nothing short of remarkable. Public Knowledge's valuable lobbying and education is another obvious example. International organizations with similar aims include the Open Rights Group in the United Kingdom.9 48

Organizing has also taken place around particular cases--such as Eldred v. Ashcroft, the challenge to the Sonny Bono Copyright Term Extension Act.10 Activity is not confined to the world of copyright. The Public Patent Foundation combats "patent creep"

by exposing and challenging bad patents.11 49

It would be remiss not to mention the international Access to Knowledge, or A2K, movement, inspired by the work of Jamie Love.12 While its focus is on the kinds of issues represented by the access-to-medicines movement, it has made the idea of balance in intellectual property and the protection of the public domain one of its central components. Mr. Love himself is also the central figure behind the idea of a Research and Development Treaty which would amend international trade agreements to make intellectual property merely one of a whole range of economic methods for stimulating innovation.13 His work has touched almost every single one of the movements discussed here.

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The Access to Knowledge movement has many inst.i.tutional variants. The Development Agenda at the World Intellectual Property Organization (WIPO), put forward by India and Brazil, includes similar themes, as do the Geneva Declaration and the Adelphi Charter produced by the United Kingdom's Royal Society for the Encouragement of Arts, Manufactures and Commerce.14 History is full of wordy charters and declarations, of course.

By themselves they mean little. Yet the level of public and media attention paid to them indicates that intellectual property policy is now of interest beyond a narrow group of affected industries. To underscore this point, several major foundations have introduced intellectual property initiatives, something that would have been inconceivable ten years ago.15 51

Finally, to complete the a.n.a.logy to the land trust, we have the organizations I mentioned earlier, such as Creative Commons and the Free Software Foundation.16 The latter group pioneered within software the attempt to create a licensed "commons" in which freedoms are guaranteed. The licensed commons replaces the law's default rules with choices made by individuals, the effects of which are magnified by collective action. The end result is a zone of public freedom enabled by private choice.

52

If one looks at these inst.i.tutions and actors and at the range of issues on which they focus--from software to drug patents, from reverse engineering to access to archival records--the obvious question is, how did they overcome the collective action problem? What ties together a critique of digital locks and the access-to-medicines movement? Again, I think the answer points to the usefulness of the environmental a.n.a.logy. As I pointed out, the invention of the "environment" trope tied together groups whose interests, considered at a lower level of abstraction, seemed entirely different--hunters and birdwatchers, antipollution protesters and conservation biologists. The idea of the "environment" literally created the self-interest or set of preferences that ties the movement together. The same is true here. Apparently disparate interests are linked by ideas of the protection of the public domain and of the importance of a balance between protection and freedom in cultural and scientific ecology.17 53

But even a broad range of initiatives and inst.i.tutions would not, in and of themselves, produce results. One must convince people that one's arguments are good, one's inst.i.tutional innovations necessary, one's horror stories disturbing.

Environmentalism has managed to win the battle for clarity--to make its points clearly enough that they ceased to be dismissed as "arcane" or technical, to overcome neglect by the media, to articulate a set of concerns that are those of any educated citizen. The other striking phenomenon of the last ten years is the migration of intellectual property issues off the law reviews or business pages and onto the front pages and the editorial pages. Blogs have been particularly influential.

Widely read sites such as Slashdot and Boing-Boing have multiple postings on intellectual property issues each day; some are rants, but others are at a level of sophistication that once would have been confined to academic discussion.18 Scientists pa.s.sionately debate the importance of open access to scholarly journals. Geographers and climatologists fume over access to geospatial data. The movement has been p.r.o.nounced enough to generate its own reaction. The popular comics site "xkcd" has strips critical of the Digital Millennium Copyright Act,19 but also a nerdily idyllic picture of a stick figure reclining under a tree and saying, "Sometimes I just can't get outraged over copyright law."20 That cartoon now resides on my computer desktop. (It is under a Creative Commons license, ironically enough.) 54

Who can blame the stick figure? Certainly not I. Is it not silly to equate the protection of the environment with the protection of the public domain? After all, one is the struggle to save a planetary ecology and the other is just some silly argument about legal rules and culture and science. I would be the first to yield primacy to the environmental challenges we are facing.

Ma.s.s extinction events are to be avoided, particularly if they involve you personally. Yet my willingness to minimize the importance of the rules that determine who owns science and culture goes only so far.

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A better intellectual property system will not save the planet.

On the other hand, one of the most promising sets of tools for building biofuels comes from synthetic biology. Ask some of the leading scientists in that field why they devoted their precious time to trying to work out a system that would offer the valuable incentives that patents provide while leaving a commons of "biobricks" open to all for future development. I worry about these rules naturally; they were forced to do so. A better intellectual property system certainly will not end world hunger. Still it is interesting to read about the lengthy struggles to clear the multiple, overlapping patents on GoldenRiceTM--a rice grain genetically engineered to cure vitamin deficiencies that nearly perished in a thicket of blurrily overlapping rights.21 56

A better intellectual property system will not cure AIDS or rheumatoid arthritis or Huntington's disease or malaria.

Certainly not by itself. Patents have already played a positive role in contributing to treatments for the first two, though they are unlikely to help much on the latter two; the affected populations are too few or too poor. But overly broad, or vague, or confusing patents could (and I believe have) hurt all of those efforts--even those being pursued out of altruism. Those problems could be mitigated. Reforms that made possible legal and facilitated distribution of patented medicines in Africa might save millions of lives. They would cost drug companies little. Africa makes up 1.6 percent of their global market.

Interesting alternative methods have even been suggested for encouraging investment in treatments for neglected diseases and diseases of the world's poor. At the moment, we spend 90 percent of our research dollars on diseases that affect 10 percent of the global population. Perhaps this is the best we can do, but would it not be nice to have a vigorous public debate on the subject? Some possible innovations are much easier. A simple rule that required the eventual free publication online of all government-funded health research, under open licenses, rather than its sequestration behind the paywalls of commercial journals, could help fuel remarkable innovations in scientific synthesis and computer-aided research while giving citizens access to the research for which they have already paid.

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Good intellectual property policy will not save our culture. But bad policy may lock up our cultural heritage unnecessarily, leave it to molder in libraries, forbid citizens to digitize it, even though the vast majority of it will never be available publicly and no copyright owner can be found. Would you not prefer the world in which your children could look at the Library of Congress online catalogue and click to get the book or film or song that otherwise languished as an "orphan work"?

Good intellectual policy will not necessarily give us great new music. But the policy we have today would make some of the music we most cherish illegal, or at least legally questionable. Does that inspire confidence for the future? As for the World Wide Web, I offer again my thought experiment from the first part of this chapter. Would we be more likely to invent it or forbid it today? We are certainly working busily to change the openness of the general-purpose computer, the neutrality of the network, and the degree of control that content companies can exert over hardware.

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I do not claim that the issues I have written about here are the most important problem the world faces. That would be ridiculous. But I do claim that they are facets of a very important problem and one to which we are paying far too little attention.

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I would also be the first to admit that these issues are complicated. Even if we heeded the precepts I have outlined in this book, even if we actually started to look at intellectual property as an empirical question, even if we turned to data rather than faith for our a.s.sessments, reasonable people would disagree about much. Some of the most ludicrous recent excesses--huge retrospective copyright term extensions, database rights, proposed webcasting treaties, business method patents--do not pa.s.s the laugh test, in my view and that of most scholars.

Stopping and then reversing that tide would be valuable, even transformative, but other issues are a closer call.

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It is also true that we do not have all the tools we need. A lot remains to be done, both academically and practically. We need better evidence. We need property theories that give us as rich a conception of property's outside--of the public domain and the commons--as we have of property itself. We need to rethink some of our policies of international harmonization and reconsider what types of policy actually benefit the developing world. We should explore ways of compensating artists that are very different from the ones we use now, and study the use of distributed creativity and open source in new areas of science and culture.

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Difficulties aside, I have tried here to show that we need a cultural environmental movement, a politics that enables us first to see and then to preserve the public domain, to understand its contributions to our art, our technology, and our culture. Where is that movement now?

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There is cause for both concern and optimism. Concern, because it is still hard for courts, legislators, policy makers, and citizens to see beyond the word "property" to the reality underneath. I started this book with the question from my son about the online catalogue of the Library of Congress: "Where do you click to get the book?" In 2003 the Supreme Court heard Eldred v. Ashcroft, the challenge to retrospective copyright term extension. Over two strong dissents, the Court upheld the const.i.tutionality of the act against both First Amendment and Copyright Clause challenges. The dead had their copyrights extended yet again. The widest legal restriction of speech in the history of the Republic--putting off-limits most twentieth- century books, poems, films, and songs for another twenty years without a corresponding speech benefit or incentive--can proceed without significant First Amendment review. Does such a decision mean the task this book undertakes--to take seriously the contributions of the public domain to innovation, culture, and speech--is ultimately doomed, whatever its intellectual merits, to face a hostile or uncomprehending audience? Admittedly, Eldred focused specifically on two particular const.i.tutional claims. Still, the att.i.tude of the majority toward the importance of the public domain--whether in the textual limitations on Congress's power or the application of the First Amendment--can hardly be cause for optimism. And yet . . . The media reaction was remarkable.

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The New York Times was sufficiently unfamiliar with the term "public domain" that it was not entirely sure whether or not to use the definite article in front of it. But unfamiliarity did not imply complacency. An editorial declared that this decision "makes it likely that we are seeing the beginning of the end of public domain and the birth of copyright perpetuity. Public domain has been a grand experiment, one that should not be allowed to die. The ability to draw freely on the entire creative output of humanity is one of the reasons we live in a time of such fruitful creative ferment."22 The Washington Post, though more inclined to agree that retrospective extension might be const.i.tutional, declared the copyright system to be "broken"

in that it "effectively and perpetually protects nearly all material that anyone would want to cite or use. That's not what the framers envisioned, and it's not in the public interest."23 64

I could not agree more. But as I have tried to show here, the process is not limited to copyright, or culture, or texts, or the United States. Think of the stories about business method patents, or synthetic biology, or the regulation of musical borrowing on the atomic level. Think of the discussion of the openness aversion that began this chapter. In the middle of the most successful and exciting experiment in nonproprietary, distributed creativity in the history of the species, our policy makers can see only the threat from "piracy." They act accordingly. Our second enclosure movement is well under way.

The poem with which I began Chapter 3 told us: "And geese will still a common lack / Till they go and steal it back." I cannot match the terseness or the rhyme, but if we a.s.sume that the enclosure of the commons of the mind will bring us prosperity, great science, and vibrant culture, well, we will look like very silly geese indeed.