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A Call for Copyright Rebellion

November 6, 2009

DENVER -- The manner in which copyright law is being applied to academe in the digital age is destructive to the advancement of human knowledge and culture, and higher education is doing nothing about it.

That is what Lawrence Lessig, the Harvard University law professor and renowned open-access advocate, told a theater of higher ed technologists Thursday at the 2009 Educause Conference here. In his talk, Lessig described how digital and Web technology has exploded the conditions under which copyright law had been written.

“If copyright law, at its core, regulates something called ‘copies,’ then in the analog world… many uses of culture were copyright-free,” he explained. “They didn’t trigger copyright law, because no copy was made. But in the digital world, very few uses are copyright-free because in the digital world … all uses produce a copy.”

The paradigm for copyright law enforcement emerged out of this "analog world" as a way of ensuring authors were remunerated for their contributions to culture, thereby creating an incentive to make further contributions and drive the progress on human art and discovery forward, he said.

Times have since changed, said Lessig, but the letter of the law hasn’t.

Copyright law was originally intended to protect those who create for profit (Lessig used the example of recording artist Britney Spears). But academics also create original works, he said, and they are — or should be — motivated by a desire to advance human knowledge, not line their pockets. Therefore, sealing their work behind copyright barriers does no social good.

“If there’s a business model of science, or a business model of education,” Lessig said, “that depends upon sharing, depends upon sharing resources in common and that builds upon that common set of resources — how does the paradigm case help that business model?”

It does to an extent, Lessig allowed. Absolute open access does weaken the incentive to create insofar as scholars crave some tangible remuneration for their commercially published works. The solution to the problem, he said, probably lies in hybrid systems such as Creative Commons, of which he is a board member. Creative Commons licenses allow authors to designate what portions of their work can be copied and how it may be used, thereby avoiding the “thicket” of the copyright system — where, Lessig said, things are never nearly that simple.

Lessig cited several examples of how copyright law in academe has hampered the pursuit of knowledge: neurologists who were unable to aggregate data for a large-scale brain-mapping project due to copyright restrictions; filmmakers who faced staggering costs re-clearing copyrights on images they used in a civil-rights documentary series when they wanted to release it on DVD. He even recounted a recent incident in which he had been using a medical information Web site to try to diagnose his ill daughter, when he noticed a note that said portions of an article he was reading had been redacted under copyright law.

“What we need to do is to act to avoid this thicket,” he said, “at least where it’s clear this thicket doesn’t give us anything good.”

Academics — presumably stakeholders in the effort to advance knowledge — have been uncharacteristically and disturbingly silent on the copyright “insanity” that has befallen the information trade, Lessig said.

“We should see a resistance to imposing the Britney Spears model of copyright upon the scientist or the educator,” he said. “…But if you would expect that, you would be very disappointed by what we see out there in the scientific and and education communities.” Scholars, he said, have allowed the copyright conversation to be steered by lawyers and businesses who are not accountable to intellectual discovery.

To those shiftless academics, Lessig delivered a simple message: “Stop it.”

 

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