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Abstract
The basic issue examined in this chapter is how can open access be achieved through the instrument of contracts. In the digital environment right holders have the power to restrict access to works by using restrictive contractual terms enforced by means of technical measures. As a counterbalance to the extended authority of the right holder, open access movements have appeared which express the users’ need to have open access to creative content. It is put forward that the terms used in contractual forms that have been standardized and express the ideology of open content are not always compatible with the existing copyright law contractual provisions and the way in which collective management functions.
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The paper examines the legal strategy of Creative Commons and analyzes its potential for enhancing the sharing, distribution and reuse of creative works. The paper focuses on Creative Commons's strategic choice to rely on property rights and on viral contracts to promote free culture. While I share Creative Commons's concern with copyright fundamentalism, I am more skeptical of its strategy. The legal strategy which empowers owners to govern their creative works facilitates a far-reaching coalition among libertarians and anarchists, anti-market activists and free-market advocates. While such an ideological diversity might serve the political goals of a social movement, it may compromise the long term goal of making creative works more accessible. The lack of a core perception of 'freedom in information', may lead to ideological fuzziness that would weaken the prospects for constructing a workable and sustainable alternative to copyright. Furthermore, absent a commitment to a comprehensive standard of 'freedom in information', Creative Commons's defining principles are reduced to empowering authors to govern their own work. The paper predicts that this strategy may strengthen the proprietary regime in information.
PRIVATISATION OF INFORMATION BY INTELLECTUAL PROPERTY: WHICH REMEDIES FOR LITTERARY AND ARTISTIC PROPERTY ?
Information is at the heart of the knowledge economy and is increasingly sought after. Information also lies at the centre of intellectual property, even if it has been traditionally left outside the field of reservation. In addition to a recent evolution, some basic principles have progressively fallen from view and the subject has experienced a deep mutation. Copyright was originally designed to protect the author and to provide incentives for him to create for the benefit of society. Nowadays, it is more and more often presented as a mechanism to protect investment. Furthermore, the access to works in the digital environment has been restricted by technical measures, which are at the same time protected by anti-circumvention law. This mutation has had a certain influence over the free use of information, which has been called into question in many regards. This contribution seeks to first trace back this evolution, acknowledging the tendency towards a privatisation of information through copyright (understood here in an extended sense, including neighbouring and sui generis rights). Secondly, it successively proposes three types of remedie : first, returning to basic principles in applying rules belonging to this subject; second, re-establishing these principles through rules outside copyright law, such as competition law, media law and fundamental rights; and third, re-evaluating and reshaping existing rules in the light of their new paradigms.
Intellectual property law is a subject of increasing economic importance and the focus of a great deal of legislative activity at an international and regional level. This 2004 collection brings together contributions from some of the most distinguished scholars in this exciting and controversial field, covering the full breadth of intellectual property law, that is, patents, copyright, trade marks and related rights. The contributions examine some of the most pressing practical and theoretical concerns which intellectual property lawyers face. These include: expanding the boundaries of IP in the face of new challenges, such as appropriate legal responses to digitisation and new technologies; relations between developed and developing worlds; the relationship between different legal traditions in a world of increasingly shared international norms; and the relationship between intellectual property rights and other areas of law, such as contract and criminal law.
Creative Commons is a non-profit U.S. based organization that operates a licensing platform to promote free use of creative works. The idea is to facilitate the release of creative works under generous license terms that would make works available for sharing and reuse. Creative Commons advocates the use of copyrights in a rather subversive way that would ultimately change their meaning. The paper expresses a skeptical view of this worthy pursuit. While I share Creative Commons' concern with copyright fundamentalism, which inevitably leads to the propertization of everything of value, I am more skeptical of its strategy. The paper explores the legal strategy of Creative Commons and analyzes its potential for enhancing the sharing, distribution and (re)use of creative works. Creative Commons as a social movement creates a platform for a wide range of ideologies that share an interest in enhancing access to works. This turns out to be a great advantage for a social movement that is seeking to gain a wider public support. Creative Commons' legal strategy reflects the lowest common denominator: empowering owners to govern their creative works. At the same time, however, Creative Commons lacks a comprehensive vision of the information society and a shared definition of the prerequisites for open access to creative works. The end result is ideological fuzziness. The paper examines the strategic choice of Creative Commons to rely on property rights in its effort to subvert the meaning of copyright. The analysis shows that reliance on property rights, in the absence of a shared sense of free access, may simply strengthen the proprietary regime in creative works. It may reinforce the property discourse as a conceptual framework and as a regulatory scheme for governing the use of information. The fuzziness of ideology may further lead to the proliferation of contracts. Creative Commons' strategy presupposes that minimizing external information costs is critical for enhancing access to creative works. The lack of standardization increases, however, the cost of accessing creative works, and may further enhance the chilling effect of copyright law. The paper argues that creating an alternative to copyright may require standardization. To become successful, Creative Commons would have to trade the sovereignty of owners for the reduction of transaction cost that would enhance access to creative works.
This essay addresses how current U.S. copyright law responds to new forms of distribution of copyrighted works, through the emerging right to control digital access to copyrighted works, as set out in ? 1201 of the 1998 Digital Millennium Copyright Act. When the exploitation of works shifts from having copies to directly experiencing the content of the work, the author's ability to control access becomes crucial. Indeed, in the digital environment, without an access right, it is difficult to see how authors can maintain the exclusive Right to their Writings that the Constitution authorizes Congress to secure. Even if Congress may qualify the right's exclusivity by imposing a variety of compulsory licenses, or outright exemptions, it is one thing to introduce specific and narrow gaps in coverage, quite another to design a system that pervasively fails to afford meaningful exclusivity. The latter course would be inconsistent with the constitutional design. Thus, the exclusive Right today is not only a copy-right, but an access right, and the Essay explores the implications of that claim. It does not contend that the access right will or should supplant copy-right. On the contrary, the claim is that the access right is an integral part of copyright, and therefore should be subject to exceptions and limitations analogous to those that constrain copy-right. Just as a 21st-century copyright regime that did not regulate access would be unrealistic and incomplete, so a regime that limits all availability to works to the copyright owner's terms would undermine the progress of Science that the author's exclusive Right is intended to promote. Without an appropriate fair use limitation, the access right under ? 1201 becomes more than a necessary and integral component of copyright law. It becomes instead an Uber-copyright law, rigid as to specified exceptions, and therefore freed of further inquiry into the balance of copyright owner rights and user privileges that the fair use doctrine ? and the general structure of copyright law ? require.
"The thesis presented here is that the trends of distributed computing and open paradigms for scholarly exchange have relaxed the boundaries between stakeholders, allowing more permeable and overlapping roles. Content once fettered by physical constraints has been loosened. The conventions of scholarly communication have been stretched and opened to a wider audience. The products of publication have become more process-like. The roles of libraries have also changed to embrace new opportunities for facilitating and shaping content, communication, and collaboration. This paper explores the changes underway and in particular the new ways in which the research library?s role as archive or steward of information goods is being transformed as a collaborator and potentially a catalyst within interest-based communities. "While the discussion here will not focus on the concept of a commons per se, a central premise of this analysis involves the interplay of stakeholder roles within the scholarly information commons. The intent is to provide a review of key themes and a practical exploration of roles, culminating with potential opportunities for libraries in the future. "Hess and Ostrom's (2004) organizing framework for this workshop notes the convergence of forces within the commons, citing the hyperchange brought about by 'linear, exponential, discontinuous, and chaotic change.' The exploration here includes instances of linear change (extrapolation from past models) as well as discontinuous change (innovation) and will suggest that the fundamental social norms and constraints of discipline communities explain a good deal of the variability in the adoption of new scholarly communication models. Further, while research libraries have potential to affect change, sensitivity to context ? to the prevailing norms ? will be absolutely key. This focus also poses significant challenge and potentially significant cost for the library. "To understand the contemporary environment, we will first address the traditional conventions of scholarly communication and the traditional archival role of libraries in that environment. Then, to set the stage for an analysis of new, more engaged and collaborative roles for libraries, the transformations underway in content and communication processes will be pursued. With this investigation as backdrop, we can then explore library engagement within discipline communities and in shaping scholarly communication processes."
"This is a workshop about the commons and scholarly communications. I was honoured to be invited to it, and even played a small role in asking Elinor Ostrom and Charlotte Hess to write one of the original papers that helped focus the inquiry. I have written extensively about intellectual property, the public domain and the commons and care deeply about the future of scholarly communications, particularly in the sciences. Designing an architecture for freer and more usefully accessible scholarly work is a fascinating task, and I agree with many of the participants that the literature on the commons has a number of insights to offer. So I was both pleased and excited to be given the task of writing about the commons and the public domain in scholarly communications. This enthusiastic prologue notwithstanding, I am going to stray from that task -- one that is performed ably by others in this distinguished group -- and instead suggest that we need to think still more broadly about our subject matter. My topic is Mertonianism beyond the world of scholarly communications: the impact that more open access to cultural and scientific materials beyond the academy might have on scholarship, culture and even science. One implication of the commons literature is that in attempting to construct a 'comedic' commons, one must think very carefully about its boundaries -- the limits on who may use it and for what types of use. The tendency of my argument here is that, in the scholarly communications commons, the boundaries ought to be very wide indeed: one important design principle is that wherever possible neither use, nor contribution, nor ability to participate in the fine-tuning of the system should be restricted to professional scholars."
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