From A2K Wiki

Contents 1 Panel Description 2 Speakers 3 Panel Notes 3.1 Niva Elkin-Koren - Vice-Dean at Univ of Haifa School of Law 3.2 Rishab Ghosh - Program Leader at UN University; Founder and Managing Editor of First Monday; Board Member of Open Source Institute 3.3 Nnenna Nwakanma - Co-founder of FOSSFA; consultant to governments, businesses, and other organizations 3.4 Brian Fitzgerald - Head of Queensland University of Technology; involved in Creative Commons Australia 3.5 Mark Cooper - Director of Research at the COnsumer Federation of America; Fellow at Stanford's Center for Information and Society 3.6 Q & A 3.6.1 Note taker 1 3.6.2 Note taker 2 4 Resources & Links

Panel Description

Clearly a significant

shift in the modes and means of production, consumption and exchange of work in many fields has been taking place in recent years. Cutting across the boundaries of fields as diverse as software, music, scholarly-publishing and agri-biotech, peer-based production sometimes replaces traditional production models of firms and markets across the economy. These new collaborative modes of production shift the constraints of innovation from access and control of capital to human creativity instead. To a large degree such innovation is dependant upon novel social arrangements that are, in turn, mediated and governed by licenses of various sorts. As we know, licensing is a common mechanism of defining, controlling and transferring ownership rights in tangible or non-tangible goods. Most licensing arrangements work under the premise that production, exchange and consumption are separate processes, however, as our society and economy depart from the Fordist-Taylorist assembly line models and espouse 'remix' as a predominant cultural mode, this very assumption is put into question. Licenses such as the GPL, and the Creative Commons, offer alternatives to "traditional" licenses, governing "traditional" production, and are playing a significant role in this shift. As peer based production matures, it becomes essential to investigate the role of licenses for this new collaborative world and their implications for innovation, business models, and societal effects.

Scholarly discourse on these topics has been taking place for a while in different disciplines. Mainly focusing on software, several theories have been proposed in economics, innovation studies, sociology and legal thought to explain scope and modes of collaborative software development, the motivation of developers to release their work under licenses such as the GPL, the motivation of developers to participate in open source projects, and the participation of businesses in open source projects. Understanding that licenses reflect and try to resolve, legal, social, economic and technological constraints the objective of this symposium will be to bring together legal scholars, economists, social scientists and technologists to discuss the special role of licenses in this 'open' world. What is the role of licenses when the very category of 'owner' is diffused? What implication might the choice and design of licenses have on innovation? How might it affect the participation of businesses in collaborative projects? How might it influence the culture of production, and what pubic policy implications might it have Are there principles that are applicable in various domains? Are there lessons to be learned from the experience gained over two decades of free and open source software that has been pioneering these paradigm shift (the majority of which has been licensed under the GPL)?

Speakers

Speakers: Niva Elkin-Koren (paper), Rishab Ghosh, Nnenna Nwakanma, Brian Fitzgerald, Mark Cooper

Moderator: Karsten Gerloff

Panel Notes

Shay: One of the concrete mechanisms by which A2K practices are taking place. Key questions: How can licenses promote or hinder A2K? How are they related to the underlying social movements in A2K?

Niva Elkin-Koren - Vice-Dean at Univ of Haifa School of Law

• Creative Commons and contract law is a "second-best" option, inferior to reforming copyright law fundamentally.
  • Strategy of CC may be self-defeating and may introduce barriers to access.
  • The choice is between "no entry" (copyright) and "limited entry" (CC).
  • Creative Commons's strategy emphasizes choice, unlike GPL and others.
    • The range of choices available to authors limits the ability of consumers to understand their rights.
  • Creative Commons offers a vision that works are communications, not commodities. Despite this, its license does not clarify "freedom of information" or ensure that any such freedom is maintained.
    • Instead, leaving every decision in the author's control reinforces that works are owned and controlled by their authors as they please. Also reinforces that authors may license works however they see fit, and that a license is necessary for every use.
  • CC is not the origin of this normative message, but it fails to replace it.
  • CC also worsens the problem by making it easier for authors to impose licenses and to enforce them (by making the licensing process simpler).
• There are some reasons for pessimism in future use of CC.
  • Data collected is concerning.
    • A majority of users opt for more restrictive licensing options, such as a prohibition of derivative works (used by 1/3 of licensors).
  • Enforcement in practice is concerning.
    • Lawsuit in Australia concerning the publication by Weekend magazine of pictures posted on Flickr (and covered by CC license).
    • It seems like CC licenses are used to impose a high duty of investigation on consumers, even those who don't know or understand the terms.
• Challenge for CC: convert its success in developing products into a long-term sustainable movement that protects access.
  • Must create a principle of "freedom of information".
  • Must narrow the options of authors in order to uphold that principle.
• What constitutes an "optimal standardization"?
  • Must measure by type of standards and how they serve access.
  • Popular current standards
    • Attribution/share-alike
    • Attribution/non-commercial
  • Attribution/share-alike is most consistent with access, but it may be too radical for CC to impose this type of license on all authors at this point.
  • If Attribution/non-commercial is to become widely used, CC would likely need to relax its definition of "non-commercial" to make the license more useable.
  • If CC drops the share-alike requirement, it must retain some sort of follow-up requirements for users, in order to preserve access.

Rishab Ghosh - Program Leader at UN University; Founder and Managing Editor of First Monday; Board Member of Open Source Institute

• IP rights protect "creations", not "creativity" - they reward past creations at the expense of potential future creations.
  • Mechanics - a work is created, and a monopoly is granted to its creator.
  • Differences in the nature of the monopoly between patent and copyright.
    • In particular: patent prevents independent creation, copyright doesn't.
• Collaborative creation is an alternative to monopoly ownership.
  • Collaborative ownership is a strong historical institution.
  • Free/Libre/Open Source Software (FLOSS) is current popular instance.
  • Plug for book: CODE - Collaborative Ownership and the Digital Economy.
• FLOSS
  • FLOSS (e.g. Linux) includes major works with many common authors.
  • FLOSS is not public domain; it does impose restrictions on use.
  • FLOSS says nothing about ownership. Copyright law, though, creates ownership rights in the writer of each individual line of code. But as this is a form of ownership, it can be given away.
  • More common, though, is licensing, e.g. through FLOSS licenses.
    • Two FLOSS licensing models: "permissive" (close to public domain freedoms) and "reciprocal" ("protected commons")
    • Proprietary licenses often impose additional requirements on use that go above the restrictions of copyright law. Famous example: McAfee virus software license prohibited writing a critical review of the software. These are governed by contract law.
    • Reciprocal licenses generally include a share-alike term (e.g. GPL).
      • Reciprocal licenses are enforced by copyright, not contract, as they are based on a subset of copyright rights and do not add to copyright's restrictions.
      • Firms releasing software will often use GPL, as it prevents competitors from gaining competitive advantage using their software.
      • Reciprocal licenses encourage disclosure, collaboration, and innovation.
• Final point: Patents are different from copyright - they are "essentially incompatible with FLOSS".

Nnenna Nwakanma - Co-founder of FOSSFA; consultant to governments, businesses, and other organizations

• Title: Taking an African Development look at licenses in A2K

• All arrows point to the same direction.
  • We keep talking here about access to knowledge; we are all trying to make the same thing happen. We agree on certain core values, such as knowledge, access, improvement, human benefit, wealth building, and the eradication of poverty.
• Two sides to this problem:
  • One: The "International" view
    • Looks at licenses, WIPO, treaties, corporations, schools, conferences, and so forth.
    • The WIPO building is huge; IP is a big business, with lots and lots of money.
    • Most of the treaties focus on the developed world and on giant corporations, and do nothing for Africa and developing countries.
  • The other: The "Local" view
    • The African reality and heritage is different - it focuses on community, on family, on the village, and on the local market place.
    • There is no theorizing, no analysis of "users" and "producers".
• There is a challenge in Africa, which has two choices:
  • We can either build on the current African system - build on community production, use, access, and enhancement.
  • Or we can adopt the Western paradigm, focusing on individuals and solitary behavior.
• We need to go "Idlelo"
  • "Idlelo" = "common grazing ground"
  • "Contribute to the community, remain part of it and retain 'individuality'."
  • We have a collective responsibility to build and to protect knowledge
  • We should: Preserve a right to copy; encourage sharing, building, creating, social responsibility; advocate a "duty to develop".
  • We should not: Drive users underground; set aside people to deal with laws; we should not restrict another's creation.
  • Our duty is to work together as a global community and preserve solidarity.

Brian Fitzgerald - Head of Queensland University of Technology; involved in Creative Commons Australia

• Title of talk: Communicative Practice and the Rise of the "Knowledge Relationship"

• Peer production and the iCommons
  • Four main protocols
    • Attribution
    • Non-commercial
    • No derivatives
    • Share alike
  • Also some moral rights issues, e.g. in Australian license
• Substance of CC
  • Presentation of details of Creative Commons and flagship applications, such as the Wired CD of November 2004 and the BBC's Creative Archive.
  • Presentation of CC tools, CC search engines, and other tools such as ccMixter.
  • CC is not anti-copyright. CC provides a great deal of motivation for sharing.
  • Presentation of many other advantages and benefits of CC.
  • Access to publicly funded research: See The OAK Law Project (http://www.oaklaw.qut.edu.au)
• Relation of CC to "The Knowledge Relationship"
  • The ultimate question is the relation to a piece of knowledge.
  • License is a communication protocol in setting up the knowledge relationship.

Mark Cooper - Director of Research at the COnsumer Federation of America; Fellow at Stanford's Center for Information and Society

• Talk centers on the knowledge commons. 4 objectives in talk:
  • Sharpen the understanding by discussing the economics of public goods and the commons.
  • The need to preserve open exchange of information is even greater in the modern age; knowledge is "anti-rival" and inclusive.
  • All commons have knowledge rules.
  • Under the current mixed regime of privatization and commons, licenses are an answer and perhaps the answer.
• Presents an analysis of economic characteristics of collaborative goods.
  • The value of exclusion is even more suspect than in the commons.
  • We have moved from non-rivalry to anti-rivalry, in which there is a positive benefit to pulling people in.
  • There is a comparative advantage in collaborative goods.
• Collaborative productions must break free from the chains of typical governance rules. Licenses may be the solution to this.
  • There are many features of licenses that promote circulation of ideas.
  • Licenses are a boundary area between the commons and proprietary goods.
• The flexibility in CCL reflects a fundamental difference between functional and cultural goods.
  • Software is a functional good - it achieves a task.
  • Cultural goods define their primary value from end-use consumption.
  • These differences should be seen as flexibility rather than error.

Q & A

Note taker 1

Q1: Criticism of EK's separation of copyright from contract in licenses; both reflect a social contract. Also premature to narrow the options at this point in time.

A (EK): Contract is a privately ordered regime, and does not adequately address the distinction between the desires of creators and of users. These decisions should be made through public ordering. Private ordering frames the debate towards individual control and away from a freedom of use and from creation.

Q2: If we had an opt-in copyright regime, would EK's criticism of CC be irrelevant?

A (EK): If copyright were opt-in, we might not need CC at all (because people just wouldn't bother acquiring copyright).

Q3: If today's regime were not so strict (e.g. equivalent to a basic CC license), would EK's concern still exist? In other words, is the concern one of the private ordering per se, or is it just that CC gives up too much in the compromise (i.e. we haven't moved far enough towards open access).

A3 (EK): It would still be problematic. There is a fundamental problem with the private ordering regime. Having a more limited copyright regime to begin with helps some of the problems, but CC is still not the solution to the rest.

Note taker 2

Andrew Rens: CC turns people from consumers to makers of copyright. when it does so, it moves them from being individual consumers of industry product to people who create their own works and then share them. So it subverts the idea that works emerge from the romantic author. These subversions are sufficiently powerful to make CC worthwhile.

It is premature to narrow the licenses. The movement is still young, especially in the developing world. We don't know yet what developers have done with it.

Niva Elkin-Koren: Once you rely upon a private ordering regime, contract, the choice is in the hand of the individual. That could be a good thing, but we are sometimes users and sometimes authors, and we would want to have the perspective of both. We all want to use the work of others, but we sometimes don't want many others to use our own work. I think the problem is that we want to make these decisions a veil of ignorance. That is what public ordering is all about -- this is why we do things through legislation. We all know that given the current political economy there is no chance -- it's all going to happen in copyright law. But this is why I see contract as a second best option.

[missed]

Nimrod Kozlovski: [missed]

Elkin-Koren: I think the purpose of A2K is to empower people, not machines. DRM has problems. I would rather rely on human spirit, and make it easy for us to see an icon that is meaningful to us. Simplicity is the key and I prefer that people can use it themselves rather thand epending on new intermediaries.

I think formalities would make things better, of course. CC is useful only if we have to opt out of copyright. If we don't have to do that maybe we don't need CC.

Rishab Ghosh: The Dutch court actually said that due diligence should've been done by the publisher b/c it had the resources to do so. It doesn't mean individuals would have to do that. And not much due diligence was required in that case, b/c if you had clicked on the CC logo you would have seen the terms.

Elkin-Koren: The problem w/this argument is that it is as easy as Adobe having its license -- it's actually not that easy. You have to read and understand it.

Ghosh: If you're a commercial publisher it's not too hard.

Brian Fitzgerald: We're working with a copyright system that's not going to change quickly. I wanted to highlight a practical point as to why CC has become popular, at least in my jurisdiction: If I put something on the web and don't communicate the copyright terms, it creates liability for anyone who copies it. This is very important in education, for example.

James Grimmelmann: This is an interesting discussion in a world we need to have the second best. So it's interesting to think about how much we need these solutions in a more perfect A2K world. How does this discussion map out to other regimes than copyright, even when the other regimes are not as totalizing as copyright. To Niva, how much of your argument still holds in an environment where there is a strong pro-creator message in the way rights are granted. If the current default rights were a 28 year term w/o strong derivative use, or were equivalent to one of the less restrictive CC licenses, would you still feel that CC was as dangerous as a matter of private ordering. Or do you think these are dangerous in the political economy of the world we are operating in.

Elkin-Koren: It's a fascinating test case to say let's forget about legislation, and take the law in our own hands, to copy a CC slogan, and change it through contracts. That could be a fascinating test case for many areas -- there are lots of laws we're not happy about. I still think that changing the law would be the right way. What CC has achieved is impressive and important, significant in terms of a social movement. I worry that rather than protesting and speaking out to political reps we are making our lives more copyrighted.

Cooper: I would go back to von Hippel's observation from yesterday. 25 years is an eternity from the point of view of collaborative production. In digital techs, the number of patents you have to negotiate creates transaction cost drag. The licenses let us get to the commons very quickly.

Fitzgerald: [missed]

Nnenna Nwakanm: In Africa the CC makes the content available -- people then don't have to worry about infringement. The idea of copyright is not to say don't copy, but that is the feeling many people get. Copyright = close, CC = open.

?: I am deeply troubled by monolithic notions of knowledge or culture. These terms cover a spectrum of things, from news to indigenous knowledge, to patents. All of these have their distinct economic, legal, cultural, technological context.

Elkin-Koren: I agree. There is room for variety. I don't think we should abolish freedom of contract. CC is about something else.

Resources & Links

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