“We Need To Start Seeing Other Futures..”

Today is the second day of “Copyright Week!” Talk about a lede. That sentence has all the inherent excitement of “Periodontal Health Awareness Week” or “‘Hug Your Proctologist! No, After He’s Washed His Hands’ Week.” And that’s a shame. Copyright Week is a week devoted to our relationship with our own culture. Hint: things aren’t going well. The relationship is on the rocks. And the problem doesn’t lie with us. In all honesty, we need more space. We need to start seeing other futures. Because the shape of our copyright laws affects our networks of search and speech. Frequently, it determines our access to cultural objects, educational materials and scientific literature. It shapes the way music and documentaries are made (or not made). It can even determine the way that our technologies develop (or don’t.) So this is important stuff. Maybe we should pay attention. 2014-01-14-totalcontrol_pdd2013_topimage.jpg

Copyright week has a daily series of themes. Monday was transparency, the utterly radical idea that we should make important decisions about culture and technology openly. As I wrote in the Financial Times back in 2010,

Those of you who use that useful communications network known as “the Internet” might be interested to know that a treaty that could profoundly affect your rights is now being negotiated by a group of developed states including the United States and the EU. What is in the treaty? Well, that is something of a mystery. The treaty in question is called ACTA, the Anti-Counterfeiting Trade Agreement. When Knowledge Ecology International filed a Freedom of Information Act request for the draft of the treaty, the Obama Administration refused, claiming that this was “information that is properly classified in the interest of national security.

National security? It is irresistible to imagine Jack Bauer or Carrie Mathison, Glock leveled, telling us to move away from the Trade Agreement’s provisions on copyright infringement, or drug patents. “Step away from Article 1, sub para 4 or I shoot!” It would be funny if it wasn’t sad. ACTA died, thanks to unauthorized leaks and pressure in Europe. The office of the United States Trade Representative — which truly has behaved shamefully, assuming one believes that public servants should serve the public — is back at work, however, negotiating a new agreement called the Trans Pacific Partnership Agreement. That agreement, too, is classified and again we know about its contents only by leaks — leaks that may expose the leakers to criminal penalties. Great way to have a democratic dialogue. As Senator Elizabeth Warren commented,

I have heard the argument that transparency would undermine the Trade Representative’s policy to complete the trade agreement because public opposition would be significant. In other words, if people knew what was going on, they would stop it. This argument is exactly backwards. If transparency would lead to widespread public opposition to a trade agreement, then that trade agreement should not be the policy of the United States.

What a radical firebrand she is! Democratic accountability! What’s next? Demands for empirical evidence that our policies are a good idea?

January 14 2014, Tuesday of Copyright Week, is devoted to the public domain — the material that is free for all to read, share and reuse without permission or fee. I’ve written a book about how important the public domain is, (you can download it from here, free. Thank you Yale University Press!)

I won’t try and repeat all those arguments in this space, but here is just one. When this nation was founded, works went into the public domain after just 14 years — which turns out to be pretty close to what economists estimate is the economically optimal copyright term. Even as late as 1976, you only got 28 years of copyright protection, renewable for another 28 years if you wished. 85 percent of all copyright holders and 93 percent of authors did not renew. It was not worth it. But we kept renewing the copyright term and we did so retrospectively, sucking vast swaths of culture into copyright — frequently stuff that was commercially unavailable and where the author could not be found. No one benefited in other words. Copyright functioned entirely as a fence — barring entry but conferring no benefit.

Every year, my Center at Duke does a study of what would have entered the public domain, had we kept our old laws.

This what could have entered the public domain on January 1st 2014, if we still had the copyright laws we had in 1976.
2014-01-14-2014whatcouldhavebeen.jpg

And this is what we would have got in 2013.
2014-01-14-2013whatcouldhavebeencollage2.jpg

The sad thing isn’t  that a majority of our Supreme Court doesn’t believe that the public has any legally cognizable interest in the public domain. The sad thing is not even that we did not receive those works on the day copyright had originally determined they would enter the public domain. These famous works actually still are available — we can get them, just at a higher price and under more restrictions than we should have to bear. The sad thing is all the unknown works we have denied ourselves, for no good reason at all — torching our cultural heritage as effectively as anything the firemen in Fahrenheit 451 (a book that should have entered the public domain in 2010) could ever have done.

Now that is a tragedy. And perhaps good reason for us to take notice of Copyright Week. We need to start seeing other futures — because this relationship with our culture isn’t turning out too well.

Originally featured at http://www.huffingtonpost.com/james-boyle/copyright-week_b_4596424.html

Tuesday, January 14th, 2014 Uncategorized

From the Blog

  • Macaulay on Copyright

    Macaulay’s 1841 speech to the House of Commons on copyright law is often cited and not much read.  In fact, the phrase “cite unseen” gains a new meaning.  That is a shame, because it is masterful.  (And funny.) One fascinating moment?  When Macaulay warns that copyright maximalism will lead to a future of rampant illegality, as all happily violate a law that is presumed to have lost all moral legitimacy.

    At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot…  Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create.

    The legal change he thought would do that?  Extending copyright to the absurd length of life plus 50 years.  (It is now life plus 70).  Ah, Thomas, if only you could have been there for the Sonny Bono Term Extension debates.

  • Mark Twain on the Need for Perpetual Copyright

    This is the second in a series of postings of material drawn from our forthcoming, Creative Commons licensed, open coursebook on Intellectual Property.  The first was Victor Hugo: Guardian of the Public Domain The book will be released in late August.

    In 1906, Samuel Clemens (who we remember better by his pen name Mark Twain) addressed Congress on the reform of the Copyright Act.  Delicious.

  • Victor Hugo: Guardian of the Public Domain

    Jennifer Jenkins and I are frantically working to put together a new open casebook on Intellectual Property Law.  (It will be available, in beta version, this Fall under a CC license, and freely downloadable in multiple formats of course.  Plus it should sell in paper form for about $130 less than the competing casebooks. The accompanying statutory supplement will be 1/5  the price of most statutory supplements — also freely downloadable.)  More about that later.  While assembling the materials for a casebook, one gets to revisit the archives, reread the great writers.  Today I was revisiting Victor Hugo.  Hugo was a fabulous — inspiring, passionate — proponent of the rights of authors, and the connection of those rights to free expression and free ideas.

  • “We Need To Start Seeing Other Futures..”

    Today is the second day of “Copyright Week!” Talk about a lede. That sentence has all the inherent excitement of “Periodontal Health Awareness Week” or “‘Hug Your Proctologist! No, After He’s Washed His Hands’ Week.” And that’s a shame. Copyright Week is a week devoted to our relationship with our own culture. Hint: things aren’t going well. The relationship is on the rocks.

  • Discussion: “The Foolish War Against Song-Lyric Websites”

    Professor Alex Sayf Cummings, author of a fascinating book called Democracy of Sound: Music Piracy and the Remaking of American Copyright in the 20th Century (recommended as a  thought-provoking read)  has an interesting  post up about attempts to shut down music lyric sites such as Rapgenius.com.

  • The Top Ten List of a Conference Planner

    Academics (and others) arrange conferences.  Perfectly normal people are invited to those conferences to speak.  Most of them are just as charming as can be… but then there are the special ones.  This Top 10 List of the special people one has to respond to is devoted to all conference planners everywhere.  Hold your heads up high.  After this, purgatory should be a snap.

  • (EM)I Has A Dream

    EM(I) Has A DreamAugust 28th, 2013 is the 50th anniversary of Martin Luther King’s “I Have a Dream” speech. The copyright in the speech is administered by EMI, with the consent of the King family. Thus the speech may not be freely played on video or reproduced and costlessly distributed across the nation — even today. Its transient appearance depends on the copyright owner’s momentary sufferance, not public right. It may disappear from your video library tomorrow. It has even been licensed to advertise commercial products, including cars and mobile phone plans.

  • The Prosecution of Aaron: A Response to Orin Kerr

    Aaron Swartz committed suicide last week.  He was 26, a genius and my friend.  Not a really good friend, but someone I had worked with off and on for 11 years, liked a lot, had laughed with frequently, occasionally shaken my head over and deeply admired.

  • The Hargreaves Review

    An Intellectual Property System for the Internet Age

    James Boyle

    In November 2010, the Prime Minister commissioned a review of the Britain’s intellectual property laws and their effect on economic growth, quoting the founders of Google that “they could never have started their company in Britain” because of a lack of flexibility in British copyright..  Mr. Cameron wanted to see if we could have UK intellectual property laws “fit for the Internet age.”   Today the Review will be published. Its conclusion?  “Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth?  The short answer is: yes.” Those words are from Professor Ian Hargreaves, head of the Review.   (Full disclosure: I was on the Review’s panel of expert advisors.)

  • Keith Aoki — A Remembrance Book

    A slideshow and downloadable book remembering Keith in words and pictures.  You can order a glossy, high quality copy of the book itself here from Createspace or here from Amazon.  We tried to make it as beautiful as something Keith would create.  We failed. But we came close; have a look at how striking it is… all because of Keith’s art.

  • Now THAT is how you teach a class

  • RIP, Keith Aoki

    Our friend, colleague, co-author and brilliant artist and scholar Keith Aoki died yesterday in his house in Sacramento.  He was 55 years old.

  • The Future of the Constitution?

    The Brookings Institution has organized a volume on “The Future of the Constitution” edited by Jeff Rosen and Benjamin Wittes and featuring articles by me, Larry Lessig, Jonathan Zittrain, Tim Wu and many others.  How will our constitutional tradition deal with the challenges posed by new technologies?  The topics range from possible personhood claims by artificial intelligences, to the future of free speech and the Net, to neuroscience and criminal punishment.  The essays are freely available online. Details after the jump.

  • Presumed Guilty

    My new FT column is up. Shakespeare, copyright, Scott Turow and a shadowy group of law professors..  What could be more fun? Ungated version after the jump. 

  • Waiting for ‘Waiting for Godot’

    What Could Have Been Entering the Public Domain on January 1, 2011?
    read more

  • Fantasy & Reality in Intellectual Property Policy

    My new column for the FT is up.  It deals with the incredible weakness of the data on which our intellectual property policy proceeds.   Ungated version after the jump

  • CBC Radio Interview on the History of Copyright

    Nora Young and the folk at CBC’s Spark have done it again, with a really nicely presented episode that includes a feature on copyright.  Nora interviews me about the history of copyright…  in 5 minutes.

  • EFF Pioneer Award Video

    Is here. I appear at 3:25 or so.

  • EFF Party in San Francisco!

    On November 8th, Cory Doctorow, John Perry Barlow, and numerous other digital luminaries will be gathering at the Minna Gallery in San Francisco for the EFF’s Pioneer Awards Party.  Cory is going to be the MC and — when not featured on XKCD blogging from a ballon in a red cape and goggles…

  • Net Neutrality Debate

    Great hour long radio show on net neutrality from NPR’s The State of Things.  Me, the inimitable Paul Jones of iBiblio, and Ryan Radia of the Competitive Enterprise Institute.  Frank Stasio is just a great interviewer.  Listen to it here

  • Op Art Comic in todays SF Chronicle

    We have a centerfold Op Art comic on “Copyright’s Futures”  in today’s San Francisco Chronicle.  The comic is

  • Why I Miss Justice Blackmun…

    This isn’t a post about intellectual property or the networked society, so if your interests only run that far, cease reading here.  In the late 80′s and early 90′s refugees were attempting to escape what was, in a decidedly non metaphorical sense, a hellish situation in Haiti..

  • Why We Need a Digital Civil Society

    Nitya Rajan interviewed me at Orgcon about why the legislative process malfunctions particularly badly on digital policy, and what the creation of civil society groups could do to fix that.  Video after the jump.

  • Who Steals the Gene from Off the Common

    My new Financial Times column on the creation of a science commons is now up.  For the ungated version, read on…

  • What if the Web Really Worked For Science?

    Here is the video of my speech in Vienna at the IRF symposium.  The title was What If the Web Really Worked for Science? Reimagining Data Policy and Intellectual Property.

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