Lawrence Lessig: The Architecture of Access to Scientific Knowledge

Lecture at CERN, Geneva, Switzerland, 18 April 2011: A new talk about open access to academic or scientific information, with a bit of commentary about YouTube Copyright School. ;

Lawrence Lessig: Thank you very much. It's extremely cool to be here.

It's just about as cool as when I spoke at Pixar.

I think of these two as being highlights of my career (check).

So, thank you very much for having me.

I have two small ideas I want to use as an introduction to an argument,

about the nature of access to scientific knowledge in the context of the internet,

and use that argument as a step towards a plea about what we should do.

So here is the first idea.

I want to call it the "White-effect".

And I name that after Justice Byron White, justice of the US Supreme Court,

appointed by John F. Kennedy - here he is in 1962

- famous before that as 'Whizzer' White on the Yale University football team

When he was appointed to the Supreme Court, he was a famous liberal,

renowned liberal, the only appointee that John Kennedy had to the Supreme Court.

But 'Whizzer' White grew old, and he is probably most famous for an infamous opinion,

which he penned on behalf of the Supreme Court, Bowers v. Hardwick,

an opinion where the Supreme Court upheld the Criminalization of Sodomy law.

Here is the passage: 'Against this background, to claim that a right to engage

in such conduct' - homosexual sodomy - 'is "deeply rooted in this Nation's history and tradition"

or "implicit in the concept of ordered liberty" is, at best, facetious.'

Now, this is what I want to think of as the "White Effect".

To be a liberal or a progressive is always relative to a moment, and that moment changes,

and too many are liberal or progressive no more.

So, that's the "White effect". Here is the second idea.

The Harvard Gazette is a kind of propaganda publication of Harvard University,

it talks about all the happy things at Harvard.

So here's an article that it wrote, about an extraordinary macro-economist,

Gita Gopinath, who has just come to Harvard, received tenure last year

and is one of the most influential macroeconomists in the United States right now.

This article talks about her work and her research, and at the very end,

there is this puzzling passage, where it says:

'Still, the shelves in her new office are nearly bare, since, said Gopinath,

"Everything I need is on the Internet now." '

Right, that's the second idea. Here is the argument.

So, copyright is a regulation by the State intended to change

a regulation by the market. It's an exclusive right, a monopoly right,

a property right granted by the State, which is necessary

to solve an inevitable market failure.

Now, by saying that it's necessary to solve an inevitable market failure,

I'm marking myself as a pro-copyright scholar,

in the sense that I believe copyright is necessary, even in a digital age.

Especially in a digital age, copyright is necessary to achieve

certain incentives that otherwise would be lost.

But in the internet age, what we've seen as a fight about copyright,

about the scope of copyright, waged most consistently in the context

of the battle over artists' rights, in particular, in the context of music,

where massive 'sharing' - sharing which is technically illegal - has lead to a fight

fought by artists and especially by artists' representatives.

And we from the Free Culture movement, have challenged the people

who have been waging that fight.

And they defend copyright in the context of that fight.

But if we get above the din of this battle, the important thing to keep in mind

is that both sides in this fight acknowledge that copyright is essential

for certain creative work,

and we need to respect copyright for that creative work.

We, from the Free Culture movement, need to respect copyright for that work,

we need to recognize that there is a place for sensible copyright policy

to protect and encourage that work.

But, however - and here is the important distinction -

Not only artists rely upon copyright, copyright is also relied upon by publishers,

and publishers are a different animal.

We don't have to be as negative as John Milton was when he wrote publishers are

"Old patentees and monopolizers in the trade of books

- men who do no labor in an honest profession, to [them], learning is indebted."

We don't have to go quite that far to recognize why publishers are different,

that the economic problem for publishers is different

from the economic problems presented by creating.

So who is copyright for? The publishers or the artists?

Well, since the beginning of copyright in the Anglo-American tradition,

the Statute of Anne of 1710, there has been this argument about whether copyright

was intended for the publishers or the artists.

When the Statute of Anne was originally introduced, it gave a perpetual term of copyright,

which the publishers understood to be a protection for them.

It was then amended to give just a limited term for copyright.

Publishers were puzzled about that, because it wouldn't make sense to give a limited term

if it was the publisher that was to be protected.

In 1769, a court case in the context of Millar v. Taylor seemd to suggest that

despite the limitation of the Statute of Anne, copyright was for ever.

But in 1774, in a very famous case about this book, The Seasons, by James Thomson,

the House of Lords have held that copyright protected by the Status of Anne was limited,

holding for the first time that works passed into the public domain.

And for the first time in English history, works including Shakespeare

passed into the public domain. And in this moment, we can say Free Culture was born.

And it also clarified that copyright was not intended for the publisher.

Even if it benefited the publishers, it was a creative right

and author's right. Even if benefitting publishers, copyright was for authors.

So, I remark these obvious borders about the scope of copyright,

because we tend to forget them. We've been fighting a battle in the context of copyright

where copyright is essential, and we are spending too little attention

about a battle in a context where copyright is not essential.

And I mean by that, in the context of science, in the context that Gopinath was speaking of

when she talked about everything being available on the internet.

And the consequence of failing to pay attention to this second context

within which this battle is being waged is that there is a trouble here

that too few see.

So let's think about this claim that everything is on the internet now.

What does that mean?

Here is a particular example to evaluate what that means.

Much of my work, these days, is focusing on corruption

in the context of this institution, Congress.

So let's say that we wanted to study, you wanted to study with me,

corruption in this context. Go to Google Scholar and enter a search for campaign finance.

Here are the top articles that would be listed from that search.

So let's say you wanted to browse through these articles

and get a sense of campaign finance and how it might be related to corruption in Congress.

So here are the top 10 articles. This first one, a very famous one

by my former colleagues Pam Karlan and Sam Issacharof.

You would find, to get access to this article, you'd have to pay $29.95.

The second article, housed at JSTOR, you'd have to get through to get permission

from the Columbia Law Review - not quite clear how you would do that.

Third article, again, $29.95. The fourth article, protected by Questia,

we learn that you can get a 1-day free trial to all these Oxford University Press articles,

you'd only have to pay when that day is over 99 dollars

to continue for a year.

Here is the 4th article again, protected by JSTOR.

The 5th article, it's an economics article, so the price is right on the surface:

10 dollars to purchase access to this article.

Here's the 7th article, Columbia Law Review.

8th article, Columbia Law Review, 9th article, protected again by JSTOR,

10th article, $29.95. So, how accessible is this information to the general public?

Well, one of these you can get access to for free, at least one time only,

One of them you can pay $10 for. 3 of them, $29.95, and 5 of them, terms unknown,

protected by JSTOR.

So, when Gopinath says "Everything I need is on the internet",

what does she mean? What she means is if - and this is a big if -

you're a tenured professor in an elite university or we could say a professor,

or a student or professor in an elite university, or maybe

a student or professor at a US university, if you are a member of the knowledge elite,

then you have effectively free access to all of this information.

But if you are from the rest of the world? Not so much.

Now, the thing to recognize is we built this world,

we built this architecture for access that flows from the deployment of copyright,

but here, copyright to benefit publishers. Not to enable authors.

Not one of these authors gets money from copyright.

Not one of them wants the distribution of their articles limited.

Not one of them has a business model that turns upon restricting access to their work.

Not one of them should support this system.

As a knowledge policy for the creators of this knowledge, this is crazy.

And the craziness doesn't stop here.

So, my third child is this extraordinarily beautiful girl, Samantha Tess.

When she was born, the doctors were worried she had a condition

that would suggest jaundice. I had jaundice as a baby, so I didn't think it was serious,

and I was told very forcefully by her doctor, this is extroardinarily serious.

If this condition manifest in the dangerous condition, it would produce brain damage,

possibly death.

So, of course, we were terrified. I went home and I did what every academic did,

I pulled everything I could from the web to study about what jaundice was

and what the conditions were. Now, because I am a Harvard professor,

of course, I didn't have to pay to get access to this information, but I just kept the total.

To get access to these 20 articles that I wanted access to was $435,

for the ordinary human, not a Harvard professor. OK.

So I gathered these articles and set them aside, believing this problem

would not manifest itself in such a serious way.

But on her third day, she fell into a stupor, and we called the doctor,

and the doctor was panciked and he said we had to get to the hospital immediately.

So, at 3 o'clock in the morning, we trundled the baby up and raced to the hospital.

We were sitting in the waiting room, and I brought the articles with me,

because I wanted something to do, to distract me from the terror

that my child had this condition.

And I picked up the first of these articles, which is actually free,

published on the web for free, at the American Family Physician,

and I started reading about this condition.

And I got to this table, a table that was going to describe

when you should worry about whether the child would have too severe of this exposure.

I turned the page, and this is what I found:

"The rightsholder did not grant rights to reproduce this item in electronic media.

For the missing item, see the original print version of this publication."

And I had this moment of liberation from fear about my child,

because I turned to fear about our culture. I thought, this is outrageous!

The idea that we are regulating access down to the chart in an article

that was published for free to help, not doctors, but parents

understand what this condition was.

We are regulating access to parts of articles.

Now here and throughout our architecture for access,

we are building an infrastructure for this regulation.

Think of the Google Books project, which is perfecting control down to the sentence,

the ability to regulate access down to the sentence.

By the way, I alway forget to tell this: the kid is fine, she didn't have jaundice,

it is a complete non issue.

But the point is, we are archintecting access here, for what purpose?

To maximize revenue. And why? Revenue to the authors?

Revenues necessary to produce the incentive to create?

Is this a limitation that serves any of the real objectives of copyright? (14:00)

The answer is no.

It is simply the natural result of for-profit production

for any good that we, quote, must have.

As Bergstrom and McAfee describe in a really fantastic little bit of work,

if you compare the cost per page of for-profit publishers

and the cost per page of not-for-profit publishers in these different fields of science,

it's a 4 and a half times factor difference cost per page.

That is a function of different, of these having different objectives.

One objective is to spread knowledge: that's the not-for-profit publishers,

and one objective, to maximize profit: that's the for-profit publishers.

Now, this architecture for access is beginning to build resistance.

So, think about story of JSTOR.

JSTOR was launched in 1995, with an extraordinary amount of funding

from the Mellon Foundation. That funding produced a huge archive

of journal articles. So that there are now more than 1200 journals, 20 collections,

53 disciplines, 303'000 issues, about 28 million pages in JSTOR archive.

When this archive was launched, everybody thought it was brilliant.

Everybody thought the access here was extraordinary.

But today? There is increasingly criticism growing out there

about how JSTOR makes its information accessible.

We could think of it as a kind of "White effect".

It was liberal when it was launched, but what has it become as it has grown old?

So, for example, here is an article published in the

California Historical Society Quarterly. It's 6 pages long.

To get it, you have to pay $20 to JSTOR, this non-profit organization,

leading Carl Malamud, who of course is famous for his Public Resources site,

to tweet in the following way: "JSTOR is morally offensive.

$20 for a 6-page article, unless you happen to work at a fancy school."

Now, you might say, "This is a really important academic archive",

but the question is whether this really important academic archive

is going to become a kind of RIAA for the academy.

Begging the question that the "White effect" always begs,

whether we could do this better under a different set of assumptions.

Now, of course the Open Access movement is the movement that was launched

to try and do this better under different circumstances.

Now, it has a long history, but its real push was inspired by

a dramatic increase in the cost of journals.

So, if this is a study between 1986 and 2004 by the American Research Libraries,

this is the increase in inflation, this is the increase in the cost of serials,

it's obvious that the market power of these publishers is being exploited,

because the purchasers of these serials have no choice but to buy them.

It's in part motivated by this cost concern, it's also motivated by a sense of unfairness.

We do all the work, they get all the money, here.

So the response to these two kinds of concerns has been two:

#1 an open access self-archiving movement, where the push has been

"Let's get as many things out there archived on the Web as we can,

pre-prints and whatever we can get up, and make sure

the Web can make them accessible" - and an Open Access publishing movement.

Now, what's the difference between these two movements?

The difference is licensing. Some "open" is "free", in the sense that Richard Stallman

made famous by his quote: "Free software is a matter of liberty, not price.

To understand the concept, you should think of free as in free speech,

not as in free beer."

So, some aspect of the Open Access publishing is free as in free speech,

some "open" is not. Some is just free as in: "You can download it freely,

but the rights that you get from the download are just as broad

as narrowly granted by some implicit copyright rule.

Now, "free", as in licensed freely, has been the objective that the Science Commons project,

which is a project that Creative Commons has been pushing,

and pushing as part of a broader strategy for producing

the information architecture that science needs, as they announce

in their "Principles for open science". There are four principles here.

The first is, there should be open access to literature, by which Science Commons says:

you should be on the internet, literature "should be on the internet

in digital form, with permission granted in advance

to users to read, download, copy, distribute, print, search or link

to the full texts of articles, crawl them indexing, pass them data to software,

or use them for any other lawful purpose,

without financial, legal or technical barriers other than those inseparable

from gaining access to the internet itself."

That's what "free", here, means.

Second, access to research tools: there should be "materials necessary

to replicate funded research - cell lines, model animals, DNA tools,

reagents, and more - should be described in digital formats,

made available under standard terms of use or contracts,

with infrastructure or resources to fulfill requests to qualified scientists,

and with full credit provided to the scientist who created the tools."

#3 Data should be in the public domain. "Research data, data sets, databases,

and protocols should be in the public domain."

meaning no copyright restrictions at all.

And 4, Open cyber-infrastructure:

"Data without structure and annotation is an opportunity lost.

Research data should flow in an open, public and extensible infrastructure

that supposrts its recombination and reconfiguration into computer models,

its searchability by search engines,

and its use by both scientists and the taxpaying public.

This infrastructure is an essential public good."

Now, my view is, this the right way - you might think this is the left way -

but it's the correct way to instantiate this Open Access movement.

The values and the efficiency and the justice in this architecture

are the right values, efficiency and justice for an Open Access movement.

So let's call it, following Stallman, the Free Access Movement.

And the critical question of the Free Access movement

is the license that governs access to the information being provided.

Does the license grant freedoms?

And that, of course, was the motivation between the Public Library of Science -

every one of their articles is published under a Creative Commons

Attribution license, the freeest license we have.

And that is increasingly the practice, surprisingly, of the largest publishers,

as described by this wonderful project housed here at CERN,

which is studying Open Access publishing.

This is the first of three stages of this project. When studying the large publishers,

this study concludes that "Half of the large publishers use some version

of a Creative Commons license. These seven publish 72% of the titles

and 71% of the articles investigated.

And of these, 82% use the freeest license, cc-by, and 18% use cc-by-nc", non commercial.

And that of course is an excellent report on the progress of this free access movement

in the context of the largest publishers.

But what's not excellent in this story is the other publishers here.

For these other publishers, only 73% you can determine copyright status (check)

69% transfer the copyright to the publisher. Only 21 % of the articles

have any Creative Commons license attached at all.

Now, this is because these other publishers are using copyright as a means,

a means to a non-knowledge ends, to a non-copyright ends.

So, for example, they are using it to support the societies

that might happen to be associated with publishing

that particular journal, that society that might be studying

one particular of science.

That society, of course, is valuable, but what they are doing

is using copyright to support that society.

And the consequence of that strategy is to block access to all but the few.

We don't achieve the objectives of the Enlightenment,

we achieve the reality of an elite-nment, the elite-nment

which describes the way in which we spread knowledge

despite the ideas of the Enlightenment.

And the point I'm emphasizing here is that it's for no good copyright reason.

Now, the slowness inside of science to embrace this more broadly,

especially among the smaller publishers, may surprise some,

or maybe it doesn't surprise. The whole design of science

is to be a fad-resistor, the idea is to have an infrastructure

that avoids fads, and tradition then becomes the metric of what's right

or of what's good in science.

But I think it's time to recognize that Free Access, as in free speech, access

is no fad.

And it's time to push this non fad more broadly in the context of science.

Now, just because I'm talking about how bad some area of science is,

I don't mean to suggest that the arts is good, right?

We have practices in the context of the arts that are just as bad, here.

For example, think about a recent episode around YouTube.

You know, we should not minimize the significance of YouTube

in the infrastructure of culture right now.

YouTube now has 43 different languages.

There is more uploaded in one month on Youtube

than was broadcast by the major networks in the United States

over the last 60 years.

Every single day, 6 new years of video gets uploaded to YouTube.

There are 2 billion views of YouTube every single year.

every single day, sorry. That's 40% increase over just the last year.

And I've been famously a friend (check) of this extraordinary site

because I celebrate the kind of read-write creativity

that I think YouTube has encouraged.

And I got this sense of what we should think of as read-write creativity

when I was reading testimony at this place

by this man, John Philip Souza, in 1906.

when he was - I didn't read it in 1906 but the testimony was given in 1906 -

When Souza was testifying about this technology,

what he called "talking machines".

Now, Souza was not a fan of the talking machines.

This is what he had to say about them:

"These talking machines are going to ruin the artistic development

of music in this country.

When I was a boy, in front of every house in the summer evenings

you would find young people together singing the songs

of the day or the old songs.

Today you hear these infernal machines going night and day.

We will not have a vocal chord left," Souza said,

"The vocal chords will be eliminated by a process of evolution,

as was the tail of man when he came from the ape."

Now this is the picture I want you to focus on.

This picture of "young people together, singing the songs of the day

or the old songs".

This is a picture of culture. We could call it, using modern computer terminology,

a kind of read-write culture.

It's a culture where people participage in the creation and the re-creation

of their culture: in that sense, it's read-write.

And the opposite of read-write creativity, then, we should call

"read-only" culture. A culture where creativity is consumed

but the consumer is not a creator. A culture, in this sense, that's top-down,

where the vocal cords of the millions of ordinary potential creators

has been lost, and lost, because, as Souza said,

because of these infernal machines: technology, technology like this,

or technology like this, to produce a culture like this,

a culture which enabled efficient consumption, what we call "reading",

but inefficient amateur production, what we should call "writing".

A culture good for listening, but not a culture good for speaking,

a culture good for watching, a culture not good for creating.

Now, the first popular instantiation of the internet,

long after you guys gave us the read-write web,

but the first one people really paid attention to,

around 1997 and 1998, was a read-only internet.

So, Napster, which of course, built the largest music archive,

is still a music archive of music created by others

and the legal version, Music Store, was an archive of the music

created by others, which you could buy for 99 cents.

These were technologies to enable access,

but access to culture created elsewhere.

But then, shortly in - after the turn of the century, I think,

the internet became fundamentally read-write.

People began taking, and remixing, and sharing

their creativity on the internet, and YouTube was the platform for that.

So, my favorite example, which I first saw on YouTube, is this:

[Read my lips by: Atmo - http://www.youtube.com/watch?v=rhlHUTBgAMw]

"Bush: My love, there's only you in my life,

the only thing that's right.

Blair: My first love: you're every breath that I take,

you're every step I make.

Bush: And I, I want to share

Bush and Blair: all my love with you

Bush: No one else will do.

Blair: And your eyes

Bush: Your eyes, your eyes

Bush and Blair: they tell me how much you care for...

announcer: remember to(?) take dictation"

Lessig: OK. And then.more recently, I don't know if (?) many of you

have seen this extraordinary site ThruYou.

This is a site that takes content only from YouTube

and remixes it to produce albums and videos. I mean this is his latest, you know.

Voice: This is my mother:

Mother: Howdy, howdy. OK.

[pays a continuo on keyboard]

Tenesan1 [see http://www.youtube.com/watch?v=-J8sSXO9VWk ]

Tenesan1: The song I'm going to sing, I wrote, is called "Green"

because ... (?)

[Tenesan1 sings "Green" on the keyboard continuo]

[Horn enters]

[Other instruments enter]

Lessig: So this is then what I think of as a platform for read-write creativity.

But then the second stage of this, I think is ultimately

much more interesting. It's the way that this platform

has become a platform for read-write communities,

which means creativity, which then gets remixed by others

in response to the initial read-write creators.

So here is an example. This video:

[ "Crank That" by Soulja Boy - http://www.youtube.com/watch?v=sLGLum5SyKQ + Superman:] You Soulja Boy..

I got a new dance fo you all called the soulja boy

You gotta punch then crank back three times from left to right

Aaah!

Lessig: so that video inspired this video:

[video 2] You Soulja Boy ...

Lessig: which then inspired this video

[Video 3] Soulja Boy ...

Lessig: Well here is another example. I'm sure many of you remember

these extraordinary movies by John Hughes,

what we used to think of as the Brat Pack, until we knew

that there was a Brat Pack before these guys.

So this is the first bit of cultural,

and I think here is the second.

This is a music video by the band Phoenix, with their song Lisztomania:

[Lisztomania: Phoenix' clip]

Lessig (over clip): So classic music video style

[clip continues]

So sentimental

Lessig: Somebody got the idea that they would take John Hughes' content

and remix it with the music by Phoenix. They produced this:

[remix] So sentimental

not sentimental, no

romantic not disgusting yet

Darling, I'm down and lonely when with the fortunate is only

I've been looking for something else

Do let, do let, do let, jugulate, do let, do let, do

Let's go slowly discouraged

Distant from other interests on your favorite weekend ending...

Lessig: Then somebody had the idea that they would make a local version

of this remix video. So this is the Brooklyn version:

[Brooklyn remix:]

Lessig: And then San Francisco decided they'd like to copy:

[San Francisco remix:]

Lessig: And then Boston University decided they would copy:

[Boston U remix:]

Lessig: There are others, literally scores of these on the internet,

from every place around the world.

(1 sentence ????)

every other place... these people doing the same kind of remix.

The point to recognize is that this is then what Souza was romanticizing

when Souza was talking about the young people getting together

and singing the songs of the day or the old songs.

But they are not singing the songs or the old songs

in their backyard or on the corner, they are now singing them

on this free digital platform that allows people to sing and respond,

and respond again all across the world,

in my view, important and valuable, in understanding

how this kind of culture develops and spreads.

Now, is it legal?

Well, YouTube has just stepped into this battle, of whether it's legal.

They've launched this Copyright School

So I will give you a little bit of their copyright school.

[video from http://www.youtube.com/copyright_school - original subtitled in ca 40 languages]

Everybody has really been looking forward to the new video

from Lumpy and the Lumpettes.

Even Lumpy.

Russell's a huge fan. He can't wait to tell all his friends about it.

Hey, Russell, you didn't create that video!

You just copied someone else's content.

Lessig: OK, this first part is pretty standard,

talking about copying people's content and uploading,

and even copying in a live performance and uploading.

And that's fair, that's true, that's accurate in its statement

of what copyright law is, and I think what copyright law should be.

But I want to focus on their talk about remix,

which might be confusing to you, and if you do, you should buy

multiple copies of my book, "Remix" to understand what it's about.

But here's YouTube's version of the story of remix

[YouTube video cont.] Oh, Russell! Your reuse of the Lumpy's content is clever,

but did you get permission for it?

Mashups or remixes of content may also require permission

from the original copyright owner, depending on whether or not

the use is a fair use.

In the United States [text shown onscreen is read very fast] ...

you should consult a qualified copyright attorney.

Lessig: OK. "Consult a qualified copyright attorney"?

These are 15-year olds. You're trying to teach 15-year olds

how to obey the law, and what you do is you give them

this thing called fair use, and you read it so fast

nobody can understand it.

You believe you've actually explained something sensible?

This is crazy talk.

Of course we train lawyers to understand it, and not think it's crazy talk,

but non lawyers should recognize it's crazy talk.

It's an absurd system here.

And of course, a sensible system would say:

"Then it should be plainly legal for Russell to make a remix,

a non commercial consumer making a remix of content

that he sees out there, even if it's not legal for YouTube

to distribute it without paying some sort of royalty

to the copyright owner whose work has been remixed.

Now the point is, the significance of this kind of culture,

this kind of remix culture, and the opportunity

for this remix culture is recognized by people on the left,

and on the right. Here is my favorite little bit.

It's a little bit bad video, but it's by one of my favorite

libertarians from Cato Institute, which is one of the

most important libertarian think-tanks in the United States,

talking about this:

Libertarian man: Copyright policy isn't just about how to incentivize

the production of a certain kind of artistic commodity.

It's about what level of control we're going to permit to be

exercized over our social realities, social realities that are now

inevitably permeated by pop culture.

I think it's important that we keep these two different kinds

of public uses (?) in mind. If we only focus on how to

of public visions in mind.

If we only focus on how to maximize the supply of one,

I think we risk suppressing this different and richer

and, in some ways, maybe even more important one.

Lessig: Bingo. That's the point.

There are two kinds of cultures her. The commecial culture

and the amateur culture.

And we have to have a system that tries to recognize and encourage both.

And even YouTube, now, the company most responsible

for this revival of this remix culture,

even YouTube, now, is criminalizing the remixers.

OK, now that's the argument.

Here is what I think we need to do here.

In both these contexts, both science and culture,

we need reform.

That's not to say we need the abolition of copyright.

There are copyright abolitionists out there, and I'not one them.

What we need is reform, both of the law and of us.

So, of the law: I, last year, had the opportunity -

surprising, from the perspective of 10 years ago -

but I was invited by WIPO to talk to WIPO,

and both my presentation and the current Director General

has a conception of what WIPO should do here (40:20)

and it's very similar. They should launch what we could think of

as a Blue Skies Commission, a commission to think about

what architecture for copyright makes sense in the digital age.

The presumption is, copyright is necessary,

but the presumption is also that the architecture from the 20th century

doesn't make sense in a digital context.

And the elements of, in my view, of this architecture

that would make sense, are 5.

#1 Copyright has got to be simple. If it purports to regulate

15 year olds, 15 year olds must be able to understand it.

They don't understand it now.

No one understands it now.

And we need to remake it, to make it simple,

if it tends to regulate as broadly as it regulates.

#2 It needs to be efficient.

Copyright is a property system. It also happens to be

the most inefficient property system known to man.

We can't know who owns what in this system,

because we have no system for recording ownership

and allowing us to allocate ownership as we want.

An the only remedy to that is to restore a kind of formality,

at least a formality required to maintain a copyright.

And this is a position that's even supported by the RIAA

as one of the essential reforms to copyright.

#3 Copyright has got to be better targeted. It's got to regulate selectively.

So if you think about the distinction between copies and remix,

and the distinction between the professional and the amateur,

of course, we get this matrix - lawyers deal in two dimensions,

you guys in hundred dimensions but here is my two dimensions -

What we have in the current regime of copyright

is presumption of copyright regulates the same

across these four possibilities.

But that's a mistake. Obviously copyright needs to regulate

efficiently here, copies of professional works,

so 10'000 copies of Madonna's latest CD is a problem

that copyright law needs to worry about,

But this area, amateurs remixing culture needs to be free

of the regulation of copyright. Not fair use, but free use.

Not even triggering copyright's concern.

And then these two middle cases are harder.

They need a little more freedom, but they need to assure

some kind of control. So if you share Madonna's latest CD

with your 10'000 best friends, that's a problem.

There needs to be some response to that problem.

And if you take a book and turn it into a movie,

I think it's still appropriate that you get permission for that,

though of course, you need to be able to remix

the way that we saw Soderberg remix that video

of Bush and Endless Love.

The point her is that if you think about this, I'm talking about

deregulating a significant space of culture,

and focusing the regulation of copyright work (?) and do some good.

#4 It needs to be effective. And effective means

it must actually work in getting artists paid.

The current system does not work in getting artists paid.

And #5 It needs to be realistic.

Think about the problem of peer-to-peer, quote, piracy internationally,

We've, for the last decade, been waging what is referred to

as a war. My friend, the late Jack Valenti, former head of the

Motion Picture Associationof America used to refer to it as

his own, quote, "terrorist war", where apparently the terrorists in this war

are our children.

Now this war has been a total failure.

It has not achieve its objective of reducing copyrights sharing

or ilegal peer-to-peer file sharing.

And I know the response of some to this totally failed war

is to continue to wage that war forever, and ever more viciously,

but I suggest we adopt the opposite response here.

We sue for peace. We sue for peace in this war,

and consider proposals that would give us the opportunity

to achieve the objectives of copyright,

without waging this war.

So, compulsory licenses, voluntary collective licenses (44:05)

or the German Greens' suggestion of a cultural flat rate

which would be collected and allocated to artists

on the basis of the harm suffered because of P2P file-sharing,

all of these are alternatives to waging a war

to stop sharing, when sharing is of course at the core

of the architecture of the Net,

and all of them recognize that if we achieve

that alternative, we don't need to block this system of sharing.

Now, the thing to think about is, if we had had one of these alternatives

10 years ago, what would the world look like today,

how would it be different?

Now one difference is, artists would get more money,

they would have gotten more money, because

while we have been waging war against artists [sic: "children"?]

artists haven't got anything, only lawyers have.

Businesses would have had more competition,

the rules would have been clear, we would have more companies

than just Apple and Microsoft thinking out

how they could exploit this new digital ethnologies.

But most important to me, is, we wouldn't have a generation

of criminals who have grown up being called criminals

because they are technically pirates, according to

this outdated copyright law.

So these 5 objectives would go into the conception of what

this Blue Skies commission should think about

and I think it should think of this in a 5 year process

talking about something not to into effect for 10 years.

Think of it as a kind of Map for Berne II, but Bern ii being

a system that could work to achieve the objectives of copyright

in a digital age. That's what the law should do.

But most important right now is what we need to do.

We, both in the context of business - so in the context of business,

we need to think about how to better enable legal reuse

of copyrighted material.

And companies like Google and Microsoft's Bing

need to do more here.

We're in the age of remix, where writing is remix,

where teachers tell students to go out to the web

and gather as much content as you can in order to

write a report about whatever it is they are assigning them

to write reports about.

That means Google and Bing need to help our kids

do it legally, which they don't, right now.

So for example, this extraordinary service, which Google

gives you when you want to do an image search:

let's say you search for an image, you do an image search on flowers,

This, over here - I don't know if you play with this -

is really extraordinary: you can then narrow the search

on the basis of many of these categories,

including like the color of the photograph.

So you want pink flowers, there you can see all the pink flowers,

just by clicking on the link.

But why, in this extraction, don't we also have an option

for something like this: show reusable?

Show the content that is explicitly licensed to be reusable,

because Google indexes Creative Commons licenses

associated with these images.

Why not make it on the surface easy to begin to filter out

those that you can use with the permission of the author

from those that presumptively require a lawyer?

Same thing in the context of a site like YouTube.

Why don't we enable more easily the signaling by the creator

that others should be able to download and reuse content,

not so much to redefine what Fair Use is -

I still think there is a fair use claim even if there isn't

permission given to re-use - but at least to encourage people

to begin to signal that their freedom to share

has been authorized by the author.

And then in the academy, which I think we are speaking

about here right now.

We need to recognize in the academy, I think,

an ethical obligation much stronger than the one Stallman spoke of

in the context of software. An ethical obligation

which is at the core of our mission.

Our mission is universal access to knowledge.

Universal access to knowledge:

not American University access to knowledge,

but universal access to knowledge in every part of the globe.

And that obligation has certain entailments.

Entailment #1 is that we need to keep this work free,

where free means licensed freely.

Now this needs to be part of an ethical point about what we do.

It is resisted by people who say that archiving is enough.

But that is wrong, I think.

Archiving is not enough, because what it does is

leave these rights out-there. And by leaving these rights our-there

it encourages this architecture of closed access.

It encourages models of access that block access

to the non-elite around the world.

And it discourages unplanned, unanticipated and "uncool" innovation.

That's the thing that publishers would have said

of Google Books, when Google Books had the idea

to take all books published and put them on the Web.

Right, publishers thought that was very uncool,

but that's exactly the kind of innovation we need to encourage,

and we know it won't be the publishers

that do that kind of innovation.

We don't need for our work, exclusivity.

And we shouldn't practice, with our work, exclusivity.

And we should name those who do, wrong.

Those who do are inconsistent with the ethic of our work.

Now how do we do that? I think we do that by exercizing leadership,

leadership by those who can afford to take the lead,

the senior academics, those with tenure, those who can say,

on committees granting tenure, that it doesn't matter

that you didn't publish in the most prestigious journal

if that journal is not Open Access.

People who can begin to help redefine what access to knowledge is,

by supporting Open Access and respecting Open Access

and encouraging Open Access.

Now, I'm really honored and happy to be able to talk about this

here, where you of course gave us the Web,

and CERN has taken the lead in supporting Open Access

in a crucial space of physics.

And the work that you are doing right now will have a dramatic effect

on changing the debate on science across the globe.

But what we need to do is to think about

how to leverage this leadership into leadership for the globe,

to benefit this area of the globe as much as this area of the globe.

Thank you very much.

(applause)

[credits for Flickr photos]

[This work licensed: CC-BY]

[[Subtitles: universalsubtitles.org/videos/jD5TB2eebD5d/ ]]