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. (23:51)