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 (6:53)