Open Design. Bas van Abel
lending her a digital copy of Nineteen Eighty-Four to read on her e-book reader or computer involves a form of copying which may potentially violate copyright law.
The broadcast-model gatekeepers have used this unintended side effect of copyright law to their advantage, taking action against private individuals who had no intention of monetary gain, including mash-up artists, REMIX home video enthusiasts and slash fiction authors. Incumbent rights holders, fearful of losing their profitable monopoly-based businesses, have sought to extend their rights ever further by lobbying governments (frequently successfully) to legislate for new and increased intellectual property rights, extending such rights far beyond their original purpose and intention. To put the issue in context, it is necessary to ask a fundamental question: what is copyright for?
Thomas Jefferson was one of the most lucid writers on the topic. He understood well the unique nature of knowledge:
“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.”1
A Monopoly is a Bad Thing
Jefferson did admit that creative people should be given a limited right of exclusive control over their creations. A monopoly is inherently a bad thing, a fact that was recognized in the late 18th century, as it is today. Nonetheless, a monopoly of control in the form of copyright or a patent was the most convenient way of enabling the creators to be remunerated for their work. And once the monopoly expired, the idea would be freely available to all and would become part of the common heritage of mankind, to be used without restriction by anyone. The necessary (but limited) monopoly includes ‘copyright’. The principle that the restrictions should be the minimum possible to achieve that aim should be copyright’s golden rule. That golden rule has been repeatedly ignored. The scope of protection has increased steadily over the last three hundred years, to the extent that the protection granted in Europe to the author of a novel, for example, lasts for seventy years after his or her death. Materials that are not restricted by intellectual property are considered to be ‘in the public domain’. Commentators have become increasingly strident in arguing that the public domain is a public good; it is likely that Jefferson would have agreed. In the same way that common land is an area where anyone can allow their animals to graze, the public domain has been described as a commons of knowledge, where potentially anyone can graze on the intellectual creations of others. The public domain has one crucial difference from a commons in the tangible world: a meadow open to all can easily be over-grazed and ruined, so that it becomes of use to no one (sometimes referred to as the ‘tragedy of the commons’). It is impossible to exhaust the commons of knowledge and ideas.
The Tragedy of the Commons
The modern ‘tragedy of the commons’ is that, just as the internet makes it easier to pass ideas and knowledge KNOWLEDGE from one person to another (for “the moral and mutual instruction of man, and improvement of his condition”), it seems that legislation and the more extreme activities of the rights holders are making it more difficult for those ideas and knowledge to enter the commons in the first place. This is because the duration of intellectual property is constantly being extended (will the early Mickey Mouse films ever enter the public domain?), and so is its scope, as evidenced by the patenting of genes or plants. Increasingly, people are becoming aware of the value of the commons and are seeking to protect it. At the same time, we are gradually realizing that the monopoly granted by intellectual property laws is a blunt instrument, and that people are prepared to create for reasons other than the expectation of payment for the use of their creation. Copyright law does not always have to work against the commons. Free and open source software has been an undeniable success. Gartner confidently states that all businesses today use at least some free software in their systems; the Linux Foundation is predicting that free software will underpin a $50 billion economy in 2011. Following from these and other successes, the applicability of the open source model has been considered in other contexts.
The Creative Commons Licenses
One of the most prominent open source models has been the Creative Commons CREATIVE COMMONS movement. Founded in 2001, Creative Commons has written a suite of licences which were inspired by the GNU/GPL, but which are intended for use in relation to a broad range of media, including music, literature, images and movies. The licences are drafted to be simple to understand and are modular, in that the rights owner can choose from a selection of options. The attribution option requires that anyone making use of the work makes fair attribution to the author; the share alike option is akin to the GPL, in that if a licensee takes the work and redistributes it (whether amended or not), then the redistribution needs to be on the same form of licence; the no derivatives option means that work may be passed on freely, but not modified, and the non-commercial option means that the work can only be used and distributed in a non-commercial context. There are now millions of different works available under a Creative Commons licence: Flickr is just one content hosting site which has enabled Creative Commons licensing as a search option. There are, at the time of writing, nearly 200,000,000 Creative Commons-licensed images available for use on Flickr alone.
Similar sites provide music and literary works under a Creative Commons licence. Creative Commons provide a legal infrastructure for designers and other creatives operating within the digital domain to adopt this model. They also offer an effective choice as to whether an appropriate model is GPL-style share-alike, or BSD style. Where designers’ DESIGNERS work moves into the physical world, matters become much less straightforward. The movement of hardware design into the commons has been difficult. The fundamental issues can be summarized as follows:
→ In the digital world, the creator has the choice of whether a GPL or BSD model is appropriate. This choice does not translate well to the analogue world.
→ Digital works are relatively easy to create and test. on low-cost equipment. Analogue works are more difficult to create, test and copy, which creates barrier-to-entry problems.
→ Digital goods are easy to transport; analogue goods are not. This creates a barrier to the communication necessary to get the maximum benefit out of network effects.
GNU/GPL AND BSD LICENSES
In the late 1980s, computer programmer Richard Stallman realized that copyright law could be turned inside out to create a commons of computer software. The method he proposed was simple, but brilliant.
Software is protected by copyright. The software business model used in the 1980s involved granting customers permission (the licence) to use a specific piece of software. This licence was conditional on the customer not only paying the software publisher fee, but also adhering to a number of other restrictions (such as only using the software on one computer). Why not, Stallman reasoned, make it a condition of the licence that if you took his software and passed it on (which he was happy for people to do), then they had to pass it on, together with any changes they made, under the same licence? He called this sort of software ‘free software’: once a piece of software has been released under this sort of licence, it can be passed on freely to other people, with only one restriction: that if they pass it on, in turn, they must also ensure that it is passed it on in a way that guarantees and honours that freedom for other people.
In time, he reasoned, more and more software would be