B  U  L  L  E  T  I  N

Reactions to the Enclosure of the Information Commons: 2000-2004

by James Campbell

James Campbell is affiliated with the department of Spatial Information Science, University of Maine, and the School of Information Science, University of Wisconsin-Milwaukee. He can be reached by email at modmedia at earthlink.net

In the U.S. Constitution, Congress is tasked with granting only one specific property right: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (Art. 1, S 8). That grant of right is the basis of what we today call copyright, in the case of “Writings,” and patent, in the case of “Discoveries.”

This review summarizes initiatives underway during the period 2000-2004 that are designed to counteract the perceived limiting effects that recent developments in copyright law in the United States, coupled with technological changes, have had on the information commons. The goal of those initiatives is to restore the balance of rights between copyright holders and users of copyrighted materials in the digital age which, in the eyes of the initiative promoters, has been thrown out of balance by recent changes in law and technology.

A brief note on terminology: the term information commons in this review refers to the imaginary “place” where works in the public domain and works affirmatively made available under conditions less restrictive than full copyright “reside.” For the purposes of this report, any references to “intellectual property” are also applicable to copyright per se.

The discussion in this review focuses primarily on the situation in the United States. Where applicable, specific reference to other legal systems is indicated.

Background and Context

      In the United States, copyright is a socially granted right establishing a “bargain” between creators and the larger society. Creators get an “exclusive right” to exploit the value of their work in economic terms, and society gets the benefit of having that work available for everyone to use and build on after “limited times.”

      Yet since 1976, and particularly in the past decade, three key elements in U.S. copyright law have, in the eyes of some, changed that contract:

1.      The necessity for claiming copyright changed from affirmatively making a claim to affirmatively denying a claim (Copyright Act of 1976).

2.      The term of copyright protection changed to life of the author plus 70 years with commensurate extensions for corporately generated works (Copyright Term Extension Act, 1997 (CTEA)).

3.      The role of government in protecting copyright in a digital environment changed, for example, through the criminalization of infringing conduct in the Digital Millennium Copyright Act (DMCA).

There is insufficient space here to examine these changes in law and technology in detail. The focus of this report is, therefore, on the reaction to these changes. However, in the eyes of those who oppose these changes, they collectively represent a watershed in U.S copyright history, a situation that James Boyle refers to as the “enclosure of the information commons.”

Those who found this landscape alteration undesirable or unacceptable began to respond over the past decade and particularly in the past five years. Dozens of conferences dealing with copyright change, the public domain and/or the information commons emerged in the wake of these acts, and they continue to occur. Responses that emerged from these and other venues took a variety approaches in addressing the problem of enclosure. We classify the responses for the purposes of this review as follows and will examine them in turn:

·        Legislate

·        Litigate

·        Limit

·        Create competing systems

·        Legally reinterpret

·        Philosophize and mobilize

Legislate

            The following brief summaries indicate the types of remedies proposed during the 108^th Congress (2003-2004) to offset effects of the automatic grant of copyright, the extension of copyright term and government involvement in enforcement of what was formerly largely a civil matter.

The Public Domain Enhancement Act (HR 2601) would have ensured that only those works whose owners actually assert continuation of their copyright after 50 years by paying a small registration fee of $1 would have copyright protection beyond that point. While the bill attracted 13 co-sponsors, it was referred to a subcommittee of the House Judiciary Committee and never emerged.

The Digital Millennium Copyright Act (DMCA), another of the “enclosing” laws, has had a number of unintended consequences, based on the rationale that led to passage of the act. Some businesses, for example, have attempted to use threats of suits or prosecution based on Section 1201 of the DMCA to stifle reporting of shortcomings in their products (e.g., HP and Microsoft) and stifle competition (e.g., Lexmark). Examples of the DMCA being applied against businesses and consumers in ways that do nothing to thwart large scale digital “piracy,” which was Congress’s avowed intent in passing the DMCA, led to the introduction of several bills designed to rectify some of the imbalances that the sponsors felt the DMCA created in favor of copyright owners.

For example, the BALANCE Act (HR 1066) was designed to make legal in the digital realm what has been – and remains – a set of user’s legal rights under copyright law in the paper realm. This proposed legislation, according to its sponsors, simply makes traditional fair use and first sale rights available in the digital domain and would allow a user who has lawfully obtained a copy of a digital work to defeat Digital Rights Management (DRM) restrictions that interferes with exercising those rights. The bill, in plain language, got nowhere in the 108^th Congress.

Another effort, the Consumers, Schools and Libraries Digital Rights Management Awareness Act of 2003 (S. 1621), introduced by Senator Sam Brownback of Kansas, was a very ambitious bill. It had three goals: prevent the FCC from mandating that manufacturers build DRM detection technology into digital hardware such as computers and audio and video recorders; prohibit the sale of any such equipment without warning labels indicating how the technology could restrict consumer use of the product; and prohibit Internet service providers (ISPs) from being “compelled to make available to a manufacturer of a digital media product the identity or personal information of a subscriber or user of its service for use in enforcing the manufacturer's right relating to the use of such product.” (S. 1621) The bill drew no co-sponsors. It was read and sent to the Senate Committee on Commerce, Science and Transportation, where it died.

Each of the provisions of this bill addressed what was seen at the time (September 2003) as a serious potential or actual problem limiting the exercise of traditional consumer rights or traditional practices of copyright law, and subsequent events have proved that assessment to be accurate: that is to say, all of what S. 1621 identified as potential problems in the bill have occurred.

In the first instance, the FCC has, in fact, mandated that a “broadcast flag” be built into any hardware device capable of receiving a digital broadcast signal (currently on hold as court challenges proceed).

While the second provision of Brownback’s proposed act would have prohibited anyone from selling hardware that contained built in DRM circuitry, others in Congress had exactly the opposite idea, and a number of bills mandating DRM hardware detection capability were introduced, attracted co-sponsors and garnered hearings. While none of these bills became law in the 108^th Congress, they did have the effect of forcing copyright owners and hardware manufacturers to enter into discussions of how to “voluntarily” implement DRM on the hardware level.

The third provision of S. 1621 would have nullified the practice of copyright owners obtaining an administrative order signed by a court clerk with no judicial review that compelled ISPs to identify customers who were identified by a copyright owner only through an IP address and alleged by the owner to be copyright infringers.

In short, in the United States, no legislative initiatives to ameliorate the effects on users of recent changes in law and in technology as they affect access to information have had any success as of the end of the 108^th Congress.

Litigate

      While some were pursuing legislative remedies, others felt that recent changes in copyright law violated the spirit and letter of the U.S. Constitution. They mounted legal challenges to provisions of both the CTEA and to the Copyright Act of 1976, which made copyright protection automatic.

In Eldred v. Ashcroft, plaintiffs claimed in the suit that the CTEA was unconstitutional (1) because it violated the “limited times” clause in the Constitution and (2) because it constrained free speech. The case went all the way to the Supreme Court, where it lost by a 7-2 vote.

While those who sought to have the CTEA declared unconstitutional failed to achieve that goal, others felt that elements of the Eldred decision strengthened the case for asserting that a combination of recent changes in copyright law did, in aggregate, affect the “traditional contour of copyright” for a certain class of works and, therefore, that these laws essentially created a situation which required “further first amendment scrutiny.” (Eldred v. Ashcroft, 2003 U.S. LEXIS 751 (2003))

That is the approach taken by plaintiffs in Kahle v. Ashcroft. A federal district court has dismissed the Kahle suit on a motion by the federal government, which is defending the suit. Plaintiffs and the legal team representing them have appealed to the Ninth Circuit Court of Appeals.

A third suit, Golan v. Ashcroft, addresses the extension of copyright term as well as first amendment issues from another perspective. It focuses on another “enclosing” copyright issue – restoring copyright protections for works, in this case foreign works that had already entered the public domain. The suit has not yet been heard.

All of these suits are attempts to reverse or minimize what the plaintiffs view as damage to, and enclosing of, the public domain, in particular, and the information commons, in general. Like the legislative initiatives mentioned above, none of these litigation efforts have succeeded thus far, and prospects for relief through Congress or the courts is, at the moment, not bright.  

Limit

            In the absence of legislative or legal remedies, some have sought to leverage existing copyright law to realize goals of more open access to information that legislative proposals and lawsuits have not so far been able to accomplish.

This response encourages creators to forego some rights available under copyright law while retaining others. The desired effect is to widen the amount of material available in the information commons, if not in the public domain per se.

There is ample precedent for this tactic. Free/Libre and Open Source Software (FLOSS) has used the GNU General Public License (GPL) or some variant for almost two decades. This class of licenses uses copyright law to license the use of copyrighted works on much less restrictive terms than exist under normal copyright conditions. Creators use the GPL and its many derivatives and variants mostly in licensing FLOSS. However, similar licensing approaches can also apply to other types of copyrighted works such as text, music, photographs or motion pictures.

Creative Commons. Several of those who had been involved in the litigation efforts described above decided that, while it was necessary to continue to challenge in court the validity of laws limiting access rights, something needed to be done at once to create alternatives to the closing off of the commons they felt was underway, and the Creative Commons was born.

The Creative Commons extends and broadens the “some rights reserved” approach of the GPL to licenses that creators can apply to a wide variety of works. The same digital technology that has made it possible for copyright owners to impose restrictive license on works in digital form also allows copyright owners to offer much less restrictive licenses that users do not have to seek prior permission to use as long as users adhere to the conditions set out in the license. Typically, those conditions are much more liberal than those that obtain under copyright law per se.  In practice, a creator indicates that his or her work is licensed under a Creative Commons license and provides a link to the Creative Commons website (www.CreativeCommons.org) where the specifics of the license are laid out for any potential user to view. As long as the user conforms to those conditions of use, there is no need to track down the copyright owner and obtain specific permission to use the work.

While these Creative Commons licenses do expand access to information in a commons spirit, the works are licensed under copyright and the licenses chosen draw their force and enforceability from copyright law. None of these commons licenses has yet had its validity tested in court.

Some creators are uncomfortable with having their work remain under copyright for 70 years after their deaths. For these creators, the Creative Commons also offers a “Founder’s Copyright” option. This option limits a creator’s claim to copyright to 14 years, the original grant of copyright in the United States, after which time the work enters the public domain. Creators may also choose to simply affirmatively donate their copyright to the public domain immediately, and Creative Commons provides a mechanism for doing that as well.

In the few years since Creative Commons licenses have been available, creators have applied Creative Commons licenses to almost 14 million works, and the rate of use has been growing steadily. While Creative Commons supporters do not pretend that this is more than a small percentage of created works on the Internet, they do assert that it is important to have a legal channel available for those who wish to contribute to the expansion of the information commons, even if not to the public domain itself.

Create Competing Systems

      Alternative licensing schemes, such as those employed by Creative Commons or the Open Source software movement, do create a mildly competing economic model to traditional markets in copyrighted material. Creators under these alternative licensing systems do not generally attempt to capture all of the value of their work but choose instead to reserve only some value for themselves. Open access publishing initiatives go even further and actually create an alternative model of academic publishing that competes directly in the market for academic scholarship.

While there are over 24,000 scientific journals currently published by 2000+ publishers, fewer than half a dozen large publishers own or control the distribution of a large majority of those journals, including a majority of those most intellectually important. These large publishers are in a quasi-monopolistic position and have been raising prices far in excess of increases in the rate of inflation for nearly two decades. During the past decade, publishers also have increasingly migrated their publications to digital form, in many cases abandoning paper publishing altogether.

Once their products are in digital form, publishers are in a position to impose technologically enforceable licensing controls, and most have done so. One result of this technologically enforceable quasi-monopolistic position is entirely predictable under capitalistic economic theory. Publishers, unfettered by competition, have bundled many titles into packages in a “take it or leave it” fashion and have unilaterally set price points to maximize profits. The strategy has worked: some in the industry are reportedly realizing profit margins approaching 40%.

In this environment, libraries and librarians began to react, as did a host of non-governmental and professional organizations. One of the clearest statements of their view of the recent situation with respect to academic publishing is included in this description of the Scholarly Publishing and Academic Resources Coalition (SPARC):

Scholarly Publishing and Academic Resources Coalition is an alliance of academic and research libraries and organizations working to correct market dysfunctions in the scholarly publishing system…Its strategies expand competition and support open access to address the high and rising cost of scholarly journals, especially in science, technology and medicine – a trend which inhibits the advancement of scholarship.

SPARC, as well as many other organizations, encourages the development of open access journals, publications that make their articles available at no cost to users and that typically allow users at the very least to make copies in digital form and often confer a wider set of usage rights. Those efforts have had some notable success. For example, the Directory of Open Access Journals website (www.doaj.org) lists over 1600 open access journals containing over 62,000 searchable and downloadable articles. In addition, funders such as the U.S. National Institutes of Health and the Welcome Trust in the United Kingdom are calling for research conducted through their funding to be openly available after some limited “hold back” period.

There are many important obstacles for open access publishing to overcome to be a full-fledged market alternative to commercial publishing, including building sustainable economic models and changing the culture of academia to value open access and traditional publication credits equally when considering tenure and promotions. Nonetheless, open access scholarly publishing is already having an effect on the marketplace and, through market mechanisms, has already begun to expand the information commons.

Legally Reinterpret

      Underlying any legal statute concerning intellectual property, and thus copyright, is a set of assumptions about what “property” actually is. Laws such as the DMCA have emerged because forms of property have changed in the digital age, while the conceptualization of the nature of property has not. Consumption, excludability, costs of replication and other characteristics of physical property do not seem to apply in the same way to intellectual property as to physical property, yet recent legislation and court decisions assume they do.

In the last two decades, and particularly in the past decade, some scholars have argued that intellectual property and physical property such as land are not the same thing and that, in fact, the set of assumptions underlying laws governing intellectual property in a digital environment should not be based on the analogy of physical property but rather on some other model more reflective of the nature of intellectual property itself. Robert Heverly observes the following:

We think of information as property; law and economic structures, we argue, make it so. But this should not be the end of our inquiry. If we believe information is property, we must ask: What kind of property is information?”

Recent theorists have approached an answer to this question in a variety of ways. Heverly, for example, concludes that “information is not a private property regime: it is a semicommons” which, in his analysis, reflects the “dynamic relationship and interdependence of private and common property interests.”

Jacqueline Lipton asserts that there is nothing wrong with viewing information as property in the traditional sense, as long as property rights and obligations are viewed in a holistic manner. Problems arise when there is an imbalance in the rights and obligations of property owners – “the problem can be re-cast in terms of the ‘absolutism’ of information property rights.” Lipton argues that even physical property rights are not absolute and neither should information property rights be. “Where a government has created, or supported the creation of, private rights in information, it should be prepared to create and support concurrent public duties.”

Lipton shares a conclusion, if not the process of arriving at that conclusion, with Mark Lemley.  He quotes with approval the view of the Supreme Court of Canada in Compo Co. Ltd. V. Blue Crest Music Inc.:

Copyright law is neither tort law nor property law in classification, but is statutory law. It neither cuts across existing rights in property or conduct nor falls in between rights and obligations heretofore existing in the common law. Copyright legislation simply creates rights and obligations upon the terms and in the circumstances set out in the statute.

In short, Lemley argues that intellectual property is sui generis and needs to be envisioned as such when crafting legislation to define appropriate economic rights, characteristics and obligations rather than to use terms of “inapposite economic analysis borrowed from the very different case of land.”

While these efforts to recast the discussion of the nature of intellectual property may be fruitful over the long run, they are having little impact on the enclosure of the information commons at present.

Philosophize and Mobilize

            The various reactions to the perceived enclosure of the commons summarized above come at the problem from different angles. While they share underlying concerns, they focus on different areas and utilize different approaches to preserving or enlarging the information commons. Like the old story of the six blind men feeling an elephant, each type of reaction focuses on a different description of what is, in reality, a single phenomenon.

James Boyle is one who champions the view that all of these efforts are responding to a single underlying phenomenon and should be considered part of a larger conceptual movement. His description of the “enclosure of the commons” has helped to provide a rudimentary common terminology for those concerned about this reduction in access to information. However, Boyle asserts that there needs to be a far greater raising of consciousness in a much wider segment of the population if efforts to preserve and expand the information commons are to succeed over time. If responses to the “second enclosure movement” continue to appear as a set of discrete responses to a set of separate problems, he argues, the public domain will disappear “first in concept, and then, increasingly, as a reality.” In his view, the solution is both a philosophical and a political one – use language to “invent” reality and thereby change the nature of the discussion about intellectual property and the public domain and then create a “political” movement based on that new identity.

Boyle looks to the environmental movement for an analogy. In 1997, he asserted that “it seems to me that, in a number of respects, we are at the stage that the American environmental movement was at in the 1950s or 1960s.” In 2003, he added the following:

The idea of the public domain takes to a higher level of abstraction a set of individual fights – over this chunk of the genome, that aspect of computer programs, this claim about the meaning of parody or the ownership of facts. Just as the duck hunter finds common cause with the bird-watcher and the salmon geneticist by coming to think about “the environment,” so an emergent concept of the public domain could tie together the interests of groups currently engaged in individual struggles with no sense of the larger context.

Conclusion

            While Boyle’s analysis may turn out to be accurate, at present, the information commons equivalent to Silent Spring has yet to be written; the commons analog to the earth flag has yet to be designed; and the information commons movement has yet to take its place in the mainstream of political discourse. Instead, efforts to guarantee access to the information commons in the face of recent changes in law and technology continue to proceed through the different approaches outlined in this report: legislate, litigate, limit, create competing systems, legally reinterpret, and philosophize and mobilize. We still await the unifying framework that could place the intellectual environment of the information commons on a par with the physical environmental movement in matters of public debate and policy.

Editors’s Note: This paper was one of the successful entries in the NEASIST 2005 Travel Grant Competition.

For Further Reading

Boyle, J. (1997). A politics of intellectual property: Environmentalism for the Net?" Duke Law Journal, 47, 87–116.

Boyle, J. (2003). The second enclosure movement and the construction of the public commons. Law and Contemporary Problems, 66, 33–75.

Heverly, R. A. (2003). The information semicommons. Berkeley Technology Law Journal, 18, 1127–89.

Kranich, N. (2004). The information commons: A public policy report. Available August 14, 2005, at www.fepproject.org/policyreports/infocommons.preview.html.

Lemley, M. (2004, August). Property, intellectual property, and free riding. [Working Paper No. 291, John M. Olin Program in Law and Economics, Stanford Law School.] Available August 14, 2005, at http://ssrn.com/abstract=582602.

Lipton, J. (2004). Information property: Rights and responsibilities. Florida Law Review, 56, (1), 140.

St. Laurent, A. M. (2004). Understanding open source & free software licensing. Cambridge, MA: O'Reilly.

Copyright © 2005, American Society for Information Science and Technology