L L E T I N
Reactions to the Enclosure of the Information
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
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.”
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.
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
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
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:
The necessity for claiming copyright changed from affirmatively
making a claim to affirmatively denying a claim (Copyright Act of
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)).
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).
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.”
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:
Create competing systems
Philosophize and mobilize
following brief summaries indicate the types of remedies proposed
during the 108th 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.
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.
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.
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 108th Congress.
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
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.
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
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 108th 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.
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.
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 108th Congress.
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.
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.
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))
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.
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.
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.
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.
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.
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
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.
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
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.
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.
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%.
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):
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
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.
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.
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.
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
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?”
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.”
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.:
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.
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
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.
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.
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.
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.
This paper was one of the successful entries in the NEASIST 2005
Travel Grant Competition.
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Copyright © 2005, American Society for Information Science and Technology