AJ: Welcome to First Monday I’m AJ Hannah

Joy: And I’m Joy Austria. Copyright is an issue very much at the forefront of technological news primarily with issues like music and movie piracy. However how well do we understand copyright, it origins and its difficulties with adapting to the digital age?

AJ: Maureen O’Sullivan, author of “Creative Commons and contemporary copyright” sits down with Joy and I to discuss copyright, the potential of the Creative Commons, and permissible podcast language.

AJ: Welcome to the podcast, Maureen.

Maureen: Oh, thanks very much, well I’m very honored to be here.

Joy: We’re honored to have you here too. Why have you introduce yourself and tell our audience who you are and what it is you do.

Maureen: Okay, well my name is Maureen O’Sullivan. I’m a lecturer in law at the National University of Ireland in Galway, which is one of seven universities here. It’s based in the west of Ireland. And I’ve lectured in law, in the UK at two different universities at Warrick and also at the University of the West of England in Bristol, and I suppose my main area of interest really is intellectual property, focusing especially on copyright, although I’m getting into patents a bit more now as well. But not really from a traditional black letter law perspective, I’m very interested in kind of the sociology and the technology of the information society and its kind of link with intellectual property.

Joy: I have to admit, I am completely mystified by this issue of copyright, and —

Maureen: Oh, yeah?

Joy: Yeah.

Maureen: Me, too.

Joy: Well that’s what I love about your article it’s a great introduction to copyright in the digital age. So for those in the audience that haven’t read the article or are just as mystified by the subject as I am, let’s have you give a brief introduction to copyright.

Maureen: Well, the thing is that, first of all, I think you really have to understand and know a little bit about copyright’s history, and copyright wasn’t initially introduced as a property right at all. It was a restriction on the freedom of speech and it grew up alongside the, the invention of the printing press, because I mean if you go back to medieval Europe, the majority of the population was illiterate. And so as you can imagine when the printing press came along, it meant that you know any material, any written material could be circulated very easily, and there was an increase in literacy.

So I mean copyright was initially a right hand to the, the publishers, and it was a way of controlling the spread of seditious material and a way of giving a monopoly over publishing to the stationer’s company. And it only really became associated with, as as a property right much later on, and I mean it was writers such as Charles Dickens that, sorry to sort of point the finger now, but the U.S. is known as having been a voracious pirate, going back about a hundred years, where foreign copyrights weren’t recognized.

So there were a lot of English writers that had their works copied quite freely in the States. And copyright started to grow up as a type of a property right then, there was a lot of international pressure to get an international copyright treaty such as the Berne Convention[1], and by and by countries have started to kind of harmonize their copyrights, so for example if there’s a work created in the U.S. or a work created in England, it’s going to get protection in other countries.

Joy: Something I think the mass media tends to overlook in their discussion of copyright is the importance of the public domain. What is the significance of the public domain?

Maureen: Now, the whole thing about copyright is that when it made that transition to being a property right there was a deal struck. You would get a temporary monopoly over your work under copyright laws. But the thing about it was that the work was then supposed to fall into the public domain, and the reason it’s necessary to have a vibrant public domain is that people need to have access to ideas and to the expression of ideas in order to be able to be able to go away and create new works. So there’s a kind of a positive feedback cycle from having a very healthy public domain.

On the other side it also gives the, the ability I suppose to create technologies that can restrict that. The danger is that when you’ve got too much regulation it starts to really restrict the public domain and so the sort of general access to ideas is restricted and so that’s going to affect creativity. And what’s interesting in this is that you find increasingly that people who are privileged by the copyright are actually opting out of it because they see that their work has benefited from you know, a rich public domain and they’re not kind of enforcing their rights in a way that you would expect them to.

Joy: One of the things that confuses me about this subject is what exactly are we fixing? Is the ultimate goal to protect the public domain? Do we protect the public domain through copyright law?

Maureen: It’s a very good question and a very complex one and it doesn’t have an easy single answer I’m afraid and I suppose in an ideal world, the law would represent the interests of the people who elect the legislator, that’s us, the public in general and big business would make up a very very small or they’d have an influence, but a very small influence.

And unfortunately what we’ve seen is that they’re hugely influential when it comes to gaining extension of the term of copyright, also in gaining extension of the breadth of copyright in terms of what it actually covers, because originally obviously it only covered books and now we see it extending to all different types of technologies. And the thing about fixing copyright law, the problem with fixing copyright law, is that it covers such a diverse number of works that it really would take a detailed study of each different technology and how it’s affected by copyright.

So you know in an ideal world I’d say that we should be looking at the copyright term and looking at the different matters that copyright protects so for example, software, how long do you need in order to earn the firm a return on their investment, and certainly a life plus seventy years would seem to be excessive for software, which you probably can’t even run on your machine you know after it’s been in use for five or ten years. Or books, they might be a different issue altogether, and I think that I suppose the big thing really is that we have to get real.

AJ: So are you proposing a breakdown, by the projected life span of a work or a category?

Maureen: I’ll be very honest, I’m a realist, I’m not actually advocating that. What I am saying is in an ideal world we would undertake detailed studies that you know were cross–sectional in their approach, so that you just didn’t get head honchos from industry carrying out these sorts of studies.

But realistically what’s happening is that the law is going in one direction. The public in general haven’t obeyed the law at all. And then what you have is that people who aren’t benefiting from the law which privileges them are opting out of it anyway. So I mean change is sort of really coming from the ground up. I think if we were living in a genuinely representative democracy, that has to start to filter in to the legislator at some point, so the law has to actually become more representative. The situation that you’ve got at the moment is a very very restrictive law, and which, you know, the people with privileges are voluntarily opting out of, and that seems to me to be very very strange and very very undemocratic.

The middle ground really is finding a way of ensuring that artists can make a living, but also ensuring that the public domain is enhanced.

AJ: Okay, you mention that James Boyle in your paper is one of the founders of the Creative Commons.

Maureen: Uh-huh.

AJ: And that the Creative Commons does not have the goal to abolish copyright but rather to achieve a balance, which appears to have been mislaid.

Maureen: Yeah.

AJ: He also claims that those that require access have been polarized and that the middle ground is not being represented. What is that middle ground and do you have any suggestions on how it can be represented?

Maureen: So on the one hand you’ve got property rights holders and then on the other hand you’ve got people, who in general, don’t tend to observe the rights. And I suppose the middle ground is that the two come together, that you get some sort of respect for the law.

My opinion is that copyright law is virtually unenforceable online, and so we’ve actually, we’ve really got to look at different ways of earning artists money. And one of the ways can be to cut out the people who are really earning, kind of the big industries, make them reform, I guess a lot of them are doing that anyway, you know with the open source movement and stuff like that in the area of software.

Or you know, get them to meet the public halfway, so that they’re not charging exorbitant amounts of money, so for example here, if I go downtown Galway and I buy the average CD, it’s twenty-five euros, that’s an awful lot of money, that’s probably around thirty–five to forty dollars. You know, there’s no relation between the price that you’re paying and what the artist actually needs to survive, the artist isn’t getting that money anyway, it’s industry, so it’s not actually going to the creative person so to speak. So, I mean if I was going downtown and maybe spending, I don’t know, five or ten euros on a CD, well a person in my position would be less inclined to go online and pirate music.

And so I think there has been a mass exploitation of, you know, the interested parties, sorry, the end users of creative works. And when there’s that sort of perceived I suppose too much returns really on the work, well people just aren’t going to obey the law, they’re going to continue to disobey it and so I suppose the middle ground really is finding a way of ensuring that artists can make a living, but also ensuring that the public domain is enhanced and also ensuring that end users or, you know, people who actually want to listen to the music or read the book or whatever, that they’re basically not being screwed.

AJ: Can we say screwed in the podcast?

Joy:I think so, actually, I think so, I mean, we’re not under FCC regulation yet, so.

Maureen: Well, I just did it, so. But technically, technically this call is taking place in Ireland anyway, isn’t it?

AJ: Oh, good.

Joy: Well, we’re the editors, so yeah.

Maureen: We can run it by the Irish censors if you want, but I’m sure they won’t be too troubled.

AJ: Would you say that Creative Commons is actually a new type of copyright culture?

Maureen: Yeah, very much, it’s very much a cultural practice. And I mean I think that [Lawrence] Lessig is to be applauded for his efforts because he’s tried to change things on so many different levels. For example, he’s tried to introduce legislation, the public domain enhancement act, and he’s not been successful with that. He’s tried to challenge the copyright extension, or the copyright term extension act in the US and that wasn’t successful.

And what he’s always said is that he’s always tried to challenge things through the accepted mechanisms, and then if you fail to change things either through the courts or the legislator, you can bring pressure to bear on the government and often they tend to be quite slow to respond, and there are two other ways of going about it.

You can either completely disobey the law, which is obviously highly problematic because then you face potential penalties. Or else you can create a culture in which you sort of approach the owners of the rights and you encourage them to approach their rights differently and that's what he’s done. And I mean it’s amazing to see the way that creative commons has taken off around the world, I mean it’s on the tip of everyone’s tongue now.

And I mean I think as well that one of the reasons I really wanted to publish with First Monday is because of the whole ethos that it’s got supporting authorial rights and authorial control as well, and also encouraging authors to put their work in a format that allows other people to have access freely, etc.

I think that creative commons is hugely influential. But I don’t know at what point it will actually feed back into the legislature.

Joy: That was exactly my question. It’s on the tip of everyone’s tongue but is it making a difference on the legislative level?

Maureen: No, it’s really not. Even in the EU at the moment now they’re talking about extending the terms of performance artists rights from fifty years to ninty–five years, so definitely not.

Joy: So what is it going to take for social activism and the creative commons movement to really make an impact on legislature?

Maureen: I mean one of the things is that I suppose the legislator has been very driven by industry and if the cultural change reaches industry so that a critical mass of industries are changing the way in which they approach the enforcement of copyright. Well there won’t be any push to extend the rights anymore. The legislator has been pressurized by industry the whole time.

Creative commons doesn’t really aim to change the law it aims to operate legally within the system, just getting copyright owners to contract out of their rights. But you see law isn’t, it isn’t something static ultimately. And eventually it becomes influenced by I suppose the critical mass. At the moment obviously, the greatest influence over he legislator in this area are the industries. But I mean if the industries aren’t demanding an increase in term anymore, well maybe things will change. Or maybe the laws will just stay in the books and get ignored. Everybody’s going to be contracting out of them, which isn’t very satisfactory, but you know the absences of change, well I suppose, a compromise is the next best thing.

The reason it’s necessary to have a vibrant public domain is that people need to have access to ideas and to the expression of ideas in order to be able to be able to go away and create new works.

AJ: This might be more of a tangent but you had mentioned before that you were moving more into studying patents. Can you describe the difference between patents and copyrights, and what kind of consequences do you see with corporations patenting or copyrighting genetics and various plant seeds, genetic make up of seeds, or copyrighting genetic structures of living things?

Maureen: Well, we’re actually setting up a Masters here on Law Technology and Governance which is going to kick off here in September this year and we’re dealing with all these issues.

Basically the use of patents, again, it’s another type of property right. Traditionally copyright was used as a protection for creative works whereas patents were used for inventions. Basically, in the age of technology, patents have started to be used as a property right on seeds. The problem with, the special problem with the use of property rights in seeds is you get the feeling that a lot of the judges and legislators didn’t really understand that seeds actually propagate, that they self replicate. And so if you’re giving a firm a patent over a genetically modified gene, that that gene is going to replicate and it’s going to get out into the environment.

So you’ve got that case of Monsanto vs. Schmeiser, the Canadian Supreme Court case there in 2004–2005 in which the Canadian farmer, Schmeiser, was found to be liable to Monsanto for patent infringement because some genetically modified seeds had got onto his land allegedly without his knowledge.

I think that the patenting of seeds, it’s just a property right over the food chain, where copyright is the property right over information. And I think the one thing we have to watch is that the ownership of patentable material and the ownership of copyrightable material doesn’t all get vested in a few hands, which sort of seems to be happening.

I think it’s very worrying, actually, the patenting of genetically modified seeds. But unfortunately there doesn’t seem to be a creative commons in the patented seeds market as of yet. I suppose what you have got is a growth in the organic movement.

AJ: Do you see any space for patents or farmers inside of the creative commons licensing?

Maureen: That’s a good question actually. Creative commons, I suppose up to this, has really been in the area of copyright, but it would be very interesting to get a patent commons.

But I’m unaware of any developments in that sphere as of yet. I think it’s probably a very lucrative market so maybe there wouldn’t be that much of an incentive to develop a kind of open approach to the sharing of seeds that have property rights attached to them.

AJ: Maureen, thanks for taking the time to talk with us.

We have a link to Maureen’s article on the Extra Features section of the podcast website.

Joy: Questions or comments about this month’s episode? Email us at comments [at] firstmondaypodcast [dot] org or leave us a message on our Facebook page.

Next month we talk about the artistic merits of videoblogging with Micheal Newman from the University of Wisconsin-Milwaukee.

AJ: Also we’ll have our very first podcast review introducing our podcast review department. We kick things off with a review of The World’s Technology Podcast.

Joy: Thanks for listening and we’ll see you next month.End of article

[1] The full text of the Berne Convention is available on the World Intellectual Property Organization website.