The Creative Commons

Lawrence Lessig, world expert on internet law, is fighting to defend creativity.

Sandy Starr

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Topics Science & Tech

‘What if the law had said that you need someone’s permission before taking their image?’ So asked Lawrence Lessig, to draw our attention to what the consequences might have been for photography and film if they had been regulated as closely when they first emerged as the internet is today.

Lessig was speaking at the Royal Society for the Encouragement of Arts, Manufactures and Commerce (RSA) in London in January 2004, to coincide with the launch of the UK branch of the Creative Commons initiative, which he has helped to pioneer.

The aim of Creative Commons is ‘to build a layer of reasonable, flexible copyright in the face of increasingly restrictive default rules’ (1). By asking the question about photography and film, Lessig sought to illustrate the effect that today’s intellectual property (IP) regime threatens to have on creativity and technology.

Lessig gave the example of a recent, low-budget documentary film about a musical performance. The filmmakers discovered that the character of Homer Simpson from The Simpsons appeared for three-and-a-half seconds, on a barely visible television, in the background of a key shot. In accordance with the strict IP laws in operation today, the filmmakers were forced to ask Fox Broadcasting Company, owners of The Simpsons, for permission to include the shot. Fox said that they would de happy to grant permission…for $10,000.

It doesn’t take much imagination to see the obstacles to any form of creative activity, if creators have to agonise constantly over excluding anything that could be construed as an explicit reproduction of (part of) another creative work, or including it and paying an exorbitant fee. This effectively prevents creators from depicting and interpreting the world as it actually is – that is, crammed with a variety of cultural products. But Lessig argued that ‘before the internet, I don’t think that mattered. The burden of the law, before the internet, was not the real burden. The real burden was the burden of economics’.

In short, it was not economically feasible before the internet existed to operate a perfect system of intellectual property control. There was always some scope for engaging in creative activity that passed beneath the radar of the content industry, which could only afford to seek out and clamp down on the biggest threats to its profits, turning a blind eye to lesser infractions. Today, the content industry is seriously trying to prevent any unauthorised consumption or modification of content on the internet. One of the key tools for this clampdown is digital rights management (DRM) technology.

Lessig gave examples of DRM used by the publishing industry, where the reader of an electronic book is only permitted to read, copy or print fixed quantities of the text, over fixed periods of time, for a fixed price. Lessig demonstrated that electronic copies of Aristotle’s Politics and George Eliot’s Middlemarch – books which are, indisputably, in the public domain, and should therefore not be subject to any IP considerations at all – were locked up with heavy DRM. Ironically, Lessig also demonstrated that an electronic copy of his own book The Future of Ideas: The Fate of the Commons in a Connected World, which argues against DRM, had been locked up with the heaviest DRM of all.

The way DRM is being deployed confuses technological rules with legal rules, with unfortunate consequences. Lessig explained that although DRM supposedly consists of ‘controls not from the law, but from technology’, the authorities are now ‘adding laws to protect the code, which is itself intended to protect the copyrighted material’. In other words, laws now exist that prohibit people from attempting to circumvent DRM protections, even if they have the technical means to do so.

From a narrow technological perspective, there is nothing wrong with technology that protects content, even if that technology exceeds the scope of the law. And from a narrow legal perspective, there is nothing wrong with law that protects technology, even if that law exceeds what is technologically possible. But when content is locked up with legally excessive technology, and then that technology is in turn locked up with technologically excessive law, you end up with a draconian IP regime that can’t be contested from the standpoint of either technology or law. It can only contested through a broad critique of the system from first principles, an uphill struggle that Lessig is leading.

Being a practitioner of law himself, Lessig’s beef is not with the existence of IP per se. As he points out in The Future of Ideas, ‘our choice is not between zero protection and perfect protection. No one serious in this debate is promoting the abolition of copyright’. Lessig stresses that while industry and the authorities obviously have their vested interests, the direction in which IP is being driven ‘is not conspiracy. It is cultural blindness’ (2).

You don’t have to object to the existence of IP in order to object to its being enforced in an imbalanced way, restricting creativity instead of stimulating it. In his RSA lecture, Lessig argued that the commodification of creative work is only one side of the history of IP. IP can just as easily be seen as a formal means of protecting, and even freeing, culture within the evolving capitalist system – hence the title of Lessig’s forthcoming book, Free Culture – because while IP is monopoly-granting in the short-term, it has been monopoly-limiting in the longer term. Lessig used the example of the original template for copyright law, the eighteenth-century Statute of Anne, which ensured that the work of Shakespeare was, for the first time, formally made available for free.

The Creative Commons initiative in is an attempt to rebalance IP law, by devising new licenses that do as much to ensure public access to creative work as they do to ensure private reward to creators – hence the Creative Commons slogan ‘some rights reserved’, a riposte to the standard copyright notice ‘all rights reserved’. As Lessig announced the launch of the UK branch of Creative Commons, he declared proudly that over a million licenses have been issued in the past year alone.

But all this talk of licenses, monopolies and creativity is somewhat abstract – even for tech geeks and culture vultures, much more for the broader public, and for the businesspeople and policymakers whom Lessig is trying to win round to his vision of a more balanced IP regime. One can point to any number of examples of creativity being constrained by IP regulation – but is it possible to provide concrete examples of the benefits of creativity being unleashed?

To show that the internet can ‘enable a kind of democratic creativity’, Lessig showed us a juvenile piece of online satire, in which video footage of George W Bush and Tony Blair is sychronised with a cheesy love song as if they are pledging their undying love to one another. While this raised a few titters, it was hardly the most insightful or inspiring contribution to world culture. A far better example was a lovely piece of music, which had been recorded by one musician, published online under a Creative Commons license, and then freely embellished by a second musician (who had never met or conferred with the first).

When it came to trying to win round businesspeople and policymakers, Lessig gave the example of the ‘Creative Archive’ initiative announced in 2003 by the BBC’s then director-general Greg Dyke (3). This initiative was intended to provide internet users with free access to vast swathes of the BBC’s extensive archive of content, going some way toward assuaging popular gripes over the amount of license fee money that the BBC diverts into its internet projects. The future of the initiative is now in doubt, following the Hutton report and the subsequent shake-up of the BBC that saw Dyke resign. But the Creative Archive remains an ambitious idea.

Lessig also pointed to the Internet Archive, a massive, ongoing project to document the evolving content of the internet (4). He boasted that the Internet Archive’s 30billion web pages and 232 terabytes of data constitute 10 times the quantity of data contained in the Library of Congress, and claimed that with today’s technology you can ‘cheaply build the Library of Alexandria, not just in Alexandria, but anywhere’. But while the Internet Archive is doubtless a useful resource, its size tells us nothing about the value of its content. A decade’s worth of online outpourings will inevitably contain some gems, but that doesn’t make its cultural worth comparable to that of the Libraries of Alexandria or Congress.

In truth, Lessig’s case for freeing up creativity is always going to be somewhat abstract, because it is concerned more with future potential than with existing achievements. He is worried that short-sighted attitudes toward new technology are foreclosing creative possibilities that we have yet to even conceive of. As he puts it in The Future of Ideas, ‘where a resource has a clear use, then, from a social perspective, our objective is simply to assure that that resource is available for this highest and best use…. But…if we can’t tell upfront how best to use it – then there is more reason to leave it in common, so that many can experiment with different uses. Not knowing how a resource will be used is a good reason for making it widely available’ (5).

Lessig has become deft at pitching his arguments to seemingly entrenched, opposing factions in the IP debate – from hackers, whose pioneering of ‘copyleft’ licenses for software helped to inspire the Creative Commons initiative, to stiff-necked IP lawyers, who have corporate clients to worry about. In his attempts to play both ends against the middle, Lessig is occasionally guilty of equivocation – as became clear when an audience member at the RSA asked him how his ideas about copyright applied to the European tradition of droit d’auteur.

Droit d’auteur refers to a form of copyright conceived not as an economic right, where private reward for creators is balanced with public benefit from creations, but as a moral right, where creators are entitled to ensure that the integrity of their creations is never tarnished. ‘I would have no problem reinvigorating a properly structured author’s right apart from copyright’, replied Lessig to his questioner, arguing that such an author’s right might prevent unscrupulous corporations from wrongfully exploiting the creative work of others.

But this is a disingenuous argument, going against all of Lessig’s most powerful insights. Any idea or cultural product worth its salt can withstand parody and pastiche – drawing a moustache on a reproduction of Leonardo da Vinci’s Mona Lisa, for instance, does nothing to diminish the worth of the original. Any idea or cultural product worth its salt also benefits from being disseminated as widely as possible. If Lessig is genuinely willing to rock the boat and interrogate the IP system, then he could do worse than challenge the entire basis for the droit d’auteur tradition.

Such inconsistencies aside, Lessig has done some great work on IP. The stringent measures, both legal and technological, now being used to regulate IP, bear out his warning in his book Code and Other Laws of Cyberspace that ‘among the many possible architectures that the net might have…it is evolving in a very particular direction: from an unregulable space to one that is highly regulable’ (6). As the internet takes IP into uncharted territory, Lessig is frantically attempting to draw us a map.

Sandy Starr has consulted and written on internet regulation for the Organisation for Security and Cooperation in Europe, and for the European Commission research project RightsWatch. He is a contributor to Spreading the Word on the Internet: Sixteen Answers to Four Questions, Organisation for Security and Cooperation in Europe, 2003 (download this book (.pdf 576 KB)); From Quill to Cursor: Freedom of the Media in the Digital Era, Organisation for Security and Cooperation in Europe, 2003 (download this book (.pdf 399 KB)); and The Internet: Brave New World?, Hodder Murray, 2002 (buy this book from Amazon (UK) or Amazon (USA)).

Read on:

Who owns ideas?, by Joe Kaplinsky

Copycat copyright, by Sandy Starr

Tightening the net, by Chris Evans

The Naked Crowd, by Sandy Starr

(1) About us, on the Creative Commons website. See the United Kingdom section of the Creative Commons website

(2) The Future of Ideas : The Fate of the Commons in a Connected World, Lawrence Lessig, Vintage Books, 2001, pxvi, 237 (buy this book from Amazon (UK) or Amazon (USA))

(3) See Dyke to open up BBC archive, BBC News, 24 August 2003

(4) See the Internet Archive website

(5) The Future of Ideas : The Fate of the Commons in a Connected World, Lawrence Lessig, Vintage Books, 2001, p89 (buy this book from Amazon (UK) or Amazon (USA))

(6) Code and Other Laws of Cyberspace, Lawrence Lessig, Basic Books, 1999, p25 (buy this book from Amazon (UK) or Amazon (USA))

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