Enclosing the Commons of the Mind

To the Royal Society for the encouragement of Arts, Manufactures and Commerce, to hear Prof James Boyle of Duke University, Creative Commons, the Financial Times and elsewhere, give an exciting and stimulating lecture entitled “The Public Domain: Enclosing the Commons of the Mind”. I hope my notes reflect what he said fairly accurately: but you should probably read the book anyway (free download, but not autographed like the copy I bought, using the money I saved by not buying dinner, or a even post-lecture drink). My comments are in italics and should obviously not be attributed to him.

For 50 years, he argued, we have expanded intellectual property in ways that are unwise. The public domain is as important to innovation as intellectual property itself.

The debate is not based on empirical evidence but on faith - faith that more IP protection will lead to more innovation. This has turned out badly for culture and badly for science.

Who, he asked, back in the early nineties, would have backed the unregulated, open, Internet over a Minitel or Ceefax-type system? Who would have rejected a new Encyclopedia Britannica in favour of a website on which anyone could post material about any subject they wanted? Who would have thought that the commercial software licensing model might be challenged by a clearly unsustainable and economically irrational alternative?

The mindset that would have turned us (and Prof Boyle admitted that he would have been in the majority) against the Internet, Wikipedia and open source licensing is not necessarily wrong, but it is the result of bias. We would have recognised the real dangers in these alternative approaches, but what he called 20:20 downside vision is conditioned by our experience of property. Transferring concepts that we apply to physical objects to intangible creations skews our understanding of the subject.

He described copyright as a massive restriction on freedom of speech, observing that before US copyright law changed in the seventies copyright in some 85 per cent of works was not renewed after the first period of 28 years.

The result was, of course, a large public domain, but surely the system discriminated between successful and unsuccessful works, and the public domain contained the rubbish that it was not worth paying to protect? Of course, gems would also fall into the public domain in this way, but is it right to deny their creators the eventual reward?

Orphan works now remain unused, including works such as films which pose tricky copyright clearance problems and which crumble to dust while the Library of Congress refuses to show them except to accredited researchers. (But reaction to the Gowers report suggested the British practitioners thought the orphan works problem an imaginary one which was dealt with in practice by making provision to pay a modest royalty: after all, if a work commands more than a modest royalty, it is not likely to be an orphan.) Perhaps more tellingly, old home movies of historical interest re not shown because of copyright concerns, restricting freedom of speech and presumably hindering scholarship, although that might persuade the Library of Congress to put on a screening. (On the other, I am reminded that "There's No Such Thing As Free Speech and It's a Good Thing Too".)

The open approach, however, does not work for science - for the very community that created the web. The product of the (frequently publicly-funded) work of scientists is available only behind the high firewalls of academic publishers, depriving scientific work of the benefit of the Internet’s version of peer review – hyperlinks. (Scientists invented hyperlinks, he observed, and called them “footnotes”.)

As for extending the term of copyright protection, Prof Boyle pointed out that dead people do not respond to incentives to create – and that this had been proved on previous occasions when copyright had been extended. There might be arguments in favour, and certainly he was not against protecting cultural products, but the one-size-fits-all solution resulting from Hollywood’s lobbying is too blunt an instrument. He quoted figures that showed (a couple of years ago) that the average student’s iPod (the average student presumably eschews other types of music player) held 400 songs of which 18 were paid-for downloads – a ratio that Prof Boyle suggested might disclose a sustainable business model. He also referred to the fact that IBM now earns twice as much from consultancy and related work arising from the patents it has freely licensed to the open-source community than it does from the patents that it retains and exploits in more conventional fashion. Openness clearly works for some technologies.

Having reinforced all my reactions to IP absolutism, Prof Boyle ended by predicting an expansion of “ludicrous” IP claims, leaving me with a new concept of “toxic” IP rights to take away with me and think about.)