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AUTHORS AND OWNERS

ANDREW KATZ

Andrew Katz traces the origins of the problems of copyright legislation and practice when confronted with the natural, human, social mode of creative endeavour. Building on developments in open source software, he outlines how designers could benefit from a similar model and reveals the differences between the digital and the analogue realm.

Andrew Katz is a former software engineer and partner at Moorcrofts LLP in Marlow, Bucks, UK, specializing in advising clients on intellectual property and other aspects of open source software. For Andrew, “a design is an open design if it bears four freedoms. One: The freedom to use the design, including making items based on it, for any purpose. Two: The freedom to study how the design works, and change it to make it do what you wish. Three: The freedom to redistribute copies of the design so you can help your neighbour. Four: The freedom to distribute copies of your modified versions of the design to others so the whole community can benefit from your changes. Access to the design documents is a precondition for these freedoms.”

www.moorcrofts.com

We are reaching the end of a great historical experiment. Printing (starting with Gutenberg-style presses PRINTING and leading to huge industrial Heidelberg printing machines), radio broadcasting, 78s, vinyl, CDs, cinema, television: all these discoveries formed the technological backdrop for this experiment. All are (or were) media based on the principle of one-to-many distribution. To understand how this experiment was initiated, and how it is reaching its end, we need to understand a little of the nature of the businesses involved in these activities, and how the law enabled them to attain, and retain, that nature. WYS ≠ WYG

AS THE PUBLIC GREW ACCUSTOMED TO THE IDEA OF PASSIVE CONSUMPTION, CREATIVITY BECAME INCREASINGLY MARGINALIZED.

The one-to-many broadcast distribution model distorted our perception of creativity. A key characteristic of one-to-many distribution is the role of the gatekeeper: the corporation which decides what we, the public, get to read, watch or listen to. The roles of creator and consumer are starkly defined and contrasted. As the public grew accustomed to the idea of passive consumption, creativity became increasingly marginalized, at least in those areas covered by copyright. ACTIVISM Creativity was perceived as capable of flourishing only through the patronage of the movie studios, the record companies or the TV stations.

The industrial technology behind printing, broadcasting and vinyl duplication is expensive. Copyright law grants a monopoly which enables the distributors of media to invest in the capital infrastructure required for their packaging and distribution. These are the businesses which grew fat on the monopolies so granted, and they succeeded in convincing the public that it was the corporations’ role to provide, and the public’s role to pay and consume.

The original social approach to creativity did not become extinct as the dominant producer/consumer mode became established, even for media (like music, for example) where it applied. Andrew Douglas’s film Searching for the Wrong-Eyed Jesus shows that a visitor to the late 20th century Appalachians of the American South may well be asked: “What instrument do you play?” If the visitor answers: “I don’t play any”, the questioner will go on to say: “Ok, so you must sing.”

Steven Johnson in Where Good Ideas Come From makes the convincing case, based on a mass of evidence, that the social mode is more effective at maximizing creativity than relying on lone inventors and creators sitting in their garrets and sheds. Lone creators make good central figures in a compelling narrative – one reason why this meme is so popular. However, examining the truth behind the narrative often reveals that any creative work has much broader parentage than the story suggests. James Boyle in The Public Domain reveals the story behind the Ray Charles song I Got a Woman, tracing it backwards to Gospel roots, and forwards to the YouTube mashup George Bush Doesn’t Care About Black People, which sprang to prominence in the aftermath of Hurricane Katrina. To be sure, companies sometimes tried to foster a social model within the organization, but as Johnson points out, the benefits of social creation increase very dramatically with the size of the pool of participants, due to network effects. Until company silos are able to combine, the beneficial effects are relatively small.

Technology is Expensive

The internet has proved hugely disruptive. TREND: NETWORK SOCIETY The sharing and social nature of Web 2.0 has enabled the rediscovery of the natural, human, social mode of creative endeavour. The social side of the internet is dominated by individuals acting in their private capacity, outside the scope of businesses. Companies were initially wary of losing control over the activities of their staff, and regarded internet social activities as time-wasting at best. In the worst-case scenario, businesses saw online social networking as a potential channel for employees to leak the company’s valuable intellectual property, and were therefore often slow to see the benefits of social interaction in terms of benefits to their creativity. As they have seen the benefits accrue to their competitors, however, companies are starting to embrace a more open mode of business.

A return to the social mode is not without its setbacks. The internet radically lowered the barrier to entry for collaborative participation, and consequently increased the number of potential contacts that an entrant can make. SHARING This immensely powerful engine of creativity comes with a brake that inhibits its full capacity: the effect of unfit-for-purpose copyright laws.

The copyright laws of the broadcast era do more to assist the incumbent gatekeepers (the film companies, music companies and so on) than to promote the social mode of CO-CREATION collaboration. A side effect of the digital world is that almost every form of digital interaction involves copying of some sort. Whereas copyright law had nothing to say about sharing a book with a friend by lending it to her, in the digital realm, lending her a digital copy of Nineteen Eighty-Four to read on her e-book reader or computer involves a form of copying which may potentially violate copyright law.

The broadcast-model gatekeepers have used this unintended side effect of copyright law to their advantage, taking action against private individuals who had no intention of monetary gain, including mash-up artists, REMIX home video enthusiasts and slash fiction authors. Incumbent rights holders, fearful of losing their profitable monopoly-based businesses, have sought to extend their rights ever further by lobbying governments (frequently successfully) to legislate for new and increased intellectual property rights, extending such rights far beyond their original purpose and intention. To put the issue in context, it is necessary to ask a fundamental question: what is copyright for?

Thomas Jefferson was one of the most lucid writers on the topic. He understood well the unique nature of knowledge:

“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.”¹

A Monopoly is a Bad Thing

Jefferson did admit that creative people should be given a limited right of exclusive control over their creations. A monopoly is inherently a bad thing, a fact that was recognized in the late 18th century, as it is today. Nonetheless, a monopoly of control in the form of copyright or a patent was the most convenient way of enabling the creators to be remunerated for their work. And once the monopoly expired, the idea would be freely available to all and would become part of the common heritage of mankind, to be used without restriction by anyone. The necessary (but limited) monopoly includes ‘copyright’. The principle that the restrictions should be the minimum possible to achieve that aim should be copyright’s golden rule. That golden rule has been repeatedly ignored. The scope of protection has increased steadily over the last three hundred years, to the extent that the protection granted in Europe to the author of a novel, for example, lasts for seventy years after his or her death. Materials that are not restricted by intellectual property are considered to be ‘in the public domain’. Commentators have become increasingly strident in arguing that the public domain is a public good; it is likely that Jefferson would have agreed. In the same way that common land is an area where anyone can allow their animals to graze, the public domain has been described as a commons of knowledge, where potentially anyone can graze on the intellectual creations of others. The public domain has one crucial difference from a commons in the tangible world: a meadow open to all can easily be over-grazed and ruined, so that it becomes of use to no one (sometimes referred to as the ‘tragedy of the commons’). It is impossible to exhaust the commons of knowledge and ideas.

The Tragedy of the Commons

The modern ‘tragedy of the commons’ is that, just as the internet makes it easier to pass ideas and knowledge KNOWLEDGE from one person to another (for “the moral and mutual instruction of man, and improvement of his condition”), it seems that legislation and the more extreme activities of the rights holders are making it more difficult for those ideas and knowledge to enter the commons in the first place. This is because the duration of intellectual property is constantly being extended (will the early Mickey Mouse films ever enter the public domain?), and so is its scope, as evidenced by the patenting of genes or plants. Increasingly, people are becoming aware of the value of the commons and are seeking to protect it. At the same time, we are gradually realizing that the monopoly granted by intellectual property laws is a blunt instrument, and that people are prepared to create for reasons other than the expectation of payment for the use of their creation. Copyright law does not always have to work against the commons. Free and open source software has been an undeniable success. Gartner confidently states that all businesses today use at least some free software in their systems; the Linux Foundation is predicting that free software will underpin a $50 billion economy in 2011. Following from these and other successes, the applicability of the open source model has been considered in other contexts.

The Creative Commons Licenses

One of the most prominent open source models has been the Creative Commons CREATIVE COMMONS movement. Founded in 2001, Creative Commons has written a suite of licences which were inspired by the GNU/GPL, but which are intended for use in relation to a broad range of media, including music, literature, images and movies. The licences are drafted to be simple to understand and are modular, in that the rights owner can choose from a selection of options. The attribution option requires that anyone making use of the work makes fair attribution to the author; the share alike option is akin to the GPL, in that if a licensee takes the work and redistributes it (whether amended or not), then the redistribution needs to be on the same form of licence; the no derivatives option means that work may be passed on freely, but not modified, and the non-commercial option means that the work can only be used and distributed in a non-commercial context. There are now millions of different works available under a Creative Commons licence: Flickr is just one content hosting site which has enabled Creative Commons licensing as a search option. There are, at the time of writing, nearly 200,000,000 Creative Commons-licensed images available for use on Flickr alone.

Similar sites provide music and literary works under a Creative Commons licence. Creative Commons provide a legal infrastructure for designers and other creatives operating within the digital domain to adopt this model. They also offer an effective choice as to whether an appropriate model is GPL-style share-alike, or BSD style. Where designers’ DESIGNERS work moves into the physical world, matters become much less straightforward. The movement of hardware design into the commons has been difficult. The fundamental issues can be summarized as follows:

→ In the digital world, the creator has the choice of whether a GPL or BSD model is appropriate. This choice does not translate well to the analogue world.

→ Digital works are relatively easy to create and test. on low-cost equipment. Analogue works are more difficult to create, test and copy, which creates barrier-to-entry problems.

→ Digital goods are easy to transport; analogue goods are not. This creates a barrier to the communication necessary to get the maximum benefit out of network effects.

GNU/GPL AND BSD LICENSES

In the late 1980s, computer programmer Richard Stallman realized that copyright law could be turned inside out to create a commons of computer software. The method he proposed was simple, but brilliant.

Software is protected by copyright. The software business model used in the 1980s involved granting customers permission (the licence) to use a specific piece of software. This licence was conditional on the customer not only paying the software publisher fee, but also adhering to a number of other restrictions (such as only using the software on one computer). Why not, Stallman reasoned, make it a condition of the licence that if you took his software and passed it on (which he was happy for people to do), then they had to pass it on, together with any changes they made, under the same licence? He called this sort of software ‘free software’: once a piece of software has been released under this sort of licence, it can be passed on freely to other people, with only one restriction: that if they pass it on, in turn, they must also ensure that it is passed it on in a way that guarantees and honours that freedom for other people.

In time, he reasoned, more and more software would be released under this licence, and a commons of freely available software would flourish. The most widely used version of the licence is the GNU General Public License version 2, known as the GPL. In the 19 years since it was issued, it has become the most commonly used software licence. The GPL is the licence at the core of Linux, the computer operating system which powers Google, Amazon and Facebook, and which enabled Red Hat to forecast revenue in excess of $1Bn in financial year 2010-11.

The software commons envisioned by Stallman not only exists; by any measure, it has been an overwhelming success. Its success can be measured in countless ways: the number of participants creating software for that GPL commons, the number of open source software programs in use, or the environments in which such software can be found. More than 90 of the 100 most powerful computers in the world run on GPL software, not to mention mobile phones and in-car entertainment systems; open source software is at the core of the business offerings of such large companies as IBM and Red Hat.

The Commons Analogy

The success of free software cannot be solely attributed to the GPL. The GPL extracts a price for using the commons. To risk taking the analogy too far, a landowner who has property adjoining the GPL commons and who wants to use it also has to add his own land to the commons. (Remember, this is the magical land of ideas which cannot be ruined by over-grazing.) This will have the effect of increasing the size of the commons as more and more adjoining landowners want to make use of the commons and donate their own land in the process. However, many of them may not want to join this scheme, either because they do not want to add their own land to the commons, or because they have already pledged their land to another commons.

Is it possible to generate a commons of ideas without forcing participants to pay the price of entry; without requiring that they add their own adjoining land to the commons? Is the compulsion of the GPL necessary, or is the social and community dynamic powerful enough to allow a similar commons of ideas to spring up on its own?

The software industry has given us several outstanding examples of this. Apache, the most popular web server software in the world, used by many of the world’s busiest web sites, is issued under a licence which does not ask users to pay the GPL price. Anyone can take the Apache code, and modify it and combine it with their other software, and release it without having to release any sources to anyone else. In contrast to the GPL, there is no compulsion to add your software to the Apache commons if you build on Apache software and distribute your developments, but many people choose to contribute in return even without this compulsion. FreeBSD, to take another example, is an operating system bearing some similarity to GNU/Linux which is licensed under a very liberal licence allowing its use, amendment and distribution without contributing back; nonetheless, many people choose to do so.

Free Riders

A parallel development to the GPL was the BSD licence, first used for the Berkeley Software Distribution (BSD). As opposed to the GPL, the BSD licence only requires the acknowledgement of the original authors, and poses no restrictions on how the source code may be used. As a result, BSD-licensed code can be used in proprietary software that only acknowledges the authors.

The GPL tackles an issue called the free rider problem. Because BSD does not compel people to contribute back to the commons, those who take advantage without contributing back are called free riders. The question is whether free riders really are a problem (as the GPL band would maintain), or whether they are (as the BSD band would maintain) at worst a cost-free irritant, and at best, a cadre of people who will eventually see the light and start to contribute, once they recognize the benefits. Supporters of both the GPL and BSD models of licensing have similar aims. In both cases, they seek to support a software commons which will enable the social mode of creativity to flourish.

While the BSD model could subsist in the absence of copyright, GPL relies (perhaps ironically) on copyright law to enforce its compulsion to share. It still remains an open question as to whether the better model is to use licensing to compel people to participate in the software commons, thus reducing the free rider problem (as with GPL), or whether voluntary engagement will result in a more active community (as with Apache). Designers working outside the digital domain will rarely have the chance to choose a GPL-style option.

The barrier to entry for any participant in a digital project is remarkably low. A low-cost computer and basic internet access are all that is required to have a system capable of running the (free) GNU/Linux operating system, accessing (free) project hosting sites like sourceforge.com or koders.com. A vast range of tools required to develop software (such as GCC – the GNU Compiler Collection) are also available as free software. Copying purely digital works is trivially easy. Physical (or ‘analogue’) objects are a different matter. Hardware development is likely to require more intensive investment in equipment (including premises in which the hardware can be placed), not just for development, but for testing. Electronic digital hardware is probably closest to software in terms of low barrier to entry: for example, the open-source Arduino microcontroller project enables an experimenter to get started with as little as $30 for a basic USB controller board (or less, if the experimenter is prepared to build the board). Arduino’s schematics, board layouts and prototyping software are all open source. BLUEPRINTS However, Arduino-like projects represent the lowest barrier to entry in the hardware world.

Complications of Analogue

An Arduino-style project is essentially a hybrid of the analogue and the digital domains. Prototyping software makes it possible to develop Arduino-based hardware in the digital domain, where it retains all the characteristics of the digital world: ease of copying, the ability to upload prototypes to fellow contributors for commentary, assistance and the chance to show off.

RIGHTS AND LICENSING SCHEMES

The re-use of designs is governed mainly by copyright, design rights and patents. Traditional open licensing schemes have been based on copyright, as this is the main intellectual property right which impinges on software, the most fertile ground for openness.

Software licensing schemes include the GPL (which enforces copyleft) and BSD (which doesn’t). Software licences rarely work properly when applied to other works. For literary, graphic and musical works, the Creative Commons suite is more effective. They allow both copyleft (share alike) and non-copyleft options. They may work well when applied to underlying design documents, which are covered by copyright, and control the distribution of those documents, as well as the creation of physical objects from them, but (depending on the jurisdiction) their protection is unlikely to extend to copying the physical object itself. Some efforts have been made to create licences that cover hardware; the TAPR Open Hardware Licence is one example. However, these efforts have frequently been criticized for their lack of effectiveness.

www.opensource.org/licenses/index.html

CREATIVE COMMONS AND DESIGN RIGHTS

Creative Commons licensing is fundamentally based on copyright, and there is little clarity or consensus on how such licenses would operate in relation to design rights across the myriad different jurisdictions and types of rights.

Those designers operating purely in the realm of copyright will find that there is already an existing structure of support in terms of Creative Commons licences and associated communities. Where other forms of intellectual property impinge, matters are far more murky. The Creative Commons licences are arguably drafted to be sufficiently broad as to cover unregistered design in certain circumstances. However, since they were not drafted with design rights in mind, it cannot be assumed that the copying of a three-dimensional object will automatically fall within the scope of such a license.

www.creativecommons.org

These are characteristics which enable network effects, and which make the open source model very powerful. It is only when the project is implemented as a physical circuit board that these characteristics are lost.

The analogue world is not always so simple. One of the most ambitious open source projects is the 40 Fires/Riversimple hydrogen car project, which has developed a small urban car (the Hyrban) powered by hydrogen, using a fuel cell/electric drivetrain. Elements of the design (such as power control software or the dashboard user interface) can be developed largely in the digital domain, but the development of motors, brakes, the body shell and so on are strictly analogue only. WYS ≠ WYG Not only do these analogue elements present a large barrier to entry for interested tinkerers, but they also tend to restrict their ability to participate in the development community: a necessity if network effects are to work. It is, clearly, difficult to upload a car to a development site and say “can you tell me why the windscreen leaks?”

COPYRIGHT PROTECTS THE EXPRESSION OF AN IDEA. RETAINING THE SAME IDEA, BUT RECASTING THE EXPRESSION OF IT IN A DIFFERENT FORM, DOES NOT INFRINGE ON THE COPYRIGHT.

Another significant issue is the lack of access to design software at a low cost. Software developers have access to high-quality tools like development environments and tools available for free under free software licences. There is no similar suite of CAD software, and proprietary CAD software is notoriously expensive. The barrier to entry is raised once again.

Many of these issues are surmountable, given time. Ever-improving simulation software means that more and more testing and prototyping can be undertaken in the digital domain. The introduction of 3D printers PRINTING like the RepRap means that it is becoming increasingly affordable and feasible to print physical objects, such as gears, from a variety of plastics. The lack of suitable CAD software is being addressed by a number of projects.

For designers, progress in open source tools, increased connectivity and so on makes the establishment of open source communities ever more feasible. The legal issues, however, are less straightforward.

So far, we have concentrated on copyright issues. In some ways, other forms of intellectual property pose greater challenges. Copyright protects the expression of an idea. Retaining the same idea, but recasting the expression of it in a different form, does not infringe on the copyright. The story of two people from warring tribes meeting, falling in love, and dying in tragic circumstances can be told in a myriad of different ways, each with their own independent copyright, none of which infringes on anyone else’s copyright. This has two practical consequences. The first is that if a creator creates something which he or she has not copied from something else, then the creator will not be in breach of copyright, even if their creation turns out to be very similar, or even identical, to someone else’s. The second is that if a component of something is found to be infringing on a copyright, it is possible to salvage the project by recasting the same idea in a different expression. REMIX

Design Rights

Copyright also has the advantage of being (reasonably well) harmonized worldwide, and has also proved amenable to hacking (e.g. by Richard Stallman) HACKING so that it can be used to guarantee openness in the code it covers. However, other forms of intellectual property protection are more problematic for designers.