• Brian Fitzgerald, Ben Atkinson

16 October 2008Support is growing for a different perspective on intellectual property, write BRIAN FITZGERALD and BEN ATKINSON

THE world is riddled with conflicts and many of them don?t take place on battlefields. Some non-military disputes are even global. One such world war is the battle between the entertainment industries ? the copyright industries ? and those who want access to copyright material.

One side argues that the integrity of property rights, and billions of dollars, are at stake. The other says that property laws shouldn?t permit industries to block access and control prices.

But shift focus and a new perspective emerges. The war over copyright can be cast pragmatically in terms of a dispute over access to information. This approach takes some of the heat out of the issues. It starts with the legally valid premise that access to information is a human right and looks at how restrictions on information flow ? such as copyright ? can legally be circumvented. In other words, it works with, and not against, the law to produce results that everyone can accept.

It does not resolve philosophical differences over whether and to what extent property rights should regulate the information economy. But it does offer a middle way that allows individuals, agencies and institutions to steer a safe course between the warring factions arguing the rights and wrongs of copyright.

Its most visible manifestation is Creative Commons, a global organisation founded in 2001 by Lawrence Lessig, a Stanford law professor. Creative Commons draws inspiration from the idea that in the absence of property enclosures, society creates ?commons,? of land or information, that are shared by all, and free for all. CC, as the organisation is commonly known, aims to make information free and accessible.

It does so by making it easy for copyright owners to license their material subject to conditions they may choose (such as compulsory attribution). CC accepts the necessity for, and desirability of, some copyright restrictions. But it assumes a human urge to share rather than to hoard knowledge. It helps content creators to license the use of material for a number of purposes, on varying terms. The purpose of flexible licensing is to facilitate the legal dissemination of works, creating a bursting and vibrant commons of information.

CC seems in tune with the zeitgeist. Inspired by the open-source and free software movements it confidently predicts that liberated from rigid normative restraints ? such as onerously enforced copyright law ? people will share information for individual gain as well as the public good. This belief in the benefits of sharing and access is one that government, cultural institutions and even creative industries increasingly share.

In theory a culture of open access encourages innovation although naysayers argue that strictly enforced proprietary rights are the corollary, if not precursor, of innovation. The confidence of CC proponents, and its founder, Lessig in the irresistibility of their message is both an indicator of their success and a cause of cynicism in copyright traditionalists.

In their view, advocates for CC don?t understand the market. The market expresses its will through the industries, and the consumers of their products. For all the talk of information access, remix culture and the technology-driven breakdown of copyright, in 20 or 30 years CC and its proponents will remain marginalised. The market will follow the industries and vice-versa.

Lessig, who has enjoyed a stellar career advocating information rights, embodies the ethos of CC, although his ties to the movement are now unofficial. He is politically close to Barack Obama but his message is apolitical: don?t let laws and regulations stand in the way of people creating culture. Let technology carry out its democratising work.

Lessig?s instincts are fundamentally conservative. He is no revolutionary attacking rights of property although his arguments are regarded by some copyright proponents as irritating and na?ve. He accepts the necessity for copyright but wants regulators to support the middle way, which actually means allowing copyright creators the freedom to make material freely available for mixing, remixing and dissemination.

The courts, unlike CC sceptics, increasingly see the movement as part of the legal mainstream. Recently the US Federal Court of Appeals found that failure to honour terms of an ?open source? licence similar to a CC licence could amount to copyright infringement.

For many bruised by the copyright wars, the middle way is the only way for those who seek to escape the suffocating restrictions of copyright laws while not disobeying their precepts. In Australia CC is well-established, operating under the auspices of the Queensland University of Technology. It has rolled out the various CC attribution, non-commercial, non-derivative and share-alike licences and helped creators to make works accessible to the public.

Government is taking CC?s lead. The Queensland government?s Information Licensing project is promoting the CC licences as the basis for information licensing by government in all Australian jurisdictions. The Victorian parliament is inquiring into whether it should make government information available via open source licences. The middle way of CC licensing may just be the future way not only of individual creators but government and other public institutions. ?

Brian Fitzgerald is Professor of IP and Innovation at Queensland University of Technology and program leader with the ARC Centre of Excellence for Creative Industries and Innovation. Ben Atkinson is the author of The True History of Copyright. A short version of this article appeared in the Australian Financial Review.

Photo: Samuel Kessler/iStockphoto.com