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Lawrence Lessig: The Architecture of Access to Scientific Knowledge

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    Lawrence Lessig: Thank you very much. It's extremely cool to be here.
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    It's just about as cool as when I spoke at Pixar.
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    I think of these two as being highlights of my career (check).
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    So, thank you very much for having me.
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    I have two small ideas I want to use as an introduction to an argument,
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    about the nature of access to scientific knowledge in the context of the internet,
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    and use that argument as a step towards a plea about what we should do.
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    So here is the first idea.
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    I want to call it the "White-effect".
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    And I name that after Justice Byron White, justice of the US Supreme Court,
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    appointed by John F. Kennedy - here he is in 1962
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    - famous before that as 'Whizzer' White on the Yale University football team
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    When he was appointed to the Supreme Court, he was a famous liberal,
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    renowned liberal, the only appointee that John Kennedy had to the Supreme Court.
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    But 'Whizzer' White grew old, and he is probably most famous for an infamous opinion,
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    which he penned on behalf of the Supreme Court, Bowers v. Hardwick,
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    an opinion where the Supreme Court upheld the Criminalization of Sodomy law.
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    Here is the passage: 'Against this background, to claim that a right to engage
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    in such conduct' - homosexual sodomy - 'is "deeply rooted in this Nation's history and tradition"
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    or "implicit in the concept of ordered liberty" is, at best, facetious.'
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    Now, this is what I want to think of as the "White Effect".
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    To be a liberal or a progressive is always relative to a moment, and that moment changes,
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    and too many are liberal or progressive no more.
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    So, that's the "White effect". Here is the second idea.
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    The Harvard Gazette is a kind of propaganda publication of Harvard University,
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    it talks about all the happy things at Harvard.
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    So here's an article that it wrote, about an extraordinary macro-economist,
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    Gita Gopinath, who has just come to Harvard, received tenure last year
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    and is one of the most influential macroeconomists in the United States right now.
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    This article talks about her work and her research, and at the very end,
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    there is this puzzling passage, where it says:
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    'Still, the shelves in her new office are nearly bare, since, said Gopinath,
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    "Everything I need is on the Internet now." '
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    Right, that's the second idea. Here is the argument.
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    So, copyright is a regulation by the State intended to change
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    a regulation by the market. It's an exclusive right, a monopoly right,
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    a property right granted by the State, which is necessary
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    to solve an inevitable market failure.
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    Now, by saying that it's necessary to solve an inevitable market failure,
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    I'm marking myself as a pro-copyright scholar,
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    in the sense that I believe copyright is necessary, even in a digital age.
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    Especially in a digital age, copyright is necessary to achieve
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    certain incentives that otherwise would be lost.
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    But in the internet age, what we've seen as a fight about copyright,
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    about the scope of copyright, waged most consistently in the context
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    of the battle over artists' rights, in particular, in the context of music,
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    where massive 'sharing' - sharing which is technically illegal - has lead to a fight
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    fought by artists and especially by artists' representatives.
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    And we from the Free Culture movement, have challenged the people
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    who have been waging that fight.
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    And they defend copyright in the context of that fight.
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    But if we get above the din of this battle, the important thing to keep in mind
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    is that both sides in this fight acknowledge that copyright is essential
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    for certain creative work,
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    and we need to respect copyright for that creative work.
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    We, from the Free Culture movement, need to respect copyright for that work,
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    we need to recognize that there is a place for sensible copyright policy
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    to protect and encourage that work.
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    But, however - and here is the important distinction -
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    Not only artists rely upon copyright, copyright is also relied upon by publishers,
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    and publishers are a different animal.
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    We don't have to be as negative as John Milton was when he wrote publishers are
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    "Old patentees and monopolizers in the trade of books
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    - men who do no labor in an honest profession, to [them], learning is indebted."
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    We don't have to go quite that far to recognize why publishers are different,
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    that the economic problem for publishers is different
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    from the economic problems presented by creating.
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    So who is copyright for? The publishers or the artists?
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    Well, since the beginning of copyright in the Anglo-American tradition,
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    the Statute of Anne of 1710, there has been this argument about whether copyright
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    was intended for the publishers or the artists.
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    When the Statute of Anne was originally introduced, it gave a perpetual term of copyright,
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    which the publishers understood to be a protection for them.
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    It was then amended to give just a limited term for copyright.
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    Publishers were puzzled about that, because it wouldn't make sense to give a limited term
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    if it was the publisher that was to be protected.
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    In 1769, a court case in the context of Millar v. Taylor seemd to suggest that
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    despite the limitation of the Statute of Anne, copyright was for ever.
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    But in 1774, in a very famous case about this book, The Seasons, by James Thomson,
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    the House of Lords have held that copyright protected by the Status of Anne was limited,
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    holding for the first time that works passed into the public domain.
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    And for the first time in English history, works including Shakespeare
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    passed into the public domain. And in this moment, we can say Free Culture was born.
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    And it also clarified that copyright was not intended for the publisher.
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    Even if it benefited the publishers, it was a creative right
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    and author's right. Even if benefitting publishers, copyright was for authors.
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    So, I remark these obvious borders about the scope of copyright,
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    because we tend to forget them. We've been fighting a battle in the context of copyright
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    where copyright is essential, and we are spending too little attention
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    about a battle in a context where copyright is not essential.
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    And I mean by that, in the context of science, in the context that Gopinath was speaking of
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    when she talked about everything being available on the internet.
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    And the consequence of failing to pay attention to this second context
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    within which this battle is being waged is that there is a trouble here
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    that too few see.
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    So let's think about this claim that everything is on the internet now.
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    What does that mean?
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    Here is a particular example to evaluate what that means.
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    Much of my work, these days, is focusing on corruption
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    in the context of this institution, Congress.
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    So let's say that we wanted to study, you wanted to study with me,
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    corruption in this context. Go to Google Scholar and enter a search for campaign finance.
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    Here are the top articles that would be listed from that search.
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    So let's say you wanted to browse through these articles
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    and get a sense of campaign finance and how it might be related to corruption in Congress.
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    So here are the top 10 articles. This first one, a very famous one
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    by my former colleagues Pam Karlan and Sam Issacharof.
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    You would find, to get access to this article, you'd have to pay $29.95.
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    The second article, housed at JSTOR, you'd have to get through to get permission
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    from the Columbia Law Review - not quite clear how you would do that.
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    Third article, again, $29.95. The fourth article, protected by Questia,
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    we learn that you can get a 1-day free trial to all these Oxford University Press articles,
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    you'd only have to pay when that day is over 99 dollars
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    to continue for a year.
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    Here is the 4th article again, protected by JSTOR.
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    The 5th article, it's an economics article, so the price is right on the surface:
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    10 dollars to purchase access to this article.
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    Here's the 7th article, Columbia Law Review.
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    8th article, Columbia Law Review, 9th article, protected again by JSTOR,
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    10th article, $29.95. So, how accessible is this information to the general public?
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    Well, one of these you can get access to for free, at least one time only,
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    One of them you can pay $10 for. 3 of them, $29.95, and 5 of them, terms unknown,
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    protected by JSTOR.
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    So, when Gopinath says "Everything I need is on the internet",
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    what does she mean? What she means is if - and this is a big if -
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    you're a tenured professor in an elite university or we could say a professor,
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    or a student or professor in an elite university, or maybe
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    a student or professor at a US university, if you are a member of the knowledge elite,
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    then you have effectively free access to all of this information.
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    But if you are from the rest of the world? Not so much.
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    Now, the thing to recognize is we built this world,
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    we built this architecture for access that flows from the deployment of copyright,
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    but here, copyright to benefit publishers. Not to enable authors.
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    Not one of these authors gets money from copyright.
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    Not one of them wants the distribution of their articles limited.
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    Not one of them has a business model that turns upon restricting access to their work.
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    Not one of them should support this system.
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    As a knowledge policy for the creators of this knowledge, this is crazy.
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    And the craziness doesn't stop here.
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    So, my third child is this extraordinarily beautiful girl, Samantha Tess.
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    When she was born, the doctors were worried she had a condition
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    that would suggest jaundice. I had jaundice as a baby, so I didn't think it was serious,
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    and I was told very forcefully by her doctor, this is extroardinarily serious.
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    If this condition manifest in the dangerous condition, it would produce brain damage,
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    possibly death.
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    So, of course, we were terrified. I went home and I did what every academic did,
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    I pulled everything I could from the web to study about what jaundice was
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    and what the conditions were. Now, because I am a Harvard professor,
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    of course, I didn't have to pay to get access to this information, but I just kept the total.
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    To get access to these 20 articles that I wanted access to was $435,
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    for the ordinary human, not a Harvard professor. OK.
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    So I gathered these articles and set them aside, believing this problem
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    would not manifest itself in such a serious way.
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    But on her third day, she fell into a stupor, and we called the doctor,
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    and the doctor was panciked and he said we had to get to the hospital immediately.
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    So, at 3 o'clock in the morning, we trundled the baby up and raced to the hospital.
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    We were sitting in the waiting room, and I brought the articles with me,
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    because I wanted something to do, to distract me from the terror
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    that my child had this condition.
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    And I picked up the first of these articles, which is actually free,
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    published on the web for free, at the American Family Physician,
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    and I started reading about this condition.
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    And I got to this table, a table that was going to describe
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    when you should worry about whether the child would have too severe of this exposure.
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    I turned the page, and this is what I found:
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    "The rightsholder did not grant rights to reproduce this item in electronic media.
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    For the missing item, see the original print version of this publication."
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    And I had this moment of liberation from fear about my child,
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    because I turned to fear about our culture. I thought, this is outrageous!
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    The idea that we are regulating access down to the chart in an article
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    that was published for free to help, not doctors, but parents
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    understand what this condition was.
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    We are regulating access to parts of articles.
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    Now here and throughout our architecture for access,
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    we are building an infrastructure for this regulation.
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    Think of the Google Books project, which is perfecting control down to the sentence,
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    the ability to regulate access down to the sentence.
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    By the way, I alway forget to tell this: the kid is fine, she didn't have jaundice,
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    it is a complete non issue.
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    But the point is, we are archintecting access here, for what purpose?
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    To maximize revenue. And why? Revenue to the authors?
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    Revenues necessary to produce the incentive to create?
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    Is this a limitation that serves any of the real objectives of copyright? (14:00)
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    The answer is no.
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    It is simply the natural result of for-profit production
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    for any good that we, quote, must have.
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    As Bergstrom and McAfee describe in a really fantastic little bit of work,
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    if you compare the cost per page of for-profit publishers
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    and the cost per page of not-for-profit publishers in these different fields of science,
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    it's a 4 and a half times factor difference cost per page.
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    That is a function of different, of these having different objectives.
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    One objective is to spread knowledge: that's the not-for-profit publishers,
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    and one objective, to maximize profit: that's the for-profit publishers.
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    Now, this architecture for access is beginning to build resistance.
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    So, think about story of JSTOR.
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    JSTOR was launched in 1995, with an extraordinary amount of funding
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    from the Mellon Foundation. That funding produced a huge archive
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    of journal articles. So that there are now more than 1200 journals, 20 collections,
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    53 disciplines, 303'000 issues, about 28 million pages in JSTOR archive.
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    When this archive was launched, everybody thought it was brilliant.
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    Everybody thought the access here was extraordinary.
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    But today? There is increasingly criticism growing out there
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    about how JSTOR makes its information accessible.
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    We could think of it as a kind of "White effect".
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    It was liberal when it was launched, but what has it become as it has grown old?
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    So, for example, here is an article published in the
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    California Historical Society Quarterly. It's 6 pages long.
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    To get it, you have to pay $20 to JSTOR, this non-profit organization,
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    leading Carl Malamud, who of course is famous for his Public Resources site,
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    to tweet in the following way: "JSTOR is morally offensive.
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    $20 for a 6-page article, unless you happen to work at a fancy school."
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    Now, you might say, "This is a really important academic archive",
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    but the question is whether this really important academic archive
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    is going to become a kind of RIAA for the academy.
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    Begging the question that the "White effect" always begs,
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    whether we could do this better under a different set of assumptions.
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    Now, of course the Open Access movement is the movement that was launched
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    to try and do this better under different circumstances.
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    Now, it has a long history, but its real push was inspired by
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    a dramatic increase in the cost of journals.
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    So, if this is a study between 1986 and 2004 by the American Research Libraries,
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    this is the increase in inflation, this is the increase in the cost of serials,
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    it's obvious that the market power of these publishers is being exploited,
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    because the purchasers of these serials have no choice but to buy them.
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    It's in part motivated by this cost concern, it's also motivated by a sense of unfairness.
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    We do all the work, they get all the money, here.
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    So the response to these two kinds of concerns has been two:
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    #1 an open access self-archiving movement, where the push has been
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    "Let's get as many things out there archived on the Web as we can,
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    pre-prints and whatever we can get up, and make sure
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    the Web can make them accessible" - and an Open Access publishing movement.
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    Now, what's the difference between these two movements?
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    The difference is licensing. Some "open" is "free", in the sense that Richard Stallman
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    made famous by his quote: "Free software is a matter of liberty, not price.
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    To understand the concept, you should think of free as in free speech,
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    not as in free beer."
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    So, some aspect of the Open Access publishing is free as in free speech,
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    some "open" is not. Some is just free as in: "You can download it freely,
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    but the rights that you get from the download are just as broad
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    as narrowly granted by some implicit copyright rule.
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    Now, "free", as in licensed freely, has been the objective that the Science Commons project,
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    which is a project that Creative Commons has been pushing,
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    and pushing as part of a broader strategy for producing
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    the information architecture that science needs, as they announce
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    in their "Principles for open science". There are four principles here.
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    The first is, there should be open access to literature, by which Science Commons says:
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    you should be on the internet, literature "should be on the internet
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    in digital form, with permission granted in advance
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    to users to read, download, copy, distribute, print, search or link
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    to the full texts of articles, crawl them indexing, pass them data to software,
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    or use them for any other lawful purpose,
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    without financial, legal or technical barriers other than those inseparable
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    from gaining access to the internet itself."
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    That's what "free", here, means.
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    Second, access to research tools: there should be "materials necessary
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    to replicate funded research - cell lines, model animals, DNA tools,
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    reagents, and more - should be described in digital formats,
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    made available under standard terms of use or contracts,
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    with infrastructure or resources to fulfill requests to qualified scientists,
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    and with full credit provided to the scientist who created the tools."
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    #3 Data should be in the public domain. "Research data, data sets, databases,
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    and protocols should be in the public domain."
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    meaning no copyright restrictions at all.
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    And 4, Open cyber-infrastructure:
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    "Data without structure and annotation is an opportunity lost.
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    Research data should flow in an open, public and extensible infrastructure
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    that supposrts its recombination and reconfiguration into computer models,
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    its searchability by search engines,
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    and its use by both scientists and the taxpaying public.
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    This infrastructure is an essential public good."
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    Now, my view is, this the right way - you might think this is the left way -
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    but it's the correct way to instantiate this Open Access movement.
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    The values and the efficiency and the justice in this architecture
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    are the right values, efficiency and justice for an Open Access movement.
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    So let's call it, following Stallman, the Free Access Movement.
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    And the critical question of the Free Access movement
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    is the license that governs access to the information being provided.
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    Does the license grant freedoms?
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    And that, of course, was the motivation between the Public Library of Science -
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    every one of their articles is published under a Creative Commons
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    Attribution license, the freeest license we have.
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    And that is increasingly the practice, surprisingly, of the largest publishers,
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    as described by this wonderful project housed here at CERN,
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    which is studying Open Access publishing.
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    This is the first of three stages of this project. When studying the large publishers,
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    this study concludes that "Half of the large publishers use some version
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    of a Creative Commons license. These seven publish 72% of the titles
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    and 71% of the articles investigated.
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    And of these, 82% use the freeest license, cc-by, and 18% use cc-by-nc", non commercial.
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    And that of course is an excellent report on the progress of this free access movement
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    in the context of the largest publishers.
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    But what's not excellent in this story is the other publishers here.
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    For these other publishers, only 73% you can determine copyright status (check)
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    69% transfer the copyright to the publisher. Only 21 % of the articles
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    have any Creative Commons license attached at all.
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    Now, this is because these other publishers are using copyright as a means,
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    a means to a non-knowledge ends, to a non-copyright ends.
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    So, for example, they are using it to support the societies
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    that might happen to be associated with publishing
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    that particular journal, that society that might be studying
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    one particular of science.
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    That society, of course, is valuable, but what they are doing
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    is using copyright to support that society.
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    And the consequence of that strategy is to block access to all but the few.
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    We don't achieve the objectives of the Enlightenment,
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    we achieve the reality of an elite-nment, the elite-nment
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    which describes the way in which we spread knowledge
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    despite the ideas of the Enlightenment.
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    And the point I'm emphasizing here is that it's for no good copyright reason.
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    Now, the slowness inside of science to embrace this more broadly,
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    especially among the smaller publishers, may surprise some,
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    or maybe it doesn't surprise. The whole design of science
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    is to be a fad-resistor, the idea is to have an infrastructure
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    that avoids fads, and tradition then becomes the metric of what's right
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    or of what's good in science.
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    But I think it's time to recognize that Free Access, as in free speech, access
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    is no fad.
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    And it's time to push this non fad more broadly in the context of science.
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    Now, just because I'm talking about how bad some area of science is,
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    I don't mean to suggest that the arts is good, right?
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    We have practices in the context of the arts that are just as bad, here.
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    For example, think about a recent episode around YouTube.
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    You know, we should not minimize the significance of YouTube
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    in the infrastructure of culture right now.
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    YouTube now has 43 different languages.
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    There is more uploaded in one month on Youtube
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    than was broadcast by the major networks in the United States
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    over the last 60 years.
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    Every single day, 6 new years of video gets uploaded to YouTube.
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    There are 2 billion views of YouTube every single year.
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    every single day, sorry. That's 40% increase over just the last year.
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    And I've been famously a friend (check) of this extraordinary site
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    because I celebrate the kind of read-write creativity
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    that I think YouTube has encouraged.
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    And I got this sense of what we should think of as read-write creativity
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    when I was reading testimony at this place
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    by this man, John Philip Souza, in 1906.
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    when he was - I didn't read it in 1906 but the testimony was given in 1906 -
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    When Souza was testifying about this technology,
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    what he called "talking machines".
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    Now, Souza was not a fan of the talking machines.
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    This is what he had to say about them:
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    "These talking machines are going to ruin the artistic development
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    of music in this country.
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    When I was a boy, in front of every house in the summer evenings
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    you would find young people together singing the songs
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    of the day or the old songs.
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    Today you hear these infernal machines going night and day.
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    We will not have a vocal chord left," Souza said,
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    "The vocal chords will be eliminated by a process of evolution,
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    as was the tail of man when he came from the ape."
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    Now this is the picture I want you to focus on.
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    This picture of "young people together, singing the songs of the day
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    or the old songs".
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    This is a picture of culture. We could call it, using modern computer terminology,
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    a kind of read-write culture.
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    It's a culture where people participage in the creation and the re-creation
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    of their culture: in that sense, it's read-write.
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    And the opposite of read-write creativity, then, we should call
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    "read-only" culture. A culture where creativity is consumed
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    but the consumer is not a creator. A culture, in this sense, that's top-down,
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    where the vocal cords of the millions of ordinary potential creators
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    has been lost, and lost, because, as Souza said,
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    because of these infernal machines: technology, technology like this,
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    or technology like this, to produce a culture like this,
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    a culture which enabled efficient consumption, what we call "reading",
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    but inefficient amateur production, what we should call "writing".
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    A culture good for listening, but not a culture good for speaking,
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    a culture good for watching, a culture not good for creating.
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    Now, the first popular instantiation of the internet,
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    long after you guys gave us the read-write web,
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    but the first one people really paid attention to,
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    around 1997 and 1998, was a read-only internet.
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    So, Napster, which of course, built the largest music archive,
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    is still a music archive of music created by others
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    and the legal version, Music Store, was an archive of the music
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    created by others, which you could buy for 99 cents.
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    These were technologies to enable access,
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    but access to culture created elsewhere.
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    But then, shortly in - after the turn of the century, I think,
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    the internet became fundamentally read-write.
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    People began taking, and remixing, and sharing
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    their creativity on the internet, and YouTube was the platform for that.
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    So, my favorite example, which I first saw on YouTube, is this:
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    [Read my lips by: Atmo - http://www.youtube.com/watch?v=rhlHUTBgAMw]
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    "Bush: My love, there's only you in my life,
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    the only thing that's right.
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    Blair: My first love: you're every breath that I take,
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    you're every step I make.
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    Bush: And I, I want to share
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    Bush and Blair: all my love with you
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    Bush: No one else will do.
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    Blair: And your eyes
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    Bush: Your eyes, your eyes
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    Bush and Blair: they tell me how much you care for...
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    announcer: remember to(?) take dictation"
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    Lessig: OK. And then.more recently, I don't know if (?) many of you
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    have seen this extraordinary site ThruYou.
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    This is a site that takes content only from YouTube
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    and remixes it to produce albums and videos. I mean this is his latest, you know.
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    Voice: This is my mother:
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    Mother: Howdy, howdy. OK.
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    [pays a continuo on keyboard]
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    Tenesan1 [see http://www.youtube.com/watch?v=-J8sSXO9VWk ]
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    Tenesan1: The song I'm going to sing, I wrote, is called "Green"
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    because ... (?)
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    [Tenesan1 sings "Green" on the keyboard continuo]
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    [Horn enters]
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    [Other instruments enter] (30:38)
Title:
Lawrence Lessig: The Architecture of Access to Scientific Knowledge
Description:

Lecture at CERN, Geneva, Switzerland, 18 April 2011: A new talk about open access to academic or scientific information, with a bit of commentary about YouTube Copyright School. ;
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Video Language:
English
Team:
Captions Requested
Duration:
50:19

English subtitles

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