-
Lawrence Lessig: Thank you very much. It's extremely cool to be here.
-
It's just about as cool as when I spoke at Pixar.
-
I think of these two as being highlights of my career.
-
So, thank you very much for having me.
-
I have two small ideas I want to use as an introduction to an argument,
-
about the nature of access to scientific knowledge in the context of the internet,
-
and use that argument as a step towards a plea about what we should do.
-
So here is the first idea.
-
I want to call it the "White-effect".
-
And I name that after Justice Byron White, justice of the US Supreme Court,
-
appointed by John F. Kennedy - there he is in 1962
-
- famous before that as 'Whizzer' White on the Yale University football team.
-
When he was appointed to the Supreme Court, he was a famous liberal,
-
renowned liberal, the only appointee that John Kennedy had to the Supreme Court.
-
But 'Whizzer' White grew old, and he is probably most famous for an infamous opinion,
-
which he penned on behalf of the Supreme Court, Bowers v. Hardwick,
-
an opinion where the Supreme Court upheld the Criminalization of Sodomy laws,
-
with the passage: 'Against this background, to claim that a right to engage
-
in such conduct' - homosexual sodomy - 'is "deeply rooted in this Nation's history and tradition"
-
or "implicit in the concept of ordered liberty" is, at best, facetious.'
-
Now, this is what I want to think of as the "White Effect".
-
To be a liberal or a progressive is always relative to a moment, and that moment changes,
-
and too many are liberal or progressive no more.
-
So, that's the "White effect". Here is the second idea.
-
The Harvard Gazette is a kind of propaganda publication of Harvard University,
-
it talks about all the happy things at Harvard.
-
So here's an article that it wrote, about an extraordinary macro-economist,
-
Gita Gopinath, who has just come to Harvard, received tenure last year
-
and is one of the most influential macroeconomists in the United States right now.
-
This article talks about her work and her research, and at the very end,
-
there is this puzzling passage, where it says:
-
'Still, the shelves in her new office are nearly bare, since, said Gopinath,
-
"Everything I need is on the Internet now." '
-
Right, that's the second idea. Here is the argument.
-
So, copyright is a regulation by the State intended to change
-
a regulation by the market. It's an exclusive right, a monopoly right,
-
a property right granted by the State, which is necessary
-
to solve an inevitable market failure.
-
Now, by saying that it's necessary to solve an inevitable market failure,
-
I'm marking myself as a pro-copyright scholar,
-
in the sense that I believe copyright is necessary. Even in a digital age,
-
especially in a digital age, copyright is necessary to achieve
-
certain incentives that otherwise would be lost.
-
But in the internet age, what we've seen as a fight about copyright,
-
about the scope of copyright, waged most consistently in the context
-
of the battle over artists' rights, in particular, in the context of music,
-
where massive 'sharing' - sharing which is technically illegal - has lead to a fight
-
fought by artists and especially by artists' representatives.
-
And we from the Free Culture movement, have challenged the people
-
who have been waging that fight.
-
And they defend copyright in the context of that fight.
-
But if we get above the din of this battle, the important thing to keep in mind
-
is that both sides in this fight acknowledge that copyright is essential
-
for certain creative work,
-
and we need to respect copyright for that creative work.
-
We, from the Free Culture movement, need to respect copyright for that work.
-
We need to recognize that there is a place for a sensible copyright policy
-
to protect and encourage that work.
-
But, however - and here is the important distinction -
-
Not only artists rely upon copyright, copyright is also relied upon by publishers,
-
and publishers are a different animal.
-
We don't have to be as negative as John Milton was when he wrote publishers are
-
"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."
-
We don't have to go quite that far to recognize why publishers are different,
-
that the economic problem for publishers is different
-
from the economic problems presented by creating.
-
So who is copyright for? The publishers or the artists?
-
Well, since the beginning of copyright in the Anglo-American tradition,
-
the Statute of Anne of 1710, there has been this argument about whether copyright
-
was intended for the publishers or the artists.
-
When the Statute of Anne was originally introduced, it gave a perpetual term of copyright,
-
which the publishers understood to be a protection for them.
-
It was then amended to give just a limited term for copyright.
-
Publishers were puzzled about that, because it wouldn't make sense to give a limited term
-
if it was the publisher that was to be protected.
-
In 1769, a court case in the context of Millar v. Taylor seemed to suggest that
-
despite the limitations of the Statute of Anne, copyright was for ever.
-
But in 1774, in a very famous case about this book, The Seasons, by James Thomson,
-
the House of Lords held that copyright protected by the Status of Anne was limited,
-
holding for the first time that works passed into a public domain.
-
And for the first time in English history, works including Shakespeare
-
passed into the public domain. And in this moment, we can say Free Culture was born.
-
And it also clarified that copyright was not intended for the publisher.
-
Even if it benefited the publishers, it was a creative right
-
and author's right. Even if benefitting publishers, copyright was for authors.
-
So, I remark these obvious borders about the scope of copyright,
-
because we tend to forget them. We've been fighting a battle in the context of copyright
-
where copyright is essential, and we are spending too little attention
-
about a battle in a context where copyright is not essential.
-
And I mean by that, in the context of science, in the context that Gopinath was speaking of
-
when she talked about everything being available on the internet.
-
And the consequence of failing to pay attention to this second context
-
within which this battle is being waged is that there is a trouble here
-
that too few see.
-
So let's think about this claim that everything is on the internet now.
-
What does that mean?
-
Here is a particular example to evaluate what that means.
-
Much of my work, these days, is focusing on corruption
-
in the context of this institution, Congress.
-
So let's say that we wanted to study, you wanted to study with me,
-
corruption in this context. Go to Google Scholar and enter a search for campaign finance.
-
Here are the top articles that would be listed from that search.
-
So let's say you wanted to browse through these articles
-
and get a sense of campaign finance and how it might be related to corruption in Congress.
-
So here are the top 10 articles. This first one, a very famous one
-
by my former colleague Pam Karlan and Sam Issacharof.
-
You would find, to get access to this article, you'd have to pay $29.95.
-
The second article, housed at JSTOR, you'd have to get through to get permission
-
from the Columbia Law Review - not quite clear how you would do that.
-
Third article, again, $29.95. The fourth article, protected by Questia,
-
we learn that you can get a 1-day free trial to all of these Oxford University Press articles,
-
you'd only have to pay when that day is over 99 dollars
-
to continue for a year.
-
Here is the 4th article again, protected by JSTOR.
-
The 5th article, it's an economics article, so the price is right on the surface:
-
10 dollars to purchase access to this article.
-
Here's the 7th article, Columbia Law Review.
-
8th article, Columbia Law Review, 9th article, protected again by JSTOR,
-
10th article, $29.95. So, how accessible is this information to the general public?
-
Well, one of these you can get access to for free, at least one time only,
-
One of them you can pay $10 for. 3 of them, $29.95, and 5 of them, terms unknown,
-
protected by JSTOR.
-
So, when Gopinath says "Everything I need is on the internet",
-
what does she mean? What she means is if - and this is a big if -
-
you're a tenured professor at an elite university or we could say a professor,
-
or a student or professor in an elite university, or maybe
-
a student or professor at a US university, if you are a member of the knowledge elite,
-
then you have effectively free access to all of this information.
-
But if you are from the rest of the world? Not so much.
-
Now, the thing to recognize is we built this world,
-
we built this architecture for access, these flows from the deployment of copyright,
-
but here, copyright to benefit publishers. Not to enable authors.
-
Not one of these authors gets money from copyright.
-
Not one of them wants the distribution of their articles limited.
-
Not one of them has a business model that turns upon restricting access to their work.
-
Not one of them should support this system.
-
As a knowledge policy for the creators of this knowledge, this is crazy.
-
And the craziness doesn't stop here.
-
So, my third child, this extraordinarily beautiful girl, Samantha Tess,
-
when she was born, the doctors were worried she had a condition
-
that would suggest jaundice. I had jaundice as a baby, so I didn't think it was serious,
-
and I was told very forcefully by her doctor, this is extroardinarily serious.
-
If this condition manifest in the dangerous condition, it would produce brain damage,
-
possibly death.
-
So, of course, we were terrified. I went home and I did what every academic did - does:
-
I pulled everything I could from the web to study about what jaundice was
-
and what the conditions were. Now, because I am a Harvard professor,
-
of course, I didn't have to pay to get access to this information, but I just kept the tally.
-
To get access to the 20 articles that I wanted access to was $435,
-
for the ordinary human, not a Harvard professor. OK.
-
So I gathered these articles and set them aside, believing this problem
-
would not manifest itself in a serious way.
-
But on her third day, she fell into a stupor, and we called the doctor,
-
and the doctor was panciked and he said we had to get to the hospital immediately.
-
So, at 3 o'clock in the morning, we trundled the baby up and raced to the hospital.
-
We were sitting in the waiting room, and I brought the articles with me,
-
because I wanted something to do, to distract me from the terror
-
that my child had this condition.
-
And I picked up the first of these articles, which is actually free,
-
published on the web for free, at the American Family Physician,
-
and I started reading about this condition.
-
And I got to this table, a table that was going to describe
-
when you should worry about whether the child would have too severe of this exposure.
-
I turned the page, and this is what I found:
-
"The rightsholder did not grant rights to reproduce this item in electronic media.
-
For the missing item, see the original print version of this publication."
-
And I had this moment of liberation from fear about my child,
-
because I turned to fear about our culture. I thought, this is outrageous!
-
The idea that we are regulating access down to the chart in an article
-
that was posted for free to help, not doctors, but parents
-
understand what this condition was.
-
We are regulating access to parts of articles.
-
Now here and throughout our architecture for access,
-
we are building an infrastructure for this regulation.
-
Think about the Google Books project, which is perfecting control down to the sentence,
-
the ability to regulate access down to the sentence.
-
By the way, I alway forget to tell this: the kid is fine, she didn't have jaundice,
-
it is a complete non issue.
-
But the point is, we are architecting access here, for what purpose?
-
To maximize revenue. And why? Revenue to the artists?
-
Revenues necessary to produce the incentive to create?
-
Is this a limitation that serves any of the real objectives of copyright?
-
The answer is no.
-
It is simply the natural result of for-profit production
-
for any good that we, quote, must have.
-
As Bergstrom and McAfee describe in a really fantastic little bit of work,
-
if you compare the cost per page of for-profit publishers
-
and the cost per page of not-for-profit publishers in these different fields of science,
-
it's a 4 and a half times factor difference cost per page.
-
That is a function of different, of these having different objectives.
-
One objective is to spread knowledge: that's the not-for-profit publishers,
-
and one objective, to maximize profit: that's the for-profit publishers.
-
Now, this architecture for access is beginning to build resistance.
-
So, think about the story of JSTOR.
-
JSTOR was launched in 1995, with an extraordinary amount of funding
-
from the Mellon Foundation. That funding produced a huge archive
-
of journal articles. So that there are now more than 1200 journals, 20 collections,
-
53 disciplines, 303'000 issues, about 38 million pages in JSTOR archive.
-
When this archive was launched, everybody thought it was brilliant.
-
Everybody thought the access here was extraordinary.
-
But today? There is increasingly criticism growing out there
-
about how JSTOR makes its information accessible.
-
We could think of it as a kind of "White effect".
-
It was liberal when it was launched, but what has it become as it has grown old?
-
So, for example, here is an article published in the
-
California Historical Society Quarterly. It's 6 pages long.
-
To get it, you have to pay $20 to JSTOR, this non-profit organization,
-
leading Carl Malamud, who of course is famous for his Public Resources site,
-
to tweet in the following way: "JSTOR is morally offensive.
-
$20 for a 6-page article, unless you happen to work at a fancy school."
-
Now, you might say, "This is a really important academic archive",
-
but the question is whether this really important academic archive
-
is going to become a kind of RIAA for the academy.
-
Begging the question that the "White effect" always begs,
-
whether we could do this better under a different set of assumptions.
-
Now, of course the Open Access movement is the movement that was launched
-
to try and do this better under different circumstances.
-
Now, it has a long history, but its real push was inspired by
-
a dramatic increase in the cost of journals.
-
So, if this is a study between 1986 and 2004 by the American Research Libraries,
-
this is the increase in inflation, this is the increase in the cost of serials,
-
it's obvious that the market power of these publishers is being exploited,
-
because the purchasers of these serials have no choice but to buy them.
-
It's in part motivated by this cost concern, it's also motivated by a sense of unfairness.
-
We do all the work, they get all the money, here.
-
So the response to these two kinds of concerns has been two:
-
#1 an open access self-archiving movement, where the push has been
-
"Let's get as many things out there archived on the Web as we can,
-
pre-prints and whatever we can get up, and make sure
-
the Web can make them accessible" - and an Open Access publishing movement.
-
Now, what's the difference between these two movements?
-
The difference is licensing. Some "open" is "free", in the sense that Richard Stallman
-
made famous by his quote: "Free software is a matter of liberty, not price.
-
To understand the concept, you should think of free as in free speech,
-
not as in free beer."
-
So, some aspect of the Open Access publishing is free as in free speech,
-
some "open" is not. Some is just free as in: "You can download it freely,
-
but the rights that you get from the download are just as broad
-
as narrowly granted by some implicit copyright rule.
-
Now, "free", as in licensed freely, has been the objective that the Science Commons project,
-
which is a project that Creative Commons has been pushing,
-
and pushing as part of a broader strategy for producing
-
the information architecture that science needs, as they announce
-
in their "Principles for open science". There are four principles here.
-
The first is, there should be open access to literature, by which Science Commons says:
-
you should be on the internet, literature "should be on the internet
-
in digital form, with permission granted in advance
-
to users to read, download, copy, distribute, print, search or link
-
to the full texts of articles, crawl them indexing, pass them as data to software,
-
or use them for any other lawful purpose,
-
without financial, legal or technical barriers other than those inseparable
-
from gaining access to the internet itself."
-
That's what "free", here, means.
-
Second, access to research tools: there should be "materials necessary
-
to replicate funded research - cell lines, model animals, DNA tools,
-
reagents, and more - should be described in digital formats,
-
made available under standard terms of use or contracts,
-
with infrastructure or resources to fulfill requests to qualified scientists,
-
and with full credit provided to the scientist who created the tools."
-
#3 Data should be in the public domain. "Research data, data sets, databases,
-
and protocols should be in the public domain."
-
meaning no copyright restrictions at all.
-
And 4, Open cyber-infrastructure:
-
"Data without structure and annotation is an opportunity lost.
-
Research data should flow in an open, public and extensible infrastructure
-
that supports its recombination and reconfiguration into computer models,
-
its searchability by search engines,
-
and its use by both scientists and the taxpaying public.
-
This infrastructure is an essential public good."
-
Now, my view is, this the right way - you might think this is the left way -
-
but it's the correct way to instantiate this Open Access movement.
-
The values and the efficiency and the justice in this architecture
-
are the right values, efficiency and justice for an Open Access movement.
-
So let's call it, following Stallman, the Free Access Movement.
-
And the critical question of the Free Access movement
-
is the license that governs access to the information being provided.
-
Does the license grant freedoms?
-
And that, of course, was the motivation between the Public Library of Science -
-
every one of their articles is published under a Creative Commons
-
Attribution license, the freest license we have.
-
And that is increasingly the practice, surprisingly, of the largest publishers,
-
as described by this wonderful project housed here at CERN,
-
which is studying Open Access publishing.
-
This is the first of three stages to this project. When studying the large publishers,
-
this study concludes that "Half of the large publishers use some version
-
of a Creative Commons license. These seven publish 72% of the titles
-
and 71% of the articles investigated.
-
And of these, 82% use the freest license, cc-by, and 18% use cc-by-nc", non commercial.
-
And that of course is an excellent report on the progress of this free access movement
-
in the context of the largest publishers.
-
But what's not excellent in this story is the other publishers here.
-
For these other publishers, only 73% you can determine copyright status
-
69% transfer the copyright to the publisher. Only 21 % of the articles
-
have any Creative Commons license attached at all.
-
Now, this is because these other publishers are using copyright as a means,
-
a means to a non-knowledge ends, to a non-copyright ends.
-
So, for example, they are using it to support the societies
-
that might happen to be associated with publishing
-
that particular journal, that society that might study
-
one particular of science.
-
That society, of course, is valuable, but what they are doing
-
is using copyright to support that society.
-
And the consequence of that strategy is to block access to all but the few.
-
We don't achieve the objectives of the Enlightenment,
-
we achieve the reality of an elite-nment, the elite-nment
-
which describes the way in which we spread knowledge
-
despite the ideals of the Enlightenment.
-
And the point I'm emphasizing here is that it's for no good copyright reason.
-
Now, the slowness inside of science to embrace this more broadly,
-
especially among the smaller publishers, may surprise some,
-
or maybe it doesn't surprise. The whole design of science
-
is to be a fad-resistor, the idea is to have an infrastructure
-
that avoids fads, and tradition then becomes the metric of what's right
-
or of what's good in science.
-
But I think it's time to recognize that Free Access, as in free, as in speech access
-
is no fad.
-
And it's time to push this non fad more broadly in the context of science.
-
Now, just because I'm talking about how bad some area of science is,
-
I don't mean to suggest that the arts is good, right?
-
We have practices in the context of the arts that are just as bad, here.
-
For example, think about a recent episode around YouTube.
-
You know, we should not minimize the significance of YouTube
-
in the infrastructure of culture right now.
-
YouTube now has 43 different languages.
-
There is more uploaded in one month on Youtube
-
than was broadcast by the major networks in the United States
-
over the last 60 years.
-
Every single day, 6 new years of video gets uploaded to YouTube.
-
There are 2 billion views of YouTube every single year.
-
every single day, sorry. That's 40% increase over just the last year.
-
And I've been famously a fan of this extraordinary site
-
because I celebrate the kind of read-write creativity
-
that I think YouTube has encouraged.
-
And I got this sense of what we should think of as read-write creativity
-
when I was reading testimony at this place
-
by this man, John Philip Souza, in 1906.
-
when he was - I didn't read it in 1906 but the testimony was given in 1906 -
-
when Souza was testifying about this technology,
-
what he called "talking machines".
-
Now, Souza was not a fan of the talking machines.
-
This is what he had to say about them:
-
"These talking machines are going to ruin the artistic development
-
of music in this country.
-
When I was a boy, in front of every house in the summer evenings
-
you would find young people together singing the songs
-
of the day or the old songs.
-
Today you hear these infernal machines going night and day.
-
We will not have a vocal chord left," Souza said,
-
"The vocal chords will be eliminated by a process of evolution,
-
as was the tail of man when he came from the ape."
-
Now this is the picture I want you to focus on.
-
This picture of "young people together, singing the songs of the day
-
or the old songs".
-
This is a picture of culture. We could call it, using modern computer terminology,
-
a kind of read-write culture.
-
It's a culture where people participate in the creation and the re-creation
-
of their culture: in that sense, it's read-write.
-
And the opposite of read-write creativity, then, we should call
-
"read-only" culture. A culture where creativity is consumed
-
but the consumer is not a creator. A culture, in this sense, that's top-down,
-
where the vocal cords of the millions of ordinary potential creators
-
has been lost, and lost, because, as Souza said,
-
because of these infernal machines: technology, technology like this,
-
or technology like this, to produce a culture like this,
-
a culture which enabled efficient consumption, what we call "reading",
-
but inefficient amateur production, what we should call "writing".
-
A culture good for listening, but not a culture good for speaking,
-
a culture good for watching, a culture not good for creating.
-
Now, the first popular instantiation of the internet,
-
long after you guys gave us the World Wide Web,
-
but the first one people really paid attention to,
-
around 1997 and 1998, was a read-only internet.
-
So, Napster, which of course, built the largest music archive,
-
is still a music archive of music created by others
-
and the legal version, the iTunes Music Store, was an archive of the music
-
created by others, that you could buy for 99 cents.
-
These were technologies to enable access,
-
but access to culture created elsewhere.
-
But then, shortly in - after the turn of the century, I think,
-
the internet became fundamentally read-write.
-
People began taking, and remixing, and sharing
-
their creativity on the internet, and YouTube was the platform for that.
-
So, my favorite example, which I first saw on YouTube, is this:
-
[Read my lips by: Atmo - http://www.youtube.com/watch?v=rhlHUTBgAMw]
-
"Bush: My love, there's only you in my life,
-
the only thing that's right.
-
Blair: My first love: you're every breath that I take,
-
you're every step I make.
-
Bush: And I, I want to share
-
Bush and Blair: all my love with you
-
Bush: No one else will do.
-
Blair: And your eyes
-
Bush: Your eyes, your eyes
-
Bush and Blair: they tell me how much you care for...
-
announcer: remember to(?) take dictation"
-
Lessig: OK. And then.more recently, I don't know if (?) many of you
-
have seen this extraordinary site ThruYou.
-
This is a site that takes content only from YouTube
-
and remixes it to produce albums and videos. And this is his latest, you know.
-
Voice: This is my mother:
-
Mother: Howdy, howdy. OK.
-
[plays a continuo on keyboard]
-
Tenesan1 [see http://www.youtube.com/watch?v=-J8sSXO9VWk ]
-
Tenesan1: The song I'm going to sing, I wrote, is called "Green"
-
because ... (?)
-
I'm seing beauty created on the land
-
On Earth the third day, producing all the plants
-
Mother Nature created by the most high God
-
I'm seeing beauty and it's green to me
-
[other instruments enter]
-
Spotting tranquillity, peace and restoration
-
Check all the water travelling from roots
-
Then you will see roots digging deep, building a strong foundation
-
Then finally a stem shoots through
-
I'm seeing beauty, it's green..
-
Lessig: So this is then what I think of as a platform for read-write creativity.
-
But then the second stage of this, I think is ultimately
-
much more interesting. It's the way that this platform
-
has become a platform for read-write communities,
-
which means creativity, which then gets remixed by others
-
in response to the initial read-write creativity.
-
So here is an example. This video:
-
[ "Crank That" by Soulja Boy - http://www.youtube.com/watch?v=sLGLum5SyKQ + Superman:] You Soulja Boy..
-
I got a new dance fo you all called the soulja boy
-
You gotta punch then crank back three times from left to right
-
Aaah!
-
Lessig: so that video inspired this video:
-
[video 2] You Soulja Boy ...
-
Lessig: which then inspired this video
-
[Video 3] Soulja Boy ...
-
Lessig: Well here is another example. I'm sure many of you remember
-
these extraordinary movies by John Hughes,
-
what we used to think of as the Brat Pack, until we knew
-
that there was a Brat Pack before these guys.
-
So this is the first bit of cultural,
-
and I think here is the second.
-
This is a music video by the band Phoenix, with their song Lisztomania:
-
[Lisztomania: Phoenix' clip]
-
Lessig (over clip): So classic music video style
-
[clip continues]
-
So sentimental
-
Lessig: Somebody got the idea that they would take John Hughes' content
-
and remix it with the music by Phoenix. They produced this:
-
[remix]
-
So sentimental
-
not sentimental, no
-
romantic not disgusting yet
-
Darling, I'm down and lonely when with the fortunate is only
-
I've been looking for something else
-
Do let, do let, do let, jugulate, do let, do let, do
-
Let's go slowly discouraged
-
Distant from other interests on your favorite weekend ending...
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Lessig: Then somebody had the idea that they would make a local version
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of this remix video. So this is the Brooklyn version:
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[Brooklyn remix:]
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Lessig: And then San Francisco decided they'd like to copy:
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[San Francisco remix:]
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Lessig: And then Boston University decided they would copy:
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[Boston U remix:]
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Lessig: There are others, literally scores of these on the internet,
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from every place around the world.
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(1 sentence ????)
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every other place... these people doing the same kind of remix.
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The point to recognize is that this is then what Souza was romanticizing
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when Souza was talking about the young people getting together
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and singing the songs of the day or the old songs.
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But they are not singing the songs or the old songs
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in their backyard or on the corner, they are now singing them
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on this free digital platform that allows people to sing and respond,
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and respond again all across the world,
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in my view, important and valuable, in understanding
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how this kind of culture develops and spreads.
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Now, is it legal?
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Well, YouTube has just stepped into this battle, of whether it's legal.
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They've launched this Copyright School
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So I will give you a little bit of their copyright school.
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[video from http://www.youtube.com/copyright_school - original subtitled in ca 40 languages]
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"Everybody has really been looking forward to the new video
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"from Lumpy and the Lumpettes.
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"Even Lumpy.
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"Russell's a huge fan. He can't wait to tell all his friends about it.
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"'Hey, Russell, you didn't create that video!
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"'You just copied someone else's content.'"
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Lessig: OK, this first part is pretty standard,
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talking about copying people's content, uploading it,
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and even copying a live performance and uploading it.
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And that's fair, that's true, that's accurate in its statement
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of what copyright law is, and what I think copyright law should be.
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But I want to focus on their talk about remix,
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which might be confusing to you, and if you do, you should buy
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multiple copies of my book, "Remix" to understand what it's about.
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But here's YouTube's version of the story of remix
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[YouTube video cont.]
"'Oh, Russell! Your reuse of the Lumpy's content is clever,
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"'but did you get permission for it?
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"'Mashups or remixes of content may also require permission
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"'from the original copyright owner, depending on whether or not
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"'the use is a fair use.
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"'In the United States [text shown onscreen is read very fast] ...
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"'...you should consult a qualified copyright attorney.'"
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Lessig: OK. "Consult a qualified copyright attorney"?
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These are 15-year olds. You're trying to teach 15-year olds
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how to obey the law, and what you do is you give them
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this thing called fair use, and you read it so fast
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nobody can understand it.
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You believe you've actually explained something sensible?
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This is crazy talk.
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Of course we train lawyers to understand it, and not think it's crazy talk,
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but non lawyers should recognize it's crazy talk.
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It's an absurd system here.
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And of course, a sensible system would say:
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"Then it should be plainly legal for Russell to make a remix,
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"a non commercial consumer making a remix of content
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"that he sees out there, even if it's not legal for YouTube
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"to distribute it without paying some sort of royalty
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"to copyright owners whose work has been remixed."
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Now the point is, the significance of this kind of culture,
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this kind of remix culture, and the opportunity
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for this remix culture to flourish is recognized by people on the left,
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and the right. Here is my favorite little bit.
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It's a little bit bad video, but it's by one of my favorite
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libertarians from Cato Institute, which is one of the
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most important libertarian think-tanks in the United States,
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talking about this:
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Libertarian man: Copyright policy isn't just about how to incentivize
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the production of a certain kind of artistic commodity.
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It's about what level of control we're going to permit to be
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exercised over our social realities, social realities that are now
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inevitably permeated by pop culture.
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I think it's important that we keep these two different kinds
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of public uses in mind. If we only focus on how to
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maximize the supply of one,
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I think we risk suppressing this different and richer
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and, in some ways, maybe even more important one.
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Lessig: Bingo. That's the point.
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There are two kinds of cultures here, two kinds of culture:
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the commercial culture and the amateur culture.
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And we have to have a system that tries to recognize and encourage both.
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And even YouTube, now, the company most responsible
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for this revival of this remix culture,
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even YouTube, now, is criminalizing the remixer.
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OK, now that's the argument.
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Here is what I think we need to do here.
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In both these contexts, both science and culture,
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we need reform.
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That's not to say we need the abolition of copyright.
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There are copyright abolitionists out there, and I'm not one them.
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What we need is reform, both of the law and of us.
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So, of the law: I, last year, had the opportunity -
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surprising, from the perspective of 10 years ago -
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but I was invited by WIPO to talk to WIPO,
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and both my presentation and the current Director General
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has a conception of what WIPO should do here
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and it's very similar. They should launch what we could think of
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as a Blue Skies Commission, a commission to think about
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what architecture for copyright makes sense in the digital age.
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The presumption is, copyright is necessary,
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but the presumption is also that the architecture from the 20th century
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doesn't make sense in a digital context.
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And the elements of, in my view, of this architecture
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that would make sense, are 5.
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#1 Copyright has got to be simple. If it purports to regulate
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15 year olds, 15 year olds must be able to understand it.
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They don't understand it now.
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No one understands it now.
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And we need to remake it, to make it simple,
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if it tends to regulate as broadly as it regulates.
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#2 It needs to be efficient.
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Copyright is a property system. It also happens to be
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the most inefficient property system known to man.
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We can't know who owns what under this system,
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because we have no system for recording ownership
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and allowing us to allocate ownership as we want.
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And the only remedy to that is to restore a kind of formality,
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at least a formality required to maintain a copyright.
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And this is a position that's even supported by the RIAA
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as one of the essential reforms to copyright.
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#3 Copyright has got to be better targeted. It's got to regulate selectively.
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So if you think about the distinction between copies and remix,
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and the distinction between the professional and the amateur,
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of course, we get this matrix - lawyers deal in two dimensions,
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you guys in hundred dimensions but here is my two dimensions -
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What we have in the current regime of copyright
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is presumption of copyright regulates the same
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across these four possibilities.
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But that's a mistake. Obviously copyright needs to regulate
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efficiently here, copies of professional works,
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so 10'000 copies of Madonna's latest CD is a problem
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that copyright law needs to worry about,
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But this area, amateurs remixing culture needs to be free
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of the regulation of copyright. Not fair use, but free use.
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Not even triggering copyright's concern.
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And then these two middle cases are harder.
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They need a little more freedom, but they need to assure
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some kind of control. So if you share Madonna's latest CD
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with your 10'000 best friends, that's a problem.
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There needs to be some response to that problem.
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And if you take a book and turn it into a movie,
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I think it's still appropriate that you get permission for that,
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though of course, you need to be able to remix
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in the way that we saw Soderberg remixed that video
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of Bush and Endless Love.
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The point here is that if you think about this, I'm talking about
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deregulating a significant space of culture,
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and focusing the regulation of copyright work and do some good.
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#4 It needs to be effective. And effective means
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it must actually work in getting artists paid.
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The current system does not work in getting artists paid.
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And #5 It needs to be realistic.
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Think about the problem of peer-to-peer, quote, "piracy" internationally,
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We've, for the last decade, been waging what is referred to
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as a war. My friend, the late Jack Valenti, former head of the
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Motion Picture Association of America used to refer to it as
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his own, quote, "terrorist war", where apparently the terrorists in this war
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are our children.
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Now this war has been a total failure.
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It has not achieved its objective of reducing copyrights sharing
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or illegal peer-to-peer file sharing.
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And I know the response of some to totally failed wars
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is to continue to wage that war forever, and ever more viciously,
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but I suggest we adopt the opposite response here.
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We sue for peace. We sue for peace in this war,
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and consider proposals that would give us the opportunity
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to achieve the objectives of copyright,
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without waging this war.
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So, compulsory licenses, voluntary collective licenses
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or the German Greens' suggestion of a cultural flat rate
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which would be collected and allocated to artists
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on the basis of the harm suffered because of P2P file-sharing,
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all of these are alternatives to waging a war
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to stop sharing, when sharing is of course at the core
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of the architecture of the Net,
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and all of them recognize that if we achieve
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that alternative, we don't need to block this system of sharing.
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Now, the thing to think about is, if we had had one of these alternatives
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10 years ago, what would the world look like today,
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how would it be different?
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Now one difference is, artists would get more money,
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they would have gotten more money, because
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while we have been waging war against artists [sic: "children", "pirates"?]
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artists haven't got anything, only lawyers have.
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Businesses would have had more competition,
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the rules would have been clear, we would have more companies
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than just Apple and Microsoft thinking out
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how they could exploit this new digital technologies.
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But most important to me, is, we wouldn't have a generation
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of criminals who have grown up being called criminals
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because they are technically pirates, according to
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this outdated copyright law.
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So these 5 objectives would go into the conception of what
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this Blue Skies commission should think about
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and I think it should think of this in a 5 year process
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talking about something not to into effect for 10 years.
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Think of it as a kind of Map for Berne II, but Bern II being
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a system that could work to achieve the objectives of copyright
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in a digital age. That's what the law should do.
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But most important right now is what we need to do.
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We, both in the context of business - so in the context of business,
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we need to think about how to better enable legal reuse
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of copyrighted material.
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And companies like Google and Microsoft's Bing
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need to do more here.
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We're in the age of remix, where writing is remix,
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where teachers tell students to go out to the web
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and gather as much content as you can in order to
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write a report about whatever it is they are assigning them
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to write reports about.
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That means Google and Bing need to help our kids
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do it legally, which they don't, right now.
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So for example, this extraordinary service, which Google
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gives you when you want to do an image search:
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let's say you search for an image, you do an image search on flowers,
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This, over here - I don't know if you play with this -
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is really extraordinary: you can then narrow the search
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on the basis of many of these categories,
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including like the color of the photographs.
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So you want pink flowers, there you can see all the pink flowers,
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just by clicking on the link.
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But why, in this extraction, don't we also have an option
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for something like this: show reusable?
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Show the content that is explicitly licensed to be reusable,
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because Google indexes Creative Commons licenses
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associated with these images.
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Why not make it on the surface easy to begin to filter out
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those that you can use with the permission of the author
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from those that presumptively require a lawyer?
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Same thing in the context of a site like YouTube.
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Why don't we enable more easily the signaling by the creator
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that others should be able to download and reuse content,
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not so much to redefine what Fair Use is -
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I still think there is a fair use claim even if there isn't
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permission given to re-use - but at least to encourage people
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to begin to signal that their freedom to share
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has been authorized by the author.
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And then in the academy, which I think we are speaking
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about here right now.
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We need to recognize in the academy, I think,
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an ethical obligation, much stronger than the ones Stallman spoke of
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in the context of software. An ethical obligation
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which is at the core of our mission.
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Our mission is universal access to knowledge.
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Universal access to knowledge:
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not American University access to knowledge,
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but universal access to knowledge in every part of the globe.
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And that obligation has certain entailments.
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Entailment #1 is that we need to keep this work free,
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where free means licensed freely.
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Now this needs to be part of an ethical point about what we do.
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It is resisted by people who say that archiving is enough.
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But that is wrong, I think.
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Archiving is not enough, because what it does is
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leave these rights out-there. And by leaving these rights our-there
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it encourages this architecture of closed access.
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It encourages models of access that block access
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to the non-elite around the world.
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And it discourages unplanned, unanticipated and "uncool" innovation.
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That's the thing that publishers would have said
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of Google Books, when Google Books had the idea
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to take all books published and put them on the Web.
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Right, publishers thought that was very uncool,
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but that's exactly the kind of innovation we need to encourage,
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and we know it won't be the publishers
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that do that kind of innovation.
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We don't need for our work, exclusivity.
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And we shouldn't practice, with our work, exclusivity.
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And we should name those who do, wrong.
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Those who do are inconsistent with the ethic of our work.
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Now how do we do that? I think we do that by exercising leadership,
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leadership by those who can afford to take the lead,
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the senior academics, those with tenure, those who can say,
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on committees granting tenure, that it doesn't matter
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that you didn't publish in the most prestigious journal
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if that journal is not Open Access.
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People who can begin to help redefine what access to knowledge is,
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by supporting Open Access and respecting Open Access
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and encouraging Open Access.
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Now, I'm really honored and happy to be able to talk about this
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here, where you of course gave us the Web,
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and CERN has taken the lead in supporting Open Access
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in a crucial space of physics.
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And the work that you are doing right now will have a dramatic effect
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on changing the debate on science across the globe.
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But what we need to do is to think about
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how to leverage this leadership into leadership for the globe,
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to benefit this area of the globe as much as this area of the globe.
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Thank you very much.
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(applause)
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[credits for Flickr photos]
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[This work licensed: CC-BY]
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Subtitles: universalsubtitles.org/videos/jD5TB2eebD5d/