Acrewoods Library

There are many different conceptions of the public domain:

A - information artefacts wholly free from IPRs (pp.109-111)
* excludes information, ideas, principles and laws of nature (hence *artefacts*)

B - IP-free information resources (pp.111-113)
* includes artefacts and ideas, principles, etc.
* most common definition
* Justice Brandeis' famous dissent in International News Service vc. Associated Press: "The general rule of law is, that the noblest of human productions - knowlege, truths ascertained, conceptions and ideas - become , after voluntary communication to others, free as the air to common use".

C - the constitutionally protected PD (pp.1113-116)
* In the US, the reason for excluding databases contradicts the labour argument for IPRs, cf. Locke - "works lack the creativity that is the sine qua non of constitutional authorship"

D - Privatisable information resources (pp.116-120)
* includes business methods, trademarks and personae, which are initially in a kind of public domain but may be appropriated
* on publicity rights - "noncelebrities generally do not have publicity rights because they have not invested time, money and energy in the creation of a commercially valuable persona" (p.119)
* pub rights closely match arguments from self-ownership, though don't fully address the extension of the self into the public sphere in the form of created information artefacts of course

E - Broadly usable information resources (pp.121-122)
* Benkler: "the range of uses an individual is privileged to make absent individual facts"
* encompassing e.g. time shifting, quotations and other fair use exceptions
* Samuelson interprets this as meaning "those information resources that are freely usable and those as to which an owner can exercise exclusive rights", though it seems more accurate to talk of "unrestricted information uses as to thoes an owner can exercise exclusive rights to prevent", which captures fair use better
* used to promote "a more public-regarding politics of intellectual property"

F - Contractually constructed information commons (pp.123-127)
* basically copyleft, echoing Benkler's definition but also encompassing extra rights granted by authors to the public
* "because they promote openness and widespread uses, these information resources are regarded by some commentators to be functionally similar enough to IP-free public domain materials to be included in the definition of this term" (p.124)
* also mentions Reichman and Uhlir who want a contractually constructed information commons for scientific research, to claw back the academic tradition from privatisation (useful citation to back up Himanen... 124-127

G - A status conferring a presumptive right of creative appropriation (pp.127-129)
* basically transformative fair use
* to make the public domain more dynamic and robust, rather than being a sanctuary, Prof. David Lange conceives of "a status that arises from the exercise of the creative imagination... confer[ing] [on authors] entitlements, privileges and immunities" to appropriate other works in the course of creating new ones
* Lange sees it as an affirmative right, rather than a defence in court cf. fair use, overriding any economic or reputation impact
* Lange was concerned about an extensive right of publicity hampering artistic freedom, the conflict of the two `rights' creating opportunities for a kind of censorship

H - A cultural landscape (pp.129-130)
* Prof Julie Cohen suggests that the proper approach to defining the PD is to pay "careful attention to creativity as a social phenomenon manifested through creative practice", rather than deriving the definition from legal traditions or the creative industries' market systems
* Similar to Lange, Cohen sees this approach as requiring that creators have "baseline rights [to engage in] unplanned, fortuitous access and opportunistic borrowing" - "if we as a society want to facilitate the development of artistic culture, copyright doctrine should recognise rights of access to the common in culture to a far greater extend than it currently does"

I - A communicative sphere (pp.130-132)
* Prof Michael Birnhack says the PD plays "a crucial role in personal self-development, learning, experiencing, imagining, speaking with others, creating new works for the benefit of ourselves and wider circles, starting from the immediate intelocutor and up to the entire community" -- closest to acknowledging the range of benefits of cultural freedom that I explore in the fourfold analysis of beneficial use
* On the social sphere, Birnhack provocatively claims that "both the public domain and the idea of freedom of speech stem from the same source" in the sense that the both "construct... a communicative sphere, where people can interact with each other in various circles"

J - Publication of governmental information (pp.133-134)
* Prof Edward Lee - a PD of governmental information that "helps to establish a legal restraint against government overreaching by ensuring the public's access to materials that are essential for self-governance and learned citizenry"

K - A domain of publicly accessible information (pp.134-135)
* this acknowledges that IPRs may in fact make information more accessible, e.g. patents promote the publication of information
* this simply reinforces the ambiguities introduced by discussions of *real* cultural freedom as opposed to the more libertarian ideal of freedom-from-restriction
* picked up on p.163 in the case of Lexis and Westlaw who proprietise PD legal information and provide widespread access to it, making the information resources more widely available than the numerous IPR-free points of access. "Access controls and commercial licensing are strategies for recouping the expenses of providing these added values."

L - The unpublished public domain
* private works such as journals, preparatory works such as first drafts, and publicly displayed or performed works that aren't technically counted as being "published" (yawn, conceptually very different from the first two types)

M - The romantic (or imperialist) public domain
* Indigenous people may want protection for commercially valuable traditional knowledge, that would otherwise be (and indeed commonly is) appropriated without compensation by Western commercial interests, and so advocating the PD can seem like another form of Western imperialism
* the PD may also be an impediment to distributive justice, where patents and to a lesser extent copyright could distribute the global North's wealth to the global South in return for access to their knowledge
* although sympathetic with the goals of Northern PD advocates, Chandar and Sunder caution against a romantic conception of the PD that militates against any new appropriation, and so masks the disadvantage suffered by indigenous populations"
* c.f. Liang and co. about fighting IP within countries without strong IPRs as an alternative angle, and the Honeybee network for a practical attempt to learn from Chandar and Sunder's point

The definitions can be clustered according to three criteria: (pp.145-147)

i - The legal status of information resources (whether or not they're encumbered by IPRs)
ii - The freedom to use information resources (more or less, encompassing i but also for example Benkler's PD E)
iii - The accessibility of information resources (in Samuelson's discussion, a very thin liberal understanding to account for other legal restrictions such as classified secrets, unpublished works and the pro-patent argument in PD K)

Samuelson turns these criteria into a matrix, and derives a heirarchy of desirable situations: (pp.150-151)
1 - Freedom to use and accessible
2 - Encumbered by IPRs but broadly usable and accessible
3 - Inaccessible but IP-free iresources

This contradicts the ethical imperative endorsed by Stallman and Myers, but then 'accessible' needs defining to sharpen this claim.

p.155, useful note - "A copyright lawyer might explain, for example, that it is permissible to copy ideas or information from a copyrighted work because section 102(b) of the [US] Copyright Act of 1976 excludes them from the scope of copyright protection"

Look up Jessica Litman, Digital Copyright (2001), pp.29,181 for a discussion of why the public doesn't respect and abide by copyright law... "perhaps copyright professionals should reflect on the arcane and nit-picking language that copyright law and its statutory Categorisation provides" (p.156)

Samuelson suggests that Benkler's PD (E) is the most sensible use of the term 'PD' when addressing a general audience, although in legal discourse such as use is confusing.

NOT COMPLETE

Environment

Schumacher claims that one of the major problems of our society is that humans believe that they have solved the problem of production:

"One of the most fateful errors of our age is the belief that "the problem of production" has been solved. Not only is this belief firmly held by people remote from production and therefore professionally unacquainted with the facts -it is held by virtually all the experts, the captains of industry, the economic managers in the governments of the world, the academic and not-so-academic economists, not to mention the economic journalists.

"The arising of this error, so egregious and so firmly rooted, is closely connected with the philosophical, not to say religious, changes during the last three or four centuries in man's attitude to nature. Ishould perhaps say: western man's attitude to nature, but since the whole world is now in a process of westernisation, the more generalised statement appears to be justified. Modern man does not experience himself as a part of nature but as anoutside force destined to dominate and conquer it. He even talks of a battle with nature, forgetting that, if he won the battle, he would find himself on the losing side. Until quite recently, the battle seemed to go well enoughto give him the illusion of unlimited powers, but not so well, as to bring the possibility of total victory into view. This has now come into view, and many people, albeit only a minority, are beginning to realise what this meansfor the continued existence of humanity.

"The illusion of unlimited powers, nourished by astonishing scientific and technological achievements, has produced the concurrent illusion of having solved the problem of production. The latter illusion is based on the failure to distinguish between income and capital where this distinction matters most. Every economist and businessman is familiar with the distinction, and applies it conscientiously and with considerable subtlety to all economic affairs-except where it really matters: namely, the irreplaceable capital which man has not made, but simply found, and without which he can do nothing.

"A businessman would not consider a firm to have solved its problems of production and to have achieved viability if he saw that it was rapidly consuming its capital. How, then, could we overlook this vital fact when it comes to that very big firm, the economy of Spaceship Earth and, in particular, the economies of its rich passengers?

"One reason for overlooking this vital fact is that we are estranged from reality and inclined to treat as valueless everything that we have not made ourselves." (2-3)

(...)

"Let us take a closer look at this "natural capital." First of all, and most obviously, there are the fossil fuels. No one, I am sure, will deny that we are treating them as income items although they are undeniably capital items. If we treated them as capital items, we should be concerned with conservation; we should do everything in our power to try and minimize their current rate of use; we might be saying, for instance, that the money obtained from the realisation of these assets-these irreplaceable assetsmust be placed into a special fund to be devoted exclusively to the evolution of production methods and patterns of living which do not depend on fossil fuels at all or depend on them only to a very slight extent." (4)

"Fossil fuels are not made by men and they can not be recycled. Once they are gone they are gone for ever." (5)

"Fossil fuels are merely part of the 'natural capital' which we steadfastly insist on treating as expendable, as if it were income, and by no means the most important part. If we squander our fossil fuels, we threaten civilisation; but if we squander the capital represented by living nature around us we threaten life itself." (5)

"we must thoroughly understand the problem and begin to see the possibility of evolving a new life-style, with new methods of production and new patterns of consumption: a life-style designed for permanence...in agriculture and horticulture, we can interest ourselves in the perfection of production methods which are biologically sound, build up soil fertility, and produce health, beauty and permanence." (9)

"economic growth, which viewed from the point of view of economics, physics, chemistry and technology, has no discernible limit, must necessarily run into decisive bottlenecks when viewed from the point of view of the environmental sciences. An attitude to life which seeks fulfilment in the single-mided pursuit of wealth - in short, materialism - does not fit into this world, because it contains within itself no limiting principle, while the environment in which it is placed is strictly limited."

The Rich

"It is clear that the 'rich' are in the process of stripping the world of its once-for-all endowment of elatively cheap and simple uels. It is their continuing economic growth which produces ever more exorbitant demands, with the result that the world's cheap and simple fuels could easily become dear and scarc long before the poor countries had acquired the wealth, education, industrial sophistication, and the power of capital accumulation needed for the application of alternative fuels on any significant scale." (15)

"Economic progress, [Keynes] counselled, is obtainable only if we employ those powerful human drives of selfishness, which religion and traditional wisdom universally call upon us to resist. The modern economy is propelled by a frenzy of greed and indulges in an orgy of envy, and these are not accidental features but the very causes of its expansionist success. The question is whether such causes can be effective for long or whether they carry within themselves the seeds of destruction." (18)

"I suggest that the foundations of peace cannot be laid by universal prosperity, in the modern sense, because such prosperity, if attainable at all, is attainable only by cultivating such drives of human nature as greed and envy, which destroy intelligence, happiness, serenity, and thereby the peacefulness of man. It could well be that rich people treasure peace more highly than poor people, but only if they feel utterly secure - and this is a contradiction in terms. Their wealth depnds on making inordinately large demands on limited world resources and thus puts them on an unavoidable collision course - not primarily with the poor (who are weak and defenceless) but with otehr rich people." (19)

Oil

Peace

"Fuel resources are very unevenly distributed, and any shortage of supplies, no matter how slight, would immediately divide the world into 'haves' and 'have-nots' along entirely novel lines. The specially favoured areas, such as the Middle east and North Africa, would attract envious attention on a scale scarcely imaginable today, while some high consumption areas, such as Western Europe and Japan, would move into the unenviabl position of residual legatees. Here is a source of conflict if ever there was one." (15-16)

Underlying values and ideas

"Ideas...form the very instruments by which thought and observation proceed. On the basis of experience and conscious thought small ideas may easily be dislodged, but when it comes to bigger, more universal, or more subtle ideas it may not be so easy to change them. Indeed, it is often difficult to become aware of them, as they are the instruments and not the results of our thinking - just as you can see what is outside you, but cannot easily see that with which you see, the eye itself. And even when one has become aware of them it is often impossible to jusge them on the basis of ordinary experience.

"We often notice the existence of more or less fixed ideas in other people's minds - ideas with which they think without being aware of doing so. We then call them prejudices, which is logically quite correct because they have merely seeped into the mind and are in no way the result of a judgement. But the word prejudice is generally applied to ideas that are patently erroneous and recognisable as such by anyone except the prejudiced man. Most of the ideas with which we think are not that kind at all. To some of them, like those incorporated in words and grammar, the notions of truth or error cannot even be applied; others are quite definitely not prejudices but the result of a judgement; others again are tacit assumptions or presuppositions which may be very difficult to recognise.

"I say, therefore, that we think with or through ideas and that what we call thinking is generally the application of pre-existing ideas to a given situation or set of facts. When we think about, say, the political situation we apply to that situation our political ideas, more or less systematically, and attempt to make that situation 'intelligible' to ourselves by means of these ideas. Similarly everywhere else. Some of the ideas are ideas of value, that is to say, we evaluate the situation in the light of our value ideas."

"The way in which we experience and interpret the world obviously depends very much indeed on the kinds of ideas that fill our minds." (63-64)

Economist Jobs

Peter Hewitt is the Chief Executive of the Arts Council of England.

He writes at length about the contribution of the arts to public life, of the boom in the arts since the Labour government increased funding 64% since 1997 in real terms, of the massive proportion of the public now enjoying the arts in one way or another, and of the huge public support for publicly funded arts (79%).

`We know that, in the past, some artistic interest groups have carefully - and unhelpfully - protected their own interests against the demands of the more popular forms of cultural activity' (p.6)
- Not explicitly about copyright lobbyists, but surely an apt description of their opposition to current activities that they brand as piracy?

On the value of the arts, writing in the context of the debate around immigration and national identity:

1. `First, multiplicity of cultural experiences simply enriches our lives.
2. Second, the arts contribute to cohesion, healing, mutual recognition and conviviality between different faiths and ethnicities in communities.
3. Third, the arts provide a medium through which the current debate about identity, and Britishness as a part of that, can be explored. The arts provide a space in which difference, mutual respect and the beauty of otherness can all be considered.' (p.9)

`The continuous debate about our identity would be hugely impoverished were we not able to look at it through a series of artistic prisms' (p.10).

`The fact that arts and culture generate conviviality and conviviality makes for well-being and health and happiness and militates against anti-social behaviour, vandalism and violence.' (p.10)

- One could go further to say that sharing, which requires a healthy degree of consumption and production, provides the basis for social life itself. The more we are able to share (and therefore also consume and produce) as citizens, the more healthy our social lives, the more convivial our communities.

On young people using the internet and associated technologies: `This is a world both more alone and vastly more connected than ever before. This is a world where self-scheduling, self-editing, self-creation is the norm and, at the same time, where opportunities for collaboration are exponentially multiplied. It is a world that offers a whole new universe for artists, with vastly expanded opportunities for collaboration and production as well as for distribution' (p.12).
- though only by virtue of technology facilitating social and cultural practices, that are stamped upon by copyright, censorship and DRM amongst other beasties.

`The Arts Council itself needs to have the courage to enter into a new relationship with the public and place public dialogue, engagement and participation at the heart of what we do' (p.14).
- Putting free culture into this wider context, copyright reform can contribute to this new relationship.

Sara John, VP Government and Affairs, EMI, said: "every child should be encouraged to put a copyright notice at the end of his or her work because it is theirs and because it is valuable" (p.vi).

Paul Collard, National Director, Creative Partnerships, said: "the more porous the schools are and the easier it is for pupils to move in and out of their spaces into the real world, the more motivated, interested and committed they become to their learning" (pp.xi-xii).

In a typical class the teacher encouraged the children to take music from copyright-free web repositories for a video project. But one child mixed in music by some of his favourite artists, thinking mistakenly that by mixing short clips with other sounds it was "fair use". He wrote to the record company asking for permission to use the music and was refused.

Even when materials are released specifically for educational purposes, the terms of use are often unknown or ambiguous, and difficult to express precisely.

Fair use in the US, for example, lays down various conditions on teachers:

1. The work in question should only be presented "at the direction of, or under the actual supervision of, an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of a governmental body or an accredited nonprofit educational institution"
2. The material must be "directly related and of material assistance to the teaching content of the transmission"
3. Distribution of the work must be limited to "students officially enrolled in the course for which the transmission is made" or "employees of governmental bodies as a part of their official duties or employment"

In other words, educational use of copyrighted materials is restricted to highly controlled official school environments. Learning elsewhere is an outright violation of copyright. Even within the fair use context the law is flexible making it difficult for individuals and establishments to be certain of their legal position.

Works released under a Creative Commons license are good for educators because:

• There is "clear guidance to others of the creator's intent", thus expanding the quantity of material available and mitigating legal risks.
• They provide a way into discussing online ethics, copyright violations and plagiarism, and through practise they gain a creator's perspective as well as that of a consumer.