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Mary Wong of the Franklin Pierce Law Center is giving a Berkman talk titled “Copyright & Access to Knowledge: Rights/Rhetoric, Openness/Opacity, Future/Fears.” [As always, I’m typing too quickly, missing stuff, getting stuff wrong, paraphrasing wildly…If you want verisimilitude, the event itself is webcast and recorded in multiple ways.] She’s going to talk about copyright policy and the a2k (access to knowledge) movement and how some important terms that, in their use in rhetoric, have been misunderstood.

She points to the simultaneous increase in openness and opacity. The “existing regimes” have put up roadblocks. “What is the future if we have rights battling rhetoric, openness fighting opacity?”

Copyright began as a tool of censorship used by the Crown, became a type of trade regulation, and then was established as a private property right, Mary says. The tropes we use to talk about it derive from that history. These tropes have been deconstructed by people like Foucault and Barthes. Mary says that she’s not going to examine today deconstructionist issues such as whether the author is a myth.

She says she’s not going to suggest stopping treating copyright as a private property right because she’s trying to come up with workable solutions. Rather, what can we do about the expansion of copyright in order to increase access to knowledge? “Reconize the spectrum of alternative property rights?” E.g., the commons, the public domain. “Establish balance through ‘user rights'”? E.g., elevate and reconfigure Fair Use, and treat it as a right. “Create flexible mechanisms within property?” E.g., Creative Commons.

On alternative property rights: We can all agree that a we need a robust public domain for democracy and for cultural, social and economic development. [No one here exclaims in shocked outrage :)] But how do you turn that into a concrete policy proposal? We don’t even have good definitions of public domain and the commons in a way that would let them serve as alternatives to copyright. Usually the public domain is defined more in terms of what it is not than what it is. Are the commons something unowned or owned by a group of people? Is it owned by society in generally? All of these uses are used in the law, and sometimes they’re used interchangeably with “the public domain.” We don’t have a consensus on a definition for either of these terms, but both have gained currency in the copyright debate, she says. “While they’re useful hooks and very important direction indicators, they’re not necessarily at this stage…the solution.” “How can the current discourse be refocused?” (Mary is encouraged by the fact that NGOs and civil society groups are participating in this debate, worldwide, rather than confining it merely to lawyers.)

Our traditional conception of the author is Romantic and has been affecting copyright law for a couple of hundred years. But this is “inadequate to deal with collaborative, communal and social forms of creativity.” The term “author” shows up all over the Berne convention. But it’s a one-size-fits-all notion that doesn’t work in many of the newer forms of creativity that involve “sharing, collaboration and openness.” “Can we at least try to reconfigure or manipulate the notion of the author to better serve the understanding of what it means to create something?”

She suggests considering this in terms of human rights rather than property rights. She points to Art. 27 of the Universal Declaration of Human Rights and Article 10 of the European Convention on Human Rights. UDHR says that if you create something, you have rights over it. But in a case in the UK, the court decided that that property right needs to be balanced with the rights of users and readers. Canada has also talked about “users’ rights.”

She is not saying that copyright is a human right. She is suggesting (she says) adopting the human rights framework to bring in more broad and flexible considerations, to give a foundation to users’ claims. Even within the US’s utilitarian claims (i.e. copyright enables the advancement of the arts and sciences) there is room for natural law claims. And she points to WIPO’s acknowledgement of the special needs of developing countries.

Q: (Charlie Nesson ): I’m completely taken by your initial approach. Asking what we can do rather than just talk about it, and the idea of user rights resonate. The user I’m most interested in at the moment is the university. What would be thread that we can pull to effect change? Right now, the burden of proof of Fair Use is on the user, which is tremendously constraining. How about if we (universities) got behind a law putting the burden of proof on the copyright holder? It doesn’t require changing the basis of copyright law. It could be a focal point…
A: I’m with you on that totally. To do this, we need to change the mindset. Maybe have the university focus on the human rights frameworks.

Q: If we focus on the users, how do we do it? Do we list things you can’t do, or the things you can?
A: We talk about Fair Use as an exception to copyright. What do we do with the existing language?

Q: (J Palfrey ) I love the idea of the university as the user and focal point. But suppose we think of the user as a re-user. Could rethinking who the author is help? Creating isn’t just standing on the shoulders of giants but standing on the shoulders of everyone. [Nice.]
A: The reconfiguring of authorship fits in this paradigm, and fortifies it.

Q: (me) How would this play out when it comes to making the world’s books available on line?
A: Prof. Nesson’s idea of changing the burden of proof would work well here. It would be an opt-out scheme, rather than opt-in, for the publishers. We’ll see a battle between the copyright right holder and another right holder.

Q: (Doc Searls) Terms like “user” implies subordinate status. We’re still using real estate metaphors, e.g., sites. This stipulates the Web as a series of places, and places are owned. So we have to change our metaphors.
A: Copyright came from literal property. We do need to move past that.

Q: (ethanz): I like reframing it, but I worry about doing it on human rights, which is one of the shakiest of foundations. The Declaration of Human Rights is a huge intellectual battlegrounds, with a number of Islamic nations saying it’s incompatible with their views, conservatives in the US objecting, etc. You’re building it on one of the most disputed and least binding of “law.”
A: I’m trying to distance my suggestion from wading wholeheartedly wading into that particular fray. I’m not saying it should be a full-fledged human right. But that framework provides a good “hook,” Article 27 gives us ammunition because it recognizes both the rights holder and the user. .And then maybe tap into WIPO’s new interest in copyright for developing companies.

Q: (ethanz): You’re being aspirational, and the UDHR is the paradigm of aspirational thinking. A different approach is to ask what we’re actually doing as users, and then figure out the legislation we need. E.g., in universities we photocopy chunks of text (“No we don’t!” yell several of the law professors, who are also chuckling) and hand them out to students.
A: Yes, it’s aspirational. I’m hoping that if you change mindsets, you can change policy. Lawyers like starting points that are definable, neat and can be generalized. But if you have fair use for universities, you end up with various laws for various domains.

Q: how do you get people to see rights as community based?
A: It’s a challenge.

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