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Dec 22, 2008

To realize the creative potential of the digital age, we must rethink intellectual property rights as part of a new “environmentalism of the mind.”

By James R. Gaines

FLYP sat down with copyright pioneer James Boyle to discuss everything from the limits and promise of the public domain to what he calls "cultural environmentalism." Watch the video interview here.

In case you’ve ever wondered what William Shakespeare and Isaac Newton have in common with Ray Charles—and who has never considered this question?—the person to talk to is James Boyle.
A law professor at Duke University, Boyle explains this and a great deal more in his new book Public Domain: Enclosing the Commons of the Mind. Under the ingeniously deep cover of a book about copyright, trademark and patent law, Public Domain explores an unfamiliar front in the war between security and freedom, where the stakes are nothing less than the fertility of human culture.
His argument begins and ends with an irony: that the Internet age, which has made possible the greatest profusion of culture in human history, has shrunk the world where most of that culture needs to live—the public domain. This is the place where Shakespeare abides, and where Charles found the hymn he made into “I Got A Woman.” When Newton talked about how he was able to see further than others could, this is what he meant: the public domain is where all the giants’ shoulders are.
As new technology made copying cheaper, content creators and companies fought in court to protect themselves, and with varying degrees of right on their side, they did (see the timeline above). Part of the problem was the Internet’s astonishingly fast growth. Policy makers were caught flat-footed. Meanwhile, the garage innovators of the World Wide Web were helpless against content-industry experts, plying a hapless Congress with the specter of what Boyle calls “the Internet threat”—that costless copying and distribution requires ever higher fences around intellectual property.
According to Boyle, the courts also have too often taken the ranchers’ side in what he calls “the range wars of the information age.” Still, it could have been worse. Had the Internet grown any slower, Boyle argues, it might have been strangled in its cradle.
Boyle is no Napster anarchist. He just thinks the system could be better, meaning that vastly more of our common culture should be available to writers, artists, scientists—and that such access is more than incidental to the quality of human life on Earth.

In FLYP’s interactive infographic, read about how intellectual property and copyright has changed in the digital age.

Example: You can read a little of what Boyle says about the “boring” field of copyright law in his book (portion republished below). You can do this because he has published his book under a license from Creative Commons, an organization he chairs that attempts to both protect and give creative access to intellectual property. With books under normal copyright, publishing lengthy passages is illegal.
Boyle challenges us to imagine a future without “I Got A Woman,” a world where the next budding Ray Charles would have to avoid imitating Nat King Cole—and where Joe Cocker could not have found himself by channeling Charles, a legal landscape in which such creative mashing-up is illegal.
Against such a world, he proposes a movement, which he calls an “environmentalism of the mind.” Its aim is as ambitious as it is simple: a quality of public debate that can lead to wise legislation. “If we don’t get this right,” he says, “we’ll actually break our system of innovation using the very tools that are supposed to aid it.”

According to Boyle
"A better intellectual property system certainly will not end world hunger. Still it is interesting to read about the lengthy struggles to clear the multiple, overlapping patents on GoldenRiceTM—a rice grain genetically engineered to cure vitamin deficiencies that nearly perished in a thicket of blurrily overlapping rights.
A better intellectual property system will not cure AIDS or rheumatoid arthritis or Huntington’s disease or malaria. Certainly not by itself. Patents have already played a positive role in contributing to treatments for the first two, though they are unlikely to help much on the latter two; the affected populations are too few or too poor. But overly broad, or vague, or confusing patents could (and I believe have) hurt all of those efforts—even those being pursued out of altruism…
Good intellectual property policy will not save our culture. But bad policy may lock up our cultural heritage unnecessarily, leave it to molder in libraries, forbid citizens to digitize it, even though the vast majority of it will never be available publicly and no copyright owner can be found. Would you not prefer the world in which your children could look at the Library of Congress online catalogue and click to get the book or film or song that otherwise languished as an
“orphan work?”
Good intellectual policy will not necessarily give us great new music. But the policy we have today would make some of the music we most cherish illegal, or at least legally questionable. Does that inspire confidence for the future?"

Watch two videos about how Creative Commons is changing how we think about copyrights, both of which are under a Creative Commons license.



Among his many professional roles, James Boyle is chairman of the board
of Creative Commons, whose innovative licenses both protect and
facilitate useful access to creative and scholarly works. A professor
of law at Duke University, he is the author most recently of The Public Domain: Enclosing the Commons of the Mind, which was published this month by Yale University Press and is available as a free PDF.


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good read.

Frank Violin
Aug 13, 2009

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