[A2k] arstechnica: "UK report: knowledge should be publicgood first, private right second"

[Seth Johnson]

See article below.

Comments:

The representation of the American model is false -- it's a
representation of the bogus version that's been promulgated by
the arrogant interests and public servants that we've been living
with since about the time computer technology became ubiquitous
in the 1980's (I'm speaking about exclusive rights policy in
particular here).  In literal legal language terms "fair use" is
not an exception to copyright -- the copyright statute enumerates
the authors' rights as "subject to" the various provisions such
as first sale, fair use, etc., not the other way around.  And the
American tradition is much more true to the unavoidable freeness
of published information; this has always been expressed in the
fact/idea - expression dichotomy.

The American tradition does not actually see knowledge as
property and not as a social good as this article says; the
American *system* may be treating it that way of late, but our
tradition does not -- we've been in the sway of a lot of people
who've freaked out about the implications of ubiquitous
computing, code and connectivity and have been pushing their
weight around, starting perhaps with Bayh-Dole in academia, and
the DMCA everywhere else -- as the US implementation of the WIPO
freakout that occurred right after the U.S. Feist Publications
Supreme Court finding (We are finally seeing some of that
reactionary WIPO activity staved off as a real constituency pulls
together to stop the broadcaster's treaty).

This report is simply expressing commonplaces that we used to
always hear, chiefly from academia and the librarian and broader
scientific communities, because they are self-evident, but
sometimes need repeating by those for whom their ineluctable
truth is their stock in trade -- but academia stopped being on
the side of academics in this area once Bayh-Dole passed.  Before
then, you hardly ever heard the term "intellectual property" used
in America without scare quotes -- because the things this
article mentions were just obvious, almost not worth mentioning
except as the corrective that their bare mentioning would serve
as.

This misconception, which accords an undue mien of veracity to
the whole "copyright maximalist" trend, informs their
categorization of four models, which is just their way of
creating a bogus continuum, just so they can present their
concept of "public resource first, private asset second" as a
position in the middle.  When in fact, the only way to really
articulate this idea that knowledge is a public resource first
and a private asset second, would be to stop screwing with the
tradition and recognize the fact/expression dichotomy, on which
basis alone you can even start to have any hope of thinking of
such a "model."

Look up and read Feist Publications if you haven't already.  The
notion of moving gradually from the imputed UK/"knowledge as
asset first, public resource second" model, to the report's
"public resource first, asset second" is ably refuted there.  Let
alone the imputed US/"knowledge is solely an asset" model.

Why on earth have we had to go through all this?  Well, for one
thing, we've been bought out for a long time, in all four
estates.  Hopefully we're building enough apparatus these days to
stand against it.


Seth

---

> http://arstechnica.com/news.ars/post/20061102-8133.html


UK report: knowledge should be public good first, private right
second

11/2/2006 9:36:09 AM, by Nate Anderson


The UK is awaiting the release of a report by the Gowers Review
of Intellectual Property, a task force charged with suggesting
changes to the country's intellectual property laws. The
formation of the commission has inspired a flurry of private
books and reports on IP designed to influence debate on the
subject. While many of these are exactly as interesting as you'd
expect, a new report from the Institute for Public Policy
Research offers a fascinating look at the reasons behind
intellectual property rights and suggests a new way forward for
Britain: thinking about knowledge as a public resource first, and
a private asset second. Is this idealistic, anti-business pinko
blue-skying? The group says no.

The two functions of knowledge

The report, which was funded by the BBC, the British Library, and
the UK Film Council, is an attempt to get beyond the rhetoric of
IP maximalists who always want more protection and longer
copyright terms and free culture radicals who want to "share
information with impunity." Recognizing the legitimate private
rights that must be granted to business in order to encourage
investment and creative production, the authors of the report
also make a strong case for "creating as strong a political voice
for public domain as currently exists for other interests." Only
when consumers (and the businesses that rely on public domain
work) have a real seat at the table can the concerns of each
group be properly balanced.

The report opens with an observation: knowledge can play two very
different roles in society. It can be a commodity that is bought,
sold, and protected by copyright, but it can also serve as
"social glue" that gives a society a sense of cohesion. "It is
through the sharing of information that we are able to develop
our intellectual and creative talents, discover new artists,
create new businesses, forge alliances between academic and
commercial institutions, and learn from one another," says the
report, and argues that both uses=97not just the business case for
copyrights=97need to be considered by the government.

Four models

The study details four models which balance these competing
interests in different ways. First, there's the American model,
where knowledge is understood solely as an asset. Some fair use,
parody, and public domain rights are recognized, but consumer
rights are restricted, copyright terms are extended, and DRM
trumps fair use. This is because knowledge is viewed as a form of
property, not a social good. As the study notes, there is a
danger in this approach: "Where IPRs [intellectual property
rights] are understood as comparable to conventional property
rights, public domain could potentially disappear altogether,
just as the enclosure movement eradicated common land all over
the UK in the late 18th century."

The second model currently describes the UK, where knowledge is
an asset first and a public resource second. This means that
producers are generally protected first, and while more consumer
rights may be upheld, the relationship between DRM and fair use
is not resolved, and copyright terms may be continuously
extended.

The third model is that of a society where knowledge is first
seen as a public resource and only secondarily as an asset.
Comparing this to the "open access" movement in academic
publishing, the authors note that such an approach is not
anti-business. Under this model, public interest is the basis for
IP policy, copyright terms are not extended, and fair use trumps
DRM.

Finally, the fourth model is "cyber-socialism," where knowledge
is seen only as a public resource and copyright is not allowed.
The profits of creativity are returned to the public and a "new
ethic of playfulness and voluntarism" is the norm. The authors
see these ideals at work in open source projects like Linux and
Wikipedia, but point out that "it is not clear how such a model
could be used to fit in investment-heavy models of innovation and
creativity, such as the development of drugs or films."

Recommendations

When it comes to issuing recommendations, the report is clear:
the UK should move gradually from the second model to the third.
The obvious objection that arises is that such a model is
"anti-business" and does not reward producers for their
investments of time and money. The authors of the report shrewdly
point out, though, that "the goal of a policy framework that
suits business in general is illusory." Business is not a
monolith; while certain approaches to intellectual property might
be better for certain types of businesses, companies can thrive
even under the fourth model (think of open source firms like Red
Hat). Furthermore, the authors believe that making knowledge a
social good first will actually foster increased innovation and
therefore more money for UK businesses.

In defense of their position that the public interest has no
strong advocate at the bargaining table, the report points out
that the Patent Office's official mission is to "stimulate
innovation and enhance the international competitiveness of
British industry and commerce," not to ensure that British
citizens have appropriate access to knowledge. Were the
government to transition to the third model, that would have to
change.

The government itself is less keen on any sort of radical change
to the current system, but has shown a willingness to consider
ideas found in the report. But the government will give much more
consideration to whatever recommendations are made by the Gowers
Review.

Ripping a CD legally

While some of the larger structural changes desired by the IPPR
might not end up as Gowers Review recommendations, one of their
specific proposals stands a good chance of becoming law in the
near future. Britain has a bizarre copyright law that prevents
consumers from legally ripping music from CD to their portable
music players, which criminalizes the activities of half the
people in the country, according the the Guardian.

Ian Kearns, the deputy director of the IPPR, told the paper,
"When it comes to protecting the interests of copyright holders,
the emphasis the music industry has put on tackling illegal
distribution and not prosecuting for personal copying is right.
But it is not the music industry's job to decide what rights
consumers have. That is the job of government."

The IPPR report calls for the removal of the restriction on CD
ripping. With most people doing it anyway, you can bet such an
item would be a popular feature of the Gowers Review. We'll know
within weeks whether it made the cut.