ipr – FOLLOWERS OF THE APOCALYPSE

managing the transition – academia in a post-scarcity knowledge economy

Post-scarcity economics is an imaginary concept more usually found in “hard” science fiction than in contemporary public policy. It describes a situation where resources are near unlimited, and able to match the near unlimited range of human needs and desires comfortably. In some formulations of the hypothetical situation, automation has meant that human labour is based on interest and pleasure (creativity) rather than required to be exchanged for resources needed (or wanted) in order to survive. It’s not a new idea, by any means – Stallman was all over it in 1985!

Simply put: in a post-scarcity system there are no barriers (financial or pure availability) preventing us from having what we want. You can politicise this from either dominant perspective, as it demonstrates either the final triumph of the free market, or it’s inevitable destruction. Possibly both.

It is usually imagined across the entire range of an economy – a post-scarcity situation regarding all (food, medicine, technology, information…) human needs – deliberately not using the Mazlow hierarchy as it doesn’t mention information (and more generally because it is flawed, which is maybe a post for another time.).

However, my suspicion is that we are facing a situation currently where certain elements of human needs are scarce, and others are post-scarce.

Information is now post-scarcity. If knowledge exists, we can easily and near-instantaneously gain access to it. If openness really is the enemy of knowledge, with enemies like these, who needs friends?

Digital media, meaning the digital objects themselves and their distribution, is also post-scarcity. This one gets a lot of people into a lot of trouble.

The problem we face as a culture arises because a lot of the other stuff we need to live is very definitely running on a scarcity model, which leads us to want to make a post-scarity system act as if it was a scarcity system in order to derive value from it that can be exchanged in other places.

This has led, via the growth of Digital Rights Management and restrictive licensing online, to a corporate- and government-backed attempt to import an artificial scarcity into a post-scarcity economy. Unsurprisingly, this has failed and will continue to fail. DRM and licenses are routinely broken and ignored, both knowingly and unknowingly, in day-to-day online life.

People point to the likes of amazon and itunes (yeah, they don’t need the hits…) as examples of successful business models in this area, but really what they are selling is a user experience – specifically friendly and accurate search. If it was as trivial to find, download and listen to an album on a torrent as it is to find one on iTunes, there would be no business model for iTunes (I’m not counting insidious ecosystem lock-in…). It’s even possible to suggest that UI is the one thing that people will (indirectly) pay for online. (as an aside, it’s worth noting just how steep the technical hurdles are – torrenting, usenet, drm removal – that people routinely negotiate to access digital content. I’d love to hear more about this in the digital literacies space…]

The digital economy has it’s own currency already – reputation. Yes, like “down and out in the magic kingdom“. (or “Accelerando“, if you’d rather. And, yes, I would). However, until the (unlikely) emergence of a reputation-$ exchange rate, it will remain as a parallel economy with only second-order impact on participation in the non-scarcity economy via stuff like “professional reputation” and “credibility” impacting on earning potential.

In the education world we are seeing a huge tension between the ideals of academic openness, and the “reality” of the market-driven exploitation of academic labour. Neither of these are going to make anyone any money. And happily, neither describe how academics generate income. Getting paid for having done something once is an exception, getting paid for having the ability to keep doing things – or to keep do things to order – is the rule. We have (or had) a system for the employment of creative people that supported this, which naive links to the monetised exploitation of content artifacts can only undermine.

This, as I’ve outlined above, is a massive global cultural issue. It’s not that we urgently need to find a means of financially sustaining academic online sharing. It’s that we can’t, because the business models that worked in tangible-object publishing for the 300 years since the enlightenment simply don’t work in this universe. The fix for this isn’t going to be micro-payments, or usage tracking. It’s going to be a wholesale reorganisation of our cultural concepts. And academia should seriously be at the cutting edge of that.

What we do is one of the few things that is – and will likely remain – scarce. The development and training of highly optimised and highly adaptable human mind – capable of drawing links and parallels from a variety of sources in to a coherent whole, that provides an insight into something interesting and important. As above, the insights aren’t the point, the point is we are set up to keep doing them. And there’s no short-cuts to being able to do this. Just years of training and experimentation. These skills work in a post-scarcity world. We just need to manage the transition.

This post represents my personal opinions only, and not those of my employer or colleagues. It is available under a CC-BY license.

The bubble of openness?

Is openness (in the form of open access to knowledge, and the open sharing of distilled knowledge) a contemporary bubble, destined to collapse as universities and industries seek to tighten their budgets? Or is it a wider phenomenon, intrinsically bound to it’s antithesis – the modern industry of publishing?

The industrial revolution in the UK coincided with the growth of a new industry, that of the publisher – which applied the lessons of manufacturing to the production of art. And a sample of legislation across that time demonstrates the increasing emphasis of the rights of the publisher over that of both the reader and author.

The Copyright Act of 1709 (The Statute of Queen Anne, subtitled “An Act For The Encouragement of Learning…“, afforded the 18th century reader the right to complain about an unfairly high book price to the Archbishop of Canterbury, who could fine booksellers up to £5 for every overly expensive book sold.

Around a hundred years later, an 1814 Act of Parliament permitted the author (as a protection against unscrupulous publishers!) full control of the exploitation of their work for “the remainder of his or her life“.

However, at the very beginning of the 20th Century the emergence of the model of “net prices” marked the institutionalisation of the right of the publisher to maximum profit – and highlighted the increasing separation between the bookselling, bookbinding and publishing industries. As the 1911 Britannica puts it:

“After much discussion between authors, publishers and booksellers, a new scheme was launched on the 1st of January 1900. Books began to be issued at net prices, from which no bookseller was permitted to make any deduction whatever. This decree was enforced by the refusal of all the publishers included in the [Publisher’s] Association to supply books to any bookseller who should dare to infringe it in the case of a book published by any one of them. In other words, a bookseller offending against one publisher was boycotted by all. Thus, what is known as the “net system” depended absolutely upon the close trade union into which the publishers had organized themselves.”

And in 2009, 300 years after the promulgation of the Statute of Queen Anne, the Digital Britain Report recommended the statutory codification of the rights of publishers to police the “piracy” of their digital assets, via the disconnection of the reader from the network of computers that had become a primary means of obtaining knowledge.

In these 300 years the publisher has gone from a possible impediment to the advancement of learning, under the strictures of no less than an Archbishop, via the establishment of a cartel dedicated to the preservation of an artificially-raised “market value”, to a state-sponsored business model enforcement unit. Whilst this has happened publishers have divested themselves of every vestige of the “work” of publishing – hiving off printing, bookselling and latterly quality review, to ancillary units with expensive overheads – whilst still maintaining a position as arbiters of “quality” and “trustworthiness” to the reader. A “published” work is seen as a greater acheivement than any other indicator of intellectual labour, and is used as the primary measure of research effectiveness in academia.

Despite this, those 300 years have seen a growth in literacy and the free exchange of ideas via mass literacy and the extension of school provision (starting with the Factory Act of 1802, the gradual increase in the availability of knowledge via the establishment of public libraries (particularly after the 1850 Public Libraries Act), and now the explosion of freely-available information online. Each of these advances, though largely brought about by the judicious use public funding (lest we forget, the first multi-platform web browser was developed by a student from Leicester Polytechnic on placement at an institute co-funded by European governments), was greatly enhanced by the support of philanthropy and private investment.

So, on the one hand we have a trend supporting the growing access to, and demand for, free knowledge, on the other we have an industry devoted to reducing access to knowledge via the levy of fees. Viewed like this, the current cultural interest in “openness” is not a bubble, rather a continuation of a trend almost as old as the publishing industry that has grown to support the demand for knowledge.

A further interesting factor is the idea of a body of cultural reference. Giulia Forsythe paraphrases Lessig (via Jim Groom) to say:

“I believe this is OUR culture. We have a right to review, remix, and make meaning of the media we grew up with through the tools new media provides.”

Just because the majority of the media of our formative years (music, television, film, literature…) belongs to one or other of the big publishing conglomerates does not mean that it does not also belong to us. Part of the reason such intellectual property is so valuable to publishers is because of the value we (as readers in the widest sense of everything being a text) invest in it.

Which is very 17th century really – the land we are fighting over is in our minds rather than on managed farms, we want to own the means to grow ideas, not crops – but culture, like the earth, is a common treasury for all.

This post represents my personal opinions, and not those of current or former employers, projects, or programmes I am or have been responsible for. This post is available under a CC-BY license.

So what’s the deal with fair dealing?

These are my views and not those of my employer, or of projects and programmes I am responsible for. This post is available under a creative commons CC-BY license. I am not a lawyer or a legal expert, the post below reflects my interpretation of the law as I understand it, based on openly available materials.

A few people are starting to question why we need creative commons licensing for resources when we have fair use and fair dealing exemptions for education and research in most IPR systems globally. Here’s why:

1. Fair use/fair dealing rights vary from jurisdiction to jurisdiction.

Creative Commons is global, with teams of localised experts ensuring that the licenses are re-presented in language suitable for many jurisdictions. Using something under the terms of a CC license is the same in Boston, MA as it is in Boston, Lincolnshire. But “fair use” (the US terminology) for educational reasons is very different from “fair dealing” (the UK terminology) – fair dealing is much more restricted in the UK with much less scope for argument (an issue I’ll come to later).

In the UK, fair dealing rights are set out under the 1988 Copyright Designs and Patents Act. You have rights to use an “excerpt” of a copyright work for non-commercial research or private study, criticism and review or news reporting. You’ll note that none of these are defined precisely – those of you attending #OER11 will hear me speak about an example where a non-commercial research exemption which seemed to me pretty watertight was successfully challenged.

The web is global. Information is global. A jurisdiction-specific right is almost irrelevant in such a world

2. Fair use/fair dealing rights don’t allow for republishing or sharing.

Fair dealing allows for copies of excerpts of copyrighted works to be made for educational purposes by a librarian, tutor or student, for use by a known student or group of students. If you want to show your awesome materials to prospective students, you (legally) can’t. If you want to share slides with the woman you share your office with, you (legally) can’t. If you want to build something on top of data that is used under “fair dealing”, you (legally) can’t. And as implied above, if you want to use materials made by that guy from Michigan you met at that conference, you (legally) can’t.

3. Fair use/fair dealing rights are legally arguable, CC licenses are clear and unarguable.

This for me is key – fair dealing isn’t something that keeps you out of court, it’s an argument you can use in court to stop yourself being fined for breaching copyright. It’s not a watertight defence, there are (intentional) grey areas an in the end it will all come down to the interpretation of a judge. You’ll be very unlikely to get to a stage where you can argue fair use – and there’s no financial legal aid for doing so. You or your institution will pay to make this argument. You are more likely to settle out of court with a publisher who has serious money and can afford to keep taking you to court until you give them more. Fair dealing is an occasionally valid excuse for copyright infringement – it does not mean that you are exempt from copyright law, and does not grant you the range of tangible rights that a license does.

There are very few examples of creative commons case law – this is because creative commons licenses are pretty much unarguable. They are clear, unambiguous user-friendly and well written. It’s not worth the bother of even going to court with a CC license, you know the license will be upheld.

Here’s a lovely UK summary of fair dealing produced by the UK Copyright Service and made available under a Creative Commons license, which I think is rather telling.

But this comes down to my interpretation. If people are going to talk about fair use/fair dealing as an alternative to creative commons at the very least we all need to learn more about it. I’d love a response from a real law person.

And here is a response from a real law person – Naomi Korn at OER IPR support. Thanks Naomi!