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Building open cultures : the Commons in a digitally networked environment Riede, Lutz 2004

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BUILDING OPEN CULTURES: THE COMMONS IN A DIGITALLY NETWORKED ENVIRONMENT by LUTZ RIEDE MAG. IUR., The University of Vienna, 2002 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (Department of Law) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA July 2004 © Lutz Riede, 2004 Library Authorization In presenting this thesis in partial fulfillment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Title of Thesis: BVJlLD/N^ Qp&N CyLTV^S • T H E COHWONS /NJ A TALLY NE^A/0£rXBD SNVLZONMENl 110 7-1 ZOOT^ Name of Author (please print) Date (dd/mm/yyyy) Degree: HASTEN OF UWS Year: Department of L-^W The University of British Columbia Vancouver, BC Canada ABSTRACT At last, the cultural wars of the early digital age have broken out. The Internet and digital processing technologies have made it easier for individuals and communities to access and exchange information and thereby easier to create. However, powerful interests currently work to reshape the architecture of the information environment to retain control over cultural production and the flow of information. My thesis analyzes two major conflicts within the efforts to map the boundaries of this digital ecosystem. Firstly, the thesis shifts its focus to wireless communications. While the radio spectrum has been traditionally managed by allocating frequencies through governmental licensing, recent proposals suggest a trend towards a market-based property regime. The purpose of this part is to discuss a spectrum Commons as a third way to manage this resource. Such an alternative would free up spectrum for sharing by many users without governmental authority. Secondly, I trace the development of contemporary copyright law. Copyright law has seen a steady expansion in scope and is now being used to complement digital copy protection technologies in the struggle to capture and control commercial content in digital form. I focus on the enclosure of the public domain as the resource pool of raw material every future creator needs to build upon. Currently, we observe an increasing privatization through the application of traditional tangible property concepts to resources like ideas, culture, information and airwaves. In response, the emerging Free Culture movement argues for a balanced copyright regime and communications policy. The theory of the Commons could serve as the conceptual framework for such a paradigm shift. This thesis promotes the Commons as a sustainable way of resource management for the digitally networked environment. ii TABLE OF CONTENTS ABSTRACT ii TABLE OF CONTENTS iii ACKNOWLEDGEMENTS vi CHAPTER ONE: INTRODUCTION AND METHODOLOGY 1 1. Introduction 1 1.1. The Idea of the Commons 1 1.2. Mapping the Information Environment 3 1.3. Chapter Outline 5 2. On Methodology 12 CHAPTER TWO: THE COMMONS 18 1. The Concept 18 2. Enter The Intellectual Commons 20 3. The Commons as Resource Management 20 4. Elements of the Commons: Lessons from Environmental Scholars 24 5. Application to the Digitally Networked Environment 30 CHAPTER THREE: OPEN SPECTRUM 38 1. Introduction : 38 iii 1.1. A Moment of Opportunity 38 1.2. Spectrum: The Resource for Wireless Communications 43 2. Governing the Airwaves 45 3. Contemporary Issues of Radio Spectrum Policy: The Struggle for Openness 47 3.1. Two Faces of the Market: Auctions and Wi-Fi 48 4. Free the Airwaves: A Commons in Spectrum 54 4.1. Scarcity 56 4.2. Unlicensed Spectrum 57 5. The Red Lion Case Revisited 61 5.1. Implications of Red Lion for Modern Spectrum Policy 64 CHAPTER FOUR: THE PUBLIC DOMAIN 72 1. Copyright Stories 72 2. Copyright Wars 79 2.1. Expansion and Resistance 80 3. The Functions of the Public Domain 88 4. The Public Domain in Canadian Copyright Law 94 4.1. Legislation 95 4.2. Jurisprudence 99 CHAPTER FIVE: ENCLOSURE 103 1. Digital Enclosure 104 1.1. A Celestial Jukebox? 105 i v 1.2. Response of the Law 111 2. Analog Enclosure 118 2.1. Expanding the Duration 118 2.2. Eldred v. Ashcroft 119 2.3. Balancing Copyright after Eldred 125 3. Against Enclosure 130 3.1. UNESCO 131 3.2. The Bellagio Declaration 136 3.3. The Public Domain Enhancement Act 138 3.4. Creative Commons and Beyond 145 CHAPTER SIX: CONCLUSION 151 1. Towards Open Cultures 151 1.1. Everything Flows 152 2. Reclaiming the Commons 157 2.1. The Future Path of Wireless 157 2.2. Copyright in a Sampled World: Reconstruction of the Public Domain 160 BIBLIOGRAPHY 165 A C K N O W L E D G E M E N T S This thesis has been supported by my generous parents and the Faculty of Law at the University of British Columbia. Especially, I am deeply indebted to the kind support and academic wisdom of my supervisors Ljiljana Biukovic and Mark Yang. I also thank all my friends who helped me doing this. Emma Buchtel and Jamie Gillies kindly read my thesis and provided for much appreciated feedback. I owe Bronwen Whitehead more than I could ever return. For Chizuyo v i CHAPTER ONE: INTRODUCTION AND METHODOLOGY 1. Introduction 1.1. The Idea of the Commons Cyberspace consists of transactions, relationships, and thought itself, arrayed like a standing wave in the web of our communications. Ours is a world that is both everywhere and nowhere, but it is not where bodies live... Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are based on matter. There is no matter here. John Perry Barlow' This taunting challenge in response to the 1996 U.S. Communications Decency Act (the first national attempt to regulate Internet content)2 encapsulates an understanding of the contemporary communications environment that predicts the difficulty of applying established legal concepts to this new information sphere. In Barlow's understanding, the flow of digitized information, 1. John Perry Barlow, "Declaration on the Independence of Cyberspace", online: http://www.eff.org/Censorship/ Internet_censorship_bills/barlow_0296.declaration (last accessed 30 June 2004). John Perry Barlow is the cofounder of the Electronic Frontier Foundation (EFF), a non-profit initiative dedicated to preserve freedom, democracy, and human rights on the digital realm. He is also known as one of the first Internet philosophers. In his declaration, he supported a framework of life on the Internet independent from national governments' influence. Furthermore he predicted the obsolescence of property concepts in a space where physical matter is not any longer inextricably linked to information as such. 2. Telecommunications Act of 1996, Pub. L A . No. 104-104, 110 Stat. 56 (1996), title V [Communications Decency Act]. 1 creativity, and knowledge cannot and should not be inhibited by governmental and corporate attempts to install systems of control and property in this space of newly discovered freedom. But despite the potential of recently developed technologies to create cyberspace as envisaged by Barlow, the nature of the communications environment is in fact subject to a variety of technical and legal contingencies. This thesis focuses on two different cases where law and technology interact to shape the environment for information production and exchange. Through an analysis of wireless communications regulations and copyright law, my thesis develops a theme serving as an alternative approach of governance for the era of information societies. This theme I call the Commons, a sustainable and open mode of governance for information and cultural production. It serves as a vehicle to formulate the public's interest in the timely debate about the digital age. In the context of an ongoing process of intellectual property expansion and media concentration, the Commons formulates a critique of contemporary property implementations concerning communication structures and intangible goods. The Commons seeks to function as a conceptual analogue to what environmentalism achieved with respect to natural resources. To appreciate the structural impact of law and technology, it is first necessary to conceptualize the communications environment holistically. Just as it is impossible to perceive the significance of individual actions without an appreciation of the structure of the environment as a whole in the context of the physical environment, so it is impossible to ascertain the significance of technological and legal developments without a conception of the structure of the communications environment as a whole. This thesis therefore perceives the new structure of the cultural sphere as an ecosystem. This ecosystem consists of different layers, of creators and users, and it is shaped by technologies and law. It is only through such an understanding that communities will be able to engage in balanced and sustainable policy making. In recent decades, regulatory developments reveal a tendency towards the establishment of a market regime based on the notion of private property. Traditions of private property are being adapted to the different parts on the informational ecosystem. Wireless communications and copyright law are being reformed in the name of market efficiency. This 2 thesis proposes an alternative approach. It advocates the idea of a Commons as the preferred mode of governance for most intangible goods and communications resources. 1.2. Mapping the Information Environment As many societies move towards information and knowledge based economies, scholars have identified a substantial shift in the nature of the intellectual and cultural environment. Without a holistic understanding of the information environment, this shift is neither visible nor comprehensible. If law is to respond effectively to the evolution of the communications environment it is necessary to discuss "the complex reciprocal relationship between our current ideas of politics, justice, efficiency, and entitlement and the variegated set of economics and technological changes that are collectively referred to as the Information Society."3 In the last century, the media and communications environment was structured such that the channels of communication have become increasingly concentrated in the hands of a few large media conglomerates. Within this environment, the individual is, for the most part, restricted to the passive role of being an information consumer. Recent technological changes in information however have the potential to restructure this environment. These technological changes in information production, exchange, and distribution - namely the advent of cheap digital processing and decentralized networked architectures like the Internet - enable individuals to engage in cultural and political discourse, produce and disseminate creative works and gain access to information with unprecedented ease at negligible costs. Just as previous communication technologies such as the printing press, radio and television did not tend naturally to either restrict or open communications environments, these new technologies will not permit a cultural sphere that allows individuals to participate in the creation and 3. J ames B o y l e , Shamans, Software, and Spleens: Law and the Construction of the Information Society ( C a m b r i d g e , M a s s . a n d L o n d o n , E n g l a n d : H a r v a r d U n i v e r s i t y Press , 1996) , at x v [ B o y l e , Shamans]. 3 interpretation of information unless they are appropriately managed. The main potential of digital technologies to re-structure the communications environment in a manner that is more amenable to popular participation is contained in the decentralization of the distribution function4 that it implies. In the realm of broadcasting, only few can transmit content. The rest of us listen and watch. It is the "couch potato model" of the 20th century. But new media promises to allow for a much higher degree of participation. Content can be distributed by many to many. By decentralizing the distribution function, the Internet is a communications platform that undermines the efficacy of the state and economic regulatory frameworks that have up until now maintained a centrally controlled communications environment. By establishing a network unable to discriminate, with free transmission protocols and the processing power situated in the users' machines, the Internet comes close to a kind of digital Commons - a public space not entirely owned or controlled by a single entity - where everybody is granted access under roughly the same conditions.5 As a mode of communication, the Internet is the structural opposite of broadcasting, where centralized transmitters broadcast content to a large number of small receivers. Because the Internet's architecture is largely based on the processing power in the users' equipment, rather than on servers at the core of the network, it thereby prevents central control and provides a structure (referred to as end-to-end architecture) in which individual users can both create and receive information. Moreover, because the network is driven by the machines of users, its power and utility increases with the number of participants. This Commons that has emerged as a result of the architecture of the Internet, should not however be taken for granted. This environment nurtures new forms of ideological communities and enables active participation in the interpretation and production of information. But this is 4. Yochai Benkler, "Freedom in the Commons" (2003) 52 Duke L.J. 1245 at 1249 [Benkler, "Freedom in the Commons"]. 5. This definition of a commons is used by Lawrence Lessig in The Future of Ideas: The Fate of the Commons in a Connected World (New York, N Y : Random House, 2001) at 20 [Lessig, The Future of Ideas]. 4 neither a natural nor inevitable product of progress in the digital age. As this thesis will demonstrate, groups with substantial financial and political investment in the maintenance of traditional monopolies over the production and dissemination of information are currently restructuring the information environment through law and technology to retain their political and cultural power.6 As a result of rapid technological developments and reactionary legal regulation, the architecture of the information environment is in constant flux.7 In the absence of a critical social theory of the information environment, the significance of changes being wrought in an apparent piecemeal and haphazard fashion to the space of cultural activity is barely discernible. This imperceptibility compromises the continued viability of the recently emerged Commons because digital networks will provide neutral and free resources only as long as they remain decentralized. 1.3. Chapter Outline This thesis will analyze the effect of laws that regulate information production and exchange on the distribution of control over information flows, knowledge, and culture in the digital environment. To perceive the trends underlying the apparently haphazard evolution of the communications environment it is important to analyze the changes to different layers within the sphere of culture and communications; the aim is to understand this information environment as an ecological concept. Such an understanding of the information environment is facilitated by the layers approach developed and applied by network theorists such as Yochai Benkler. Benkler's simplified division of the digital communications environment into a series of layers (physical, logical, and content) provides a useful conceptual tool because it provides a means to place 6. Lessig has taught us this lesson more than once. It is a recurring theme in all of his major publications and an important element in CODE and Other Laws of Cyberspace (New York, N Y : Basic Books, 1999) [Lessig, CODE]; The Future of Ideas, ibid, and Free Culture (New York, N Y : Penguin Press, 2004) [Lessig, Free Culture]. 1. See generally Lessig, CODE, ibid, at 6-8. 5 specific technical or legal developments in the context of the information ecosystem.8 As an approach it provides a useful way of conceiving of how the layers of the networked environment interact and are dependent on each other's architecture to the extent that changes to one layer fundamentally alter the conditions under which we produce and access culture, information and knowledge. To demonstrate the efficacy of such an approach, this thesis presents two case studies of specific transformations within the digital informational environment: the effect of the regulation of new spectrum technologies on the physical layer and the impact of copyright law on the content and logical layer. Chapter Two of the thesis begins with an investigation into the different theoretical understandings of the Commons. It aims to clarify the concept of the Commons with respect to intellectual property and communications. Are there different definitions of the Commons? How does the Commons relate to the public domain? Why do we need a theory of the Commons? Drawing upon a wide variety of literature, the thesis builds common ground for an applicable conceptualization of the Commons for the information, cultural, and intellectual sphere. In Chapter Three, I shift my focus to the impact of wireless radio spectrum regulation on the information environment. The radio spectrum is currently the subject of a vigorous debate regarding the optimal form of regulation. As a resource for many essential communications, spectrum has been governed in the same way since the invention of the first radio device. Because it is a finite resource in terms of broadcasting technology, spectrum has traditionally been divided into different frequency channels subsequently allocated by government licensing 8. According to Yochai Benkler, the digitally networked environment consists of three distinct layers. The layer principle is now regarded essential for understanding to ecology of cultural production. For a description of the different layers, see Yochai Benkler, "From Consumers to Users: Shifting the Deeper Structures of Regulation" (2000) 52 Federal Communications L. J. 561 at 562-563 [Benkler, "From Consumers to Users"]; Lessig, The Future of Ideas, supra note 5 at 23; Lawrence B. Solum and Minn Chung, "The Layers Principle: Internet Architecture and the Law" (2003) Univ. of San Diego, School of Law Public Law and Legal Theory Research Paper 55, available on-line: http://ssrn.com/abstract=416263 (last accessed June 30 2004). 6 regimes. Subject to government-specified conditions, broadcasters are typically granted exclusive use of certain frequencies to assure them of a clear signal. While spectrum has traditionally been managed by such governmental licensing schemes, they have recently been complemented by spectrum auctions in many jurisdictions. Despite being merely a modified form of governmental licensing, this move clearly is a response to economic proposals suggesting the partial privatization of spectrum via the introduction of a market-based property regime. This is based on the assumption that such a system leads to the most efficient use of scarce resources. Today, the rationale underpinning for these methods of spectrum management may be obsolete as the availability of new equipment capable of sharing spectrum greatly reduces the problem of interference that rendered spectrum a scarce resource in the context of broadcasting. Chapter Three will therefore advocate a third alternative for the management of the physical layer of the communications environment, a spectrum Commons. To support such wireless Commons, this thesis will argue that it makes both economic and moral sense for regulators to ensure a decentralized and open system for wireless communications. Wired communications infrastructure involves large investments and tangible assets but radio-waves are a carrier medium of free space, which means they do not have to be built. While the nature of heavy infrastructure necessitates a certain degree of regulation, spectrum thus allows for considerably less regulatory organization, especially if sharing is made possible. Chapter Three will demonstrate the viability of such a spectrum Commons. Such wireless Commons would complement and ensure the continuation of a decentralized information environment capable of maintaining the cultural, political and economic freedom that has emerged. Facilitating diverse content flows, wireless will be an essential platform for a free culture. Chapter Four will focus on the impact of recent developments in copyright law on the content and logical layers of the digital ecosystem. As the primary instrument governing creativity, copyright law has seen a steady expansion in scope and is now being used to complement digital 7 copy protection technologies in the struggle to capture and commercially exploit information in digital form. Copyright as a legal concept originated in the 19th century and had been designed for an era dominated by print media. In the North-American utilitarian model, it balances the interests of creators, publishers, and the public. Its purpose is the promotion of progress, learning, and knowledge. Although copyright had to adapt to technological changes more than once in its history, digital technologies have proved to be especially disruptive. Digital processing, software, and global electronic networks change the parameters for copying, creating and disseminating. For the first time, almost everybody can participate in the process of publishing; and copyright - formerly aimed at few affected stake holders - is now being applied to a wide audience unfamiliar with the complex norms governing the use of creative expression. Copyright industries have become powerful players in the context of international trade, and intellectual property is about to become the main asset of the post-industrial age. Copyright law now moves into a direction of steady expansion, becoming a concept resembling tangible property. Even though Anglo-American copyright law is based on utilitarian thinking, and continental European law largely relies on the French natural law- influenced droit d'auteur, copyright expansionism is an international movement. While the language of copyright policy often involves a "romantic author" notion, today's ecology of cultural creation illustrates more clearly than ever before that every artist builds upon what was before. This is how culture is being made, and the resource pool for inspiration is the public domain. This thesis challenges the mainstream belief that more and stronger copyright protection is necessary in an ecology of easy access to creation and dissemination. Chapter Five thus cautions against the creation of a permission culture that does not appreciate the crucial role of the public domain. My particular focus here is the enclosure of the public domain and thus the impact of copyright law in its current form on our culture. Previously conceived of as a utilitarian bargain between the public and authors to promote creativity and innovation, copyright has been re-designed to support established distributors of information limiting the potential for emerging artists to survive via the commercial exploitation of their creations. This coalition of new copy-8 protection technology backed by stringent laws promises to protect content to an extent never intended by the original framers of Anglo-American copyright law. Digital technologies make it possible to change the copyright framework from being a legal concept linked to judicial review to one embedded in the technology itself. As a consequence, access to information and culture cannot only be restricted by law, but effectively rendered technically impossible. By analyzing the development of copyright in terms of its impact on the architecture of the communications environment, it will become apparent that these changes are effecting a systematic contraction of the public domain9. The public domain conveys the collection of intangible works and parts of works that are not subject to an exclusive individual right and can be freely used by everyone. In recent years, the public domain has been greatly enhanced in both size and value with the onset of digital networking technologies. Copyright law, governing different forms of expression has been extended in scope and duration over the last decades. As the primary instrument regulating creative expression, copyright law is now a powerful tool to limit access to and use of works. Complemented by recent developments in the capabilities and legal regulation of Digital Rights Management (DRM), statutory copyright term extensions, case law and international developments indicate a trend towards an increasingly restrictive environment for future creators. As a result of the disproportionate legal and political response to new digital technologies, holders of copyright have now achieved an unprecedented level of protection in both scope and duration. This expansion is frequently depicted as comparable to the enclosure of the physical Commons in the 17th century. To make this enclosure apparent, James Boyle has identified the need for designing a common intellectual strategy analogous to environmentalism. This thesis 9. Information is "in the public domain" to the extent that no person has a right to exclude anyone else from using the specified information in a particular way. In other words, information is in the public domain if all users are equally privileged to use it. See Yochai Benkler, "Free as the Air to Common Use: First Amendment Constraints on the Enclosure of the Public Domain" (1999) 74 N . Y . U . L. Rev. 354 at 360 [Benkler, "Free as the Ai r to Common Use"]. 9 will briefly analyze the theoretical and practical concerns of this "free culture movement" with a view to answering the question as to how we should respond to this trend towards controlling the flow of digital information via traditional property rights schemes. Having examined how the interface between technology and law on the different layers of the communication environment combine to determine the nature of communications environment by way of two examples, Chapter Five will argue that the ecosystem of the digitally networked information environment requires a minimum domain of public space. I will focus on the threat posed to such a digital public space by the media giants of broadcasting and print technologies that seek to use law and technology to restructure this newly emerged public space so as to regain or retain their well-established business models, market positions and privileges. If the digitally networked environment is to resist the ultimate goal of such corporations (that is, the establishment of a pay-per-view environment in which access to information is perfectly controlled), it is crucial that current and proposed legislation, corporate public relations efforts and aggressive litigation be resisted. Without resistance soon, it seems likely that the digital environment will be configured to reproduce the traditional broadcast model of information production and distribution. In the conclusion, this thesis suggests that such resistance is possible even though the complexity of the information ecosystem renders this metamorphosis nearly invisible. This paper contends that one possible solution to this problem is through a cogent articulation of the concept of the Commons. By way of a demonstration of how such a concept renders the impact of copyright law and spectrum policy on the digital environment visible, it contends that such an approach would be beneficial for legal discourse in that it would allow for more informed decision making. As of now however, the Commons as a form of resource management for cultural production and communications systems is still a neglected idea in our society. We stand now at a crossroads. It is a time of change and opportunity, as the Information 10 Society takes shape. Intellectual property law and communications regulations need to respond to new technologies. They can do that in a way that would lead towards a free culture. But they can also create a permission culture where commercialization of networks, information access and cultural production would result in an enclosure of the public domain. The communications environment is being reconstructed around us without any public comprehension of, or participation in these changes. In our blindness, we fail to realize how the Commons, comprised of the free and decentralized platforms such as the Internet or the unlicensed parts of the spectrum contributes to an information ecosystem supporting the public interest.10 The moral arguments for sustaining a Commons within the ecology of information production and exchange are clear; autonomy, diversity, the ability to participate actively in media, democratic public discourse and access to knowledge are all supported by Commons based systems. This thesis strives to add some practical and economic reasons for protecting, building, imagining and recognizing the information Commons. We should not endorse the enclosure of the public domain in favour of the centralization of communications platforms, without a careful consideration of how such a change will reshape the information society as a whole. Similar to the early environmentalist movement we need to develop a language that captures the significance of these processes so that a coalition of segmented interest groups may emerge. The language of the Commons would serve just such a purpose in that it provides a means to articulate and apprehend the impact of centralization, propertization and intellectual property expansionism. It is only via such a language that initiatives like the Free Culture movement will develop into significant forms of resistance. 10. While the "public interest" may be hard to define, this thesis assumes that the public prefers a communications environment that allows for as much participation and access as possible, enables individuals to share and distribute information and maintains low entry costs for becoming an active user in its context. See the U.S. Supreme Court's statement in Turner Broad Sys., Inc. v. FCC (1997) 520 U.S. 180 at 189 [Turner //]. 11 2. O n Methodology This thesis is about an idea called the Commons. It links two different legal sub-fields within the category of information law. The first subject of analysis is the law of wireless communications, the way the radio spectrum is regulated. The second subject examined is copyright law and the impact of its recent expansion on modern culture and the public sphere. In both cases, I critique the tendency to apply formal conceptualizations of private property to resources that are fundamentally different than most tangible goods. The methodological framework that I describe and apply involves the development of the concept of the Commons. I develop this concept in Chapter Two. It involves re-conceptualizing intellectual property as comprising part of a holistic environment. The Commons in the realm of information law are part of a broader movement to change the mainstream paradigm of market expansion. Environmentalism, critiques of corporate globalization, and caution against radical privatization are all linked to the basic insight that some resources belong to the public sphere and should be governed in the public interest. To apply the Commons to copyright law and spectrum policy, I use a variety of academic sources and approaches. The governance of spectrum is a body of regulations influenced by national governments and international organizations. The analysis of the possible choices for a sustainable spectrum resource management requires an understanding of the technical limits as well as profound knowledge with respect to different property regimes and their effects on communications. Spectrum policy, most scholars agree, needs to be reformed. There is much economic literature advocating a trade system based on private property rights for an effective allocation of the radio spectrum. On the other hand, the idea of a spectrum Commons is now gaining currency. My thesis explores and combines both approaches and weighs them in the light of contemporary developments in digital communications. The Commons can work for the radio spectrum because it has a unique resource character. This insight is taken from Yochai Benkler" and 11. Yochai Benkler, "Overcoming Agoraphobia: Building the Commons of the Digitally Networked 12 Lawrence Lessig12, two scholars who propose the Commons approach for both spectrum policy and copyright law. Regarding spectrum, the Commons stands for freedom to communicate and innovate. It can help to build a component of infrastructure owned by communities, rather than by individuals or corporations. Thus, the more general idea of decentralization underpins this desire for spectrum policy. The goal of an open and diverse media landscape is taken from scholars of the Commons,13 the public sphere,14 and case law.15 With the help of a scholarly network dedicated to argue for a balanced copyright law and a modern spectrum policy in the public interest, I develop a common theme for a philosophical shift of thought for the construction of the information environment. This group of scholars - among them Lawrence Lessig, James Boyle, Yochai Benkler, Siva Vaidhyanathan, and Jessica Litman - examines the underlying legal, economic and technological principles of current information law and works towards formulating a new communications architecture for the digital era, balancing the different interests at stake. This critique conceptualizes the Commons by combining traditional legal thought with a critical approach to laws governing communications and culture. The resulting eclectic methodological approach, which questions the theoretical assumptions that underpin the traditional Law & Economics type analysis of the information environment, continues to stimulate much academic debate. Information law often operates hegemonically. It is constantly shaping the social dimensions surrounding the use of culture. Norms created by copyright and communications law define the Environment" (1998) 11 Harv. J.L. & Tech. 287, on-line: http://www.benkler.org/agoraphobia.pdf (last accessed 30 June 2004) at 2, 5 (page numbering applies to on-line version) [Benkler, "Agoraphobia"]. 12. Lessig, The Future of Ideas, supra note 5 at 23. 13. See e.g. David Bollier, Silent Theft: The Private Plunder of Our Commons Wealth (New York, N Y and London, England: Routledge, 2002) [Bollier, Silent Theft]. 14. See generally Jurgen Habermas, The Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (Cambridge, Mass.: MIT Press, 1991) [Habermas, Transformation of the Public Sphere]. 15. See e.g. Turner II, supra note 10; Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. (1969) [RedLion]; Eldredw. Ashcroft, (2003) 123 S.Ct. 769 [Eldred\. Ashcroft]. 13 public's interaction with information, knowledge, and art. The power of information law lies in the normative environment that emerges as a result of this legal sculpting of the communications sphere.16 The regulations governing the use of the radio spectrum as well as copyright law draw important boundaries. Together with the technological possibilities and political structures, they design the information environment in which we communicate, create and consume. This thesis aims to illuminate the profound impact of copyright law and spectrum policy on contemporary cultural life. Its primary focus is an analysis of the economic assumptions that underpin the Law and Economics conceptualization of the information environment as a resource. Indeed, this thesis does not reject the economic approach. Through the theory of the Commons, I try to find common ground and ask for a re-thinking of the current economic thoughts driving copyright law and spectrum policy. The idea of the Commons is after all a variation of property, a form of regulation and governance, and an economic model to achieve sustainability and most effective public use of resources. My arguments for the Commons are built on a wide range of literature taken from natural resource scholars, property experts, and countless activists discussing this issue in different fora, e.g. on the Internet. The arguments I bring forth in this thesis frequently return to some very basic patterns of intellectual thought. With regard to spectrum, the efficiency of the Commons approach relies on the insight that digital network structures can be organized in a decentralized manner so as to allow for a maximum of participation and access. If regulated in a sustainable fashion, such networks can actually improve their value by accumulation of users, instead of being "overgrazed" by too many participants. Likewise, to understand the Commons approach applied to copyright, one needs to appreciate the essential role of the public domain in this context. The public domain - a kind of Commons in itself - provides the crucial pool of raw material every new creator needs to build her own work upon. Culture accumulates, it does not emerge out of thin air. Finally, relevant to both spectrum and copyright, I base my arguments on the 16. R o s e m a r y C o o m b e , The Cultural Life of Intellectual Properties: Authorship, Appropriation and the Law ( D u r h a m , a n d L o n d o n : D u k e U n i v e r s i t y P ress , 1998) , at 9. 14 observation that such basic resources like radio waves and cultural heritage are best held "in common" to facilitate the desired economic innovation and public policy objectives. My analysis of copyright law theorizes culture as a dynamic, constantly evolving phenomenon. My exploration of the legal problems that arise in the context of new cultural forms of expression allows for a critical examination of the inability of traditional copyright law to accommodate new cultural and technological developments in the communications environment. The same approach is applied in the context of contemporary spectrum policy. When analyzed through this methodological lens, the complex interrelationship between the communications environment and its legal regulation becomes much more visible. The strength of this approach lies in the fact that it opens up debate as to how the law should accommodate technological change in a manner sensitive to the facilitation of a democratic communications environment. Introducing the concept of the Commons to copyright law and spectrum allows a formerly passive audience of consumers to become active participants. In the post-broadcasting age, every consumer is also a potential re-user and creator. It is an age where everybody can produce and disseminate content at low costs. With the appropriate legal framework, the digital environment promises to restore some of the democratic potential of a robust public sphere. In addition to presenting arguments related to morality and democracy, this thesis aims to reveal the economic advantages of the Commons as applied to copyright law and spectrum policy. For this purpose, I theorize the information environment as an ecosystem, comprising interrelated layers that affect not only the architecture of the digital world, but the cultural sphere in a broader sense. The Commons as a mode of governance can become a practical paradigm to shape the socio-legal structure of the communications environment via the combination of technology and law. Apart from the academic sources, this thesis owes much of its inspiration to numerous Non-Profit-Organizations supporting the Commons in the digital environment. The involvement of 15 UNESCO,'7 the Electronic Frontier Foundation (EFF),18 Creative Commons,19 Public Knowledge,20 and many others illustrates that the issue examined here is a most timely one. Their coverage of pressing issues provides an invaluable resource for up-to-date information on this fast-paced topic. The Commons-based methodological framework that I expand upon is ultimately an unusual hybrid of critical legal theory and Law & Economics research which owes much to the remarkable wealth of resources produced by the powerful and inspiring movement referred to as Free Culture. In a more academic setting, one could describe this literature as Critical Cultural Legal Studies, a scholarly body of work directed to a view on information law that is at all times concerned with the culture it attempts to govern.21 Scholars in support of the public domain and a spectrum Commons tend to approach the information environment holistically and treat its ecology of cultural creation, dissemination, and consumption as a an interconnected social process. Boyle, Benkler, Lessig and their colleagues build on their doctrinal training - law and economics, constitutional and intellectual property -and critique contemporary structures of media law through the lens of cultural theorists. In my thesis I use a similar technique. I analyze the law from within the legal tradition but question its original underpinnings in the face of cultural evolution. While not comparative in nature, this thesis is internationally applicable. The case studies mostly feature legislative and judicial examples from the United States, but nonetheless, the construction of the Information Society is an inherently global issue. Although I criticize the current trends in copyright law and spectrum policy, this critique is not meant as cynicism. The Commons has the potential to become the missing link in the emerging discourse about the constantly evolving ecology of the information environment. This thesis advocates this new 17. UNESCO, on-line: http://www.unesco.org (last accessed 30 June 2004). 18. Electronic Frontier Foundation (EFF), on-line: http://www.eff.org (last accessed 30 June 2004). 19. Creative Commons, http://www.creativecommons.org (last accessed 30 June 2004). 20. Public Knowledge, http://www.publicknowledge.org (last accessed 30 June 2004). 21. To my knowledge, Rosemary Coombe has framed this term, and her article "Critical Cultural Legal Studies", (1998) 10 Yale J.L. & Human. 463 is an excellent introductory reading on this topic. 16 paradigm and through a theorization of the Commons, it argues for a recovery of the public sphere to create open cultures for the digital age. 17 CHAPTER TWO: THE COMMONS 1. The Concept The word "Commons" usually evokes a puzzled response. But what do I mean when I speak of "the Commons"? Is it the government? People having something in common? That beautiful park in Vancouver? Communities and resources are usually managed by a combination of different governmental theories/approaches: Liberal democracies are usually thought of as falling somewhere between totalitarian regimes (either socialist or fascist), where a central authority controls the distribution of resources within a society, and capitalist regimes where it is assumed that the market forces will distribute resources most efficiently and fairly. This thesis aims to remind us of a third, often neglected, alternative: a Commons based approach for organizing and structuring an essential environment or resource. The term Commons traditionally describes places, resources or structures that lie outside the "market" or the "government". A typical Commons can be used by everybody in a relevant community without permission. We imagine public parks, the oceans, the air we breathe, or the forests surrounding us. Such Commons are not restricted to the tangible realm. We also find a Commons within the area of knowledge, information and creativity. Like the air we breathe, the cumulative wisdom of previous generations can be accessed freely because facts and ideas are not subject to what we define as property. This accumulated knowledge belongs to all of us and yet is owned by no one. Commons are either the collective product of human creativity and endeavour like the accumulated wealth of scientific, cultural and technical know-how or a gift of nature like air, water, mountains and rivers. Perhaps because such Commons form the very grounds of our existence we have a tendency to take them for granted. The Commons have thus been described as a "hidden economy, everywhere present but rarely noticed".22 Despite the fact that the 2 2 . Jona than R o w e , " T h e H i d d e n C o m m o n s " YES! Magazine ( S u m m e r 2 0 0 1 ) at 15. 18 Commons often represent the basic support systems of life, both ecological and social, almost everywhere they are subject to degradation, abuse and enclosure. Because we do not conceptualize such resources as a Commons their degradation is imperceptible. It is usually not until the Commons becomes compromised that we become aware of our reliance upon it. Even then phenomena such as the pollution of water, sky and earth, noise, community dissolution, mass media concentration and patents on the genetic substrate of life are experienced as unconnected events, despite the fact that they clearly share a common link. While the encroachment of private interests upon the Commons by the dual forces of degradation and commoditization has always been a problem, this phenomenon has been greatly accelerated by the corporatization of the global economy. This is because multi-national corporations are abstract entities not bounded in time and space in the manner of human subjects, and thus not dependent on any one Commons for their survival. This means that it is often the rational choice of a company to exploit a commons as a free resource system. In many of such cases, the external costs have to be carried by the public. Unlike human subjects that need resources such as air, water, food or culture to survive, corporate entities have often no immediate stake in the maintenance of such resources. In fact, in their current form, corporations have a vested interest in the destruction of such a concept of resource management, as the existence of a Commons potentially interferes with their ability to fully exploit markets and resources. Displaying perfect economic rationalism, corporations seek to turn the abundance of Commons such as cultural heritage into scarcity to create new ways to conduct business.23 As a result the various Commons are increasingly transformed into commodified resources benefiting only those with the economic means to exploit them. 23. Some scholars have tried to illustrate that not only do follow companies their charter and usually act in their stake-holders' short-term interests, they naturally try to exploit an established business model even though new technologies might have changed the parameters of the relevant market. See especially Clayton M . Christensen, The Innovator's Dilemma (Boston, Mass: Harvard Business School Press, 1997); See also Joel Bakan, The Corporation: The Pathological Pursuit of Profit and Power, (Toronto: Viking Canada, 2004) at 112 (describing the self-centred and self-destructive nature of corporations as defined by their legal mandate). 19 2. Enter The Intellectual Commons Besides the traditional Commons, technological developments have led to the emergence of new Commons such as the Internet and wireless communications networks. Both of these technologies offer the chance to build decentralized communications platforms available to almost everyone. While digital technology has changed the parameters of cultural, information and knowledge production, enabling individuals to engage in processes formerly dominated by centralized media production, these new Commons may be curtailed before their potential is realized. Because there is no real popular perception of these infrastructures as Commons they are being reconfigured before our very eyes, with little appreciation of the cultural and economic significance of their appropriation for corporate and state purposes. The following chapters will attempt to conceptualize these structures as vital common spaces within the information environment to elucidate how the relationship between these new technologies and their management will determine the future of the cultural environment. It is my hope that a clear articulation of the potential role of the Commons as a means of resource management in the context of the information environment will increase the prospects that information technologies will be regulated so as to create and maintain a vibrant, democratic cultural environment. 3. The Commons as Resource Management The conspicuous absence of a clear conceptualization of Commons as a form of resource management in politics, media and law compromises our ability to fully apprehend the impact of the structure of the information environment on the formation and evolution of our cultural experience. The following section will attempt to delineate a concept of the Commons as resource management that will facilitate a better appreciation of the nature of the information environment. While a Commons as a domain of communal ownership/ custodianship over resources underpins more obvious structures of resource management such as governments and 20 markets, they remain an unconceptualized amorphous concept because they are generally defined in negative terms, that is a Commons defined or delineated by the absence of regulation and control. The Commons is typically defined as any resource used as though it were held in common. In the literature the situation is just as confused. A plethora of definitions and theorizations of the Commons are to be found in the varied areas of jurisprudence and critical literature that relate to the regulation of resource management. This definitional confusion hinders efforts to conceptualize environments such as the information society holistically and thereby obscuring how the structure of that environment structures our social, cultural and economic experiences. Most conceptualizations of the Commons are however ultimately variations on a theme. To deploy the concept of the Commons to critique the regulation of the communications environment this thesis will attempt to reconcile these apparently different conceptualizations of the Commons by emphasizing the substantive similarities between them. To arrive at such a synthesis I will briefly outline and clarify the differences between these conceptualizations of the Commons. One concept of the Commons which is gaining substantial political currency is articulated by Lawrence Lessig. In his 2001 book, The Future of Ideas: The Fate of the Commons in a Connected World, he depicts the Commons, defined as "a resource to which anyone in a relevant community has a right without obtaining permission of anyone else,"24 as a vital aspect of the architecture of modern information environments. Lessig's conceptualization differs from traditional understandings of the Commons in that free or unconditional access to the Commons is not conceived of as fundamental. Conditions such as access fees may be levied upon the Commons without compromising their status as such so long as access is granted on a neutral, non-discriminatory basis.25 For Lessig, the crucial factor is that "no one exercises the core of a 24. Lessig, The Future of Ideas, supra note 5 at 19-20. 25. ibid. 21 property right with respect to these resources - the exclusive right to choose whether the resource is made available to others."26 Lessig's important contribution to the discourse on the Commons is his distinction between two types of resources - "rivalrous" and "non-rivalrous."27 Lessig defines rivalrous resources as scarce resources because there is concern regarding the interrelationship between the rate of production and consumption. If a resource is rivalrous, there is thus concern as to whether there is sufficient raw materials and/or incentive to produce it, and the rates at which the product is consumed. If resource is non-rivalrous it cannot be depleted. The best example of a non-rivalrous resource is the idea which can be used by an infinite number of people simultaneously without depletion or interference. As we will see, this distinction is a crucially important one in relation to the information Commons as it identifies the intellectual and cultural Commons as domains in which traditional economic arguments, such as Garret Hardin's Tragedy of the Commons,2& do not apply unproblematically. This is because, in contrast to real property and resource law, intellectual property regimes operate to create rather than to ameliorate scarcity, via the construction of limited monopolies. While Hardin's article is seminal, it was written from a biological perspective and is thus of limited applicability in the context of intellectual property law. Since Hardin's work, the expression "the tragedy of the Commons" has become a cliche for the environmental degradation expected whenever many individuals use a scarce resource in common. Hardin used the example of a pasture "open to all" from the perspective of a rational herder to develop a theory of how resources held in common are subject to degradation. Hardin hypothesized that because herders 26. ibid. 27. If something is non-rivalrous, it cannot be depleted. A popular example of a non-rivalrous resource is the idea. If one tells other persons her idea, she still retains the "full" idea in her mind. Thus, use of the idea by additional persons does not lessen her own use. 28. Garret Hardin, "The Tragedy of the Commons" (1969) 162 Science 1243 [Hardin, "The Tragedy of the Commons"]. 22 receive direct benefits from their animals but suffer only delayed and defrayed costs as a result of the deterioration of the Commons, rational herders would be motivated to graze as many animals as possible to maximize their profits relative to other herders. In his famous conclusion, Hardin states: "Therein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit - in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the Commons. "29 Hardin used this model of the open pasture as a metaphor for the general problem of overpopulation. The tragedy of the Commons is now used to explain a diverse range of problems related to resource management that range from environmental and urban conflicts to intellectual property issues. This is problematic because the model does not necessarily apply to all or even any resources held in common. While its inapplicability is particularly obvious in the context of intangible, intellectual goods it is also debatable whether the tragedy of the Commons is even a useful model in the context of tangible resources given that communities can use a variety of different strategies and norms to govern public resources to solve the problem of overconsumption in various contexts.30 29. ibid, at 1244. 30. Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (New York, N Y : Cambridge University Press, 1990), at 6-7 [Ostrom, Governing the Commons]; Lawrence Lessig wrote that any resource might be held in common, but in practice we must ask ourselves which resources should be, and for those resources, how: "What has determined 'the commons', then, is not the simple test of rivalrousness. What has determined the commons is the character of the resource and how it relates to a community." Lessig, The Future of Ideas, supra note 5 at 23. 23 4. Elements of the Commons: Lessons from Environmental Scholars While many scholars have applied Hardin's work in the context of natural resource management, environmental scholars have found his definition of the Commons as a resource "open to all" inadequate to examine the failure or success of alternative management regimes. One text that is useful in further elucidating the concept of the Commons is Elinor Ostrom's Governing the Commons.31 Ostrom addresses the question of whether and how common-pool-resources can be managed to avoid both excessive consumption and administrative costs. She argues that adequate frameworks of supply, credibility and monitoring are a pre-requisite for the stable self-governance of these resources. A key point in understanding the concept of the Commons is her argument that the effect of the absence of individual property rights is not the same as the absence of regulation altogether.32 Ostrom compares a variety of different Commons to demonstrate the viability of a range of informal and formal regulatory strategies. She further develops her ideas on the Commons in a more recent article co-authored by Charlotte Hess. This article attempts to clarify and rationalize the diverse and confused terminology used to refer to and conceptualize the Commons33 by distinguishing between the Commons in different resources, economic goods and property regimes. Criticizing the casual treatment of the Commons as a single concept, Hess and Ostrom illuminate the following four basic sources of confusion concerning the language, methodology and outcomes of Commons-based solutions.34 The first point of confusion is the tendency to conflate the common-pool resource (the nature of the good) with the type of property regime (i.e. common-property regime) used to govern it. The authors' point here is that it is necessary to maintain this distinction on the grounds that there is no automatic association between common-pool resources and common-property 31. Ostrom, Governing the Commons, ibid, at 7. 32. ibid. 33. Charlotte Hess & Elinor Ostrom, "Ideas, Artifacts, and Facilities: Information as a Common-Pool Resource" (2003) 66 Law & Contemp. Probs. 111 [Hess & Ostrom, "Ideas, Artifacts, and Facilitities"]. 34. ibid, at U8. 24 regimes. From an economic point of view, common-pool resources are "public goods" in the sense that it is difficult to exclude beneficiaries. But such resources are also "private goods" to the extent that one person's consumption subtracts from the quantity available to others. While Hess and Ostrom concur with Hardin that "common-pool resources are subject to congestion, overuse, pollution and potential destruction unless harvesting or use limits are devised and enforced,"35 they argue that such an understanding is over-simplistic because it fails to acknowledge the need to distinguish between the resource and the property regime chosen to govern it and because common-pool resources differ in many of their fundamental qualities. For Ostrom and Hess, Hardin's theorization of the Commons is inadequate because it fails to consider how various forms of non-proprietary resource management schemes render context specific advantages and disadvantages. Hess and Ostrom's second point is that Hardin also fails to distinguish between a resource system and the flow of resource units within such a system. With regard to common-pool resources, the "resource system" is what generates a flow of "resource units" or benefits over time.36 Such resource systems may include lakes, rivers, fishery stocks, forests, or groundwater basins. Hess and Ostrom contend that sustainable management of Commons must recognize this distinction between the resource system and its units to effectively regulate both the amount and the type of access to the system. This is because "it is frequently the case that the resource system is jointly used, while the resource units withdrawn from the system are individually owned by appropriators."37 More importantly in the context of information Commons, Hess and Ostrom extend this analytical framework to facilities that are constructed for joint use, such as the Internet or wireless networks.38 While neither the public domain nor the radio spectrum fit precisely within this category because the production of units is not a necessary function of the 35. ibid, at 120. 36. ibid at 121. See also Dean Lueck, "Property Rights and the Economic Logic of Wildlife Institutions" (1995) 35 Nat. Resources J. 625 at 636. 37. Hess & Ostrom, "Ideas, Artifacts, and Facilities", supra note 33 at 121. 38. ibid, at 121. 25 resource system's existence, both spectrum and the Internet can be construed as resource systems in some contexts.39 While neither example is a neat fit, in the context of spectrum, radio signals, translated into intelligible information by receivers would constitute resource units, whilst works created from the raw material of the public domain could be construed as resource units in the context of the information Commons. Hess and Ostrom thus outline a useful framework in which to conceptualize a role for the Commons in the context of digitally networked environments. If we accept Hess and Ostrom's arguments, a Commons in the radio spectrum would not necessarily preclude the existence of a private property-based market on top of this Commons. The Commons-based governance of the "resource" spectrum would enable such a market and arguably provide the most sustainable platform for innovation. Likewise, a rich and strong public domain would function as a resource system for creators and innovators by providing raw material for everyone to draw upon. Such a framework would thus conceive the public domain is an indispensable pool of knowledge, information, and creativity, upon which every new creation is built. The third distinction applicable to the information environment emphasized by Hess and Ostrom is between "common-property" and "open-access" regimes. Again, this point is a crucial one: the "tragedy of the Commons" often refers to resources that are managed through an open-access property regime, where no one has the legal right to exclude anyone from using the resource or resource units. Open-access regimes (res nullius) are problematic because they do not provide incentives sufficient to induce users to conserve the common resource or invest in its improvement.40 In contrast, "common-property" regimes typically regulate the joint use and 39. For a closer look at the public domain, see e.g. James Boyle, "The Second Enclosure Movement and the Construction of the Public Domain" (2003) 66 Law & Contemp. Probs. 33 [Boyle, "The Second Enclosure Movement"]; David Lange, "Reimagining the Public Domain" (2003) 66 Law & Contemp. Probs. 463 [Lange, "Reimagining the Public Domain"]; Pamuela Samuelson, "Mapping the Digital Public Domain: Threats and Opportunities" (2003) 66 Law & Contemp. Probs. 147 [Samuelson, "Mapping the Digital Public Domain]. For spectrum coverage, see e.g. Yochai Benkler, "Overcoming Agoraphobia", supra note 11. 40. Open-Access Regimes either lack effective property rules by default, the resources are not contained within a 26 management of a resource in a way that members of a clearly defined group have a bundle of rights including the right to exclude non-members from using the resource.41 Hess and Ostrom remind us that there is nothing inherently efficient or inefficient about either type of regime: "A modem, private corporation is, after all, a common-property regime that has widespread use throughout the global economy - with both efficient and inefficient consequences. Common-property regimes are essentially share-contracts. As such, they face the potential of opportunistic behaviour and moral hazard problems. Common-property regimes, however, are much more likely to have beneficial consequences for a resource system and its users than an open-access regime"42 While the information, intellectual or cultural Commons differ in many respects from the physical Commons on which Hess and Ostrom base most of their observations, my thesis will argue that they are sufficiently analogous that the regulation of the information Commons can be informed by an analysis of what is effective and ineffective in the context of various physical Commons. As we have seen so far, it is nonsensical to suggest that Commons are domains in which regulation is either absent or undesirable. Even the most rudimentary Commons-based systems rely on certain norms, standards and regulation to survive. To be a resource for example, the public domain needs both an environment that facilitates the production of new intellectual nation-state or are the product of a public policy to guarantee universal access to the resource within a jurisdiction. The de facto status of "open-access" can also be the result of ineffective exclusion of nonowners by the entity assigned ownership rights. See e.g. Siegfried V . Ciriacy-Wantrup & Richard C. Bishop, "Common Property as a Concept in Natural Resource Policy" (1975) 15 Nat. Resources J. 713 at 715. 41. Hess & Ostrom, "Ideas, Artifacts, and Facilites", supra note 33 at 121; See also Daniel W. Bromley, Environment & Economy: Property Rights and Public Policy (Cambridge, Mass.: B. Blackwell 1991) at 22-23. 42. Hess & Ostrom, "Ideas, Artifacts, and Facilites", supra note 33 at 123 (footnotes omitted). 27 products, and - on a more practical level - to be organized in such a way as to enable the use of its resources. With regards to spectrum, the situation is different. A spectrum Commons can exist only if there are regulations in place to define equipment standards. Sustainable use of the airwaves is only possible if users refrain from using transmitters that prevent others from sharing radio frequencies. Like the case of the public highway, users do not need to possess a proprietary right in a defined frequency bands, but merely to obey the "rules of the road", in this case imposed by industry standard settings and/or formal regulations mandating the use of a certain standard of technology.43 The last area of confusion that Hess and Ostrom seek to clarify is the diverse range definitions of ownership that permeate the literature. They cite John R. Commons' definition of a properly right as an enforceable authority to undertake particular actions in a specific domain as the classic articulation of "ownership."44 Hess and Ostrom elaborate on this definition to explore the relationship between different manifestations of ownership and the contexts in which they occur. As most relevant for the use of common-pool resources, they categorize five major "bundles of rights": (1) access to the resource, (2) extraction rights related to units or products of the resource, (3) management rights, e.g. the right to regulate internal use patterns or transform the resource by making modifications and improvements, (4) exclusion rights, that is the ability to determine who will have access and withdrawal rights, and (5) alienation rights, for instance the right to sell or lease management and exclusion rights. It is this fifth bundle of rights that are most contentious in the context of common-resource regulation as the dominant economic paradigm depicts the right of alienation as crucial to successful and efficient property regimes.45 James Boyle further elaborates on this analytical division of property rights by suggesting another category: Regimes where the owner (an individual or a collective rights holder) has the right to receive a revenue stream from those who seek access to a resource, but not the right to 43. This (simplified) notion of a "regulated" commons is consistent with Lawrence Lessig's vision of the digital commons; see Lessig, The Future of Ideas, supra note 5 at 20-23, 26-32, 49-52, 73-76, 85-94, 240-260. 44. John R. Commons, Legal Foundations of Capitalism (Clifton, NJ: A . M . Kelley 1974). 45. See e.g. Harold Demsetz, "Toward a Theory of Property Rights" (1967) 57 Am. Econ. Rev. 347. 28 refuse access on discriminatory grounds.4 This category of right is directly applicable to the communications realm where private owners of the wired infrastructure are often required to provide equal access to competitors. One of the key reasons that the Internet emerged as a decentralized, open structure is the fact that telephone companies are subject to anti-trust rules that make it impossible for them to discriminate between different Internet service providers (ISPs).47 Such regimes are also conceptualized as "liability regimes," rather than property rule systems. The term describes systems without a single entity in the position to exercise the full spectrum of classic property rights, especially not the right to exclude all others. Compulsory license schemes in copyright law are examples of regulatory initiatives based on this type of schemes. Such licensing schemes allow for the reproduction of material contingent upon the payment of administratively regulated fees. Lessig argues that (despite the potentially discriminatory effect of access costs) such schemes are consistent with maintaining the Commons because they appear consistent with the promotion of innovation, and are consistent with the maintenance of decentralized structures.48 4 6 . J ames B o y l e , " T h e O p p o s i t e o f P r o p e r t y ? " ( 2 0 0 3 ) 6 6 L a w & C o n t e m p . P robs . 1 at 9. 4 7 . L e s s i g , The Future of Ideas, supra note 5 at 3 4 - 3 7 . 4 8 . ibid, at 1 0 8 - 1 1 0 . 29 5. Appl icat ion to the Digitally Networked Environment "Think of the Net as an ecosystem. It is a great rain forest of life forms called ideas, which, like organisms those patterns of self-reproducing, evolving, adaptive information that express themselves in skeins of carbon require other organisms to exist. Imagine the challenge of trying to write a song if you'd never heard one. As in biology, what has lived before becomes the compost for what will live next. Moreover, when you buy - or, for that matter, "steal" -an idea that first took form in my head, it remains where it grew and you in no way lessen its value by sharing it. On the contrary, my idea becomes more valuable, since in the informational space between your interpretation of it and mine, new species can grow. The more such spaces exist, the more fertile is the larger ecology of mind. " John Perry Barlow, The Next Economy of Ideas49 While it is clear that as a form of governance for communications systems, a Commons would facilitate essential political and moral goals, it is also arguable that a Commons - in key layers of the information society - would prove more efficient from an economic perspective as well. As I will show in the following chapters, there is considerable evidence suggesting that the Commons potentially provides a better solution for information production and exchange systems than the current tendency to regulate this environment via statutorily created legal 49. John Perry Barlow, "The Next Economy of Ideas" Wired Issue 08.10 (2002), available on-line: http:/ /www.wired.com/wired/archive/8.10/download.html (last accessed 30 June 2004). 30 monopolies. This thesis will argue that the ideal form of resource management in the context of the information environment would constitute a balance or synthesis of the Commons and private property approaches. It will argue that such a synthesis would be the best means of architecting an environment capable of balancing the competing demands of innovation and equality of access. Understanding the distinctions between various types of property, and property management schemes laid out above and their relation and applicability to the various layers that comprise the information environment could and should play an influential role in the construction of this environment, because, as analytic categories they are the best means we have to critique and develop this environment in a manner consistent with democratic goals. In the context of any discourse about the information society, it is the layers principle that is essential to understanding the ecological nature of our communications environment. This thesis seeks to demonstrate that each of these layers can be organized in different ways. The kind of regulation used for managing each layer affects both the structure and operation of the other layers' architecture. All communications systems contain different layers. According to the OSI (Open System Interconnection) reference model,50 a communications environment consists of seven layers. The communication functions are broken down into a hierarchical set of layers. Each layer performs a related subset of the functions required to communicate with another system. It relies on the next lower layer to perform more primitive functions and to conceal the details of those functions. It provides services to the next higher layer. The layers are defined in such a manner so that changes in one layer do not require changes in the other layers. By partitioning the communcation functions into layers, the problem at hand is much more manageable. The idea of layers is a useful concept to understand how a communications system functions. 50. The OSI model has been developed by the International Organization for Standardization (ISO), on-line: http://www.iso.org (last accessed 30 June 2004); for more information see e.g. "The Open System Interconnection Architecture (OSI)", on-line: http://cne.gmu.edu/modules/network/osi.html (last accessed 30 June 2004). 31 For instance, Lawrence Lessig based his inquiry into the Commons on the notion of layers and examined Commons-based solutions for each of the layers. A simplified version of the layer principle was first used in legal literature by Benkler, who suggests that we can best understand communications environments by dividing them into three distinct layers.51 Network theorists usually identify more layers but Benkler's model works well to understand the ecology of the digitally networked environment: First, there is a physical layer, the physical medium across which communication signals travel. Second, Benkler envisages a logical layer (also referred to as the code layer by Lessig) superimposed on top of the physical layer. Finally he imagines a third layer, a content layer, which has human-readable content. To elaborate briefly on how these layers intersect to provide a cross-section of an aspect of the communications environment one can use the example of the Internet. To build and maintain the wires that provide much of the physical medium for global communications, heavy investment is required. To develop this infrastructure at minimum social cost, governments typically allow private entities to build and exploit the wired infrastructure. The property rights granted in such infrastructure are not however exclusive in that corporations are obliged to let others (e.g. Internet Service Providers (ISPs)) use their infrastructure on a non-discriminatory basis (for example via the levying of a fee according to a liability regime). ISPs in turn provide end-users who possess appropriate hardware and software (another entrance cost construed as non-discriminatory by the law) with access to the content that comprises much the information society. This content represents yet another tricky category of an economic good because information constitutes both the raw material as well as the final product in this economy.52 Information as a non-rivalrous, intangible good plays two roles in such a market: it must simultaneously be free and yet contained by the property form to facilitate its efficient exchange. 51. Benkler, "From Consumers to Users", supra note 8 at 562-563. 52. Kenneth J. Arrow, "Economic Welfare and the Allocation of Resources for Invention" in National Bureau of Economic Research, The Rate and Direction of Inventive Activity: Economic and Social Factors (Princeton: Princeton Univ. Press 1962) 609, at 618. 32 This ambivalent relationship between information and economic productivity places information in a complex position; the complexity arises because information cannot only be considered an economic factor. The manner in which its production and exchange is organized will have significant socio-political impact because the control over the distribution of media is intimately connected with individual autonomy, the viability of public discourse, and the structure of knowledge production. Yet, as the lack of public reaction to the diminution of the Commons reveals, the impact of these changing interrelations of the complex architectural and managerial structures remains invisible without an articulated concept of a Commons. The enclosure cannot be visible if we do not have a sense of what is being lost. In order to appreciate the very real impact of these variegated structures on society in various contexts, it is thus necessary to articulate a concept of the Commons. Such a Commons in information production and exchange would thus provide more space to advance culture, creativity, innovation, public discourse and access to information. As Yochai Benkler writes: "Enclosure of information - shifting some uses of information from the legal status of privileged to all, to being the subject of an exclusive right - affects different organizations engaged in information production differently. This is so because information is not only an output of information production, but also one of its most important inputs. Enclosure changes the payoffs to information production for all organizations, but not uniformly. Depending on what information inputs an organization uses and on its strategy for appropriating the value of its information outputs, enclosure will impose greater costs on some organizations than others, and will enable some, but not all, organizations to appropriate more of the value 33 of their production." By increasing the costs of an essential input, enclosure increases the entry barriers to information production. In particular, enclosure is likely to have the most adverse effects on amateur and otherwise non-commercial production. The Commons is the source of the greatest potential diversity because the governance model is undisciplined by the need to serve broad audience preferences as are market-oriented strategies. As among commercial information producers, enclosure tends to benefit organizations with large owned-information inventories. Benkler's insights suggest that commercial and non-commercial space can - like in real space -coexist, as the demand for both is likely to persist in the future. But for the sake of diversity and to support the existence of non-commercial activity in the communications environment, a minimum of public space is needed. In The Future of Ideas,54 Lawrence Lessig tries to capture the potential of the Commons as an analytical framework by describing it as a resource for decentralized innovation, and as an opportunity for individuals to draw upon resources without permission or access granted by others. The value of the Commons lies in the openness of a basic resource system, upon which other modes of regulation can be superimposed to facilitate the goals of both democratic and efficient resource distribution. Benkler goes to similar lengths to show that some resources produce more value when held in common. In many of his writings, he uses the analogy of public roads to illustrate the best means to regulate Commons in communications systems.55 Just as the public road system benefits commercial and non-commercial interests alike, so would an 53. Yochai Benkler, "The Commons as a Neglected Factor of Information Policy" Working Draft presented at the 26th Annual Telecommunications Research Conference, October 1998, on-line: http://www.benkler.org/ commons.pdf (last accessed 30 June 2004). 54. Lessig, The Future of Ideas, supra note 5 at 20. 55. Yochai Benkler, "Freedom in the Commons", supra note 4 at 1274; Benkler, "Property, Commons, and the First Amendment: Towards a Core Common Infrastructure" White Paper for the First Amendment Program Brennan Center for Justice at N Y U School of Law (2001), at 4, 9, 22-24, 47-53, on-line: http:/ /www.benkler.org/WhitePaper.pdf (last accessed 30 June 2004); Benkler, "Overcoming Agoraphobia", supra note 11 at 106. 34 open communications environment best balance the competing interests of these groups. Such an approach is also advocated by Carol Rose who argues that where a resource has its value precisely because of its openness, it should be held in a common.56 All three scholars emphasize that this type of resource increases in direct proportion to the number of users. The example of the Internet bears out these arguments, and it is also an essential feature of both the public domain and wireless networks. This thesis argues that decentralization and openness are interconnected and integral to a concept of the Commons. It will thus adopt Benkler's definition of a Commons as a useful way of defining the concept to encompass all of the above considerations: "The Commons refers to institutional devices that entail government abstention from designating anyone as having primary decision-making power over use of a resource. A Commons-based information policy relies on the observation that some resources that serve as inputs for information production and exchange have economic or technological characteristics that make them susceptible to be allocated without requiring that any single organization, regulatory agency or property owner, clear conflicting uses of the resource. "5? The decentralized infrastructure of the Internet has led it to be characterized as social space -a public sphere, which is arguably the key feature of any re-conceptualization of democracy.58 Decentralized structures in media have the potential to restore the basic level of interactive practice that have been compromised by centralized broadcasting. Conceptualizing the various layers of the cultural sphere as combining to form a Commons ultimately serves this purpose -56. Carol M . Rose, "The Comedy of the Commons: Custom, Commerce and Inherently Public Property" (1986) 53 Univ. of Chicago L. Rev. 711 at 759-769 [Rose, "Comedy of the Commons"]. 57. ibid. 58. Compare e.g. Habermas, Transformation of the Public Sphere, supra note 14. 35 keeping communications infrastructures accessible, open, and ensuring access to information, creativity and culture. While the openness of Internet infrastructure is a vital aspect of its democratic potential, these democratic aspects of the Internet that we have identified would not necessarily be compromised by the strategic superimposition of property rights schemes in some areas. This is so despite the fact that arguments for a Commons in intangible space are particularly compelling because of the absence of restrictions that apply in tangible space, e.g. depletion and overuse. In other words, there is a very strong case for implementing a Commons in the information environment because all the reasons for the concept's failure in tangible space are rendered irrelevant by the resource character of intangible items. Still, Commons theorists such as Lessig and Benkler do not articulate a wish to run all of the intangible space as a Commons. Instead, an important argument common to both theorists is that the Commons is a necessary underpinning for other forms of resource management, and to a certain extent relies on other more restrictive forms of resource management for its very viability. While we have already briefly looked at the Internet as an example of a system that requires a combination of regulatory approaches, we will expand this Commons analysis into different communications platforms to gain a greater apprehension of the interplay of law and technology in the information environment. This thesis develops this hypothesis by applying the idea of a Commons to better appreciate the role of certain platforms in the context of the information environment. My thesis will thus seek to conceptualize both the radio spectrum and the public domain as the basic life support systems for communications and creativity. My reasons for choosing these particular case studies are several: Firstly, both the radio spectrum and the public domain are areas where a Commons as a form of resource management would potentially foster more innovation than a traditional private property scheme. Secondly, democratic values, public discourse, autonomy and cultural diversity would be facilitated by a Commons based method of regulation in both contexts. And finally, each represents a different layer of the information environment. My thesis will thus concur with Benkler, who argues that the institution of Commons management schemes in strategic layers of the communications environment has the 36 potential to structurally shift the focus away from a commerce-centric structure to one that also supports diversity by providing a decentralized structure amenable to various non-commercial purposes.59 Another subsidiary but related argument for a Commons in communications environments is the uncertainty regarding the potential usage of this resource. Because we are not certain about all of the potential ways in which we might exploit the environment as a resource it should be kept "in common" to allow its full potential to emerge.60 Clearly, this notion is applicable in the context of resources such as the Internet or resources where changes in technology continually open up new potentials. An examination of the metamorphosis of the Internet to date illustrates this point as even the original architects of the Internet did not envisage its transformation into the vibrant public sphere it is today. It can be seen as a result of their decision to implement the end-2-end-principle to keep transmission protocols free,61 which ultimately sparked an unprecedented amount of innovation, commercial and non-commercial alike. In examining the viability of the Commons within the system of information production and exchange, it is important to be aware of the complexity both of the resource affected and the property regime chosen to govern it. This is because both the character of the resource as well as the specific design of its regulation will fundamentally affect the outcome of any Commons-based management scheme. How can the Commons be best applied to digital environments, media structures and the intellectual sphere? The next chapters will provide case studies in both the physical layer and the content layer of the digitally networked environment to explore this question. 59. Benkler, "Freedom in the Commons", supra note 4 at 20. 60. Lessig, The Future of Ideas, supra note 5 at 88-89. 61. See e.g. Carliss Y . Baldwin & Kim B. Clark, Design Rules, Vol. 1 (Cambridge, Mass. and London, England, MIT Press, 2000) at 234-237; David P. Reed, Jerome H. Saltzer & David D. Clark, "Comment on Active Networking and End-to-End Arguments" (1998) 12:3 IEEE Network at 69-71. 37 C H A P T E R T H R E E : O P E N S P E C T R U M 1. Introduction 1.1. A Moment of Opportunity "The current regulatory regime that allocates spectrum is a legal metaphor that does not correspond to physical reality." David Reed62 "We are living in a world where demand for spectrum is driven by an explosion of wireless technology and the ever-increasing popularity of wireless services. Nevertheless, we are still living under a spectrum 'management' regime that is 90 years old. It needs a hard look, and in my opinion, a new direction." Michael K. Powell63 We stand at the crossroads of a revolution in wireless communications policy. What is at stake is access to the airwaves, the invisible natural resource comprising a great variety of wireless services. Freedom at the content layer, through a more flexible copyright policy and a 62. Quoted in David Gilmor, "Imagine: World with Unlimited Airwaves" Mercury News 18 May 2002. 63. FCC Chairman Michael K. Powell, "Broadband Migration III: New Directions in Wireless Policy" Remarks at the Silicon Flatirons Telecommunications Program, University of Colorado at Boulder, 30 October 2002. 38 rich public domain, is meaningless without a communications infrastructure that allows the people to participate in the creation and dissemination of information. New technologies that revolutionize our ability to harness radio spectrum offer such opportunities. Alternative "space" in the radio spectrum has been identified as the missing piece of the rapidly evolving information ecology. The way the communication opportunities of the radio spectrum are organized and distributed is a decisive factor in the process of shaping the information society.64 Spectrum is a resource given to us by nature. It is invisible, and our thinking about it is influenced by the technology we use to "communicate" over the air. Since the invention of radio technology in the early 20th century, spectrum has not been managed as a Commons. It has always been controlled by regulations premised on an understanding of spectrum as a scarce resource. This is because of the limitations of early radio transmission and reception technology, broadcasting had to be regulated to allow clear and readable signals. To create a flow of communications intelligible for human beings, receivers have to be able to "understand" what a transmitter is saying; the signals have to be converted into intelligible "noise." In the 1920s, receivers were relatively simple machines. Their capacity to filter signals was limited such that incoming signals had to be "loud" enough. For regulators this meant that the best way to ensure clear signals was to permit some players to broadcast over designated frequencies whilst, prohibiting others from utilizing those frequencies. Because of interference, spectrum is considered a scarce resource. Interference makes it necessary to divide the spectrum into discrete channels and allocate these frequency swaths for a certain use to certain people. Governments do this by issuing licenses for using radio frequencies. While they do this domestically, spectrum policy is an internationally harmonized activity. Airwaves do not respect national borders, and cannot be contained within a specific 64 . See e.g. E b e n M o g l e n , c i t e d i n M o n i k a E r m e r t , " G e r m a n y D e b u t s C r e a t i v e C o m m o n s " The Register 15 June 2 0 0 4 , o n - l i n e : h t t p : / / w w w . t h e r e g i s t e r . c o . u k / 2 0 0 4 / 0 6 / 1 5 / g e r m a n _ c r e a t i v e _ c o m m o n s / ( last a cces sed 3 0 June 2 0 0 4 ) . 39 jurisdiction. All over the world, spectrum is subject to a similar regulatory framework. This is how we have come to "see" the radio spectrum as a medium divided into channels. Economists and engineers today agree that the method of how governments manage the radio spectrum is grossly inefficient. For many decades, licenses were given for free, under the imposition of certain public policy guidelines. For instance, broadcasters in the United States were (and still are) obliged to air programs containing educational value, objective news coverage and provide air-time to political candidates of all parties.65 From a regulative point of view, this type of management of spectrum is simple. Traditionally only a few broadcasters and radio stations require supervision within such a regulatory framework because communications over the airwaves were traditionally mostly a one-way matter. Because of technological limitations, broadcasters transmitted while the public listened. Despite advances in technology, the regulatory environment has not changed substantially since the early days of radio communications. It is thus now the legal framework, rather than technological limitations, that structures a communications environment where only a few are permitted to broadcast using radio spectrum. Authorities such as the FCC 6 6 or the CRTC67 derive their power to regulate spectrum on the assumption that spectrum is a scarce resource. The regulation of spectrum has been held to be constitutional in the U.S context on the grounds that it is "in the nature of things" that the radio frequencies must be regulated.68 The Red Lion case69 confirmed the justification of media regulation by recognizing that spectrum is a scarce resource 65. The governmental authority overlooking broadcasting policy is the Federal Communications Commission (FCC). The relevant rules are codified in 47 U.S.C and can be accessed on-line: http://www.fcc.gov (last accessed 30 June 2004). 66. In the United States, the Federal Communications Commission (FCC) is authorized to regulate spectrum; its counterpart in Canada is the Canadian Radio-Television and Telecommunications Commission (CRTC). See FCC, on-line: http://www.fcc.gov (last accessed 30 June 2004). 67. CRTC, on-line: http://www.crtc.gc.ca (last accessed 30 June 2004). 68. NBC v. US, (1943) 319 U.S 190 at 210,213, 228; See also Lessig, The Future of Ideas, supra note 5 at 75. 69. Red Lion, supra note 15. 40 that needs to be allocated in the public interest. In the 1950s, economists started to realize that a spectrum policy based on administrative licensing led to an ineffective use of wireless communications. Leo Herzel was the first to give an economic critique of the government's spectrum strategy.70 Developing this critique, Nobel-prize economist Ronald Coase suggested in 1959 that the market would be the better regulator of the radio spectrum.71 Coase noted that spectrum is no more scarce than other valuable resources, not all of which are regulated in this manner by the government. His critique was seminal, and in the 1990s, regulators finally adopted his policy and introduced elements of a market based system for spectrum allocation. Auctions are now increasingly used to assign usage rights in spectrum frequencies to telecommunications companies. Thus, economists now finally see their work applied. However, just as this policy change towards market based spectrum allocation was adopted by governments, technological advances have led scholars to develop a different regulatory approach to radio spectrum. It is a critique proposing a Commons in the radio spectrum. Given the capabilities of new technologies to enable more users to utilize radio spectrum, many scholars advocate a Commons based system of resource management in this context. The essence of the Commons critique in the context of radio spectrum is that new technologies have rendered obsolete the dichotomy of administrative licensing and property-based market policy. Modern equipment for wireless communication can better share radio frequencies and thereby reduce scarcity of the radio spectrum. The available spectrum can be used more efficiently. This approach is often referred to as Open Spectrum, which implies that 70. Leo Herzel, "Public Interest and the Market in Color Television Regulation", (1951) 18 U . Chi. L . Rev. 802; In proposing a market solution to the choice of a standard for color broadcast Herzel proposed that "[T]he FCC could lease channels for a stated period to the highest bidder without making any other judgment of the economic or engineering adequacy of the standards to be used by the applicant," thereby gaining the benefits of market allocation of spectrum to its highest valued use (at 811, 812). 71. Ronald Coase, "The Federal Communications Commission" (1959) 2 J.L. & Econ.l [Coase, "The Federal Communications Commission]. 41 access to spectrum could and should be unrestricted, and that regulations should be targeted at the equipment only. The reasons why a spectrum Commons can work and greatly enhance media diversity, communications access, and the free flow of information lies in the somewhat inexhaustible72 character of spectrum. Yochai Benkler has criticized the persistence of the conceptualization and regulation of spectrum as if it were a scarce resource. He points out that what is being regulated is not spectrum but the capacity for wireless communications.73 The parameters for governing radio communications have changed. The technology that now allows for a more effective use of the radio spectrum has its origin in the early 20th century. One of the technical blueprints for sharing spectrum more efficiently was arguably invented74 by Austrian actress Hedy Lamarr and her husband Georg Antheil in 1942.75 Receivers and transmitters have developed a better ability to share radio frequencies and make it obsolete to have a regulatory regime that restricts access to the airwaves in the current manner. These new technological developments that'enable the use parts of the radio spectrum as a Commons where everybody could conceivably be both a transmitter and a receiver are called spread spectrum, agile radios, or mesh networks. Transceivers (transmitter-receiver hybrids) have become more flexible, utilizing the spectrum more efficiently and operating at much lower power levels. This allows them to "hop" over frequencies, send communications in digital "packets" similar to Internet transmissions, and effectively share the airwaves rather than collide with other signals. 72. Whether the radio spectrum constitutes an "exhaustible" resource is debated vigorously among technologists. An overview over this technical discussion is beyond the scope of this case study. The term "inexhaustible" is used here to separate the radio spectrum from tangible resources like i.e. coal, which can be depleted. Spectrum is thus "renewable" in an abstract sense, which means that the frequency used for a communication is still available afterwards in identical form. 73. Benkler, "Overcoming Agoraphobia", supra note 11 at 2. 74. See Steve Stroh, "Hollywood Star was a Wireless Pioneer" CLEC Magazine March-April 2000 at 20. See also on-line: http://www.ncafe.com/chris/pat2/index.htm (last accessed 30 June 2004), (describing Lamarr's contribution); Lamarr invented what would now be called the "frequency hopping" form of spread spectrum. See Anna Couey, "The Birth of Spread Spectrum: How 'The Bad Boy of Music' and 'The Most Beautiful Girl in the World' Catalyzed a Wireless Revolution - in 1941", on-line: http://www.sirius.be/lamarr.htm (last accessed 30 June 2004); Lessig, The Future of Ideas, supra note at 79. 75. United States Patent Office, "Secret Communications System" U.S. patent no. 2.292.387, issued 11 August 1942. 42 In what follows I will show how spectrum is regulated and what the possibilities of an open wireless network culture are. I suggest that despite technical limits, a spectrum Commons in certain parts of the spectrum would greatly enhance public access to information and diversity in information production and exchange by giving birth to a component of the communications ecosystem that is not owned or controlled by any specific authority. 1.2. Spectrum: The Resource for Wireless Communications As a communications resource, radio spectrum is the backbone for a wide range of commercial and non-commercial activities in various sectors including telecommunications, broadcasting, transport, research & development and other services of general interest. Spectrum refers to the wireless infrastructure relying on radio waves, specifically between 3 kilohertz and 300 gigahertz. Radio appliances such as televisions, radios, and mobile phones work by means of electromagnetic waves that propagate between a transmitting antenna and a receiving antenna. Radio spectrum is then defined as all the possible frequencies which such waves may have. The number of times a wave oscillates in a second is called its frequency, and by tuning a radio receiver to a specific frequency one can pick up a specific signal. Frequency bands define the specific location of services in the radio spectrum. Spectrum is used for many different purposes, and recently it has gained importance in the context of the emerging information society. As a component of the digitally networked environment, spectrum is considered an essential medium for the flow and exchange of information, access to knowledge, creativity, and public safety related services such as air traffic control or law enforcement. Commercially, the expanding mobile telecommunications sector as well as the rapidly increasing availability of wireless access to the Internet are prominent examples of applications relying on spectrum as a vital resource. 43 As Yochai Benkler contends however, radio spectrum is significantly different to typical physical resources. Unlike water, oil, or forests, spectrum is sometimes described as inexhaustible. While spectrum for the purpose of communications is indeed limited, it does not face extinction by over-use. In other words, use of the spectrum is not necessarily followed by depletion. Treating spectrum as a traditional "resource" generally faces criticism because it fundamentally affects the discussion about how we should regulate spectrum. As Prof. Benkler describes it: "... there is no such "thing" as "spectrum. " There is no ether out there, no finite physical "resource" that needs to be allocated. There are simply people communicating with each other, transmitting and receiving messages with equipment that uses electromagnetic waves to encode meaningful communications and send them over varying distances without using a wire. "76 Spectrum is of central importance in a socio-economic sense as well as politically. The nature of spectrum is similar to the communications technologies used to exchange information over the radio waves. Whether radio waves are rivalrous and scarce all depends on the intelligence of transmitters and receivers and their ability to "understand" signals. The core technical objective of spectrum management is always to avoid interference. If too many users communicate over the same frequency range, no one will be "heard", the receiver will not be able to understand the signal due to the surrounding interference. As a consequence, one person needs to transmit "loudly" enough over a channel so as to suppress the noise caused by other participants. Then, an intelligible message can be received. 76 . B e n k l e r , " O v e r c o m i n g A g o r a p h o b i a " , supra note 11 at 2 . 44 2. Governing the Airwaves The radio frequency spectrum has been regulated by the government through licensing. More recently, regulators have warmed to economists' persistent criticisms of this regime and started a partial switch to an exhaustive property regime: currently spectrum rights are being sold through auctions, on the premise that it is more efficient that the market decide the use and ownership of the various frequency channels. Spectrum is a considered a scarce resource because of interference. Therefore, its use has to be co-ordinated.77 Since the invention of radio, spectrum has thus been highly regulated. Governments realized the need for such regulation when the disaster of the sinking Titanic78 was partly caused by failed communications with near-by ships. Later, a so called "breakdown of the law period"79 in the United States in the 1920s showed that without regulation, the use of radio spectrum would result in chaos. Since then, spectrum has been regulated in roughly the same fashion. Governmental authorities usually decide which part of the radio spectrum should be used for which services as a function of its technical characteristics, which can be called the allocation of spectrum. Basically, authorities parcel out parts of the spectrum, and define discrete channels of frequency bands. They also determine in which time frame spectrum may be used, which is called the strategic planning of spectrum use. Finally, governments announce who is able to use what frequency band for what purpose (assignment decisions) and under which 77. Yochai Benkler describes the problem of interference as follows: "...in order for a transmission from a transmitter to be intelligible to a receiver, the signal sent by the transmitter must be "louder" than the combination of all other signals received by the receiver by a technically sufficient degree. More formally, the ratio between the electromagnetic radiation detected by the receiver that carries the message of the sender must be high enough relative to all other sources of electromagnetic radiation similarly detected by the receiver to allow the receiver to decode the message. ... What is important to remember is that, although transmitters propagate signals, interference "occurs" at the receiver." Benkler, "Overcoming Agoraphobia", supra note 11 at 28. 78. See Susan J. Douglas, Inventing American Broadcasting 1899-1922 (Baltimore: John Hopkins University Press, 1997) at 227-228; Lessig, The Future of Ideas, supra note 5 at 73. 79. See Benkler, "Overcoming Agoraphobia", supra note 11 at 11. 45 conditions (licensing decisions). On a global scale, the International Telecommunications Union (ITU) is responsible for allocating and managing spectrum. Countries historically co-ordinate the use of the radio spectrum in the framework of the ITU, a specialized body of the United Nations. In World Radiocommunications Conferences (WRC) of ITU, 188 countries biannually adopt measures in order to achieve the international harmonization of the use of the radio spectrum. The WRC is the playing field for negotiating spectrum policy in a international forum. The last WRC was held in July 2003.81 Harmonization is necessary to achieve economies of scale for the production of radio equipment, to facilitate the global availability of services, and to avoid unacceptable interference. Further detailed co-ordination takes place at the regional and national level. To ensure cross-border availability of services, harmonization of radio spectrum allocation is required. To introduce new services, existing assignees often need to be relocated ("re-farmed"). Mostly, radio spectrum policy refers to the longer-term and comprehensive process of ensuring radio spectrum availability for all possible uses. Radio spectrum management refers to the operational process of agreeing on the technical conditions for accommodating the various uses within the radio spectrum. Spectrum policy is an international issue. The reason why there are similar regulatory conditions for Wi-Fi technology in most countries is simple: Due to its inherently international nature, spectrum is mainly allocated by international bodies. Airwaves do not stop at borders nor can they be efficiently controlled by national authorities. In the last decades, the communications and information production industries have become more powerful, more important, and more globalized. A harmonized spectrum policy is of utmost importance to all countries for reasons including trade, national security, public safety and freedom of speech. 80. European Commission, "Next Steps in Radio Spectrum Policy: Results of the Public Consultation on the Green Paper" (COM(l999)538), 10 November 1999. See also Benkler, "Overcoming Agoraphobia", supra note 11 at 1. 81. ITU, on-line: http://www.itu.int/ITU-R/conferences/wrc/wrc-03/index.asp (last accessed 30 June 2004). 46 3. Contemporary Issues of Radio Spectrum Policy: The Struggle for Openness The environment for radio spectrum policy is presently undergoing significant evolution, as a result of technological, market and regulatory developments. New commercial networks based on radio technology are being rapidly introduced. Such networks include mobile and satellite broadband networks which may combine telephony, data transmission, Internet applications and positioning functions to provide new value-added services. These new services have the potential to "stimulate economic growth, create employment and promote general welfare."82 At the same time, the rapid expansion of such radio-based services makes the management of the radio spectrum increasingly complicated, as it requires a balance between the desires of new commercial networks and the (perhaps non-economic) benefits to society of non-commercial applications such as defence, public service broadcasting, emergency services and radio astronomy. From a constitutional perspective, spectrum as a basic platform for communications must be considered a speech medium; the restriction of speech through regulation is a sensible field of politics and faces constitutional limits varying from country to country. Scholars in the United States have initiated a discussion about First Amendment constraints83 on spectrum policy, and the EU has acknowledged these values in its Radio Spectrum Decision.™ This decision creates a policy and legal framework to ensure the co-ordination of spectrum policy approaches and -where appropriate - harmonized conditions with regard to the availability and efficient use of radio spectrum.85 It is aimed at contributing to a harmonization of spectrum allocation on a 82. ibid at 1. 83. Benkler, "Free As The Air to Common Use", supra note 9 at 367-372; Yochai Benkler & Lawrence Lessig, "Net Gains: Is CBS Unconstitutional?" The New Republic, 14 December 1998. 84. Decision No 676/2002/EC Of The European Parliament And Of The Council of 7 March 2002 On A Regulatory Framework For Radio Spectrum Policy In The European Community, OJ L 108/1, 24 April 2002, recital (3) [Radio Spectrum Decision]. 85. "The first objective is to establish a policy framework for the use of the radio spectrum, taking account of the 47 global level, but also seeks to achieve an adequate representation of EU interests in international negotiations.86 The decision establishes procedures to optimize the use of radio spectrum and avoid harmful interference at the European level. Among other objectives, it was important for the European Commission to ensure that some unlicensed spectrum would be set aside for wireless Internet applications. On an international scale, the EU supports both increased market and commons approaches and advocates the creation of a predictable and reliable legal basis for international spectrum policy.87 3.1. Two Faces of the Market: Auctions and Wi-Fi Despite the remarkable technological innovation with respect to radio technology in the last century, regulatory activity surrounding the use of spectrum has not changed significantly. While the mechanism of governmental licensing is still the leading paradigm for spectrum policy, we have recently seen changes in the way spectrum policy is planned and formulated. Rethinking the management and allocation of radio spectrum frequencies has largely been a response to the influential article written in 1959 by economist Ronald Coase.88 His seminal article about the FCC proposed a market-based approach to spectrum policy and criticized the traditional form of licensing as highly inefficient. In the decades following his critique, economists have elaborated economic, cultural, scientific and social aspects of Community policy, as well as considerations of security, public interest and freedom of expression. The Decision is also aimed at establishing a legal framework to ensure that the conditions for the availability and effective use of the radio spectrum are harmonized. The final objective is to protect the interests of the European Community in international negotiations on the use of the spectrum." European Union, on-line: http://www.europa.eu.int/scadplus/leg/en/lvb/124218a.htm (last accessed 30 June 2004). 86. Radio Spectrum Decision, supra note 84 recital 18, 19, 20. 87. The spectrum "space" reserved for Wi-Fi has been titled "alternative wireless infrastructure platforms" by the Commission. It should be noted that the Commission has never used the term Commons nor the term Open Spectrum in the context of innovative spectrum policy. The description alternative wireless infrastructure platforms, however, seems to be an appropriate word choice, implying the permission-free access to spectrum within this frequency band. 88. Coase, "The Federal Communications Commission", supra note 71. 48 on his work and gradually gained the upper hand in the debate about spectrum governance.89 The economic critique on governmental spectrum management in its basic form is based on the widely accepted assumption that scarce resources are best managed by assigning individual property rights. Such critiques assume that the market as a mechanism, efficiently allocates limited resources when they are regulated in this manner. The other aspect of this argument is typically referred to as the "tragedy of the Commons,"90 which assumes that common ownership of resources subject to depletion inevitably leads to the demise of that resource. The spectrum is not however a "resource" in the traditional sense - scarcity only exists because of the factor "interference." To avoid interference and make messages intelligible for the receiver, spectrum is artificially divided in discrete narrow channels. For each channel, a license is issued to a business, for a special purpose and under special conditions. However, technology changed. Spread Spectrum and other innovative technologies allow to share the spectrum in a way that questions "interference" as a justification for allocating spectrum rights in the way it has been done until now. Wi-Fi technology used for facilitating high-speed wireless Internet access91 is an example of how a wireless Commons can trigger the birth of a whole new industry. Wi-Fi devices operate in the "unlicensed" part of the spectrum, and we all can access this network and even build our own networks without having to obtain permission from bodies such as the CRTC. The current use of Wi-Fi clearly shows the value of keeping such a basic platform neutral and unowned. Because it keeps the costs of entry into the 89. Thomas W. Hazlett, "The Rationality of U.S. Regulation of the Broadcast Spectrum" (1990) 23 J. Law & Econ. 133 at 138-166 ; "The Wireless Craze, The Unlimited Bandwidth Myth, The Spectrum Auction Faux Pas, and The Punchline to Ronald Coase's 'B ig Joke': An Essay On Airwave Allocation Policy" (2001) 14 Harv. J.L. & Tech. 335 [Hazlett, "The Wireless Craze"]. 90. Hardin, "The Tragedy of the Commons", supra note 28 at 1243-1244. 91. Wi-Fi is also known as IEEE 802.11 and has triggered a remarkable growth of wireless networks and equipment. Nearly every mobile computer sold in 2004 will feature built-in Wi-Fi technology. See http:/ /www.wifi.org. See also e.g. Stephen Lawson, "Wireless L A N Use Growing Fast" InfoWorld, 1 August 2002; "Wi-F i : It's Fast, It's Here - and It Works" BusinessWeek, 1 April 2002; "VoiceStream Expands Wi-Fi Access in Starbucks" Wall Street Journal, 21 August 2002. 49 market low, such a mode of spectrum management contains significant democratic potential. In the case of wireless internet access, the equipment and service market on top of this Commons seems to better deliver the democratic ideals and economic promises that are the stated aspirations of spectrum regulators. Wi-Fi's ultimate significance may be that it provides a glimpse of what will be possible with future wireless technologies. It has also changed the way regulators and technologists think about spectrum policy. Wi-Fi also shows that agreeing on a common standard can create a powerful market. Many other technologies and standards are being developed, and Wi-Fi devices with its relatively short range of data transmission might be already gone in 10 years. But whatever happens to Wi-Fi in the future, it has certainly blazed a trail for other technologies to follow. Given the success of the limited spectrum Commons that has emerged within the unlicensed frequencies of the radio spectrum, there are strong arguments for expanding this form of resource management to the entire, or significant portions of the radio spectrum. A basic "speech" medium like the spectrum should only be regulated and apportioned via licensing and property regimes if it is scarce. If the technological parameters change and the imperatives for justifying such regulation disappear, one should think about the possibility of creating a communications Commons in the air waves. In a manner analogous to the Internet, intelligent receivers will potentially enable the creation of a network governed by users, not by central authorities. In effect, like the infrastructure of the Internet, radio spectrum could be another infrastructural component of the digitally networked environment not owned and controlled by anyone.92 As a result of the economic arguments, in 1990 authorities in the U.S., Canada and the EU introduced auctions as a new tool for issuing spectrum licenses. In the context of 3G Mobile Communications,92, auctions have become the most common allocation instrument and have been 92. Yochai Benkler was one of the first to realize this unique chance. For an impressive discussion of open spectrum issues, see Benkler, "Overcoming Agoraphobia", supra note 11 at 6. 93. This standard has been called UMTS in Europe and stands for high-speed data, multi-media capable mobile telephony, promising a new market for digital applications and services. The first networks have been 50 used to collect significant revenue for governments. However, auctioning the rights to use certain frequency bands for specific services cannot be seen as a property-based market approach because there is still no secondary market in spectrum, and there is currently no trade in spectrum rights due to regulatory restrictions. Whereas auctions may sound like a market-based instrument, the reality of spectrum policy reveals that they are merely a strategic tool to raise a financial compensation for the issuance of a spectrum license.94 Although auctions are used to determine who gets a license, the initial decision concerning which part of the spectrum will be used for which service is still made by the governmental authorities using traditional criteria. In summary we can say that spectrum has been allocated through governmental licensing processes for the last century. For the first half of this period, the economic critique has been the dominant voice articulating a regulatory alternative. The problem with this approach however is that its fundamental hypothesis, that spectrum is a scarce resource and thus justifying the authorities to restrict and co-ordinate its use via the issuance of licenses, is no longer valid. As mentioned earlier, one can assert that the radio spectrum is scarce only because of interference. The institutional parameters were built around this conceptualization; interference was the historically proven and technically accepted justification for a regulatory approach ultimately favouring big media corporations and led to a centralization of commercial broadcasting and other communications sectors.95 Only few were allowed to transmit signals and those few corporations soon became powerful entities with organized lobbying capacities. Vested interests, especially in the broadcasting field, play a major role in spectrum policy today. Thus the process of relocating licensees to new frequencies, or requiring them to use more sophisticated equipment to enable sharing a frequency band, proves to be difficult. l a u n c h e d i n late 2 0 0 3 i n E u r o p e . J a p a n ' s N T T D o C o M o l a u n c h e d its FOMA sys t em a y e a r ea r l i e r . 94 . B e n k l e r , " O v e r c o m i n g A g o r a p h o b i a " , supra no te 11 at 3 0 . 9 5 . See L e s s i g , The Future of Ideas, supra note 5 at 74 . 51 This strategy of governmental licensing, a perfectly rational choice in the 1920s however continues to be the mainstream framework for allocation critical parts of the spectrum where public safety-related services need to operate without interfering signals. When technology changed over time and the radio communications market became more commercialized, new ways of thinking slowly emerged. Ronald Coase and other economists following him96 turned the government's assumptions upside down. Interference makes spectrum scarce, they agreed. But as a consequence, scarcity makes spectrum an economic good, and such economic goods are best allocated by market mechanisms. The legal and political solution to interference would then be to define a set of property rights in spectrum units. Market transactions would ensure that spectrum would be allocated to its highest valued uses, as defined by the willingness of users to pay for the right to communicate over a certain frequency. Coase argued that pricing would produce better allocation than an administrative fiat. He introduced the possibility of property rights in spectrum as the basis of eliminating interference: "The main reason for government regulation of the radio industry was to prevent interference. It is clear that, if signals are transmitted simultaneously on a given frequency by several people, the signals would interfere with each other and would make reception of the messages transmitted by any one person difficult, if not impossible. The use of a piece of land simultaneously for growing wheat and as a parking lot would produce similar results. As we have seen in an earlier section, the way this situation is avoided is to create property rights (rights, that is, to exclusive use) in land. The creation of similar rights in the use of frequencies would enable the problem to be solved in 96. Although Coase remains the most famous critic of administrative licensing, the first person proposing the economic critique was arguably Leo Herzel, "Public Interest and the Market in Colour Television Regulation"(1951) 18 U. Chi. L. Rev. 802. 52 the same way in the radio industry. "' Assigning a property right against interference, similar to trespass, would solve co-ordination problems. However, the content of the suggested property rights were yet to be determined, and political support for this solution was far from being sufficient to make it law.98 In the last decade, authorities responded to the economic critique and formulated commitments to a market-based allocation of spectrum. The FCC in the United States is using auctions to assign spectrum licenses in the telecommunications sector99, European Union member states have used auctions to allocate spectrum for new mobile telecommunications technologies, a market promising the convergence between voice, video and data transmission and serving the global trend towards more mobility.100 In Canada, the responsible department Industry Canadam has issued a spectrum policy framework paper in 2002 as a basis for a revision of current spectrum policy.102 This report indicated that the economic critique has now reached decision makers: "It is anticipated that there will be an increased reliance on commercial factors in establishing radio communications policy and procedures that will facilitate the most appropriate use of the radio spectrum. "ws But there are other alternatives that must be considered. FCC chairman Michael K. Powell has recently set up two "task forces" with the mission to explore a spectrum Commons and the 97. Coase, "The Federal Communications Commission", supra note 71 at 18-24. 98. Benkler, "Overcoming Agoraphobia", supra note 11 at 27. 99. FCC, http://www.fcc.gov/wtb/auctions (last accessed 30 June 2004). 100. See e.g. C D M A Technology, on-line: http://www.cdmatech.com/solutions/wcdma_umts_3g_solutions.jsp (last accessed 30 June 2004). 101. Strategis Canada, on-line: http://www.strategis.gc.ca/spectrum (last accessed 30 June 2004). 102. Canada, Notice No. DGTP-004-02 Revision to the 1992 Spectrum Policy Framework for Canada (SPFC), available on-line at http://www.strategis.gc.ca/spectrum (last accessed 30 June 2004). 103. ibid, at 1. 53 possibilities of wireless broadband access for the public.104 As a result, the American authority currently analyzes both the property and Commons approach. Given the point at which policy makers are situated, it seems to be more than timely to illustrate the advantages and limitations of both systems. 4. Free the Airwaves: A Commons in Spectrum While most contemporary discussions about how to regulate communications using the radio spectrum evolve around whether to regulate through administrative licensing or by auctioning property rights in spectrum, recent advances in digital processing technologies suggest that there could be a third alternative: Open Spectrum or a Commons in spectrum has been the subject of a debate in the last six years or so. In the spectrum context, a Commons can be seen as a public resource, open to everyone in a relevant community under roughly the same conditions. As discussed above in relation to copyright, access to a Commons must be granted on a neutral basis, but it does not necessarily have to be free (as in zero cost).105 Following this definition of the Commons, a communications system like the Internet can be regarded a Commons for its decentralized nature. The distributed character of the Internet prevents the network to "discriminate;" the intelligence is located at the edges of the network, not at the core. For this reason, the Internet in its current form resists the power of a central authority. The user equipment is not fundamentally different from the server hardware and the transmission protocols are kept simple. Thus, the Internet is the first innovative communications platform that expands global means of information exchange by decentralizing the distribution mechanism.106 104. FCC "Wireless Broadband Access Task Force" on-line at http://www.fcc.gov/wbatf/ (last accessed 30 June 2004); FCC "Spectrum Policy Task Force" on-line at http://www.fcc.gov/sptf/ (last accessed 30 June 2004). 105. This is Lawrence Lessig's definition of a commons. See Lessig, The Future Of Ideas, supra note 5 at 20. 106. Benkler, "Freedom in the Commons", supra note 4 at 1250; for a detailed elaboration on the commons in information production, see also Yochai Benkler, "The Battle Over the Institutional Ecosystem in the Digital Environment" (2001) 44:2 Communications of the A C M 84. 54 Yochai Benkler makes a strong case for the position that such a decentralized structure fosters innovation and diversity in information production and exchange; he proposes to architect the wireless communications environment in a similar fashion: as a Commons where the network is basically maintained by the end users and grows in efficiency and value with the number of users. The intelligence of the network should be in the hands of the end users, not in the hands of one powerful transmitting entity. This statement contradicts the established model of broadcasting, where one transmitter effectively dominates decisions about the content being disseminated. In the broadcast model, in contrast to the Internet with its many-to-many interactivity, there is no room for a public discourse or participation of users. In terms of democracy, autonomy, and diversity, Benkler argues, a decentralized communications system is the preferable choice.107 The U.S. Supreme Court has long stated that it is central to democratic processes that we secure "the widest possible dissemination of information from diverse and antagonistic sources."108 A decentralized network as basis for information production and exchange serves this goal by allowing the highest possible degree of user participation and by its structural resistance to centralization of media producers.109 In Garret Hardin's classic statement, the "tragedy of the Commons" refers to a situation where a resource is shared without rules to allocate its usage. Under such conditions, every individual with access to the resource internalizes the full benefit of using whatever part of the resource the individual is capable of using, but shares the costs of depletion caused by his or her use with all other potential users of the resource. Similarly, the benefits of an individual's investment in maintenance of the resource are shared with all other potential users, while the 107. Benkler, "Freedom in the Commons", supra note 4 at 1247. 108. Associated Press v. United States, (1945) 326 U.S. 1, 20; accord Turner II; Turner Broad. Sys., Inc. v. FCC, (1994) 512 U.S. 622, 663-64 [Turner /]; Buckley v. Valeo, (1976) 424 U.S. 1, 49; Red Lion, supra note 15; Citizen Publ'g Co. v. United States, (1969) 394 U.S. 131, 139-40; New York Times Co. v. Sullivan, (1964) 376 U.S. 254, 266. 109. Yochai Benkler, "Communications Infrastructure Regulation and the Distribution of Control Over Content" (1998)22:3 Telecommunications Policy 183 at 189-194. 55 costs of such investments are not. The individual's private cost benefit analysis therefore leads all users of the Commons to make rational personal choices that lead them with tragic determinacy to lose the resource.110 4.1. Scarcity The Commons thus might lead to tragedy if the resource is a scarce, rivalrous one. It is therefore important to examine the basic features of the radio spectrum as a resource for communications. Lawrence Lessig has mentioned that what determines a Commons is the character of the resource and how it relates to a community, meaning that a Commons can be very different dependent on the relevant resource and other conditions and circumstances. One has to figure out the best way of governance on a case-by-case basis rather than applying a single scheme to all kinds of resources. Lessig admits that the Commons does not make sense for all resources. One of the resource systems suitable for the Commons solution would be the radio spectrum. Lessig and other scholars argue that the Commons based approach to governance is preferable to a property-based market model when the resource is a complex and uncertain environment that can be used in various ways.111 Spectrum is an interesting resource to talk about in this context. First of all, it is not man-made. No one has built is, nobody invested money to create this "resource". The danger of depletion does not apply to spectrum in the long term. However, spectrum is rivalrous in the sense that nobody can communicate at exactly the same time over the same frequency. Thus, spectrum is a scarce resource. But considering today's technological advances, can this level of scarcity justify governmental allocation procedures? 110. i l l . Hardin, "The Tragedy of the Commons", supra note 28 at 1243. See Ostrom, Governing the Commons, supra note 30 at 88-89. 56 4.2. Unlicensed Spectrum Both administrative licensing and the property based approach rely on scarcity as their methodological justification. But the assumptions underlying the dominant paradigm for spectrum management no longer hold. Today's digital technologies are smart enough to distinguish between signals, allowing users to share the airwaves without exclusive licensing. Instead of treating it as a scarce physical resource, we could make a significant slice of the radio spectrum available to all as a Commons, an approach known as Open Spectrum. Open Spectrum would allow for more efficient and creative use of the precious resource of the airwaves. It could enable innovative services, reduce prices, foster competition, create new business opportunities, and bring our communications policies in line with our democratic ideals."2 Already in 1984, Ithiel de Sola Pool observed that "[ijronically, now that Congress, the FCC, and the industry are gingerly edging toward payments for frequency assignments, some of the conditions that have been premises for some such scheme are changing."113 Technologies are increasingly able to share spectrum and minimize if not eliminate the problem of interference. Among those technologies are Spread Spectrum, Code Division Multiple Access (CDMA), Time Division Multiple Access (TDMA), Frequency Hopping, GSM and UMTS Cellular Telephony Standards, and other variants of packet-switching transmission techniques in computer networks. Such technologies are not science-fiction but already used in mobile communications."4 These Spread Spectrum technologies do not render spectrum scarcity obsolete. Rather, the number of 112. A brief description of the various new technologies and a nice overview regarding Open Spectrum can be found in Kevin Werbach, "Open Spectrum: The New Wireless Paradigm" New America Foundation Spectrum Series Working Paper #6 October 2002, on-line: http://werbach.com/docs/ new_wireless_paradigm.htm (last accessed 30 June 2004). 113. Ithiel de Sola Pool, Technologies of Freedom (Cambridge, Mass. and London, England: Harvard Univ. Press 1983) at 147 [De Sola Pool, Technologies of Freedom]. De Sola Pool then continued to discuss the possible effects of technologies for spectrum sharing, or multiplexing on the assumptions underlying the rationale of privatization. 114. For en extensive explanation of spectrum sharing technologies, See Benkler, "Overcoming Agoraphobia", supra note 11 at 107-113. 57 users that can be accommodated in the same frequency band at the same time remains limited. However, such technologies greatly improve the share-ability of the radio spectrum. For many applications, such as wireless Internet access or mobile telephony, it enables regulators to consider less restrictive resource management ideas like the Commons. With alternative unlicensed spectrum space, users would have the chance to experiment with the efficacy of wireless technologies. Today's technology does by no means miraculously "cure" the physical limitations of the radio spectrum as a communications medium.115 But it opens up room for policies that allow a larger segment of society to use spectrum for communicating and accessing information. -As mentioned, the primary example of a spectrum Commons is the rapidly growing Wi-Fi technology.116 Only five years ago, an initiative by Apple Computer and other IT companies led to a remarkable development in short-range wireless communications for high-speed data transmission. New computer equipment made it possible to set up efficient wireless LAN networks with affordable computer equipment. The technology soon spread out and is now a fast growing sector within a struggling industry. Campuses, coffee shops, and many other public and quasi-public spaces are increasingly equipped with wireless networks that offer access to the Internet. This technology is worth mentioning here because it represents the first "spectrum Commons." Wi-Fi technology operates in unlicensed frequency ranges. Governmental authorities have assigned 300 Mhz in the 2.4 and 5 GHz range for wireless Internet devices under certain conditions. The equipment must be able to share the space with other devices, must 115. For an accessible explanation, see e.g. Robert C. Dixon, Spread Spectrum Systems With Commercial Applications (New York, N Y : Wiley Interscience, 1994) at 399 ff. 116. Wi-Fi (IEEE 802.11) is a protocol for unlicensed wireless local area networks, allowing high-speed data connections anywhere within a few hundred feed of an access point. WiFi deployments are growing at fantastic rates, doubling in the last year. A market that did not exist three years ago now generates well over a billion dollars annually, continuing to expand despite a severe technology recession. There are thousands of public access points in the US, and hundreds of thousands more in homes and businesses. Several million laptops are equipped with WiFi cards, and most laptop vendors are building WiFi into their newer models. Investment and innovation run rampant. Venture-backed companies are springing up to improve WiFi technology and apply it to new markets, such as residential broadband access. See Wi-Fi Alliance, on-line: http://www.wifi.org (last accessed 30 June 2004). 58 not create harmful interference to other - licensed - devices already transmitting in this frequency band, and Wi-Fi devices cannot claim protection from other incumbent transmitters. Wi-Fi is the primary real-life example of how open infrastructures facilitate an unprecedented amount of innovation.117 The legislative framework creating a small Commons for Wi-Fi technology is roughly the same in Canada, the U.S., and in the EU."8 Nobody needs a permission to create a wireless LAN network, it is open to everybody. This reality is made possible by the "spread spectrum" technology used by Wi-Fi; interference is only rarely a problem for Wi-Fi networks; the technology is able to share and negotiate, similarly to the TCP/IP protocols used by the Internet. Arguably, the open space for innovation created through unlicensed spectrum for Wi-Fi has facilitated more innovation and economic success then similar innovations like 3G mobile telephony standards, where the legal structure has largely been shaped by auctions requiring significant initial investments by interested licensees. Comparing Wi-Fi with 3G infrastructure includes also the factor decentralization. Wi-Fi networks are marked by an architecture where the user's equipment drives the network. It relies on a one-time investment in hardware by the end-user instead of monthly access fee charges payable to the network provider.119 Most recently the FCC proposed opening up more space for unlicensed devices and acknowledged the tremendous success of this open spectrum approach.120 One of the main benefits hoped for is a new level of broadband connectivity in rural areas. Unlicensed spectrum 117. Lawrence Lessig, The Architecture of Innovation, (2002) 51 Duke L . J. 1783; " A Brief History of Wi-F i" The Economist (Technology Quarterly) vol. 371 no. 8379, 12 June 2004, at 26-27. 118. In the U.S. the F C C issued the so-called U-NII order ("Unlicensed-National Information Infrastructure") setting aside the frequencies for this "open spectrum" experiment. In Canada, it is the "Spectrum Utilization Policy for Licence Exempt Wireless Local Area Networks in the 5 GHz Range" (SP 5150, October 1999) that created a similar environment for Wi-Fi devices. 119. Due to regulatory constraints (the assigned unlicensed frequency swath is just too small), Wi-Fi still relies on a cable link to the internet at some point within the network. 120. FCC News, "FCC Begins Rulemaking Proposing to Allow Broadband Operations in the 3650-3700 MHz Band" 15 April 2004, on-line at http://www.fcc.gov (last accessed 30 June 2004), see also FCC "Spectrum Policy Task Force" on-line at http://www.fcc.gov/sptf/ (last accessed 30 June 2004). 59 use proves to be a successful new way of decentralizing and democratizing the radio spectrum. With new technologies at hand, the level and nature of scarcity of radio frequencies has to be re-examined because it is tied to the capability of transceiver equipment to share the spectrum for communications. Open Spectrum will not replace traditional governmental licensing schemes, nor will it mean the end of spectrum auctions. Evidence suggests that a spectrum Commons can become a way to allow more innovation and thus provide a better market platform than auctions do. Through auctions, governments collect money for the entry into the wireless market, but a true secondary trading market does not yet exist. Instead, a Commons would lower entry costs which in turn would enable a higher degree of diversity of services. Experimenting with a market based scheme in spectrum rights can be useful as well. However, the design of the rights need to incorporate certain recovery options which would make it possible to shift back to a spectrum or administrative licensing model. A balance between legal certainty and the possibility to change spectrum policy must be found. If technologies can indeed render interference irrelevant, spectrum would be no longer scarce and the structure of regulation would have to change fundamentally if such regimes were to be consistent with constitutional communications rights in various jurisdictions. By requiring the equipment to share and use frequencies efficiently, rather than assigning discrete channels to just one entity, authorities could set up certain "rules of the road." Then a part of our communications environment could be unowned in the sense of public roads and sidewalk. Everybody could use the spectrum under certain basic conditions without permission or license from governmental authorities. The Information Society would profit from such an architecture: Open wireless networks would serve the goal formulated by the U.S. Supreme Court in the Turner case: through its decentralized structure and low entry costs, a spectrum Commons helps securing "the widest possible dissemination of information from diverse and antagonistic sources."121 It does not replace traditional broadcasting but provides for an alternative by enabling local communities to stay connected and allow participants to be "users" instead of merely passive "consumers." It 121. Turner I, supra note 108 at 189; Turner II, supra note 10 at 663-64. 60 would simply open up more space for non-commercial and commercial ideas alike. Eventually it gives hope to those who would like to reverse the ever-increasing trend towards more concentration in media by allowing more players to operate using radio spectrum as a communications resource. 5. The Red L i o n Case Revisited "Because of the scarcity of radio frequencies, the government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. "In One of the most important decisions concerning the regulation of the radio spectrum is Red Lion Broadcasting Co. v. FCCm of 1969. The U.S. Supreme Court has held in that in view of the scarcity of broadcast frequencies the Federal Communications Commission's role in allocating those frequencies in "the public interest" was both authorized by statute and constitutional. The rationale of this case has been criticized124 but spectrum scarcity continues to 122. Red Lion, supra note 15 at 397. 123. ibid. ("Scarcity is not entirely a thing of the past. Advances in technology, such as microwave transmission, have led to more efficient utilization of the frequency spectrum, but uses for that spectrum have also grown apace"). 124. Ithiel de Sola Pool wrote in 1983: "The time has come to bury the old cliche that spectrum is a scarce resource. It is an abundant resource, but a squandered and misused one. Like any resource, it is limited, but like such other communications resources as paper, trees, printing presses, wires, or television sets, it is 61 shape the discourse about how to allocate this resource.125 The case itself dealt with determining the legality of the fairness doctrine, which was a set of political editorial rules aimed at enforcing the sharing of a scarce resource. Under the fairness doctrine, broadcasters had to provide airtime to public issues and give both sides of such issues fair coverage. Red Lion says that the First Amendment does not prohibit the government from imposing certain content-related rules on broadcast licensees. But it says also much more than that. The Supreme Court made it clear that the reason why the radio spectrum must be regulated is scarcity. To balance the interests in the communications environment, government has to restrict the medium spectrum. The First Amendment requires the government to ensure a use of the spectrum that considers "the right of the public to receive suitable access to social, political, aesthetic, moral, and other ideas and experiences."126 The justification of spectrum regulation is essentially based on the assumption that spectrum is indeed a scarce resource. As the Court states: "Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish. If 100 persons want broadcast licenses but there are only 10 frequencies to allocate, all of them may have the same 'right' to a license: but if there is to be any effective plentiful And what is more, technological progress over the past half-century has multiplied its availability. Spectrum shortage is no longer a technical problem but only a man-made one. The Court in Red Lion was wrong. It looked forward to the day when technology would solve the problem. It did not understand that technology had done so already. What is lacking is a legal and economic structure to create incentives to use extant technologies in ways that would provide broadcasting in abundance." De Sola Pool, Technologies of Freedom, supra note 113 at 151. 125. A detailed examination of the technical and regulatory parameters can be found in Harvey J. Levi, The Invisible Resource; Use and Regulation of the Radio Spectrum (Baltimore: John Hopkins Press 1971) [Levin, The Invisible Resource]. 126. Red Lion, supra note 15 at 390. 62 communication by radio, only a few can be licensed and the rest must be barred from the airwaves. It would be strange if the First Amendment, aimed at protecting and furthering communications, prevented the Government from making radio communication possible by requiring licenses to broadcast and by limiting the number of licenses so as not to overcrowd the spectrum. ",2? The Supreme Court in Red Lion acknowledged certain changes in the technology used to communicate over the airwaves but confirmed the scarcity of spectrum and thus the need to regulate: "It has not been shown that the scarcity of broadcast frequencies, which impelled governmental regulation, is entirely a thing of the past, as new uses for the frequency spectrum have kept pace with improved technology and more efficient utilization of that spectrum. " m The Court revisited the history of spectrum regulation, highlighting the "breakdown of the law" period in the 1920s, where a lack of regulatory power to deny licensees lead to chaotic situation where everybody was free to use spectrum but nobody could be heard due to interference. In 1969 - the time Red Lion was decided - the dominant media structure can be described as the "broadcast model." A few licensees were allowed to broadcast to the "public," then a passive crowd of consumers. This situation was a product of technology. Receivers were technically inferior. They needed a loud and clear signal to convert radio frequency into messages capable of human perception. The Court had to determine how to balance the interests 127. ibid, at 387. 128. ibid, at 396-400. 63 involved given a certain architecture of the information environment. Who really is the public? Back in 1969, the "people" were not yet deemed "users," because technology did not allow them to re-use broadcasted material or to participate in the process of creating the information broadcasted. The public, for the court, consisted of "consumers," diversity in media production could only be realized by the government in its role as regulator of the privileged licensees.129 5.1. Implications of Red Lion for Modern Spectrum Policy The Court in Red Lion was clear about the constitutional norm mandating a communications policy that would result in an open and diverse media environment, serving the public's interest in the first place. Most current debates revolve around two alternatives of spectrum regulation. Both alternatives agree that the form of administrative licensing, based on "beauty contests" among the prospective licensees, is ineffective and should be reformed. The first "market based" approach claims that spectrum should be allocated by issuing private property rights, which could then be traded in a secondary market for radio frequency licenses. This economic critique is based on Ronald Coase's seminal article The Federal Communications Commission of 1959.130 Advocates of a property regime acknowledge that spectrum is a scarce resource, but insist that precisely because it is a scarce resource it should be managed by the market rather than by a governmental authority. Property rights would ensure that spectrum frequencies are being used by those who value them most highly; this in turn would better serve the public interest than imposed content rules, which have arguably lead to a broadcast culture that can hardly be described as being in the public interest.131 Dynamic real-time price negotiations would secure 129. Nonetheless, Red Lion emphasizes it is their interest that counts: "As far as the First Amendment is concerned, those who are licensed stand no better than those to whom licensees are refused. A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens." Red Lion, supra note 15 at 387. See also National Broadcasting Co. v. United States, (1943) 319 U.S. 190 at 227. 130. Coase, "The Federal Communications Commission", supra note 71. 131. See David Bollier and Tim Watts, "Saving the Information Commons: A New Public Interest Agenda in 64 the most efficient use of the airwaves. With the help of Adam Smith's invisible hand, wireless communications could become the most innovative technology since the Internet.132 The alternative approach takes a different stance. The Commons in spectrum would be the best way to implement a information policy that serves the public interest and fosters innovation, diversity and efficiency. The advocates of a spectrum Commons usually begin by explaining that spectrum is not a "thing." The subject of regulation, they say, is the capacity to facilitate wireless communications. Radio waves, much like acoustic waves, do not pysically collide, they seamlessly flow through one other. A collision only appears in the specific context of the communication tools used by human beings. What we count as interference, then, lies in the receiver and its inability to separate signals from noise. Basically, the arguments for the Commons can be summarized as follows: 1. Receivers are now intelligent enough to share frequencies. Technologies like Spread Spectrum or Software Based Radios133 render it obsolete to assign only one person as the exclusive transmitter in a certain frequency range. With the sharing of frequencies, scarcity could - for some applications - become almost entirely a thing of the past. 2. Wireless Internet technologies operating in the unlicensed parts of the spectrum are the best evidence of the viability of a spectrum Commons. There is no tragedy in such an open spectrum approach, as spectrum is (in a context-specific sense) perfectly renewable Digital Media" (2002) New America Foundation, available on-line at http://www.newamerica.net/ Download_Docs/pdfs/Pub_File_866_l.pdf (last accessed 30 June 2004). 132. For a detailed overview regarding the economic critique, see Coase, "The Federal Communications Commission", supra note 71; Levin, The Invisible Resource; Jora R. Minasian, "Property Rights in Radiation: A n Alternative Approach to Radio Frequency Allocation" (1975) 18 J.L. & Econ. 221; Hazlett, "The Wireless Craze", supra note 89; Gerald Faulhaber & David Farber, "Spectrum Management: Property Rights, Markets, and the Commons" Working paper, on-line at http://bpp.wharton.upenn.edu/Acrobat/ Faulhaber_AEW_paper_6_19_02.pdf (last accessed 30 June 2004). 133. For a technical explanation of these technologies, see e.g. Steve Lee, Spread Spectrum CDMA, (New York, N Y : MacGraw-Hill 2003). 65 and inexhaustible. Analogous to the end-to-end architecture of the Internet, a spectrum Commons would design wireless communications as a decentralized environment, not owned by anyone and not subject to control by a single authority. 3. A Commons works because there is no danger of overuse. The capacity of wireless networks expands by increasing the number of participants. Because the "intelligence" of such networks lies in the user's equipment, at the edge of the networks, it is the perfect form of governance enabling community-managed public networks constructing a truly democratic communications ecosystem. 4. Property systems are not free. Negotiating property rights does involve transactions costs. Ronald Coase himself showed that any market's success fundamentally depends on transaction costs, which might be prohibitive in the case of spectrum management. In a Commons, the equipment would be regulated, but as long as everybody follows such "rules of the road," the resource spectrum could be "free as the air to common use."134 Within the context of this discourse, Red Lion opens up a constitutional view on the dichotomy between a property and a Commons approach to spectrum governance. The court in Red Lion was in principle concerned about both the absence of regulation and private monopolies over the airwaves. The court notes that "licenses to broadcast do not confer ownership of designated frequencies, but only the temporary privilege of using them."135 While the court confirms its opinion that - at the time of the decision - spectrum is a limited resource, it also considers the radio spectrum a "public trust."136 A policy to govern a common resource as a 134. International News Serv. v. Associated Press, (1918) 248 U.S. 215, 250 (Brandeis, J, dissenting). Brandeis' famous statement referred to "knowledge, truths ascertained, conceptions, and ideas" as the "noblest of human productions". Free spectrum is closely tied to the communication of such intangibles and therefore the quote seems to be equally appropriate in the context of wireless communications. 135. Red Lion, supra note 15 at 392. 136. ibid, at 382, 400. 66 public trust can be implemented through various property regimes. The management of environmental systems provides for many case studies and has achieved a high level of theorization. With the technology to share spectrum at hand, the Commons would certainly be closer to a public trust doctrine than a system marked by an exclusive reliance on private property. Indeed, the Red Lion case shows that the Supreme Court is suspicious of propertizing the airwaves: "Rather than confer frequency monopolies on a relatively small number of licensees, in a Nation of 200.000.000, the Government could surely have decreed that each frequency should be shared among all or some of those who wish to use it, each being assigned a portion of the broadcast day or the broadcast week. ... As we have said, the First Amendment confers no right to licensees to prevent others from broadcasting on "their" frequencies and no right to an unconditional monopoly of a scarce resource which the Government has denied others the right to use. "I3? Carol Rose has shown that a Commons based approach to govern a public resource makes most sense if the use of the resource is uncertain or manifold.138 In these cases, a property system would lock down alternative innovative uses by raising the entry cost to experiment with the medium. The Commons offers the unique chance to develop an unowned communications infrastructure at the physical layer of the information environment. The impact of such a design can be assessed by analysing the Internet. The architecture of the Internet is based on the so-called end-to-end architecture,139 securing a decentralized network, resistant against central 137. ibid, at 391. 138. Carol M . Rose, "The Comedy of the Commons", supra note 56 at 759-769. Elinor Ostrom has also framed a similar argument: Ostrom, Governing the Commons, supra note 30 at 88-89. 139. See Mark A . Lemley & Lawrence Lessig, "The End of End-to-End: Preserving the Architecture of the 67 control by a single authority. It is the opposite of the broadcast model that ruled the airwaves for the last 100 years. It is unrealistic to hope for a diverse and open Commons to replace the powerful incumbents of the broadcast age. It would be desirable, however, to create a Commons alongside the traditional models of information production and exchange. Such a Commons can be facilitated by opening up more frequencies for unlicensed use. The tremendous success of the Wi-Fi standard140 was possible even though the devices for Wi-Fi technology operate in tiny parts of the spectrum only. Moreover, they are not protected against interference from licensed devices transmitting in the same ranges, and strict limits concerning the radiation power as well as other limitations141 (e.g. indoor use only) constrain a broader use of a technology that is nonetheless disruptive and liberating.142 We can expect that a spectrum Commons would lower the entry costs for using the airwaves as a medium for a variety of innovative purposes. It can also be expected that this would have a positive effect on diversity in media production, and help creating publicly owned networks, which could be a communications resource of first and last resource. The wireless promise of open spectrum is especially valid for rural communities, but has shown great potential in urban areas as well.143 Advocates of spectrum Commons additionally argue that their solution is Internet in the Broadband Era" UC Berkeley Law & Econ. Research Paper No. 2000-19. 140. The technical description of Wi-Fi is 802.1 lb, which refers to a standard developed by the IEEE. See IEEE on-line: http://www.manta.ieee.org/groups/802.ll/0ast accessed 30 June 2004); This particular standard enables wireless protocols in the unlicensed spectrum in the 2.5 GHz range at 11 Mbps. Newer standards include 802.1 l g and 802.1 la, which allow a speed of 54 Mbps. 141. The F C C has set aside three data bands as "unlicensed", meaning users can deploy devices that rely upon these bands without permission from the FCC or a spectrum owner. The regulations governing this use are found in part 15 of the FCC's rules, and the bands are 915 M H z (902-928 MHz), 2.4 GHz (2,400-2,483.5 MHz), and 5.7 M H z (5,725-5,850 MHz). Part 15 devices may not cause any harmful interference to authorized services and must accept any interference that may be received. See U.S. Federal Communications Regulations C.F.R47, § 15.5. 142. See "The Wireless Revolution" Wired Issue 11.05 May 2004, on-line: http://www.wired.com/wired/archive/ 11.05/unwirecVwifirevolution.html (last accessed 30 June 2004). 143. Former FCC technical adviser Dwayne Hendricks used a spectrum commons approach to implement a free internet infrastructure in Tonga and works on similar projects to set up high-speed internet access to Native American tribal lands. See U.S Congress, Office of Technology Assessment, "Telecommunications Technology and Native Americans: Opportunites and Challenges" OTA-ITC-621 (Washington, D.C. 1995). See also Lessig, The Future of Ideas, supra note 5 at 80- 81. 68 actually more market-friendly than the property regime proposed by Hazlett, Faulhaber, and Farber. Because the resource would be free for all to innovate upon on, a "free trade" environment without transaction costs would result in a flourishing market in equipment and services. This argument cannot be easily rejected because the explosion of Wi-Fi proves this theory in practice.144 FCC chairman Michael Powell has apparently not yet decided in which direction American spectrum policy is heading. Currently, the FCC is exploring both property and Commons based governance schemes.145 Red Lion needs a translation into the context of the early 21st century. Wi-Fi and its impact on commercial and non-commercial use has lead the way. Predictions of the coming age of unlimited bandwidth and abundant spectrum capacity may or may not become reality. But the readily available technologies capable of sharing the spectrum with unprecedented efficiency shift the policy objectives. Whereas the rationale of a spectrum Commons has not yet been discussed in 1969, the court in Red Lion expressed explicit skepticism towards a privatization of the radiowaves: "There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all. "I46 "...in the absence of governmental control the public interest might be subordinated to monopolistic domination in the broadcasting field. "I4? Much of the Commission's spectrum policy was driven by the assumption of acute spectral 144. For a comprehensive illustration of technologies and applications, see Kevin Werbach, "Radio Revolution: The Coming Age of Unlicensed Wireless" (2002) New America Foundation Working Paper, on-line: http:/ /werbach.com/docs/RadioRevolution.pdf (last accessed 30 June 2004). 145. See e.g. Michael K. Powell, "Broadband Migration III: New Directions in Wireless Policy" Remarks at the Silicon Flatirons Telecommunications Program University of Colorado at Boulder (October 30, 2002). 146. Red Lion, supra note 15 at 392; Associated Press v. United States, (1945) 326 U.S. 1 at 20 . 147. Red Lion, supra note 15 at 394; FCC v. Pottsville Broadcasting Co., (1940) 309 U.S. 134 at 137-138 . 69 scarcity - the assumption that there is never enough for those who want it. Under this view, spectrum is so scarce that government rather than market forces or perhaps nobody must determine who gets to use the spectrum and for what. The spectrum scarcity argument shaped the Supreme Court's Red Lion decision, which gave the Commission broad discretion to regulate broadcast media on the premise that spectrum is a unique and scarce resource. Indeed most assumptions that underpin the current spectrum model derive from traditional broadcasting. But just as the presumptions of Red Lion and the similar broadcasting regulation schemes based on scarcity have been called into doubt by the recent proliferation of media sources, so too must we question the continued utility of the pervasive scarcity assumption for spectrum-based services. In the light of the court's classification of the radio spectrum as a public trust, the new imperative should be to let the public manage a part of the environment for wireless communications. A spectrum Commons does not yet exist; the unlicensed bands opened up by national authorities and negotiated within the ITU are tiny. Many incumbent devices and entrenched interests are used to their privilege to use rather generous allocations of the spectrum. This policy does not provide incentives to use spectrum in a sustainable way, that is develop and deploy devices that can share the resource. It is fair to say that a property based regime would probably lead to a more effective spectrum use.148 But such a regime would essentially curtail future innovative developments of the network. Possible uses we do not know yet. Take Voice Over IP, a voice communications technology based on the Internet, which is likely to change a whole industry.149 Public wireless networks would be paramount for such services. Like the decentralized structure of the Internet, a spectrum Commons would leave all doors open. Markets can develop on top of it, and community initiatives can facilitate free access to 148. Most advocates of Open Spectrum agree with Thomas Hazlett and other proponents of a market-based approach that both alternatives are preferable to the current licensing scheme. See Lessig, The Future of Ideas, supra note 5 at 84; Yochai Benkler, "Some Economics of Wireless Communications" (2003) 16 Harv. J. of L. & Tech. 1 at 76, on-line: http://benkler.org/OwlEcon.html (last accessed 30 June 2004) [Benkler, "Some Economics of Wireless Communications"]. 149. See FCC on-line: http://www.fcc.gov/voip/ (last accessed 30 June 2004); See also John Oates, "FCC Chairman Hails VoIP" The Register, 5 May 2004, on-line: http://www.theregister.co.uk/2004/05/05/ fcc_chairman_hails_voip/ (last accessed 30 June 2004). 70 communications for citizens.150 Open wireless networks would be either unowned or community-owned. Absent a sole controlling entity, these network clusters would contribute substantially to the free flow of information and return a significant part of the airwaves to the public. A spectrum Commons would be the most innovative, market-friendly, economically sustainable as well as morally and politically justifiable approach to communications policy for the 21st century. 150. See e.g. the Open Park project in Washington, D.C., at http://www.openpark.net/; See also the public wireless initiative of New York City, on-line http://www.nycwireless.net/ (last accessed 30 June 2004). 71 CHAPTER FOUR: THE PUBLIC DOMAIN If I have seen further, it is by standing on the shoulders of giants. Sir Isaac Newton 1. Copyright Stories In 2004, a 26 year-old musician, Brian Burton a.k.a. DJ Danger Mouse, created a record called the Grey Album.]$l It was a collage of samples taken from rap artist Jay-Z's record The Black Album and The Beatles' White Album. Beforehand, Jay-Z's record label, Roc-A-Fella, released an a cappella version of his Black Album specifically to encourage remixes like this one. But despite the popularity of the album,152 EMI, the record company in possession of the rights for the White Album has sent cease and desist letters demanding the destruction of all physical and digital copies of the album, on the grounds that it breaches their rights in the 1968 White Album. This is so despite the fact that the two albums are unmistakably dissimilar, and the fact that Danger Mouse's does not denigrate either of its sources in any way that impinges upon their integrity as works; in fact, it honours both the Beatles and Jay-Z. Sampling has been an art form since Herbie Hancock's use of electronic synthesizers for his 1983 album Future Shock. For electronic musicians and rap artists, sampling is an essential element of their work. Like intertextual allusions in print culture, and parody in the context of 151. See Illegal Art, "The Grey Album Story So Far" on-line: http://www.illegal-art.org/audio/grey.html (last accessed 30 June 2004). 152. See Lauren Gitlin, "DJ Makes Jay-Z Meet Beatles" Rolling Stone 5 February 2004, on-line: http:/ /www.rollingstone.com/news/newsarticle.asp?nid=19292 (last accessed 30 June 2004); Renee Graham, "Jay-Z, The Beatles Meet in 'Grey Area'" The Boston Globe, 10 February 2004, on-line: http://www.boston.com/news/globe/living/articles/2004/02/10/jay_z_the_beatles_meet_in_grey_area (last accessed 30 June 2004). 72 art, sampling draws extensively on prior artworks. Like the citing of authorities in an essay, sampling is an acknowledgement consonant with the spirit of postmodernism that works emerge within the context of an intellectual/artistic tradition. Conceptually, sampling is an extension of the forms of Jazz and Blues, both of which explicitly build upon works that have been before. But while copyright does allow (to a limited extent) parody, intertextuality, and the use of citation, it does not acknowledge sampling as a valid means of incorporating cultural material into new art works. To sample legally, it is necessary for artists to contractually obtain permission rights from rights holders. This places sampling artists in an unenviable position in comparison to other artists, as the rights holder of a certain piece of art is under no obligation to allow use, or to allow use at a reasonable price. Because the restrictions that apply to sampling will apply increasingly to other forms of information as information/culture is rapidly transposed into digital format, the legal predicament of sampling artists will potentially extend beyond the world of sampling. Because information has significance beyond the commercial world, this situation compromises the essential democratic value that culture be free. As an art form the essence of sampling requires the freedom to reincorporate recognizable bits of sound from the cultural environment into new works. Its potential is thus circumscribed by the current copyright regime, which effectively prohibits access to a large portion of what most people would consider the public domain of culture. The motivation for refusing samplers the rights to reincorporate portions of work are twofold: the first reason involves a perceived moral right of the artist in the integrity of an artwork, while the second involves the perception that sampling allows samplers to economically exploit the intellectual property of other artists. As we will see neither of these objections holds water. The story of the Grey Album, which never even made it to a Court due to the inequality of bargaining power that existed between the young artist and EMI, a huge multinational corporation, is just one of many cases where copyright seems to produce results that are nonsensical from both political and economic perspectives. 73 Copyright law is typically construed - in both popular and academic discourse - as a regime constructed to balance the need to compensate creators for their work with the right of the public to enjoy and build upon those works. As the case of sampling shows, the copyright regime thus plays a significant role in the shaping of the information ecosystem. The example of DJ Danger Mouse's Grey Album neatly encapsulates the fragility of the balance struck by the copyright regime. NYU media theorist Siva Vaidhyanathan believes Danger Mouse's remix, for example, has deep significance: "The Grey Album itself carries a really important lesson for North American culture in general. There has been, for 400 years, a conversation between West African and Western European culture in North America, and The Grey Album makes that explicit. "IS3 The appreciation of appropriation art and so called mash-ups is not unique to the underground of art and culture. In a recent move, famous songwriter and performer David Bowie154 asked fans to remix or "bootleg" his latest album. Bowie not only provided the songs of his latest album as free downloads, but also hosted the necessary software for the mash-ups freely available on his web-site.155 Bowie himself commented in favour of appropriation art and offered prizes for the most creative remix efforts.156 Established artists like Bowie may be in the position to promote sharing and remixing, but most other musicians would arguably not be granted this freedom by their record labels. Is Danger Mouse a thief then, mercilessly appropriating the intellectual endeavours of the Beatles, or, is he an artist legitimately drawing 153. Simon Houpt, "Frankenart: The Mix and Mash Future" The Globe and Mail, 15 May 2004. 154. David Bowie on-line: http://davidbowie.com/index.php (last accessed 30 June 2004). 155. Associated Press, "Bowie: Please Remix My Songs: Musician Offering Prizes For Creative Mash-Ups" CNN.com 27 April 2004, on-line: http://www.cnn.com/2004/SHOWBIZ/Music/04/26/britain.bowie.ap/ (last accessed 30 June 2004). 156. Associated Press, "Take my songs - please, says David Bowie" USA Today 27 April 2004, on-line: http:/ /www.usatoday.com/tech/webguide/internetlife/2004-04-26-mashups_x.htm (last accessed 30 June 2004). 74 on the cultural domain to participate in the public discourse of ideas? Should artists be allowed to claim moral rights in their creations, or, should they be forced to acknowledge that their works are inextricably located within a cultural context, a discourse of texts, which should not be restricted by the assertion of property rights? Where should copyright draw the boundary between the commercial and the cultural? Do art forms like sampling undermine the very notion of the Romantic Artist as inspired genius157 that underpins the conceptualization of copyright? The point is that we are unnecessarily restricting the diversity of the cultural domain by restricting the use of the necessary cultural raw material. Copyright law governs creativity, knowledge and the use of information, and tries to facilitate the interests of both creators/publishers and the public by creating a viable marketplace of ideas that fosters cultural growth. In its current manifestation, the public grants authors certain exclusive rights to exploit their creative works, to provide potential creators with the incentives (recognition and financial reward) to create and disseminate creative products. To meet both of these goals, copyright offers legal protection for a limited duration against the unauthorized copying or redistribution of intellectual products. After the limited monopoly expires, copyright protection ends and formerly protected content passes into the public domain. The Berne Convention for the Protection of Literary and Artistic WorksXSi stipulates the minimum term of protection as the life of the author, plus 50 years. Many countries, notably the European Union and the United States, have however substantially extended the duration of these monopolies. In the EU copyright in a work exists for the life of the author, plus 70 years (even when though authors generally alienate these rights to be able to afford to publish).159 In the United States, the 157. See James Boyle, Shamans, supra note 3; Peter Jaszi and Martha Woddmansee, The Construction oj Authorship: Textual Appropriation in Law and Literature, (Durham and London: Duke Univ. Press 1994); Peter Jaszi, "Toward a Theory of Copyright: The Metamorphoses of'Authorship'" [1991] Duke L. J. 455. 158. Berne Convention for the protection of Literary and Artistic Works, Paris Act of 24 July 1971, as amended on 28 Sept. 1979, Treaty Doc. No. 99-27 (1986) 1161 U.N.T.S. 3. Available at: W1PO, on-line: http:/ /www.wipo.int/clea/docs/en/wo/wo001en.htm (last accessed 30 June 2004). For a comprehensive overview of the Berne Convention see Paul Goldstein, International Copyright: Principles, Law, and Practice (New York, N Y : Oxford Univ. Press 2001) at 19-28. 159. European Community, Council Directive 93/98/EEC of 29 October 1993 Harmonizing the Term of Protection 75 statutory period of protection for corporate works (works made for hire) 95 years from the first publication, or 120 years from creation.160 The bundle of rights granted by copyright law does not protect all uses of a work, but rather applies only to acts which affect the rights holder's ability to economically exploit a work. Copyright thus prohibits acts like copying, distribution or public performance rather than the individual use of an intellectual product. Although copyright protects intellectual products, these products must be fixed in a tangible medium.161 The public enjoys a number of statutory exceptions allowing the use of a work without authorization of the rights holder in some circumstances. In Canada, this concept is called Fair Dealing. In the United States, the doctrine is known under Fair Use.m Through this utilitarian bargain the progress of arts and sciences is being promoted, and the public can enjoy wide access to information, knowledge and a variety of creative works. The notion that copyright law should represent a balanced policy serving the higher goal of learning has its origin in the early anti-monopolist concerns of the framers of the U.S. Constitution. An often cited manifesto about the qualities of intangible space comes from Thomas Jefferson, writing a letter to Isaac McPherson: "Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any of Copyright and Certain Related Rights, OJ L 290 , 24 November 1993 {Copyright Term Directive]. 160. See Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified as amended at 17 U.S.C. §§ 108, 203(a)(2), 301(c), 302, 303, 304 (2000)) [CTEA]. 161. Even though the Canadian Copyright Act does not contain any requirements related to fixation, case law accepts the fixation in a tangible medium as a requirement for copyright eligibility. See Copyright Act, R.S. 1985, c. C-42 [Canadian Copyright Act], on-line: http://laws.justice.gc.ca/en/C-42/index.html (last accessed 30 June 2004). 162. In the Canadian Copyright Act, most exceptions are called Users' Rights. See ibid, at s. 29; in the United States, the broader doctrine of Fair Use is codified in the U.S. Copyright Act: 17 United States Code. s. 107, U.S. Copyright Office on-line: http://www.copyright.gov/titlel7/ (last accessed 30 June 2004). 76 one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. "I63 Always a response to new technologies for creating and disseminating information, copyright law has been modified to fit into the age of mass media. The body of copyright law has become increasingly complex over the years to respond to a sophisticated communications environment. In the first place, copyright law was created as a policy that balanced the interests of authors, publishers and readers. It was neither intended to evolve into a property right nor was it designed to accommodate new cultural expressions outside the traditional western realm of print culture. However, the last decades have seen a rise in both the importance and strength of intellectual 163. Thomas Jefferson to Isaac McPherson, 13 August 1813, "Writings of Thomas Jefferson" 13:333, 35, on-line: http://press-pubs.uchicago.edu/founders/documents/al_8_8sl2.html (last accessed 30 June 2004). 77 property rights worldwide. Intellectual property law has expanded in scope, rights have been lengthened in time, and digital technology has led to a higher complexity concerning enforcement and general perception of laws protecting intangible assets. Intellectual property has also become an issue of international trade164 and affected industries have become more aggressive in their lobbying efforts for more legal protection. It has recently become a central issue in regard to digital technologies. A once arcane and obscure aspect of law now concerns all of us. One can find countless web-sites, web-logs and other resources on the Internet dedicated to "digital" copyright issues.165 People interested and affected by copyright law have risen in numbers. Engineers, academics, artists and publishers all participate in discussions on the World Wide Web. In the age of instantaneous file-sharing, everybody is expected to obey the rules of copyright law; the complicated nature of copyright law however makes it hard for people to ascertain the current legal situation. Copyright law's reach has expanded, as everybody is in the position to publish, distribute, create or consume or remix. Nonetheless, as Jessica Litman has shown, copyright legislation continues to be crafted in closed-door negotiations that pander to the demands of well-organized interest groups.166 164. See the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), TRIPS on-line: http://www.wto.org/english/tratop_e/trips_e/trips_e.htm (last accessed 30 June 2004). 165. Many examples can be accessed on-line: http://www.corante.com/copyfight/; http://www.lexinformatica.org/; http://www.publicknowledge.org/; http://www.drmwatch.com/; http://sethf.com/infothought/blog/; http:/ /www.freedom-to-tinker.com/; http://copyrightreadings.blogspot.com/. Among all these non-professional sources one can find numerous web-sites maintained by law school departments, intellectual property professors and organizations like the Electronic Frontier Foundation (EFF, at http://www.eff.org), (all cited web-sites last accessed 30 June 2004). 166. Jessica Litman, Digital Copyright (New York, N Y : Prometheus Books 200), at 101, 122-145 [Litman, Digital Copyright]. 2. Copyright Wars "We cannot hope simply to retain our old prerogatives. Our bridges are gone and the Rubicon is yet to cross? We have either to assume a large new role or to abdicate entirely. It is the age of paratroopers." Marshall McLuhan167 We have seen a dynamic shift toward more and broader rights for authors in copyright law. While intellectual property protection has become a high priority in the context of international free trade, copyright protection terms have repeatedly been extended. As we approach the age of an Information Society, rights holders have more control over their content than ever before.168 The digital revolution however remains a serious concern for the content industries: They argue that the easy and nearly costless facilitation of an unlimited number of perfect copies in the digital world spell the end of creativity. The music industry has experienced the powerful distribution technologies of peer-to-peer software (p2p) like Napster and seeks to control and contain this type of data sharing which seriously compromises its established market. This desire for more control has spawned other concerns as well. Slowly, the fate of public domain has become a subject of scholarly study and public concern. The public domain is in a general sense a space where intellectual property protection does not apply. When copyrights and patents expire, innovations and creative works fall into the public domain. They may then be used by anyone without permission and without the payment of a licensing fee. Because of the 167. Louis Forsdale, "Marshall McLuhan and the Rules of the Game" in Marshall McLuhan, The Man and His Message, G. Sanderson & F. MacDonald eds. (Golden, Color.: Fulcrum Inc., 1989) at 169, 173. 168. Any comparison between the scope of copyright law 30 years ago and today clearly shows that the balance has been shifted towards the rights holders. See e.g. Lessig, Free Culture, supra note 6 at 130-168. 79 extension of copyright terms, creative works are entering the public domain at a much slower rate. Since the public domain is a treasure trove of information and resources to be used by future generations, many advocates are concerned that its stagnation will make it more difficult for future generations to find creative inspiration.169 2.1. Expansion and Resistance The growing conflict between entertainment, media and the other major copyright industries on the one side and users on the other side is now often described as a "war." While it seems a highly inappropriate term in many ways, even careful and moderate scholars have become passionate fighters. Jessica Litman and Lawrence Lessig have used the term "war," and indeed Lessig's newest book Free Culture focuses on this perceived battle between control and creativity. Both Litman and Lessig focus on how this war has played out legally and rhetorically by tracing recent developments in copyright law. Both focus on the manner in which the established publishing and distributing industries are seeking to apply the logic of tangible property to the intellectual realm. Both scholars argue that the use of emotionally loaded terms such as "piracy," "war," and "terrorism" combined with the launching of aggressive and disproportionate litigation against minor offenders have turned the copyright debate into a media circus (and remember the media corporations are massive stake holders in this issue) that undermines the potential for effective analysis of relevant legal developments.170 Even the term "intellectual property," which actually denotes a recent trend towards the 169. For an overview of public domain issues, see the collection of papers to the Duke Conference on the Public Domain, on-line: http://www.law.duke.edu/journals/lcp/indexpd.htm (last accessed 30 June 2004). 170. See, Robert A . Baron, "Reconstructing the Public Domain" (Paper presented to the V R A - A R L I S NfNCH Copyright Town Meeting, March 2002) [unpublished], on-line: http://www.studiolo.org/IP/VRA-TM-StLouis-PublicDomain.htm (last accessed 30 June 2004); Amy Harmon, "Black Hawk Download: Moving Beyond Music, Pirates Use New Tools to Turn the Net into an Illicit Video Club" New York Times 17 January 2002 at 19, 20. 80 propertization of copyright, is problematic in the context of this debate. As Siva Vaidhyanathan notes, this term is a relatively young one that has displaced the more neutral term "intellectual policy." Vaidhyanathan argues that the superimposition of the language of property on to the information environment is deeply problematic as it implies that property rights are the best means of managing this resource.171 He argues that this terminology has an undue influence on this debate, stacking the deck in favour of the traditional publishing and distribution corporations. As many scholars point out copyright policy has the potential to impinge upon traditional liberal prerogatives of public and private as well as speech and property.172 While property thinking, a narrow liberal mapping of censorship discourse and an Anglo-European image of authorship have all shaped the legal development of copyright law and thus the structure of the public sphere, the legal, economic, cultural and political ramifications of this discourse are absent from the modern incarnation of the public domain.173 Jessica Litman has been one of the strongest supporters of the public domain. She writes in 1990: "Copyright commentary emphasizes that which is protected more than it discusses that which is not. But a vigorous public domain is a crucial buttress to the copyright system; without the public domain, it might be impossible to tolerate copyright at all. "I74 Clearly, the public domain is an essential yet rarely acknowledged aspect of copyright law. However, in the utilitarian copyright system of the United States, it has been an important pillar 171. Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York, N Y and London, England: New York Univ. Press 2001) at 11-12 (citing Mark Lemley, who traced the phrase "intellectual property" back to the title of WIPO, first assembled in 1967) [Vaidhyanathan, Copyrights and Copywrongs]. 172. Rosemary Coombe, "Authorial Cartographies: Mapping Proprietary Borders in a Less-Than-Brave New World" (1996) 48 Stan. L. Rev. 1357. 173. For the importance of the public sphere for copyright law, see Vaidhyanathan, Copyright and Copywrongs, supra note 171 at 6. 174. Jessica Litman, "The Public Domain" (1990) 39 Emory L. J. 965 at 977 [Litman, "The Public Domain"]. 81 of copyright from the very beginning. The purpose of copyright law is the encouragement of learning and the progress of knowledge, art and science. This mission is enshrined in the U.S. constitution that empowers Congress to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."175 The fact that according to the Copyright Clause, the creation of rights to protect creative works must be limited, has been interpreted as the constitutional foundation of the public domain. Within the common law system, the public domain's origin can be traced back to the Statute of Monopolies in 1624.176 The birth of the public domain is tied to the birth of copyright itself, when the Statute of Anne in 1710 confirmed the limited nature of copyrights.177 Since then, it has been the baseline that copyright protection expires after a certain limited term. Then the works pass into the public domain and can be freely used by everyone. It becomes clear that the public domain describes the public's interest in the copyright bargain. The utilitarian model illustrates how the public grants limited rights to authors to encourage and reward them, and in turn authors are obliged to eventually return their creations into the public domain. One can say that the public domain is the origin and final destination of any creative work. The reason for this is that nobody creates "out of thin air." Every artist is creating upon somebody else's achievements. The recognition that we are all building upon the past, rather than relying on the romantic notion of the sole genius author, is a fundamental element of any attempt to construct an affirmative theory of the public domain. Usually defined in negative terms, described by what it is not, the public domain needs a language, a theory and a bibliography for its survival in an age of enclosure. Much has been written about copyright law and its ability to maintain the balance of the 175. Art 1 Section 8, clause 8, U.S Constitution. 176. See Tyler Ochoa, "Origins and Meanings of the Public Domain" (2002) 28 Dayton L . Rev. 215 at 222 [Ochoa, "Origins and Meanings of the Public Domain"]. 177. 8 Anne c. 19(1710), available at Karl-Erik Tallmo, "The History of Copyright: The Statute of Anne" on-line: http://www.copyrighthistory.com/anne.html (last accessed 30 June 2004). 82 information ecosystem in the face of technological change. As we will see, this balance has been shifting in favour of rights holders for quite some time. While copyright law has always been a legal response to new technology, the public domain, established by the Statute of Anne,1™ and confirmed in Donaldson v. Beckett when the British Government refused to grant publishers perpetual copyright in texts, has been shrinking for quite some time.179 While it has been necessary for copyright to change in response to technological change copyright has developed in such a way that the balance has shifted significantly. Perhaps an overreaction against new copying technologies, courts and governments alike have increased protection for rights holders at the expense of the public domain. Over the last century, the duration of the copyright protection term in the U.S. was extended eleven times. The recent enactment of the Digital Millennium Copyright Act (DMCA) legalizes the protection of copyright via the institution of legal penalties for the circumvention of digital "fences" and "locks." With the help of such legislation, which is the product of two WIPO treaties,180 digital copy protection technology has arguably transformed the essence of copyright law to the extent that "public domain" may now be a term that has dropped out of legal circulation.181 178. An Act for the Encouragement of Learning, 8 Anne, c. 19 (1709), available on-line at http://press-pubs.uchicago.edu/founders/documents/al_8_8s2.html (last accessed 30 June 2004). 179. 1 Eng. Rep. 837 (H.L. 1774).See also Mark Rose, "Nine-Tenths of the Law: The English Copyright Debates and the Rhetoric of the Public Domain" (2003) 66 Law & Contemp. Probs. 75. The American analogue to this case is Wheaton v. Peters, (1834) 33 U.S.(8 Pet.) 591. 180. The WIPO Copyright Treaty (WCT) went into force on March 6, 2002. The WIPO Performances and Phonograms Treaty (WPPT) went into force on May 20, 2002. Both treaties lack enforcement mechanisms, and their eventual relationship to the Berne-TRIPS enforcement framework is also unclear. See Julie E. Cohen et al., Copyright in a Global Information Economy (New York, N Y : Aspen Law & Business 2002) at 57-59. 181. Pub. L . No. 105-304, 112 Stat. 2860 (Oct. 28, 1998). Now enacted in 17. U.S.C Section 1201(a)(1). For readings on the D M C A , see e.g. Pamuela Samuelson, " D R M {AND, OR, VS.} THE L A W " (2003) 46:4 Communications of the A C M 41; Julie E. Cohen, " A Right to Read Anonymously: A Closer Look at 'Copyright Management' in Cyberspace" (1996) 28 Conn. L . Rev. 981; Tom W. Bell, "Fair Use Vs. Fared Use: The Impact of Automated Rights Management on Copyright's Fair Use Doctrine" (1998) 76 N . Carolina L. Rev. 557 [Bell, "Fair Use v. Fared Use"]; Dan L . Burk & Julie E. Cohen, "Fair Use Infrastructure for Rights Management Systems" (2001) 15 Harv. J.L. & Tech. 41; Julie E. Cohen, "Copyright and the Jurisprudence of Self-Help" (1998) 13 Berkeley Tech. L.J . 1089; Pamuela Samuelson, "Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to be Revised" (1999) 14 Berkeley Tech. L . J . 519. 83 Similar rules have been established in Europe.182 It has now become clear that digital innovations not only facilitate easy and costless copying but also have the potential to establish a degree of protection for rights holders that irrevocably alters the balance of the information ecosystem in that it prevents not only the copying and distribution of copyrighted material but access to that material. Lawrence Lessig, James Boyle, Yochai Benkler, Julie E. Cohen, Pamuela Samuelson, Jessica Litman and many others have warned about the ramifications of Digital Rights Management technologies as the future method of choice for protecting copyrighted content on digital networks.183 Digital Rights Management is only one of the current issues shaping copyright discourse. Focusing on another aspect of the architecture of the information ecosystem, Siva Vaidhyanathan explains how the concentration of mass media and the changes in cultural expression have also irrevocably altered the original balance struck by copyright law.184 According to Vaidhyanathan, copyright law has become a tool for the powerful. Instead of fostering innovation, copyright stifles it. While the reasons for this shift lie both in the influence of the media industries and their successful lobbying efforts, the need for a re-conceptualization of copyright law is partly rooted in deeper structures of thought. As we will see, both the utilitarian conceptualization of copyright law in the Anglo-American sphere, and the droit d'auteur in the French tradition are based on the notion of an author crafting works "out of thin air."185 James Boyle has written extensively on the indirect impact of 182. European Community, Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. OJ L 167, 22 June 2001 {Copyright Directive). 183. See e.g. Julie E. Cohen, " D R M and Privacy" (2003) 18 Berkeley Tech. L.J. 575; Pamuela Samuelson, "Anti-Circumvention Rules Threaten Science" (2001) 293 Science 2028. 184. Vaidhyanathan, Copyrights and Copywrongs, supra note 171 at 6. 185. Paul Goldstein, "Copyright" (1991) 38 Journal of the Copyright Society of the U.S:A. 109 at 110 ("Copyright is about sustaining the conditions of creativity that enable an individual to craft out of thin air an Appalachian Spring, a Sun Also Rises, a Citizen Kane"). 84 this philosophical author-framework.186 He argues that due to the failure to acknowledge the raw material (the public domain) that every artist necessarily builds upon, modern copyright law is unable to accommodate forms of creativity like Jazz, Rap music, remixing or sampling, which openly and unambiguously build upon prior works. Intellectual property rights are given only for "original" creation. But the idea of the original author or inventor implicitly devalues the importance of the raw materials with which any creator works. As a result, the rhetorical focus on originality leads to a tendency to undervalue the public domain. After all, the novelist who crafts out of thin air does not need a rich and fertile public domain on which to draw. The ironic result is that a regime which lauds and proposes to encourage the great creator, may in the end effectively cause a depletion of the raw materials which future creators need to produce their little piece of innovation. As James Boyle noted: "An intellectual property system centered on on the ideal of the transformative and original creator compounds the tendencies of imbalance, disparity, and inequality in relation to developing countries. It does so because the traditional competitive advantage of the developing countries has been in supplying raw materials and an authorial regime values the raw materials for the production of intellectual property at zero. "<87 It is also important to note that copyright regimes, premised on the myth of the author as creator ex nihilio, disadvantage societies that conceptualize knowledge and information differently. In particular, developing countries that have oral traditions of passing on traditional knowledge are gravely disadvantaged by the imposition of such regimes.188 186. James Boyle, Shamans, supra note 3. 187. ibid, at 126. 188. See Rosemary Coombe, "Innovation and the Information Environment: Left Out on the Information 85 Currently, an economic theory of copyright law - focusing on incentives as the essential factor enabling innovation - seems to be the prevailing model for justifying and discussing legislative reforms.189 In the era of digital information flows, this model is largely inadequate and should be reconsidered because of the inappropriate economic assumptions upon which it is based, and because it may result in the enclosure of the public domain. The typical understanding of copyright as a system that stimulates cultural production via the provision of economic incentive for authors cannot be applied to the information environment unproblematically. The problematic aspect of the economic approach is that intangible goods are generally non-rivalrous. Once created, a creative work cannot be undone. Your use of it does not lessen my use (the physical artifact, a book e.g. is rivalrous, but especially in digital form, the data itself can be replicated at almost no costs). The assumption that more protection fosters more production just does not hold in this environment.190 Copyright has the problem that information - the subject of protection - is both an input and an output of the production process. Boyle in particular emphasizes that because information is both a component of the "perfect market" and a good that must be produced within that market. The economic conceptualization of information as an economic good contains an internal contradiction that renders such paradigm inadequate. One characterization depicts information as moving towards perfection; a state in which it is costless, and instantly available. The other theory of information depicts information as a concept that must be commodified so as to stimulate production; in this theory it is important to remember that each property right is also a transaction cost when seen from the perspective of market efficiency. Highway" (1996) 75 Or. L . Rev. 237; Michael F. Brown, Who Owns Native Culture? (Cambridge, Mass. and London, England: Harvard Univ. Press 2003). 189. See, e.g., Paul Goldstein, "Derivative Rights and Derivative Works in Copyright" (1982)30 J. Copyright Socy 209; Wendy J. Gordon, "Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and its Predecessors" (1982) 82 Colum. L . Rev.1600; William M . Landes & Richard Posner, "An Economic Analysis of Copyright" (1989) 18 J. Legal Stud. 325. 190. Boyle, Shamans, supra note 3 at 89. 86 Even though the North-American copyright concept is based on a bargain between the public and authors and the European law relies on natural law concepts emphasizing personhood and the moral connection between author and work, Paul Goldstein has shown that the effects of both paradigms are only marginally different.191 This is because in both instances the reality of modern copyright law and thus the information environment is shaped by the commoditization of information products. Despite being based on ostensibly different premises, both systems gradually adjusted to this situation. There are numerous issues related to contemporary copyright, and most of them are beyond the scope of this thesis. In this section, I focus on what has, until recently, been a more obscure and neglected part of the copyright, namely, the public domain. As a term, the public domain is analogous to the concept of the Commons, and has just recently begun to attract attention from scholars and the media. This thesis thus focuses on this public domain, the "other side" of intellectual property, the material that is free for all to use and to build upon. What is the public domain and why is it worth protecting it? What are the similarities between the public domain and the Commons? This chapter aims to provide a brief analytical overview of the contemporary work theorizing the public domain. It both renders the enclosure movement visible and opens up possible legal solutions to protect the public domain. 191. Goldstein, International Copyright, supra note 158 at 4. 87 3. The Functions of the Public Domain "A public domain work is an orphan. No one is responsible for its life. But everyone exploits its use, until that time certain when it becomes soiled and haggard, barren of its previous virtues. Who, then, will invest the funds to renovate and nourish its future life when no one owns it? How does the consumer benefit from that scenario? The answer is, there is no benefit." Jack Valenti, President of the Motion Picture Association of America (MPAA) 1 9 2 A significantly under-appreciated, but essential element of the information environment is the vast amount of information (common knowledge/ culture) that constitutes the public domain. The public domain is typically conceived of as comprising the collection of works on which copyrights and patents have expired and works in which no proprietary interest arose in the first place such as government documents and scientific theories. It also comprises those dimensions of our common culture that currently cannot be legally protected, such as ideas, themes and facts. For example, copyright law protects only the expression of ideas in its tangible form, not the ideas themselves. To arrive at some sort of definition, albeit a negative one, one could say that the public domain is the opposite of property, in that it comprises all that is left over by intellectual property protection schemes. Perhaps because the public domain is a negatively defined concept, legal scholars and legislators have largely ignored the public domain on the 192. Quoted in Jessica Litman, Digital Copyright, supra note 166 at 77 (and cited as from Copyright Term Extension Act: Hearing on H.R. 989 Before the Subcommittee On Courts and Intellectual Property of the House Committee on the Judiciary, 104th Cong. 1st sess., June 1, 1995 (testimony of Jack Valenti, Motion Picture Association of America). 88 assumption that it is merely what is left after all possible protections are applied. Intellectual production in this sector of the information environment is not commonly addressed and is generally poorly understood. Among the hundreds of intellectual property conferences, there has thus far been only one dedicated to the public domain.193 Instead, policy and law-making mostly focuses exclusively on the perceived need to protect private, proprietary information - ignoring, rejecting or downplaying the significance of public domain information in the information ecosystem. The public domain is something upon which we all draw daily, yet it is concept that we do not recognize as a collective entity. But the public domain, like other forms of civil liberties, is a critical aspect of the evolution of culture. The scholarly analysis of the public domain began with David Lange's 1981 article Recognizing the Public Domain. Prof. Lange suggested in this work that "recognition of new intellectual property interests should be offset today by equally deliberate recognition of individual rights in the public domain."194 What would be the design of such rights and why do we need them? In recent years, the public domain has gained some ground among some copyright scholars, yet a "theory" of the public domain remains a work in progress. In her influential article The Public Domain, Jessica Litman highlights the importance of the public domain within the concept of copyright. In her view, the public domain is an important aspect of copyright law despite the "legal fiction" that originality (creation from nothing) is a requirement for the protection of works.195 David Lange once called the public domain the "dark star" in the copyright universe and suggested a more sophisticated framework for the public domain. Likewise, Jessica Litman identified the public domain as a crucial basis for any copyright system and described it as a 193. Duke Conference on the Public Domain, November 2001, on-line: http://www.law.duke.edu/pd (last accessed 30 June 2004). 194. David Lange, "Recognizing the Public Domain" (1981) 44 Law & Contemp. Probs. 147 at 147-150 [Lange, "Recognizing the Public Domain"]. 195. Litman, "The Public Domain", supra note 174 at 977. 89 Commons. She also linked the public domain with the concept of originality in copyright law. To be eligible for protection, a work must be "original," a certain minimal intellectual effort must have been invested into the creation of the work. Like the idea/expression dichotomy, the determination of originality is often a nearly impossible task. Nevertheless, the conceptualization that copyright protects only expressions of ideas, and not facts or non-original works is crucial for the circumscription of the public domain. In Feist,m the court decided that compilations of mere facts are not protected by copyright and thus belong to the public domain. But the European "Directive for the Protection of Databases" - introducing protective measures for non-original commercial databases - has put pressure on the copyright policy makers around the world.197 Prof. Litman depicted the public domain as indispensable for the justification of the "legal fiction" of the originality requirement. In her view, nothing is truly original, and the parts that are the product of pure originality are difficult (if not impossible) to filter out. Copyright nonetheless manages to create a system where exclusive rights are granted to creators. It is a system based on a notion of originality that can only work if a large portion of all works can be freely used by all. The public domain, from which every prospective creator can draw upon on, rescues copyright from this dilemma. As Litman stated: "In particular, the concept of originality, by reference to which copyright law purports to define property rights, provides an insufficient guide. The public domain - a Commons that includes those aspects of copyrighted works which copyright does not protect - makes it possible to tolerate the imprecision of these property grants. "m 196. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345, 113 L. Ed. 2d 358, 111 S. Ct. 1282, 359. 197. European Community, Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJ 77, 27.03.1996 [Database Directive]. 198. Litman, "The Public Domain", supra note 174 at 966 . 90 This concept of originality is certainly a keystone of contemporary copyright law. A work is ineligible for copyright protection except to the extent that it reflects original authorship. But what does copyright law mean by that? Authorship in the legal context is a term used to describe the requirement of a non-trivial amount of creative expression. In this sense, originality requires that the expression "owe its origin" to the author rather than be copied from another source. Where a work of authorship is based on pre-existing sources, copyright will protect only those portions that are original. Thus, originality determines the boundaries of the copyright. It is a questionable parameter however, if one remembers that every creation builds in some way on the past. Considering the literally endless diversity of creative expression, a meaningful and practical determination of originality is often impossible.199 On the other hand, copyright grants protection only with respect to non-original acts of usage. The mirror image of originality defines the scope of copyright infringement since the statute protects the author only from another's copying, or use, of the original portion of her work and does not prohibit the independent (and thus original) creation of other similar works. The principle of limiting copyright protection to only those aspects of a work that are original with its author, while remarkably easy to state, proves to be impossible to apply. Users, rights holders, and judges lack the capacity to ascertain the sources of individuals' inspirations. Thus, the boundaries of copyright are inevitably indeterminate. To mitigate the mischief this could cause, Prof. Litman concludes, copyright relies on the public domain.200 199. ibid at 974, 975. 200. ibid, at 1023. ( "Copyright law purports to define the nature and scope of the property rights that it confers by relying on the concept of originality. In fact, originality is an apparition; it does not, and cannot, provide a basis for deciding copyright cases. The vision of authorship on which it is based - portraying authorship as ineffable creation from nothing - is both flawed and misleading, disserving the authors it seeks to extol. If we took that vision seriously, we could not grant authors copyright rights without first dissecting their creative process to pare elements adapted from the works of others from the later authors' recasting of them. That dissection would be both impossible and unwelcome. If we eschewed that vision but nonetheless adhered unswervingly to the concept of originality, we would oblige each author to solicit the permission of her predecessors. In such a world, most works of authorship would find themselves enjoined by the owners of other copyrights. The public domain rescues us from this dilemma. It permits us to continue to exalt originality without acknowledging that our claims to take originality seriously are mostly pretense. It furnishes a crucial device to an otherwise unworkable system by reserving the raw material of authorship to 91 The public domain is thus the necessary underpinning of the information environment. Communication would be impossible without "common knowledge." Despite the highly contested nature of the term "common knowledge," as a concept it is vital in the context of the information environment because it reveals the fallacy of the assumption that information products can be conceived of as truly original. The importance of this term lies in the fact that it emphasizes the inextricable ties between all information products and the information environment in which they are constructed, and from which they define their significance (both cultural and economic). As previously mentioned, the public domain is defined by what it is not. It contains works that were once subject to intellectual property protection but are now free for all to use. It also contains types of material outside the realm of protection, like ideas, facts or principles. Tyler Ochoa also lists the restrictions on the subject matter of copyright as part of the public domain. This means that works e.g. not meeting the standards of originality become part of public domain.201 When one calls certain information "in the public domain," one means that it is information whose use is permissible to anyone. When information is properly subject to copyright, the assumption is that its use is not similarly allowed to anyone but the owner and his or her licensees. The public domain does technically not include some important instances that, as a descriptive matter, are assumed generally to be permissible. The public domain in this definition, for instance, does not include every privileged use - such as e.g. the fair use or fair dealing privilege or other exemptions and privileges found in copyright laws. According to Yochai Benkler, a functional definition would be: "The public domain is the range of uses of the Commons, thus leaving that raw material available for other authors to use. The public domain thus permits the law of copyright to avoid a confrontation with the poverty of some of the assumptions on which it is based"). 201. Ochoa, "Origins and Meanings of the Public Domain", supra note 176 at 217-218. 92 information that any person is privileged to make absent individualized facts that make a particular use by a particular person unprivileged. Conversely, the enclosed domain is the range of uses of information as to which someone has an exclusive right, and that no other person may make absent individualized facts that indicate permission from the holder of the right, or otherwise privilege the specific use under the stated facts. These definitions add to the legal rules traditionally thought of as the public domain, the range of privileged uses that are 'easy cases'. "202 The key to Benkler's analysis is his focus on the public domain's role in information production and use by all of us in our roles as consumers, citizens, and potential creators. Similar to the physical layer that provides the basic platform for communications, the public domain is the essential life support system for cultural creativity and development on the content layer. Here, the character of the digital environment as an ecosystem becomes visible. The layers interact each other and different elements in the complex design of information production and exchange depend on each other. By artificially creating scarcity for non-rivalrous products and thus giving incentives to creators, copyright enables creativity. By restricting the free use of protected works, it restricts creativity. The public domain is not a "bug" in the system of copyright, it is an essential feature. Everybody needs it to create new works. It is ironic that the trend toward more control negatively affects those who advocate it. Hollywood does need the public domain, too.203 Yochai Benkler would add at this point that the enclosure of the public domain also has the effect of increasing media concentration. By raising the cost for raw material, it disables future independent artists from expressing creativity. Favouring established commercial players who either own a large amount rights or have the financial means to 2 0 2 . 2 0 3 . B e n k l e r , " F r e e as the A i r to C o m m o n U s e " , supra note 9 at 3 6 1 - 6 2 . See L e s s i g , Free Culture, supra note 6 at 2 0 . 93 purchase the necessary licenses, it advantages the big content industries at the expense of "smaller" creators. The term "public domain" thus helps us conceptualize information as culturally, rather than individually produced. While this point, seemingly obvious, is not undebated, the myth of romantic authorship still plays a massive role in contemporary copyright law and jurisprudence. It is only via a clearly articulated concept of the public domain that the devaluing of cultural raw material can be effectively analyzed to create a scheme capable of maintaining a vibrant and democratic information environment.204 Unless we explore these issues, copyright, initially a legal tool to censor and control the information environment in Tudor England, will once again become a tool that controls society by controlling and filtering what constitutes "common knowledge." 4. The Publ ic Domain in Canadian Copyright L a w Copyright in Canada is a system ostensibly designed to promote the creation of and access to artistic, literary, musical, dramatic and other creative productions. In principle, the creator, i.e., the author, maker or artist, has the exclusive right to authorize or to prevent copying. In practice, however, in reality, the power to control copying more frequently devolves on the publishers and distributors to whom creators have assigned their rights. The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the copyright holder (or, more accurately, to prevent someone other than the holder from appropriating whatever benefits may 204. James Boyle, Shamans, supra note 3 at 126; referring to the impact of Digital Rights Management on developing countries: Christopher May, "Digital Rights Management and the Breakdown of Social Norms" (2003) 8:11 First Monday, on-line: http://firstmonday.org/issues/issue8_ll/may/index.html (last accessed 30 June 2004). 94 be generated).2 5 For this reason, the exclusive rights of copyright holders, sometimes called monopoly rights, are subject to certain limitations in favour of public access for fair dealing, such as news reporting, research, criticism or private study, or for other purposes, such a archiving by an educational institution. 4.1. Legislation The proper balance lies not only in recognizing the copyright holder's rights but in giving due weight to their limited nature. In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to under-compensate them. Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization. In Canada, the federal Parliament has exclusive legislative jurisdiction over copyright. The federal Copyright Act provides that no copyright can subsist in Canada other than under this Act.206 In the United States, copyright is based on what is known as the "progress-clause" in the constitution. Article I, section 8, clause 8 of the U.S Constitution states: "Congress has the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." This clause expressly limits the term of copyrights and provides for a constitutional basis for the concept of copyright. It is argued that the public domain, fair use and other public interest aspects of copyright law are grounded in this constitutional provision. While the ramifications of the 205. Theberge v. Galerie d'Art du Petit Champlain, Inc., [2002] 2 S.C.R. 336 at para. 30-33, available on-line: http://www.lexum.umontreal.ca/csc-scc/en/pub/2002/vol2/html/2002scr2_0336.htrnl (last accessed 30 June 2004) [Theberge]. 206. Canadian Copyright Act, supra note 162. 95 Progress Clause in the context of contemporary copyright expansion are highly unclear in the wake of the Eldred case207, the progress clause at least confirms that the rationale for copyright is a utilitarian bargain between the public and authors, with the ultimate goal of promoting progress. In Canada, because there is no progress clause, it is less clear what the rationale and therefore the limits of copyright are. Until quite recently, discussions about possible limitations were merely speculative. As in the U.S. the consensus seems to be that copyright law should create incentives and rewards for all players on the cultural field - from originator to distributor - to fulfill their respective roles for the benefit of themselves and of society generally.209 David Vaver writes: "What intellectual property law needs, whenever a policy or a concrete dispute is being debated or resolved, is a careful weighing and balancing of interests. Against copyright and intellectual property as absolute ideals are ranged values of at least equal importance: the right of people to imitate others; to work, compete, talk, and write freely; and to nurture common cultures. "2I° In Canada, like in the United States, the strongest economic argument justifying the copyright system is utilitarian: without such rights, much research and creativity would not be carried on or would not be financed by capitalists. Copyright experts are cautious, though. As David Vaver 207. Eldred v. Ashcroft, supra note 15. 208. The first test in Eldred v. Ashcroft clarified that term extensions are constitutional as long as formally limited. The impact of Eldred has yet to be realized. See e.g. Siva Vaidhynathan, "The State of Copyright Activism" First Monday, Vol 9 No. 4 (April 2004), available on-line at: http://firstmonday.org/issues/issue9_4/siva/ index.html (last accessed 30 June 2004). For related updates, see http://www.eldred.cc (last accessed 30 June 2004). 209. David Vaver, Copyright Law (Toronto: Irwin Law, 2000) at 1 [Vaver, Copyright Law]. 210. ibid, at 7. 96 comments: "But this argument is only partly true. No doubt, less creativity would occur - but how much less, and in what areas? If the allocation of these property rights is simply a means to an end - to make the fruits of creativity and research available to users - then one must ask if the means is the most effective way to that end. "2" As mentioned before, copyright in Canada is solely protected under the Copyright Act. Only "original" works are protected, which means that there must be a minimal intellectual effort involved in the creation of the work.212 Copyright protects expressions only, not ideas, schemes, systems, artistic style, or "any method or principle of manufacture or construction."213 Since 1997, the Copyright Act also extends copyright coverage to performers, record producers and broadcasters.214 Copyright registration is optional, since copyright is deemed to arise automatically on creation of the work. The subject matter of copyright law is every original literary, musical, and artistic work, "whatever may be the mode or form of its expression."215 Interestingly, fixation is not an explicit requirement in the Canadian Copyright Act, although it is typically implied by the Courts, which regularly include the requirement of fixation in determining whether a work is eligible for copyright protection.216 It can be argued that the fixation requirement should be re-examined now that digital technology makes it unnecessary to attach information to a physical carrier. The Copyright Act's wording proves to be sufficiently flexible for a contemporary interpretation 211. ibid, at 10. 212. ibid, at 58. 213. Canadian Copyright Act, supra note 162 s. 64.1. 214. Vaver, Copyright Law, supra note 209 at 30. 215. Canadian Copyright Act, supra note 162 s. 5(1) and (2). 216. Vaver, Copyright Law, supra note 209 at 64. 97 including the different shapes of information, culture, and art. Fixation as an element of traditional copyright law exemplifies that current dilemma. The cultural life of things in the information society is governed by 19th century copyright law. Arguably, this framework is not suitable for oral cultures or digital information. So far, most attempts to adapt the law result in stronger protection for rights holders. But it is the opposite that the evolution of culture asks for. Copyright is created as a limited exclusive license to encourage people to overcome the costs of creating and distributing their work. When creating and distributing the work becomes easier, it means that this exclusive license should be expanded, taking from everyone else in society. The creation of intellectual product is becoming cheaper and easier. This argues for a more limited license to encourage creation, not a more expansive license. In section 6, the Copyright Act sets forth the standard term introduced by the Berne Convention. Works in Canada are generally protected until 50 years after the author's death. While there are various exceptions to this rule, the calculation of copyright duration is at least easier than in the U.S., where the Sonny Bono Act introduced further complications. Vaver notes with respect to the already long term of 50 "plus": "One unintended consequence may be that the production and distribution of new works is discouraged as copyright holders instead wring the last drop of benefit from existing inventory. How far authors or their descendants benefit from longer terms, either absolutely or relatively to distributors, is also a contentious question. "2I? While the concept of fair dealing is somewhat more narrow than the corresponding doctrine 217. A corporation can author a traditional work in only one case: that of a photograph owner, Massie & Renwick Ltd v. Underwriters' Survey Bureau Ltd., (1940) S.C.R 218 at 232-234. Then, the term of 50 years starts at time of the creation of the work. 98 of fair use in the U.S. (where the list of "fair" uses is non-exhaustive), Canada has implemented a Private Copying Regime. The provisions in part VIII of the Copyright Act make non-commercial private copying legal and impose levies on certain blank media used for recording music and other forms of expression. The problems arising out of the levy system are beyond the scope of this article. Nonetheless, it is worth asking whether such uses, unauthorized but legal under copyright law, should be counted as "public domain" works, at least from a non-commercial user's perspective. 4.2. Jurisprudence In 2002, the Supreme Court for the first time acknowledged a balance underlying the Canadian copyright law and included the protection of the public domain as an essential policy objective of copyright law. As Justice Binnie stated in Theberge v. Galerie d'Art du Petit Champlain Inc.: "The proper balance among these and other public policy objectives lies not only in recognizing the creator's rights but in giving due weight to their limited nature. In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them. Once an authorized copy of a work is sold to a member of the public, it is generally for the purchaser, not the author, to determine what happens to it. Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a 99 whole, or create practical obstacles to proper utilization. This is reflected in the exceptions to copyright infringement enumerated in ss. 29 to 32.2, which seek to protect the public domain in traditional ways such as fair dealing for the purpose of criticism or review and to add new protections to reflect new technology, such as limited computer program reproduction and "ephemeral recordings" in connection with live performances. "2,s In 2003, the Supreme Court confirmed this line of reasoning in CCH Canadian Ltd. v. Law Society of Upper Canada™ The Court referred to the Theberge decision and interprets the concept of fair dealing expansively. It clearly states that the users' and public's rights within the concept of copyright law are indeed essential: "Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user's right. In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively. "220 218. Theberge, supra note 205 at para. 31 and 32. 219. CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13. Available on-line at: http:/ /www.lexum.umontreal.ca/csc-scc/en/rec/html/2004scc013.wpd.html (last accessed 30 June 2004) [CCH]. 220. ibid, at para. 23 and 48. 100 Finally, a Federal Court ruling in April 2004 presents a surprising decision given the way in which the battle of the music industry against services and users of File-Sharing services has played out in favour of media corporations in all other common law jurisdictions. On peer-to-peer networks like Napster, Gnutella or Morpheus,22* users can share digital data files with other network users. In BMG Canada v. Jane Doe 222 the court concluded that the Canadian Recording Industry Association (CRIA) did not demonstrate that file sharers actually infringe Canadian copyright law as it currently stands. Neither downloading a song for personal use nor merely making that file available to others to download from your computer (without some more active sharing activity) amounts to infringement under Canadian copyright law. The Court interprets the Copyright Act as providing that it is illegal to reproduce, authorize the reproduction of, distribute or "communicate to the public by telecommunication" a musical work in which copyright subsists, without the copyright holder's permission, with a special exception for "private copying". Section 80 of the Act provides for the copying of music files "onto an audio recording medium for the private use of the person who makes the copy," but does not permit copying for the purpose of "distributing" or "communicating to the public by telecommunication." The federal court ruled that this section protects the downloading of music for private use. More significantly for the viability of such networks (including those that share other types of information) is that the Court also ruled that "the mere fact of placing a copy on a shared directory in a computer where that copy can be accessed via a peer-to-peer service does not amount to distribution" or "authorization of the reproduction of sound recordings" under the Copyright Act. The federal court's decision is not the end to the file-sharing and digital copyright debate in Canada, as the decision is subject both to appeal, and to legislative changes to the Act. In all 221. Napster is not a peer-to peer system anymore. After having been forced to shut down its service in 2002, it is now a pay-per-song shop offering authorized music. See http://www.napster.com. See Gnutella, on-line: http:/ Avww.gnutella.org; Morpheus, on-line: http://www.morpheus.com (last accessed 30 June 2004). 222. BMG Canada v. Jane Doe, [2004] FC 488. 101 probability the case will merely provide a window of opportunity in which it is possible for those with a stake in maintaining peer-to-peer structures of communication to mobilize their arguments against the media corporations who seek to recapture their dominant position in the information ecosystem. The CRIA has already filed an appeal,223 and politicians promise to change the copyright law to provide more protection for rights-holders in digital environments.224 Prior to the 2004 federal election in Canada, the topic of digital copyright reform has recently become a hot issue. A report advocating a more stringent copyright framework has been issued by a parliamentary committee. The committee's report, chaired by Toronto-area MP Sarmite Bulte, touched off many reactions, both supportive and critical. With regard to this discussion, Michael Geist laments that there is no equal representation of interest groups on the bargaining table. He calls for a balanced approach to copyright reform, as indicated by the Supreme Court in CCH.225 Whether the Canadian jurisprudence can develop an affirmative sense of the public domain remains to be seen. Neither of the standard copyright textbook, Vaver nor Handa, contains a discussion of the role of the public domain in the information environment.226 If this lack of awareness, also evident by the lack of public discourse, acceptance, respect and appreciation of the public domain is to be addressed, it is necessary for scholars to provide an adequate theorization of the public domain. The language of the Commons would be useful for such a rhetorical project.227 In light of the recent excessive expansions of copyrights such a theory which would provide an indispensable paradigm to properly debate the architecture of the information environment which shapes how we experience the world as a culture is long overdue. 223. Jack Kapica, "Music Industry Appeals Ruling" The Globe and Mail, 13 April 2004. 224. Doug Beazley, "Facing the Music" The Edmonton Sun, 3 April 2004. Available on-line: http://www.canoe.ca/ NewsStand/EdmontonSun/News/2004/04/03/407037.html. 225. Michael Geist, "Copyright Reform Needs a Balanced Approach" Toronto Star 14 June 2004, on-line: http:/ /www.torontostar.com/ (last accessed 30 June 2004). 226. See Sunny Handa, Copyright in Canada, (Markham, ON: Butterworths 2002) [Handa, Copyright]. 227. See e.g. Edward Samuels, "The Public Domain in Copyright Law" (1993) 41 J. Copr. Soc'y U.S.A. 137 [Samuels, The Public Domain]. 102 CHAPTER FIVE: ENCLOSURE In 1918, Justice Louis Brandeis confidently claimed that "[t]he general rule of law is, that the noblest of human productions - knowledge, truths ascertained, conceptions, and ideas - become, after voluntary communication to others, free as the air to common use."228 While Boyle describes this viewpoint as the desirable norm, the notion that intellectual property is the exception rather than the norm is shifting.229 Currently, the negatively defined public domain faces a contraction through the expansion of intellectual property rights that is unprecedented. Boyle has named this trend The Second Enclosure Movement and compared it to the enclosure of public lands in England between the 15th and the 19th century.230 Boyle provides a theoretical analysis of the public domain by tracing the development from early critiques of intellectual property regimes, based on anti-monopoly philosophies to affirmative conceptualizations of the public domain and the language of the Commons developed in the past few years as a response to the rapid privatization of public knowledge. Boyle depicts his analysis of intellectual property law as one aspect of a broader theoretical movement analogous to environmentalism. He argues that such an approach is preferable to narrowly focused studies of particular legal instruments in that it makes clear how law is shaping and being shaped by the evolving information environment. Boyle aims to emulate the achievement of the pioneers of environmentalism who theorized the environment as a concept, cause and common value, that was able to gain popular recognition, and thus ideological purchase. He argues that intellectual property scholars should adopt a similar strategy, and aim to make the "environment" visible, to provide a common ground upon which it is possible to build coalitions of formerly separate interests. As the excerpt from Brandeis' judgment, which compares intangible productions to nature, "free as air to Commons use" reveals, Boyle is not 2 2 8 . Int'lNews Serv. v . Associated Press, ( 1918) 2 4 8 U . S . 2 1 5 , 2 5 0 ( B r a n d e i s , J . , d i s sen t ing ) . 2 2 9 . B o y l e , " S e c o n d E n c l o s u r e M o v e m e n t " , supra no te 39 at 3 9 . 2 3 0 . ibid, at 3 7 . 103 the first to compare intellectual and environmental resources. The following section will analyze the possibilities contained in this analogy which implies that intangible assets are public goods. In particular it will focus on the possibility and potential ramifications of managing these resources as a Commons, similar to the public trust doctrine in environmental law.231 1. Digital Enclosure Two years before Napster brought copyright law into the realm of public debate, Prof. Peter Jaszi identified what he would call Paracopyright. In a lecture titled "Is This the End of Copyright as We Know It?" he envisioned that copyright law in its traditional sense would soon be replaced by far more efficient and powerful instruments - the electronic locks now usually titled Digital Rights Management}3,2 Without effective content protection in the digital context, media corporations argue that incentives to create are disappearing. Armed with a vision of the Internet as an environment that threatens to destabilize the balance between cultural productivity and access to cultural products, interest groups have lobbied for and obtained legislation that enables them to maintain and increase their control over the cultural sphere. Combined with new technologies such as Digital Rights Management (DRM), media corporations have now tipped the scales in the opposite direction. Control of intangible assets is now the highest priority of rights-holders and many advocate the development of an exclusive access right in copyright law. On the Internet, every act of using technically involves copying, thus, it follows, use needs to be controlled. DRM offers that promise. One cannot control the use of a book sold in a bookstore, but the electronic version offers different possibilities. Every act of viewing, copying, pasting, 231. Maureen Ryan, "Cyberspace as Public Space: A Public Trust Paradigm for Copyright in a Digital World" (2000) 79 Or. L . Rev. 647; Carol M . Rose, "Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age" (2003) 66 Law & Contemp. Probs. 89 [Rose, "Romans, Roads, and Romantic Creators"]. 232. Peter Jaszi, "Is This the End of Copyright as We Know It?" a talk given at the Nordinfo Conference, 9 October 1997, in Stockholm, Sweden. The text is available on-line at: http://webserver.law.yale.edu/censor/ jaszi.htm (last accessed 30 June 2004). 104 printing, or deleting can be coded separately, and thus reading and consumption habits can be monitored. This current combination of copyright law and DRM, the chosen tool of content owner tends towards the creation of a pay-per-view world unimaginable when copyright emerged in the context of the printing press. 1.1. A Celestial Jukebox? Whether this vision is a positive or negative one depends on the viewpoint. Regardless of perspective however, it is irrefutable that such technology restricts acts previously unrestricted and thus shifts the balance of the communications ecosystem. Such self-enforcing rights management systems effectively shift copyright protection to a level where judicial review becomes an exception rather than the norm, because copyright holders can restrict access in advance. This creates a largely imperceptible limitation on the amount of knowledge freely accessible in our society. This state of pay-per-view utopia has been called Celestial Jukebox and has considerable support from scholars and economists who suggest that the commoditization of information will lead to its most efficient use. Paul Goldstein and Jane C. Ginsburg are among the copyright scholars who see the recent changes mostly in a positive light.233 By treating intellectual property as if it were directly analogous to tangible assets such as air and water, they argue that electronic price negotiations instead of fair use would both increase access by lowering the prices of works and secure universal access to anybody who values the relevant information highly enough. They 233. Paul Goldstein, Copyright's Highway, (Stanford, C A . : Stanford Univ. Press 1995) [Goldstein, Copyright's Highway]; Jane C. Ginsburg, "Copyright and Control Over New Technologies of Dissemination" (2001) lOlColumbia L. Rev. 5; . "From Having Copies to Experiencing Works: the Development of an Access Right in U.S. Copyright Law" in Hugh Hansen, ed., U.S. Intellectual Property: Law and Policy (London, England: Sweet & Maxwell: 2000). 105 argue that the exemptions for private copying, set out by the Betamax case in 1984,234 are obsolete in the context of the digital environment and rather provide an obstacle to the development of electronic commerce and thus the "free" distribution of ideas. DRM has the potential to offer much more control to digital content owners than has ever existed in real space. It enables the "un-bundling" of rights and therefore the commercial exploitation of different kinds of usage, e.g. printing, copying, reading, listening, sampling, etc. It allows the restriction of access to information in the first place - digital locks preventing users from even viewing content. Such a level of protection was never envisaged by copyright law., and scholars argue that DRM technologies substantially alter the nature of the information environment because they do not recognize common law limitations on the scope of copyright protection. DRM technology in its current form has the potential to completely undercut principles like Fair Use or the First Sales Doctrine. DRM backed by legal anti-circumvention rules not subject to the fair use defence235 creates a situation where rights protection could conceivably endure infinitely, as such technology restricts the resale of information. This situation is exacerbated because DRM shifts the burden of proof to the user, who has to claim a fair use right to access a file, in the event that he is unwilling to pay. Given that DRM is being deployed globally, and exemptions from copyright exist predominantly on the national level, copyright poses potential problems for developing countries, who are increasingly accused of encouraging piracy in an environment that does not facilitate legitimate access to certain content. The corporate sector can control much more than what is being controlled by law. This is a question that extends far beyond the much publicized issue of music and DVD piracy and is more often than not a question of access to important drugs (e.g. HIV/AIDS drugs) and clean technologies. 234. Sony Corp. v. Universal Studios, Inc., (1984) 464 U.S. 417 [Sony]. 235. Courts in the United States have repeatedly ruled that the anti-circumvention rules of the D M C A are not subject to a Fair Use defence. This results in the remarkable situation that provisions sin support of copyright are not limited by exemption which limit copyright itself. Lessig, The Future of Ideas, supra note 5 at 187. 106 The public domain faces enclosure through term extensions, digital rights management technologies, the introduction of new rights like the "right to read" or access rights, combined with changes in enforcement legislation.236 The reason for these legislative and political trends, is perhaps predominantly a rhetorical one. It is hard to find out the status of works as there exists neither a positive definition of the public domain, nor an official database of public domain works. The concept of the public domain is an obscure one to the public and works, that are not under copyright protection are often regarded worthless in public opinion. The study of this subject is still at an early stage, and it remains to be seen whether the public domain can gain equivalent rhetorical purchase to the concept of intellectual property. Perhaps the language of the Commons, a more general idea of resources not divided into individual bits of property but jointly held, can help in this situation. The Commons could support the public domain in becoming an institution widely recognized as valuable and deserving support from legislators and the general public. With the advent of digital processing and distributed networks, there are many new ways of producing creative works as well as of imitating or exploiting them without the creator's permission. The photocopier, videocassette recorder, and personal computer digital reproduction of songs are just a few examples of modem devices that help artists communicate with their audiences, but that also makes it harder to control unlawful use. On the other hand, technologies can enable a higher efficiency of controlling copying and even the use of intangible works. The development of access restrictions, software tracing the life-cycle of an electronic product, and rights management schemes controlling all possible aspects of usage are no longer the science-236. See Jessica Litman, "The Exclusive Right to Read" (1994) 13 Cardozo Arts & Entertainment L . J. 29. Enforcement plays only a role i f one accepts a definition of the public domain that includes also protected works, which in practice are either publicly accessible to the public or unenforceable due to real-life constraints. But enforcement can make a difference for the use of copyrighted material under Fair Use as well: Currently, Fair Use is an affirmative defence, not the default legal assumption. Therefore, the threat of litigation is often sufficiently effective because a Fair Use defence would be costly for the user, even i f She can be confident that her use is authorized under this principle. 107 fictions dreams o f managers and engineers, they are now a reality of the digital environment. Such code exists and is increasingly used to commercially exploit content in digital form. Mark Stefik was one of the first advocates of a pay-per-view culture where market mechanisms could provide for a more flexible and effective negotiation of rights than a static copyright law could do.237 He envisioned a world where trusted systems would allow for integrated digital publishing and billing solutions. Digital rights management and electronic micro-payment systems would remodel the communications environment for the ultimate Utopia of electronic commerce. Price negotiations for tiny transactions could render fair use or fair dealing obsolete. As every act of viewing or using on a digital network technically involves an act of copying as well, charging for all these uses would be the logical and desirable extension and perfection of copyright law's intentions. Goldstein also argues that such a digital marketplace would also benefit the consumer who pays less in the end because she only pays for the use she actually desires.238 In "real space" one usually pays a flat fee for buying e.g. a book. Instead of paying fifteen dollars for the book, the consumer might end up paying only one dollar for reading the digital version of the book just once. Printing or copying sections might cost her another dollar. Opponents of such a celestial jukebox Utopia argue that this world-view ignores two important factors. First, the new informational, environment has offered the chance to transform "consumers" into "users." In other words, the success of the Internet clearly shows that it is possible for all subjects to participate in the process of information production and exchange. While the broadcasting of professional, pre-packaged content will likely always have a dominant place in the emerging information economy, the Internet has created a more democratic alternative. Peer-to-peer production has brought us Open Source Software and the ability to share 2 3 7 . M a r k S tef ik , " S h i f t i n g the I m p o s s i b l e : H o w T r u s t e d S y s t e m s a n d D i g i t a l P rope r ty R i g h t s C h a l l e n g e U s to R e t h i n k D i g i t a l P u b l i s h i n g " (1997) 12 B e r k e l e y T e c h n o l o g y L a w J o u r n a l 137. 2 3 8 . P a u l G o l d s t e i n , Copyright's Highway, supra no te 2 3 3 at 2 0 8 - 2 1 4 . 1 0 8 content over networks. The sharp increase in cultural activity on the Net indicates that people embrace the ability to create themselves, to remix obtained material and publish it on the virtual platform. In this view, trusted systems could seriously impede the opportunities for alternative community-based information production and exchange. The digital revolution in its current stage has illustrated that there is much more to new media forms than just electronic commerce. Apart from alternative production modes and the desire for more interactivity in media structures, one must also acknowledge that information and its flow is paramount to a healthy democracy. Public discourse and, in a more basic sense, the ability to obtain informational resources from diverse and independent sources are inextricably tied to the free availability of information. A decentralized network allows for more diversity in media production. The pay-per-view society, which enables the established media corporations to maintain their control over the production and distribution of cultural products will likely re-entrench the traditional centralized digital broadcasting framework. There is however considerable debate as to whether an open or decentralized information production and distribution structure such as the Internet promotes or undermines democracy. Some scholars see diversity in a digital environment as a danger to democracy. Cass Sunstein for example, argues that a certain concentration in media is indispensable because it enables, shapes and necessarily circumscribes the contours of public discourse. Sunstein contends that without such guidance, the cacophony of voices, discussions and news would lead to anarchy or the absence of meaningful democratic culture.239 The true technological revolution of the last decades has been the Internet. Or maybe not? A related but even more important technological breakthrough has been the invention of digital 239. Cass Sunstein, Republic.com (Princeton, NJ: Princeton University Press, 2001) at 93. 109 processing. Digital technologies change everything, and these changes go far beyond the realm of the Internet. A decentralized, distributed network like the Internet allows for costless publishing and dissemination of information. The reason for this ability however lies only partly in the network structure. "Digital" means perfect duplication, copying files without the loss of data quality. It also means advanced compression that enables files that would otherwise demand too much storage to be handled by end-user equipment and average network bandwidth. Digital technology had its impact on copyright law long before the disruptive arrival of the Internet. The first realm where digital technology showed a glimpse of what would come was music. In the early 1980s, digital synthesizers and the open digital standard MIDI240 transformed the process of creation for many artists. Herbie Hancock used synthesizers to create his ground-breaking album Future Shock in 1983. With the new technology, art forms such as Jazz and Blues developed in new forms of musical expression. The fusion of improvized music and sampled sounds gave birth to rap and other genres of electronic music. Digital sampling became an accepted artistic technique within the African American musical tradition and inspired countless artists in Europe and Japan. The "digital moment," as Siva Vaidhyanathan calls it, has dramatically lowered the costs for being creative and has enabled the easy and cheap copying data without loss of quality.241 When the rise of networking in the 1990s brought digital technology to "the people," many predicted the end of copyright. John Perry Barlow argued that the system of copyright was designed to protect ideas as expressed in fixed form, but not the ideas nor the flow of information itself.242 In his view, cyberspace does not depend on fixation of information, and thus the old system is inapplicable.2** 240. MIDI Information, on-line: http://www.net.org/html/history/detail/1983-midi.html (last accessed 30 June 2004). ; 241. Siva Vaidhyanathan, Copyrights and Copywrongs, supra note 171 at 150. 242. John Perry Barlow, "The Economy of Ideas: Everything You Know about Intellectual Property is Wrong" Wired Issue 2.03 (1994), on-line: http://www.wired.eom/wired/archive/2.03/economy.ideas.html (last accessed 30 June 2004) [Barlow, "The Economy of Ideas"]. 243. ibid. ("Intellectual property law cannot be patched, retrofitted, or expanded to contain the gasses of digitized 110 Others saw a different danger on the horizon. Technologies that make it easy to create, duplicate and disseminate would also make it easy to control, restrict, or invade privacy. While commercial players were at first reluctant to play with the new medium, for fear of losing control over "their" content, they have now embraced the findings of researchers and scholars who predict a great future for business on a network that allows for a highly sophisticated market with low production costs and light-speed transactions. Mark Stefik shaped the thought of trusted systems, which envisages a world providing for identification, trust, and integrated payment solutions.244 Goldstein and Ginsburg were generally in favor of such new possibilities, hoping that consumers would greatly profit if imperfect user rights like fair use were to be exchanged for a dynamic price negotiation model.245 In contrast, scholars such as Lessig are not enthused by this vision and warn that law should be used to control the use of technology, especially if used to enforce digital rights, needed control.246 1.2. Response of the Law Currently, while neither vision has emerged as dominant, it is important to look beneath the rhetoric of both positions and examine how various changes are effecting the information environment. Both sides in the debate tend to use the rhetoric of defeat. While the entertainment expression any more than real estate law might be revised to cover the allocation of broadcasting spectrum. (Which, in fact, rather resembles what is being attempted here.) We will need to develop an entirely new set of methods as befits this entirely new set of circumstances. Since it is now possible to convey ideas from one mind to another without ever making them physical, we are now claiming to own ideas themselves and not merely their expression. And since it is likewise now possible to create useful tools that never take physical form, we have taken to patenting abstractions, sequences of virtual events, and mathematical formulae - the most un-real estate imaginable"). 244. Mark Stefik, "Trusted Systems" Scientific American (March 1997) at 78. 245. Paul Goldstein, Copyright's Highway, supra note 233 at 201; Jane C. Ginsburg, "Putting Cars on the 'Information Superhighway': Authors, Exploiters, and Copyright in Cyberspace" (1995) 95 Colum. L. Rev. 1466. 246. Lessig, CODE, supra note 6 at 49. I l l industries emphasize their losses to digital piracy, the advocates of the public domain and free culture claim they have lost the war as well, arguing that technology has effectively superseded law in the digital realm. Digital Rights Management systems are the hope of the future for commercial rights holders and the nightmare for free culture activists. The problem of a privatized code as law, self-enforcing and not responsive to traditional user rights is obvious. In the "real" world, one is allowed to re-sell a book, but this First Sale Doctrine could be easily rendered meaningless by rights management systems that set the parameters for digital use. The WIPO copyright treaty has implemented a rather vague provision about such protective measures that requires member countries to adequately support this technology: Article 11 Obligations concerning Technological Measures Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.247 Following the 1996 WIPO treaty, Congress enacted the DMCA (Digital Millennium Copyright Act)248. In response to industry concerns about the vulnerability of DRM technologies 247. Art. 11 WIPO Copyright Treaty (adopted in Geneva on December 20, 1996), See WIPO on-line at http:/ /www.wipo.int/clea/docs/en/wo/wo033en.htm (last accessed 30 June 2004). 248. Digital Millennium Copyright Act, Pub. L . No. 105-304, Title I, 112 Stat. 2860 (1998) codified at 17 U.S.C. 1201(a)-(b) (1999) [DMCA]. 112 to hacking, the U.S. Congress decided to go beyond the requirements of the WIPO treaty and outlaw certain acts of circumvention and the use of technologies designed to circumvent technical measures used to protect copyrighted works. The DMCA went much further than Art. 11 WCT, creating a highly controversial anti-circumvention framework in support of DRM technology. The anti-circumvention provisions can be found in § 1201 (a) and (b). Section 1201 divides technological measures into two categories: measures that prevent unauthorized access to a copyrighted work and measures that prevent unauthorized copying of a copyrighted work. Making or selling devices or services that are used to circumvent either category of technological measure is prohibited in specified circumstances. As to the act of circumvention in itself, the provision prohibits circumventing the first category of technological measures, but not the second. DRM is sometimes said to be a mechanism for enforcing copyrights. While DRM systems can certainly prevent illegal copying and public distribution of copyrighted works, they can do far more; they can just as easily prevent the copying and distribution of public-domain works as copyrighted works. Specifically, § 1201(a)(1)(A) forbids circumvention of technical measures copyright owners use to protect access to their works. Section 1201(a)(2) forbids manufacture or distribution of technologies primarily designed or produced to circumvent access controls, while parallel provision 1201(b)(1) outlaws other circumvention technologies. Anyone injured by violation of these rules can sue for damages, injunctive relief, and attorney fees. Violating these rules willfully and for profit is a felony. This paracopyright as conferred by the DMCA constitutes a separate set of rights, quite distinct from any copyright in the underlying content. These new rights are expansive and unprecedented. They allow control of uncopyrighted materials, and confer upon content owners a new exclusive right to control not only access to technologically protected works, but also to control ancillary technologies related to content protection. Where access and use can be controlled by built-in technological restrictions, regulation of the content via legal sanctions 113 becomes far less attractive. Indeed, content owners may prefer to rely on anti-circumvention laws to prohibit tampering with the technological controls, rather than relying on copyright law to prohibit certain statutorily determined uses of the work, leaving the technology to prohibit whichever uses the content owner unilaterally chooses. Such anti-circumvention laws, acting as an adjunct to technological controls, confer upon content owners a degree of control unattainable under traditional copyright regimes.249 The DMCA is a complex set of rules, and much has been written about it. Many scholars argue that the statute is unconstitutional in that it breaches the First Amendment but so far the statute stands as it is.250 My aim in the following brief case study is merely to assess the possible impact of the relationship between law and technology on the public domain. Interestingly, the most famous cases related to the DMCA concern the Internet only indirectly. In Reimerdes/ Corley, the medium to which DRM and its circumvention was applied to the DVD (Digital Versatile Disc). The current way motion picture studios distribute their content for home use is putting films, television series, etc. on DVD format. With the encryption standard CSS, such DVDs can only be played on licensed players, that is products equipped with licensed technology that permits the devices to decrypt and play the films. Such DVD players include commercially available home-use products and computer-drives for Microsoft Windows and Apple Macintosh systems. In 1999, a Norwegian teenager named Jon Johansen reverse-engineered a licensed DVD-player and discovered the CSS encryption algorithm and keys. Together with friends, he used this information to create deCSS, a program capable of decrypting protected discs, thereby allowing playback on unlicensed machines, such as computers running the Linux operating system. While the initial motivation for the creation of the program was to enable legally purchased DVDs to 249. Bell, "Fair Use vs. Fared Use", supra note 181 at 559-60, 564, 566-67. 250. For a more complete coverage of the DMCA's anti-circumvention rules, see Julie E. Cohen et al., Copyright in a Global Information Economy (New York, N Y : Aspen Law & Business, 2002) at 573-603. 114 run on alternative operating systems, the tool could be used to copy DVDs as well. The files of deCSS became widely available on the Internet, and eight major U.S companies brought action under the DMCA to enjoin the defendants from posting deCSS on the Net.251 The defendants contended that their actions did not violate the DMCA and that the anti-circumvention rules were in violation of the First Amendment. But the defendants did not fall within any of the statutory exceptions of the DMCA. The courts effectively rejected the fair use and First Amendment arguments in Corley. Concerning the First Amendment challenge, the court found that instructions in computer code qualify as speech protected under the First Amendment, and that the regulation imposed by § 1201 (a) (2) is "content-neutral" and thus permissible. The Appeals Court reasoned: "In considering the scope of First Amendment protection for a decryption program like deCSS, we must recognize that the essential purpose of encryption code is to prevent unauthorized access. Owners of all property rights are entitled to prohibit access to their property by unauthorized persons... . . . In its basic function, deCSS is like a skeleton key that can open a locked door, a combination that can open a safe, or a device that can neutralize the security device attached to a store's products. " m Reimerdes/ Corley essentially held that the anti-circumvention rules governing code, (which protects copyrighted material) are not subject to the same exceptions as copyright itself. Fair Use 251. Universal City Studios, Inc. v . Reimerdes, ( 2 0 0 0 ) 111 F . Supa t 2 d 2 9 4 S . D . N . Y [Reimerdes]. 2 5 2 . Universal City Studios, Inc. v . Corley, ( 2 0 0 1 ) 2 7 3 F . 3 d 4 2 9 2 d C i r . at 4 5 2 - 5 3 [Corley]. 115 is something copyright law must allow. The DMCA provisions govern code, not copyright law, the logic goes. Does that mean copyright holders can "circumvent" a user right like fair use by wrapping it into encryption tools? As Yochai Benkler commented: "The internal limitations in copyright law - like the fair use exception or the privileged use of public domain materials - are constitutive mediating devices permitting copyright law to comply with the constraints of the First Amendment. The anti-device provision of the DMCA in effect eliminates these mediating devices by giving vendors of digitized materials complete, rather than limited control over materials they encrypt. "253 The debate around this litigation is an ongoing one, and it is important to cautiously assess the impact of the DMCA on fair use and other "exemptions" in copyright law that protect the public's interest. With regard to the public domain, DRM, as mentioned is a rather dark technology. As it can protect public domain materials and - by packaging them into encrypted clothes - commercially exploit aspects of works that should be freely available. The arguments of pay-per-view optimists is usually that older public domain works that have already lost their commercial value would be lost if not for an environment where they can be made available for a low price. But this argument ignores the amazing wealth of non-commercial production culture on the Net. Open source software, digital archiving solutions, and volunteer-based encyclopedia projects show that digital technology enables people to create a registry of the public domain for other reasons than purely commercial ones. 2 5 3 . Y o c h a i B e n k l e r , " T h r o u g h the L o o k i n g G l a s s : A l i c e a n d the C o n s t i t u t i o n a l F o u n d a t i o n s o f the P u b l i c D o m a i n " ( 2 0 0 3 ) 6 6 L a w & C o n t e m p . P r o b s . 173 at 2 1 2 [ B e n k l e r , " T h r o u g h the L o o k i n g G l a s s " ] . 116 Another point is the role of the language of property in the context of copyright. Analogies with real property and trespass rules, via metaphors of locks and safes are popular in this debate. It is this trend towards the rhetoric of property that most worries those concerned with the privatization of culture. Property is a concept that is deeply rooted in our society and it is extremely difficult to argue for behaviours that have been construed as theft. In this sense, the rhetoric of property shapes the discussion and obscures the discourse about culture. This is perhaps exacerbated by the strategic use of property rhetoric in certain contexts by public domain advocates.254 Just as proponents of DRM and stronger copyright protection depict intellectual property as analogous to real property, so public domain advocates use similar analogies to demonstrate their point. A common example used to demonstrate the difference between intellectual products fixed in tangible form as opposed to digital form is the comparison of a CD to a digital file. When a consumer buys a CD he may use it however he wants. That is the consumer "owns" the CD. In the digital world, if a consumer obtains a song on the iTunes Music Store,255 instead of having purchased a "product," he will only have purchased a license to listen to this song on a certain range of machines. Contrary to Vaidhyanathan's observation about the relatively recent invasion of "intellectual property" rhetoric,256 Samuels argues that "property talk" has always been firmly embedded in copyright history.257 Does one have to argue for "more property" here to advance the public interest? What is the relationship between property and the public domain? I will now further explore the problems of attaching a property system to cultural "things" through an analysis of the most prominent "off-line" copyright case in recent years, Eldred v. Ashcroft. 254. Edward Samuels, "The Public Domain Revisited" (2002) 36 Loyola L . Rev. 389 at 395 [Samuels, "The Public Domain Revisited"]. 255. See the "iTunes Music Store" on-line: http://www.apple.com/itunes (last accessed 30 June 2004). 256. Siva Vaidhyanathan, Copyrights and Copywrongs, supra note 171 at 11-12. 257. Samuels, "The Public Domain Revisited", supra note 254 at 395. 117 2. Analog Enclosure 2.1. Expanding the Duration Concern over the steady proliferation of intellectual property rights, or, conversely, the declining public domain has lead to a discussion about how to reverse this trend and conserve the freedom of information production and exchange that arises in the context of new digital technologies and decentralized network structures. In 1998, the United States passed the Sonny Bono Copyright Term Extension Act (CTEA)258 into law, which extended both existing copyrights and future copyright terms by 20 years. As a consequence, the copyrights of many works that were about to enter the public domain, remain in the possession of private owners. This bill was partly the result of extensive lobbying by Disney, whose copyright for the character Mickey Mouse was about to expire, and other media corporations in a similar position. The bill caused uproar among intellectual property scholars who perceived it as radically altering the communications ecosystem. Even scholars working within the traditional economic paradigm that assumes that protection fosters creation and productivity are confounded by this development. How does this bill promote creativity when it extends protection for works already created? Is the term of 70 years after the author's death still "limited"? Lessig is one scholar who has pursued the angle of whether there is a constitutional limit for expanding copyrights and enclosing the public domain. His argument that the constitution protects the public domain as a crucial aspect of democracy was tested in the infamous Eldred v. Ashcroft, a Supreme Court challenge to the CTEA. Lessig lost. The Supreme Court found the term was still sufficiently limited, given the existence of principles such as the doctrine of fair use that ensure that copyright does not unnecessarily impinge upon free speech values. In this chapter, I analyze this landmark case more closely. 2 5 8 . CTEA, supra no te 160. 118 2.2. Eldred v. Ashcroft Eric Eldred loves literature. Around 1995, he created a collection of public domain works on his web-site, accessible to everyone. Mr. Eldred would not only paste text versions of old literary works onto his web-site, he created derivative works that featured explanatory notes, pictures and other multimedia material. The goal was to bring forgotten authors to life. The site is called Eldritch Press and contains various free versions of public domain works, as well as works for which Eldred had obtained permission.259 The web-site is one example of how digital technology can enhance access to free culture. It also shows one of many cases where non-commercial activity is affected by copyright law. Mr. Eldred's web-site was honoured by the edSITEment (National Endowment for the Humanities) award as one of the 20 best humanities sites on the web. In 1998, the U.S. Congress passed the Copyright Term Extension Act (CTEA).260 The language of the Act is simple. It extended the term of protection for all works created after January 1, 1978 (the effective date of the U.S. Copyright Act, 1976) by twenty years, from "life of the author plus fifty years" to "life of the author plus seventy years." It also extended the term of works created prior to 1978 from "seventy-five years from publication" to "ninety-five years from publication."261 Because of the CTEA, Eric Eldred was prevented from publishing numerous works he had already planned to make accessible. Indeed, Eldred would not be free to add any works compiled after 1923 to his collection until 2019. Under the current legislation, no copyrighted work will pass into the public domain until that year (and not even then, if Congress extends the term 259. Eric Eldred on-line: http://www.eldritchpress.org/ (last accessed 30 June 2004). 260. CTEA, supra note 160. 261. Congress has extended existing copyright terms 11 times in the past 40 years. In 1790, copyrights lasted 14 years. Them, the CTEA extended copyright protection limits from 50 years to 70 years after an author's death. The act also extended the protection of works-for-hire made by corporations to 95 years. 119 again).262 What worried many scholars is the fact that the CTEA.retroactively prolonged the term for existing works. Its application was a retroactive one. The CTEA was controversial from the start, and the outrage caused by the CTEA was the birth of a constitutional challenge to the CTEA, Eldred v. Ashcroft?63 Eric Eldred, the plaintiff, was joined by others, and many law professors, economists and organizations supported his cause by filing amici briefs in favour of Eldred.264 The essence of the petitioners' argument was twofold. First, petitioners argued that Congress had failed to adhere to the restrictions proscribed by the Copyright Clause,265 by disregarding the "limited Time" provision of the Clause. Petitioners argued that by continuing to expand and enlarge the length of time of the copyright term, Congress was exceeding the limits posed by the Constitution. In particular, plaintiffs question addressed Congress' decision to apply this particular extended term retroactively. In the petitioners' view it is hard to see any social benefit gained by the extra twenty years that the CTEA adds to the already long copyright terms possessed by works already in existence when the CTEA was passed. The problem with the argument against retroactivity was that Congress had done it before, and reading the current term of "70 plus the authors life" literally, it is still a limited time.266 Lessig and many others were convinced that this continued tendency of Congress to extend the duration of copyright was nonsensical. If Congress had the 262. Lessig, Free Culture, supra note 6 at 214. Lessig notes that "by contrast, in the same period, more than 1 million patents will pass into the public domain." 263. Eldred v. Ashcroft, supra note 15. 264. A comprehensive collection of all materials related to the case can be found at http:/www.eldred.cc. Included are briefs by intellectual property scholars, constitutional law experts, renowned economists, library associations, the Free Software Foundation and others. The briefs for the respondents mainly included statements from industries and rights holders. A notable exception is the brief by Prof. Edward Samuels, who filed a thoughtful critique of the petitioners claims. He clarified his arguments in Samuels, "The Public Domain Revisited", supra note 254. 265. U.S. Constitution Art. I, Section I, Clause 8. 266. For prior extensions, see Lawrence B. Solumn, "Congress' Power to Promote the Progress of Science: Eldred v. Ashcroft" (2002) 36 Loyola of Los Angeles L. Rev. 1; For the question of whether the current term is "limited" or not, see e.g. Richard A . Posner & William Landes, "Indefinitely Renewable Copyright" Univ. of Chicago, John M . Olin Law & Economics Working Paper No. 154 (2d Series), available on-line at http:/ /www.law.uchicago.edu/Lawecon/index.html (last accessed 30 June 2004). 120 power to extend existing terms without limit, then the Constitution's requirement that terms be "limited" would have no practical effect. Every time a copyright is about to expire, Congress would have the power to extend its term. This would eventually result in perpetual terms "on the installment plan," as Professor Peter Jaszi put it.267 In their brief,268 petitioners urged the Supreme Court to construe Congress's actions in prolonging the copyright term in light of the purpose stated in the Copyright Clause, namely, for the "Progress of Science and useful Arts." They contended that the continued extension of the copyright term did nothing to promote that "progress." They argued that it is illogical to suggest that the retroactive extension of copyright in existing works promotes creativity. On the contrary, it detracts from the incentive of rights holders to create new works because of the continuing benefits caused by the works already created. The second major prong of petitioners' argument concerned the First Amendment. Alleging that issues concerning freedom of speech were also at stake, petitioners contested the CTEA on the ground that it constituted content-neutral speech regulation, burdening speech when unnecessary and without any overriding governmental interest. Such a burden, they argued, required scrutiny under the heightened standard appropriate to this regulation. Eldred v. Ashcroft was the first real challenge to preserve and reclaim the public domain before the Supreme Court. While the direct ramifications of a ruling in favour of Eldred would have been confined to the U.S., given the influence of the U.S. jurisdiction in intellectual property matters, such a ruling would have been persuasive in many other jurisdictions. Despite substantial academic backing, Eldred lost. The Supreme Court did not accept the petitioners' view that the CTEA either disproportionately burdened freedom of speech, or, altered the nature of the copyright regime envisaged by the Constitution. In fact, with respect to the question of 267. Peter Jaszi, cited in Lessig, Free Culture, supra note 6 at 215-216. 268. See Petitioners' brief on-line: http://eon.law.harvard.edu/openlaw/eldredvashcroft/supct/opening-brief.pdf (last accessed 30 June 2004). 121 whether Congress overstepped its bounds, the seven-person majority seemed to summarily dismiss petitioners' argument, finding that because there was no perceived intent by Congress to circumvent its obligation under the Copyright Clause, the CTEA was not in violation of the "limited Time" directive set out by the Constitution. In the majority opinion, the Court found that because the CTEA nominally limits the term of copyright Congress had not overstepped its bounds. The majority found comfort in two key facts: one, that retroactive extensions had been approved by Congress in the past and two, that the extensions aligned the U.S. laws with those of Europe.269 The first argument was simple: a term of 70 years plus the author's life is still limited. The court interpreted the "limited times" provision of the Copyright Clause neither as a substantial or functional restraint nor as an element of an underlying balance. The majority opinion did not concern itself with an interpretation of the framers' intent in this question. The second argument was related to the international harmonization of copyright law. The Court found that the adaptation of U.S. laws to European standards and the term suggested by WIPO clearly showed that Congress did not have the intention to act unconstitutionally. Many critics criticize this second argument on the grounds that a principle of harmonization with either international or EU law cannot be a foundation for the Supreme Court's constitutional analysis. It is noteworthy that while Canada is also a member of WIPO and signed the WCT, it has so far refused to adapt its copyright protection term to the 70 years standard. In fact, the CTEA does not effectively harmonize U.S. copyright terms with either E.U. or international intellectual property regimes.270 As several scholars have 269. In the E U , the copyright term was harmonized by the Copyright Term Directive, supra note 159; American scholars sometimes tend to forget that the longer European term is only partly the result of the underlying Natural Rights Doctrine. A perhaps more important factor was the desire to harmonize the laws within the E.U. ; generally it is not a common practice to choose the lowest common denominator available for such harmonization (even though one can of course argue that in the case of copyright terms, shorter is better). See Thomas Dreier, "Balancing Proprietary and Public Domain Interests: Inside or Outside of Proprietary Rights? " in Rochelle Cooper Dreyfuss et. a l . , Expanding the Boundaries of Intellectual Property (New York, N Y : Oxford Univ. Press 2001) at 306. 270. See e.g. Dennis S. Karjala, "The Term of Copyright" in Growing Pains: Adapting Copyright for Education and Society (Littleton, Colo.: F.B. Rothman, 1997), on-line at http://homepages.law.asu.edu/~dkarjala/ OpposingCopyrightExtension/commentary/term-of-protection.html (last accessed 30 June 2004). 122 demonstrated, "the copyright term within the United States is...actually less harmonized with foreign copyright terms today than before CTEA and in important categories even less harmonized with EU policy."271 According to UNESCO, there are 76 countries today with a "life plus 50" regime but only 26 with "life plus 70" with regard to copyright duration.272 While this certainly diminishes the viability of the international harmonization argument, many scholars such as Samuels argue that the international standards should not be dismissed without consideration. "The 1998 extension, from life of the author plus fifty years to life of the author plus seventy years, was not required under international obligations. However, it was designed to match the term of copyright recently adopted throughout the European Union and by other countries. Under Article 7(8) of the Berne Convention, countries with the life-plus-70-year term do not have to recognize the rights of foreign authors whose works have expired in their own countries. Since the United States is a net exporter of copyrighted works, it certainly made sense for the United States to grant the longer term, and thereby allow U.S. authors to take advantage of the longer term available abroad. Furthermore, since the United States was simply matching the longer term available in other countries, it is not likely that Congress, absent the strong international 271. Eldred v. Ashcroft, supra note 15, Petitioners' Brief at 58, on-line: http://eon.law.harvard.edu/openlaw/ eldredvashcroft/supct/opening-brief.pdf (last accessed 30 June 2004). 272. See UNESCO, "National Copyright Legislation" on-line at http://www.unesco.org/culture/copy (last accessed 30 June 2004). 123 considerations, will extend the U.S. term of copyright yet again. Petitioners' suggestion that Congress will continue to grant further extensions whenever the copyright industries ask for them is simply not a likely "273 scenario. Samuels argues that it is short sighted to ignore international realities by dismissing such considerations without further concern. In his rebuttal of the petitioners' arguments, he concludes: "Some of the public domain literature argues that the international considerations are irrelevant to the issue, since the rest of the world obviously is not subject to the United States Constitution, as is Congress. However, although the laws of other countries may reflect different cultures and different histories, it is nevertheless instructive to consider how other nations have set about dealing with common problems of enforcing copyright in an emerging global technology. "274 While Samuels' criticisms are valuable, his willingness to rely on the legislators not to extend further seems to ignore the political reality of the current situation. In the last 40 years, the U.S. legislature has extended the copyright term eleven times.275 Even without pessimism or cynicism one should be concerned that the trend of stronger and longer intellectual property protection would continue. After all, the member of Congress whom the CTEA is named after "wanted the term of copyright protection to last forever".276 Although the pragmatic requirements of 273. Edward Samuels, "The Public Domain Revisited", supra note 254 at 417. 274. ibid, at 425. 275. See Lessig, The Future of Ideas, supra note 5 at 197. 276. Sonny Bono's widow Mary Bono testified before Congress. The full text is:"Sonny [Bono] wanted the term of 124 international copyright law cannot justify the retroactive extensions of the CTEA, Samuels' point must be considered by any effort to discuss the enclosure of the public domain. In the conclusion, I will argue that we need a more internationalized initiative if free culture is to survive. Finding simply that the statute did not rise to the level necessary for heightened scrutiny, the Court declined to apply that level of First Amendment scrutiny to the CTEA. Rather, the Court found that the Copyright Clause has inherent "speech-protective purposes and safeguards" and, therefore, was not to be subjected to heightened scrutiny. Specifically, the Court viewed the fact that the Copyright Clause and First Amendment were drafted close in time as evidence that the Framers did not view the two as incompatible. The Court opined that the Copyright Clause was not limiting free speech, but merely prevented the uncontrolled exploitation of authors' works, a restriction that, in the Court's view, did not rise to the level of government-proscribed First Amendment limitations. 2.3. Balancing Copyright After Eldred Citing Harper v. Row,211 Justice Ginsburg made an important statement about the relationship between copyright law and the First Amendment: "The First Amendment securely protects the freedom to make - or decline to make - one's own speech; it bears less heavily when speakers assert the copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us.As you know,there is also Jack Valenti's proposal for a term to last forever less one day. Perhaps the Committee may look at that next Congress," 144 Cong. Rec. H9946, 9951-2 (October 7,1998). 277. Harper & Row, Publishers, Inc. v. Nation Enterprises, (1985) 471 U.S. 539. 125 right to make other people's speeches. When, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary. "278 Siva Vaidhyanathan noted that in her majority opinion, Justice Ginsburg aided the public's rhetorical cause despite making a ruling against its interests.279 While dismissing the notion that excessive copyright expansion contradicts the First Amendment, she invoked two of the classic democratic safeguards of American copyright: The idea/expression dichotomy and fair use. Because of these two concepts, Ginsburg concluded that the court need not take the censorious power of copyright seriously. The Court's expression of faith in the power of the idea/expression dichotomy and fair use does not recognize that both these rights are under attack in Congress and lower courts, Vaidhyanathan warns: "The motion picture, music, publishing, and software industries are trying to expand their control over the machines in your home to limit the uses you might make of material you have lawfully purchased. Ginsburg made one more statement that public interest advocates can take to heart and use for their purposes. As a matter of fact, the 1998 Digital Millennial Copyright Act did just that. By outlawing technologies that could break through access controls around digital materials, Congress created a whole new technological regime and a new set of powers for copyright holders to use against scholars, librarians, students, and artists. This shift in the locus of 278. 279. Eldred v. Ashcroft, supra note 15 at 790. Siva Vaidhyanathan, "The State of Copyright Activism" (April 2004) 9:4 First Monday, on-line: http:/ /firstmonday.org/issues/issue9_4/siva/index.html (last accessed 30 June 2004). 126 enforcement from human relations to hard technology has certainly altered the traditional contours of copyright protection. "2S0 Is there hope in the majority's opinion recognizing the constitutional value of the traditional contours of copyright protection? This will depend on how Congress and later courts interpret and apply Justice Ginsburg's words, if they are to facilitate the goals of the public domain, they must interpret fair use and the idea/expression dichotomy cautiously. This will be of utmost importance in many of the upcoming Fair Use cases related to the DMCA and technology in general.281 In the end, only Justices Stevens and Breyer dissented. Each of their arguments focused at least in part on the failure of the majority to recognize the fallacies of their historical analysis of copyright law in the United States and its resulting refusal to recognize Congress's over-exercise of power. Justices Stevens and Breyer dissented with separate opinions, Stevens offering an alternative historical and constitutional analysis, and the latter mainly focusing on the economic effects of the CTEA. 2 8 2 As brought to light by the petitioners in Eldred, one significant effect of the CTEA is that it effectively curtails the opportunities for those whose livelihood relies, in whole or in part, on works that have come into the public domain. Eldred v. Ashcroft showed how difficult it is to determine the effects of copyright law on creativity and cultural production. This is in part due to the fact that creativity - unlike economic productivity - is not amenable to "scientific" analysis.283 Copyright law represents one of the most important intersections between culture and law, and the many theories underlying copyright law in different regions of the world 280. ibid. 281. See e.g. 321 Studios v. Metro-Goldwyn-Mayer Studios, Inc., [2004] U.S. Dist. LEXIS 2771 (N.D. Cal. 19 February 2004) ; Paramount Pictures Corat v. 321 Studios, [2004] U.S. Dist. LEXIS 3306 (S.D.N.Y. 3 March 2004). 282. Eldred v. Ashcroft, supra note 15 at 790-801 (Stevens J. dissent) and 801-15 (Breyer J. dissent). 283. See e.g. Wendy Gordon, "Authors, Publishers, and Public Goods: Trading Gold for Dross" (2002) 36 Loyola of Los Angeles L. Rev. 159. 127 illuminate the variety of cultural expressions and traditions. It is ironic that Eldred v. Ashcroft was a case fought over the oldest debate in copyright law -the duration of copyright - while most contemporary disputes revolve around digital technologies and their impact on copyright law. While the argument may be the same, the brief period of decentralized cultural production stimulated by the advent of digitally networked environments has made the impact of copyright law on the information environment much more apparent. The Eldred decision which upheld the CTEA had little regard for the fact that we now have the technology to sustain a range of information environments, including both extremely democratic decentralized structures, or, extremely restrictive controlled environments. Instead of examining how the CTEA impacts upon the information ecosystem, the decision focused on the fact that in the past, extensions of the copyright term had included some retroactive effect; the majority reasoned that, in effect, what was acceptable in the past was acceptable in the present. The judgment was a 7-2 victory for the entertainment industries. As Prof. Jaszi notes, Congress seems to have the right to implement a perpetual copyright "on the installment plan."284 Boyle comments further on this decision in his foreword at the Conference for the Public Domain: "Over two strong dissents, the Court upheld the constitutionality of the Act against both First Amendment and Copyright Clause challenges. The dead can have their copyrights extended yet again. Expect a surge of creativity from Hollywood's graveyards. The greatest legal restriction of speech in the history of the Republic — putting off-limit every book, poem, film, song and sculpture for another 284. See Testimony of Professor Peter Jaszi, "The Copyright Term Extension Act of 1995: Hearings on S.483 Before the Senate Judiciary Comm.," 104th Cong, (1995), available at 1995 W L 10524355, at at 6. 128 twenty years — can proceed without significant First Amendment review. "2HS Eldred is a landmark case in the copyright wars. The result is sobering for those who have advocated the position that the public domain is protected by the Constitution. The dissenting judge Stevens stated: "Congress may extend existing monopoly privileges ad infinitum under the majority's analysis. By failing to protect the public interest in free access to the products of inventive and artistic genius— indeed, by virtually ignoring the central purpose of the Copyright/Patent Clause - the Court has quitclaimed to Congress its principal responsibility in this area of the law. Fairly read, the Court has stated that Congress' actions under the Copyright/Patent Clause are, for all intents and purposes, judicially unreviewable. That result cannot be squared with the basic tenets of our constitutional structure. "2m This thesis argues that despite Eldred, the copyright clause in the U.S. constitution is designed to maintain a balance between economic incentives to produce and public access to cultural material that promotes a democratic information environment. Prima facie it gives incentives to prospective creators to encourage them to produce works for the benefit of all,287 and, it promotes the free flow of ideas by limiting the time of protection and mandating the 285. James Boyle,"The Opposite of Property" (2003) 66 Law & Contemp. Probs. 1 at 32. 286. Eldred v. Ashcroft, supra note 15 at 801 (Stevens J. dissent). 287. Harper & Row Publications, Inc. v. Nation Enters. (1985) 471 U.S. 539 at 558 . 129 eventual passage of works into the public domain.288 This recognition that commercial and non-commercial creators depend on a healthy public domain as the basic material they need for every new creation, is the first step towards a recognition that how these rights are balanced by legal instruments shapes the architecture of the communications environment. In the aftermath of the case, the New York Times regrettably announced the end of the "grand experiment" of the public domain and predicted the coming of copyright perpertuity.289 The following part of this chapter aims at looking forward. Building on the theories of the Commons, it highlights some of the difficulties many attempts to reclaim the public domain, open cultures, public airwaves, or more generally, the Commons face. It then offers some thoughts on the cultural dimension of laws that implement information and communications policies. Finally, it presents an overview of the numerous domestic and international efforts and methods to recover the cultural Commons in the intangible sphere. 3. Against Enclosure Constitutional challenges like Eldred are important steps to cultivate public awareness of these issues, but more internationalized endeavours are needed to cultivate a free and sustainable ecology of the information environment. The expansionist and protective tendencies in intellectual property are still strong, and legislative proposals for even stricter protection are also pending in several countries. This is why the Commons can be the missing link in the scattered debate about the freedoms in the Information Society. The Commons as a paradigm connects the public domain with physical network structures. It brings together environmentalists, property scholars, and copyright experts. It captures the diverse interests of all groups and sub-groups that 2 8 8 . Sony, supra note 2 3 4 at 4 2 9 . 2 8 9 . E d i t o r i a l , T h e S u p r e m e C o u r t D o c k e t : " T h e C o m i n g o f C o p y r i g h t P e r p e t u i t y " New York Times 16 January 2 0 0 3 , at A 2 8 . 130 together define the "public interest." In this section, I will portray some of the numerous initiatives to reclaim the cultural Commons. 3.1. UNESCO The UNESCO Guidelines for the development and promotion of public domain information290 are part of a broader project to support the creation of "knowledge societies" by the UNESCO.291 The aim of this UNESCO World Report is "to strengthen the intellectual, strategic and ethical watch capacities of the international community and of societies." UNESCO's commitment to the public domain is based on the insight that "one of the ultimate goals of any society is the empowerment of all its citizens through access and use of information and knowledge."292 In the guidelines, the well-known problem of the public domain in general is articulated: "A significantly under-appreciated, but essential, element of the emerging Information Society is the vast amount of information already in the public domain, or that can potentially be placed in the public domain. Whereas the focus of most policy analyzes and law-making is almost exclusively on the enhanced protection of private, proprietary information, the role of public domain information, especially of information produced by the public sector, is not commonly addressed and is generally poorly 290. UNESCO, "Draft Policy Guidelines for the Development and Promotion of Public Domain Information" United Nations Educational, Scientific and Cultural Organization, Paris (2003), prepared by Paul Uhlir (CI-2003/WS/2), [Public Domain Guidelines]. 291. U N E S C O World Report: "Building Knowledge Societies", (164 EX7INF6), published in 2004. 292. Public Domain Guidelines, supra note 290 at 12. 131 understood."' This echoes most of the recent scholarly works about the public domain. The difference is that the UNESCO draft is among the first international efforts to formulate a supportive agenda for public domain information. The purpose of the guidelines is not only to help develop and promote public domain information at the national and international level but also to better define it and describe its role and importance in the context of digital content, developing countries and disadvantaged communities. The paper starts by defining proprietary information and distinguishing it from public domain material. On the UNESCO web-site, we can find the following definition of public domain information: "Public domain information refers to the realm of all works or objects of related rights, which can be exploited by everybody without any authorization, for instance because protection is not granted under national or international law, or because of the expiration of the term of protection, or due to the absence of an international instrument ensuring protection in the case of foreign works or objects of related rights. "294 Likewise, proprietary information is defined as information that is subject to some form of legal protection which confers certain rights on the author or rights holder, and which places 293. ibid. 294. U N E S C O Webworld On-line Portal, Communication & Information Section, on-line: http://portal.unesco.org/ ci/ev.php?URL_ID=1535&URL_DO=DO_TOPIC&URL_SECTION=201&reload=1084912594 (last accessed 30 June 2004). 132 certain limits on what others may do with that information. "Proprietary information is protected on economic and moral grounds by copyright and other neighbouring rights. Information also may be protected by statutes and regulations on the basis of national security, confidentiality, or personal privacy considerations. "295 The document continues with a chapter about copyright. It emphasizes the notion that copyright confers a legal monopoly only for a limited time. The paper illuminates that the rights granted by copyright are neither absolute nor intended solely as a means of protecting the personal recognition and economic rewards of the author. According to the guidelines, copyright has the broader purpose of enriching the cultural, intellectual, and social development of each nation, and the broader economy. Paul Uhlir, the author of the guidelines, highlights the contemporary expansion of copyright protection through licensing contracts, database and other forms of statutory protection and Digital Rights Management technologies. Uhlir concludes that the status of public domain research is insufficient, and that the development of a theory of the public domain is of pressing importance. He notes that the term public domain is usually associated with public land rather than with intellectual property. The UNESCO paper recognizes that most definitions of the public domain are framed in negative terms - any information that is not subject to property. Therefore, the UNESCO expert group has proposed a positive definition of the public domain: "Public domain information, also known as the 'information Commons' refers to freely accessible 295. Public Domain Guidelines, supra note 290 at 14. 133 information intellectual works, or the media on which these are stored, the use of which does not infringe on any intellectual property right, or breach any other communal right (such as indigenous rights) or any obligation of confidentiality.... By way of example, public domain information may embody: certain anonymous works (provided there is no infringement of any stake-holder's interest in that information); facts; public library catalogues; deposits, collections and catalogues in public archives and museums; information in which there are no intellectual property rights or on which these have expired; official information produced by government or international organizations; information disclosure which is in the public interest and for the public good, information intended to be made publicly available by its author, owner, or custodian; and meta-data (data on data) within the previous categories. For the avoidance of doubt, even though information may be in the public domain, it cannot be assumed to be free of all other interests or control. "296 Uhlir does not explain what he means be "other interests or control". Perhaps he refers to the media on which the public domain information is stored. As a tangible carrier, the media can be subject to property rights while the information itself is in the public domain. The guidelines exclude user privileges like Fair Use or Fair Dealing from the public domain because of their limited scope. They also comment on different categories of public domain works, e.g. information that is not subject to exclusive property rights or information that is contractually 296. Public Domain Guidelines, supra note 290 at 16-17. 134 designated to the public domain. The guidelines also feature an explanation concerning Open Access regimes. Such regimes are defined as "proprietary information that is made openly and freely available on-line or on other media by the rights holder, but that retains some or all of the exclusive property rights that are granted under statutory IP laws." Uhlir states that, while restrictions apply to the use of such information, it may serve an analogous purpose to information in the public domain. The third part of the guidelines deals with the importance of public domain information. While the paper acknowledges that the contribution and value of the public domain is not easy to quantify, it tries to capture its economic role as well as the social benefit. In economic terms, the guidelines focus on the positive externalities caused by a rich public domain.298 In non-economic terms, Uhlir explains that the public domain is essential for transparency of governance and the promotion of democratic ideals. The paper comments on the public good/public interest aspect and observes that public domain information enhances the general social welfare by promoting public discourse, health and safety. Uhlir concludes this chapter by underlining the central function of the public domain as a cultural and educational resource for every society. As key challenges, UNESCO identifies the bridging of the Digital Divide299 and the promotion of the production, dissemination, and preservation of digital information in the public domain. But the paper changes its approach thereafter. Having outlined a broad and positive map of public domain discourse, Uhlir fails to deliver an adequate policy recommendation and possible solutions with respect to intellectual property. The paper solely focuses on public information produced by governments and suggests fairly detailed measure for the enhancement 297. ibid, at 17-18. 298. ibid, at 20-22. 299. An excellent resource regarding the issue of international inequalities in the digital era is ELDIS, on-line: http://www.eldis.org/ipr/ (last acccessed 30 June 2004). 1 3 5 of such public sector information. Copyright as the most important legal instrument to reduce or enhance all other public domain components does not appear in the last section of the document. Although the paper fails in this respect, UNESCO is one of the few international organizations actively supporting public domain research and practical measures promoting public access to cultural resources. Within the United Nations, it could be a useful forum to launch further public domain and Commons- related programs to help defining the boundaries of public and private in the emerging Information Society. Perhaps the missing piece in the UNESCO guidelines - a general outline of a future path for international intellectual property policy - can be found in the next piece I describe here, the Bellagio Declaration. 3.2. The Bellagio Declaration In 1993, the Rockefeller Foundation sponsored a week-long meeting of lawyers, cultural historians, policy makers, anthropologists, development specialists, and representatives of culture industries from the developed and developing worlds to explore "Cultural Agency/ Cultural Authority: Politics and Poetics of Intellectual Property in the Post-Colonial Era. " At this conference, scholars from different disciplines discussed the effects of intellectual property on their disciplines. A policy statement emerged from this conference, the Bellagio Declaration. This frequently quoted statement exemplifies the broad public impact of the scholarly work on the public domain that has been unfolding in legal and cultural studies for the past several years. The conference was organized by Martha Woodmansee and Peter Jaszi, and James Boyle was among the drafters of the declaration. The background for this manifesto was a common criticism of the notion of an individual, solitary and original author as the foundation of contemporary intellectual property law. This author-centric policy cannot accommodate non-western, traditional, collaborative, folkloric or new electronic modes of production. Years before peer-to-peer production became known 136 through Napster and other file-sharing networks, these scholars already sensed that current IP laws would be harmful to the Information Society. Ignorance toward different cultural traditions and possible negative impacts on the traditional knowledge of indigenous peoples, bio-diversity, and free speech have lead to a universal critique of intellectual property expansionism. As James Boyle noted, systems built around the author paradigm tend to obscure the importance of the public domain, the intellectual and cultural Commons from which future works will be constructed.300 The Commons as raw material, as life support system for all culture, creativity, and commercial as well as non-commercial innovation has been ignored on the national and international level. Compared to the outcry of the world communities in the late 1960s and 1970s with regard to the preservation of the "common heritage of mankind" -resources of outer space and the deep sea bed - remarkably little recognition has been devoted to the cultural Commons.301 The Bellagio Declaration urges the international community to move towards a just world order of intellectual property rights and conveys awareness for the importance of the public domain for the benefit of innovators and consumers alike. It favors a limited recognition of new protections for cultural heritage, folkloric productions, and biological know-how. It also favours increased recognition of the public domain and asks for its protection by means of expansive user rights' protections like Fair Use, compulsory licensing, and narrower initial coverage of property rights in the first place. Regarding the protection of cultural heritage and forms of traditional knowledge, the Declaration would prefer granting exclusive rights modeled after neighbouring rights rather than author's rights in order to emphasize the special cultural and economic contributions of groups whose activities fall outside the traditional definition of "authorship."302 Such new rights are difficult terrain, and the Declaration is cautious about creating new IP 300. See Boy le , Shamans, supra note 3 at 196. 301. ibid. 302. ibid, at 198. 137 rights. In the light of concerns about public access to information, international development and cultural diversity and freedom, the Bellagio manifesto strongly suggests to implement solid Fair Use privileges and compulsory licensing schemes so as to ensure wide accessibility of newly protected matter. Any elaboration of reforms with regard to intellectual property should always be undertaken with a commitment to the preservation of the public domain as a cultural and intellectual Commons, from which all people, from all nations, are free to draw. Finally, the Bellagio Declaration critiques the historical process of framing intellectual property laws: such laws have been designed by a few individuals but applied to many. The need for a more democratic forum for drafting a fair intellectual property regime in the digital age is all too obvious in times when copyright law has widened its scope to affect high-school kids, parents, and peoples in all communities. Naturally, the Bellagio Declaration remains a general critique and can only roughly outline the challenges ahead. But together with non-governmental initiatives like the ones undertaken by UNESCO, other non-profit organizations, and legislative proposals in national jurisdictions, the public domain is not lost yet. 3.3. The Public Domain Enhancement Act It is in the United States that the public domain is being most passionately defended, and is most obviously under siege. Aggressive litigation by corporate copyright holders against intermediaries and individuals, legislation regarding term extensions, anti-circumvention rules and mandatory rights management schemes303 have in response led to several efforts to reclaim the public domain. Some of the strategies that are being used include the offering of free licenses 303. The "Broadcast Flag" is a controversial mandatory copy-protection technology for digital television, planned by the Federal Communications Commission (FCC). See e.g. http://hraunfoss.fcc.gov/edocs_public/ attachmatch/FCC-03-273Al.pdf (last accessed 30 June 2004); see also Public Knowledge, on-line: http:/ /www.publicknowledge.org/issues/fcc-flag-case (last accessed 30 June 2004). 138 less restrictive than current copyright law, and development of proposals for alternative regulations or amendments. One proposed bill is the Public Domain Enhancement Act3,04. After the defeat in Eldred v. Ashcroft, Lawrence Lessig305 as well as other scholars and activists concerned with the enclosure of the public domain began to develop alternative approaches to reclaim the Commons of knowledge and creativity. One attempt is the Public Domain Enhancement Act (PDEA), a proposed bill that aims at accelerating the passage of non-commercial works into the public domain. By imposing a simple registration requirement and the payment of one dollar due fifty years after creation, a rights holder can enjoy the longer term of protection. If the author does not consider it worth renewing the copyright, the work's status changes to "public domain." It is hoped that works without any commercial value can thus be "rescued," that is they become widely accessible without permission. A revolutionary proposal, this bill seeks to increase works available in the public domain by requiring a copyright holder to pay the moderate renewal fee fifty years after his work is first published, and every ten years after until the end of the copyright term (in the U.S. now ninety-five years for corporations and seventy years after the death for an individual). If passed, it would benefit artists and the public in two important ways: First, many works would automatically pass much more quickly into the public domain on the expiration of the period, and secondly it would lead to the creation of a public register of public domain works that would make the scope of the public domain clearer for potential users. The Bill relies on the assumption that the vast majority of copyright holders will not renew their rights because most creative works lose their commercial value after only a few years. In this way, the proposed Public Domain Enhancement Act would ensure a flood of new works into 304. H.R.2601, "To amend title 17, United States Code, to allow abandoned copyrighted works to enter the public domain after 50 years." The bill is currently referred to the Subcommittee on Courts, the Internet, and Intellectual Property. Available on-line: e.g. at http://www.publicknowledge.org/content/legislation/pending-legislation-pdea/attachment (last accessed 30 June 2004) [PDEA]. 305. Lawrence Lessig on-line: http://www.lessig.org/ (last accessed 30 June 2004). 139 the public domain. A second tangible benefit would be that copyrighted works would be identified and copyright owners located; such a registry database would be a first step to document the content of the public domain. The registration and renewal process outlined by the bill would also empower artists and others by making it vastly easier to identify and contact owners of works. Currently, the lack of registration and renewal requirements makes it extremely difficult and often prohibitively costly for an artist or other individual to determine whether a work is protected by copyright, and if so, who owns the copyright. Such a determination is very important. Under current law, using a copyrighted work without authorization from the owner makes the user automatically liable for large money damages. This situation makes it highly likely that anyone uncertain of whether a work is protected will not take the chance of making a mistake. The argument is that the permission requirement for such works - likely the vast majority of creations306 - is too burdensome because in most cases the author or rights holder is difficult to identify and get hold of. Additionally, in the digital age, the status of a work might be extremely hard to determine in the future. Thus, the PDEA tries to softly re-establish the former registration system and a certain division between commercial and non-commercial production. Lessig acknowledged that the registration process of the past was too much of a burden for authors. When the Berne Convention abolished any registration requirements in 1908 in Berlin and the United States followed with the 1976 reform of the Copyright Act, the default status of creative works changed from "public domain" to "copyrighted."307 The copyright then started to exist automatically by fixating the creative idea onto a tangible medium. Through requiring a simple renewal process, requiring nothing more than the electronic submission of a one-page document, the proposed bill seeks to eliminate the risks and costs of 306. One study indicates that only 2 percent of works between 55 and 75 years old continue to retain commercial value. Eldred v. Ashcroft, supra note 15 at 804 (Breyer, J., dissent). 307. Lessig, Free Culture, supra note 6 at 250. 140 finding a copyright holder by creating a public registry of copyrighted works. Combined with the assumption that works of a certain age not on the registry are in the public domain such a bill would be a small but powerful step towards more recognition for the public domain. It seeks to offer a partial solution to the current copyright conundrum by empowering individuals to better determine what information lies in the public domain, and by requiring copyright owners to be active in maintaining their ownership of creative works. It is unclear, however, whether the bill has a realistic chance of enactment, or efficacy, in a climate of copyright expansion and international harmonization. One important aspect that must be considered is whether the introduction of formalities of this sort in the context of domestic copyright law conflict with international treaty obligations, such as WIPO Copyright Treaty and the Berne Convention.308 Only some countries have institutions like the U.S. Copyright Office because registration is not a necessary requirement for copyright protection. Unlike in the case of patents or trademarks, the creation of a searchable database would be a difficult undertaking. There are numerous categories of art, culture, information, and entertainment products. Moreover, often only parts of these works are protected, and others remain in the public domain. Viewed from this angle, the Public Domain Enhancement Act is a radical step: It would change back the default status of a work from copyrighted to "public domain", after the grace period for the payment of "maintenance fees" has expired. In economic terms, any registration requirement would likely be called burdensome. But the absence of such a tool constitutes a burden as well -on the public domain. The concept of the PDEA would perhaps simplify the situation for right holders and users alike, if sophisticated, easy-to-use, and free search services can be implemented. A general duration of 50 years and would remain without any formalities, and a digital database would provide instant access to the registry of rights holders who signed up for longer protection. 308. With the ratification of the Berne Convention in 1989, the U.S. abolished registration requirements. For both treaties, see on-line: http://www.wipo.int/treaties/en/index.html (last accessed 30 June 2004). 141 Admittedly, the implementation of such search functions currently sounds more than challenging. As mentioned earlier, copyrighted subject matter is not easy to identify. A re-invention of any registration requirement would be a great technological challenge, and the manifold nature of potentially copyrighted subject matter makes the creation of a searchable database a highly ambitious tasks. Unlike in the case of patents or trademarks - where entries are defined by words - copyrighted expression is not necessarily defined by words at all. Some forms of art and information are partially defined by words, but even then the search would be more than difficult. At least with today's technology, searching for drawings, cartoon strips, or copyrightable parts of larger works seems impossible. The PDEA also does not fully explain the purpose of a database where the relevant works are not attached. If one simply finds a name, it does not help much for a determination of whether a desired use would constitute an infringement or not. With these implementation problems in mind, it is unlikely that the PDEA will ever be passed. Even if this were to be the case however, the pending PDEA can be an important rhetorical contribution to the conceptualization of something like a unified theory of the public domain. Besides academic study of the public domain, awareness among members of the public and among decision makers is crucial for a change in paradigms. The discourse about the public domain is not known for its consistency. Indeed, Edward Samuels' criticism focuses on the diversity of different approaches attempting to conceptualize this realm of freedom within the copyright system.309 Like property, copyright itself is a complex web of principles, beliefs and underlying opinions. The Dutch copyright scholar F.W. Grosheide illustrated that the origin of copyright can be traced back to several distinct rationales.310 Prof. Hugenholtz summarized the most important systematic points as follows:311 309. Edward Samuels, "The Public Domain", supra note 227. 310. F.W. Grosheide, Auteursrecht op maat (Deventer, Netherlands: Kluwer 1986) at 128. 311. Bernt Hugenholtz, "The Great Copyright Robbery: Rights Allocation in a Digital Environment" paper presented at conference A Free Information Ecology in a Digital Environment, New York University School 142 a) The 'personality' argument: the work of authorship bears the personal imprint of its maker; copyright ('author's right') is a species of a right of personality. b) The 'natural law' rationale: copyright reflects notions of natural justice. Author's rights are not created by law but always existed in the legal consciousness of man. c) Economic arguments: copyright protection promotes economic efficiency, by optimizing the allocation of scarce resources through the pricing system. d) Social and cultural rationales: copyright acts as an incentive to create and disseminate works that serve a valuable social or cultural purpose. e) The freedom of expression rationale: copyright makes creators independent of Maecenas, State or subsidy; copyright is the proverbial 'engine of free expression'. This list clearly highlights not only the complexity of copyright law but also shows the difficulty of reforming and adapting it in a world where information is becoming the most valuable resource. Rosemary Coombe went to great length to analyze the intersections between culture and intellectual property law. From a legal and anthropological viewpoint, Coombe argues for a more internationalized action to revive the public domain.312 Lawsuits to challenge of Law, 2 April 2000 at 1 [unpublished], on-line: http://www.law.nyu.edu/ili/conferences/freeinfo2000/ confpapers/hugenholtz.pdf (last accessed 30 June 2004). 312. Rosemary Coombe, "The Cultural Life of Things: Anthropological Approaches to Law and Society in Conditions of Globalization" (1995) 10 Am. U.J. Int'l L . & Pol'y 791; See also Keith Aoki , "(Intellectual) 143 regulations for reverse-engineering or copyright extensions and participation in the legislative process are important ways of contributing to a balanced communications environment. But if one realizes the conflicts around intellectual property on a global scale, it becomes clear that alternative efforts are needed as well.313 The problem with this automatic copyright is that it is not easy for authors to actually dedicate their work to the public domain or contractually license their works in a less restrictive way than the statute does. How can a creator communicate that others can use her work freely, or under some conditions? This problem of uncertainty might not be of priority in the realm of purely commercial production. The mainstream entertainment industry naturally prefers to have "all rights reserved." Significant investments have been made with the expectation of adequate revenue protected through intellectual property. And if somebody would like to use the work in question, it is relatively easy to locate the rights holders and negotiate a license fee. Regarding non-commercial use of such works, exemptions or user rights like Fair Use make it possible to access the necessary information.314 But what about all other works? The standard of originality is so low that more or less everything is copyrighted today. The PDEA is one (controversial) way to open the door for non-commercial works into the public domain. Like the PDEA, the next approach I will describe here is lead by the same people who have fought to convince the U.S. Supreme Court in Eldred to stop the ever increasing protection of copyright. Think about today's music culture. Think about sampling, as in rap or electronic music. Should the sampling artist really be required to clear the copyright for every sound fragment she uses? The result of the thought process about this current situation in copyright law led to the birth of Creative Commons. Property and Sovereignty: Notes Toward a Cultural Geography of Authorship" (1996) 48 Stan. L. Rev. 1293. 313. General information resources related to issues like biodiversity, traditional knowledge, and indigenous communities can be found at ELDIS, on-line: http://www.eldis.org/ipr/ (last accessed 30 June 2004). 314. This is only partly true in the digital sphere: Digital Rights Management can prevent access in the first place and render many of the mentioned user rights meaningless. So called "click-wrap" contracts - i f enforceable -often waive essential user rights, and lastly, the uncertainty and costs of possible litigation is a disadvantage for the user, whose burden of proof for a fair use in practice keeps her from using the material at all. 144 3.4. Creative Commons and Beyond Creative Commons315 is a non-profit organization designed to "to build a layer of reasonable, flexible copyright in the face of increasingly restrictive default rules."316 It does that not by lobbying for copyright reforms but by offering a spectrum of free licenses that can be attached to any work, be it a film, a music track or a written article. The mission of Creative Commons is to make it easy for artists to tell users and re-users that they are allowed to do certain things with the relevant work. Believing traditional copyrights are too restrictive, it aims to create plain-language copyright notices that explicitly offer a greater degree of freedom to those who would reshape or redistribute the copyrighted material. Much like the PDEA, Creative Commons is based on the assumption that there is a vast realm of non-commercial production that is being disadvantaged by contemporary copyright laws. Independent artists, researchers and users of all kinds mostly do not have the resources to negotiate licenses, employ lawyers or clear the rights for small pieces of material used in a new work. The transaction costs for this part of cultural production are simply too high in a system close to a property regime. Creative Commons seeks to make the system more flexible by spelling out which rights the copyright holder wishes to reserve and which are being waived without waiting for a request. Artists can mix and match from among several basic licensing agreements: They can decide whether they simply want attribution anytime their work is used by someone else; whether they want to deny others use of the work for profit without permission; whether they want to prevent others from altering the material; and whether they want to permit the use of material only if the new work is offered to the public under the same terms.317 An underlying layer of digital code enforces the rights laid out by the owner, telling computers how a given work can be used. Language is an important tool within the system of Creative Commons licenses: Each license is formulated or designed in 315. See Creative Commons on-line: http://www.creativecommons.org/ (last accessed 30 June 2004). 316. See Creative Commons on-line: http://www.creativecommons.org/learn/aboutus/ (last accessed 30 June 2004). 317. See Creative Commons on-line: http://www.creativecommons.org/learn/licenses/ (last accessed 30 June 2004). 145 three different forms: a) computer-readable code: with the embedded licenses, other machines and software can read and understand that permission is granted to e.g. copy the work and make derivatives of it, as long as it is for non-commercial purposes b) legal code: the legal language of the attached license explains the details of granted and reserved uses c) human-readable code: a click on the license reveals the specific terms of the license in plain English Another language-related aspect of Creative Commons is the iCommons project,318 focusing on drafting licenses for other jurisdictions than the United States. Internationalizing the Creative Commons project is an important action to reclaim the public domain and facilitate an easy way for users to influence the impact of copyright law in the digital environment. By adapting the licenses to other jurisdictions, a chance is opened up to create a user-driven international platform for a balanced copyright in an electronic culture. Because it uses private rights, Creative Commons partly avoids the complexities of conflict of laws and international copyright rules. The licenses constitute agreements between the creators and users, and they do that in a flexible but easily recognizable manner. Modeled after the Free Software Foundation's GNU General Public License (GPL), Creative Commons is the first attempt to offer a standardized, free set of less restrictive licenses - declaring only "some rights reserved" and replacing standard "all rights reserved" language.319 It could thus become a standardized and widely recognized format enabling a seamless communication about a thinner and more flexible copyright for art forms 318. Creative Commons on-line: http://www.creativecommons.org/icommons/ (last accessed 30 June 2004). 319. "Some Rights Reserved" captures the essence of Creative Commons well. It tries to offer a compromise between extremes and offers flexibility for different kinds of creators and art forms. 146 like sampling, remixing, collaborations and peer-to-peer production in general. Although the organization offers a license that articulates a complete dedication of the work to the public domain, artists have other - more flexible - choices as well. So far, the available licenses include: a) The Sampling license will let authors invite others to transform their work, even for commercial purposes, while prohibiting distribution of verbatim copies, or any use in advertising. b) The Sampling-Plus license will offer the same freedoms as the Sampling license, but will also allow non-commercial sharing of the verbatim work. c) The Attribution license lets others copy, distribute, display, and perform copyrighted work - and derivative works based upon it - but only if they credit the author. d) The Non-commercial license lets others copy, distribute, display, and perform a work -and derivative works based upon it - but for non-commercial purposes only. e) The No Derivative Works license lets others copy, distribute, display, and perform only verbatim copies of a work, not derivative works based upon it. f) The Share Alike license allows others to distribute derivative works only under a license identical to the license that governs a work. Every license in effect will retain the copyright and announce that other people's fair use, first sale, and free expression rights are not affected by the license. Also, every license requires licensees to get the creator's permission to do any of the things she chooses to restrict - e.g. 147 make a commercial use, create a derivative work; to keep any copyright notice intact on all copies of your work; to link to your license from copies of the work; not to alter the terms of the license, not to use technology to restrict other licensees' lawful uses of the work. Additionally, all licenses allow licensees, provided they live up to the creator's conditions, to copy the work, to distribute it, to display or perform it publicly, to make digital public performances of it (e.g. web-casting), and to shift the work into another format as a verbatim copy. Finally, the licenses apply worldwide, last for the duration of the work's copyright, and are not revocable.320 Many international licenses are already available, and artists worldwide have used Creative Commons licenses to relinquish all or some rights to more than 1.5 Million pieces of music, video, text, and digital art.321 Creative Commons has the potential to become a central architectonic concept within the digitally networked environment. Yochai Benkler has described the remarkable growth of the "sharing economy" fuelled by innovative production and dissemination techniques.322 This sphere of collaborative, shared peer-to-peer production sorely needs tools to acquire more legal freedom to use creative material as resources to remix its culture. The challenge is to show that innovative markets can be sustained in a free culture with less restrictive copyright rules. Creative Commons is a crucial commitment to this cause. The future will show how widely accepted the "some rights reserved" approach becomes. Creative Commons is made for the Internet. The advantages of computer-readable code allow for the searching of freely accessible works, and the process of finding legally usable pieces of art can be greatly simplified on electronic networks. 320. See Creative Commons on-line: http://www.creativecommons.org/learn/licenses/fullrights (last accessed 30 June 2004). These base-line rights do not apply to the Public Domain license, which constitutes a grant of the entire copyright to the public. 321. See Andy Raskin, "Giving It Away (for Fun and Profit)" Business 2.0 May 2004, available on-line: http:/ /www.business2.com/b2/web/articles/0,l 7863,608619,00.htm (last accessed 30 June 2004). 322. See Yochai Benkler, "Coase's Penguin, or Linux and the Nature of the Firm" (2002) 112 Yale Law Journal 369, available at http://www.benkler.org/CoasesPenguin.; . "Sharing Nicely": On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production, forthcoming 114 Yale L. J. (2004), available on-line: http://benkler.org/SharingNicely.html (last accessed 30 June 2004). 148 Even though the licenses provided for by organizations like Creative Commons work in off-line environments as well as in digital space, broader international efforts to raise awareness for the public domain as a cultural Commons belonging to all and worth protecting must be promoted. Recent events promise a successful future for the Creative Commons idea. The BBC decided to use the Creative Commons system or a similar licensing scheme for opening its digital archives to the public.323 The BBC's project is one the most ambitious attempts to create a freely accessible archive of digitized information; the inclusion of Creative Commons as a solution for attaching a liberal copyright regime to the vast amount of the public broadcaster's content would certainly be an enormous success for the advocates of a healthy public domain. It would mean that internationalized action is possible and reinforce the practicability of the Creative Commons concept. Unlike the re-introduction of registration procedures through legislation like the PDEA, Creative Commons makes it easy for creators to define the desired level of copyright protection for their works within the spectrum of copyright law. Creative Commons licenses are constantly technologically and legally updated. They are easy to recognize and a flexible way to communicate the value of the public domain to others. As of this writing, international Creative Commons licensed have been officially introduced in Brazil, Finland, Japan, and Germany, despite significant difficulties to adapt the licensing approach to other jurisdictions.324 Many more countries are yet to follow. In 1981, David Lange suggested that "recognition of new intellectual property interests should be offset today by equally deliberate recognition of individual rights in the public domain . . . Each right ought to be marked off clearly against the public domain."325 We are still in the process of developing a theory of the public domain. Public discourse, while recognizing 323. Katie Dean, " B B C Top Open Content Floodgates", Wired News (16 June 2004), on-line: http:/ /www.wired.com/news/culture/0,1284,63857,00.html (last accessed 30 June 2004). 324. Jennifer L . Schenker, "New Copyright Grants Artists Greater License", International Herald Tribune (14 June 2004), on-line: http://www.iht.com (last accessed 30 June 2004). 325. Lange, "Recognizing the Public Domain", supra note 194; see also Lange, "Reimagining the Public Domain", supra note 39 at 463. 149 intellectual property aspects within anti-globalization and free-trade concerns, and increasingly paying attention to bio-diversity and traditional knowledge issues, has not yet embraced the enclosure of the public domain as one of the defining issues of our time. The conceptual language of the Commons might be of help by providing an intellectual basis for constructing a framework for the preservation of the public domain. It is remarkable that organizations like Creative Commons, the EFF, or Stanford Law School mobilize all their resources to fight for a balanced communications policy. But further theorization of the subject is essential for safeguarding the public interest in the public domain against those who seek to convert the intellectual Commons into private property. 150 C H A P T E R SIX: CONCLUSION 1. Towards Open Cultures I visited a remarkable workshop held in Vienna in the summer of 2003. Its title and theme was Open Cultures: Free Flows of Information and the Politics of the Commons?16 The facilitators of the workshop understood well that the issues of copyright expansion and wireless networks were not completely separate problems. The development of restrictive and one-sided laws would soon result in "an attempt to create scarcity out of the digital abundance." The workshop brought together different minds from all over the globe to discuss this new territory of the Commons. Its motto fits well into this thesis and could easily serve as its abstract: "Rather than expanding the means of control to catch up with the ease of data processing, this movement takes the free availability of information as its starting point. It recognizes that a free society needs free flows of information, that the attempt to control information quickly leads to controlling people. Creativity - commercial, scientific and artistic - requires the ability to easily and freely built upon what others have created. "32? This thesis has so far linked different modules.of contemporary communications law. By formulating a diverse picture of the Commons in today's digital environment, is has shown that such deceptively different policies like copyright and spectrum management crucially affect each other. With respect to environmental resources, Rachel Carson was the one of first to make the 326. Open Cultures Workshop on-line: http://opencultures.tO.or.at/oc/ (last accessed 30 June 2004). 327. On-line: http://opencultures.tO.or.at/oc/conference (last accessed 30 June 2004). 151 link. Her 1962 work Silent Spring31* depicted the environment as a universal interdependent system of many layers. This is the challenge for a modern communications policy. James Bolye has called for environmentalism in the cultural sphere. Works like David Bollier's Silent Theft articulate a broad view of the Commons and show that bio-diversity, traditional knowledge, spectrum policy and intellectual property need to be crafted with regard to the impact their design has on each other.329 The creation of a wireless Commons affects creative industries, and the copyright rules affect the flow of information. In the age of sampling, culture is in a permanent flux. It is the product of recycled memory, heritage and archived impressions of prior ages, remixed by the human mind and published onto the electronic highway where information has become independent from any physical artifacts. The flow of digital bits is carrying messages over the networks of the world and calls for a major reform of today's communications framework. While many of John Perry Barlow's predictions have been proved unfounded, his insistence that classic notions of property fail to adequately regulate the globalized, electronic diversity of cultures and production modes remains relevant.330 1.1. Everything Flows Both the way we govern radio spectrum and the way we design copyright law shape the architecture of information production and exchange. Traditionally, the aspect of "production" has been dealt with through an "author-centric" copyright law. While utilitarian and economic in the Anglo-American world, copyright's focus remains on author's incentives, rewards, and asserts that such a regime is a necessary aspect of the public sphere in that it fosters the dissemination of new cultural works. Here, the public domain is in need of wider recognition and support. As the basic support system for incumbent creators, it currently grows in importance but 3 2 8 . R a c h e l C a r s o n , Silent Spring ( B o s t o n : H o u g h t o n M i f f l i n 1962) . 3 2 9 . D a v i d B o l l i e r , Silent Theft, supra note 13. 3 3 0 . B a r l o w , " T h e E c o n o m y o f Ideas", supra note 2 4 2 . 152 shrinks in volume. In a world where culture is made through sampling, remixing - in other words, building on the past and incorporating it into the present and the future - we need a more comprehensively democratic system by which to manage the public sphere. As Tim Wu suggests in his most recent paper this cannot be achieved by crafting laws that focus solely on the "production" aspect of the communications environment, to the exclusion of comprehending the crucial cultural and political role of the communications environment's structure.331 It is the "communications" aspect of copyright that deserves closer attention. Judges and legislators influencing the evolution of copyright law and spectrum regulation need to acknowledge the complexity of the dynamic flow of intellectual resources that comprise the communications environment. A greater focus on the theorization of the public domain could help achieve a more nuanced understanding of the information ecology, and would highlight the important role that concepts such as immunities from copyright law such as the Fair Use exception play in maintaining the continuing flow of free information that comprises the public domain. The Sony decision in 1984 has recognized the importance of communications factors for copyright law. In Sony, the court ruled that "the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate purposes."332 By exempting the newly invented VCR from copyright liability, the Supreme Court tried to balance the communications environment by setting a certain competitive standard between rival disseminators. The court acknowledged that one of the purposes of copyright is "to promote society's interest in the free flow of ideas, information and commerce."333 But the flow does not stop at national borders. It is therefore time to internationalize the effort 331. Tim Wu, "Copyright's Communication Policy" (2004) Michigan L. Rev., Forthcoming, on-line: http:/ /papers.ssm.com/sol3/Delivery.cfrn/SSRNJD532882_codel59088.pdf?abstractid=532882 (last accessed 30 June 2004). 332. Sony, supra note 234 at 442. 333. ibid, at 429. 153 to create open cultures and design the communications environment with the benefit of the Commons in mind. Spectrum policy has long accepted the physical realities of its regulatory subject. But like the content layer of the communications ecology, the physical layer undergoes a fundamental transformation. After the Internet, wireless communications revolutionize the patterns of sharing information. Radio-waves cannot be nationally or geographically contained and are thus governed mainly within the ITU, a body of the United Nations. The future spectrum policy will set the playground of cultural production and dissemination. Here, the freedom must be built first. A current link to copyright policy can be observed by the FCC's plans to regulate Digital Television. The Broadcast Flag is a copy-protection scheme that is about to become a mandatory feature built into all equipment, and protected by law.334 The debate around the Broadcast Flag is the last struggle of a fading industry defending an established business model reliant on central transmission by the few to the many. The Broadcast Flag is a regulatory device located at the the code layer of the environment, but it regulates wireless transmissions and its content as well. It attempts to contain what we might call the flow of information so as to allow for a commercial packaging in the style of the old broadcast model. But the Broadcast Flag ignores the new realities of information production and exchange, it does not see the innovation produced by peer-to-peer production and alternative ways of interacting and participating in a decentralized networking environment. Interaction and participation are key, and powerfully illuminate the structure of the cultural sphere in the 21st century. As Paul D. Miller notes: "Today's notion of creativity and originality are configured by velocity: it is a blur, a constellation of styles, a knowledge and pleasure in the play of 334. See e.g. Federal Communications Commission News Release, "FCC Explores Digital Broadcast Copy Protection" 8 August 2002 (MB-Docket 02-230); "Report and Order and Further Notice of Proposed Rulemaking" 4 November 2003 (MB-Docket 03-273). See also the EFF coverage on-line: http://www.eff.org/ IP/DRM/HDTV7 (last accessed 30 June 2004). 154 surfaces, a rejection of history as objective force in favour of subjective interpretations of its residue, a relish for copies and repetition, and so on. We inhabit a cultural zone informed by what Gilles Deleuze liked to call a "logic of the particular", a place where the subjective, multiple, interpretations of information lead us to take the real as a kind of consensual, manufactured situation. "33S Much like the advent of digital television, the emerging digitalization of radio illuminates the common line spectrum policy and copyright law share. In the FCC's consultations regarding the future legal framework for Digital Audio Broadcasting (DAB), the RIA A warned that unprotected digital radio would harm the recording industries in an equally grave way as peer-to-peer file-sharing does. To prevent digital radio from becoming a substitute for unauthorized peer-to-peer networks, the RIAA suggests that the FCC should mandate a copy-protection scheme similar to the Broadcast Flag. Alternatively, the RIAA recommends to directly encrypt copyrighted music to prevent users from making digital copies of broadcasted audio material.336 Clearly, these proposed restraints on digital radio can only be efficient if the spectrum for DAB is licensed. Within an unlicensed frequency range, such control would be much harder because not only a few licensed broadcasters would be allowed to offer DAB services. The future of digital radio is still unclear, but it shows that the classic struggle between technological innovations and the copyright regime will increasingly be fought over wireless technologies. Thus, spectrum policy directly affects copyright law. In both cases, the Commons offers an alternative framework that promises to maximize the use of new digital technologies in the public interest. 335. Paul D. Miller, Rhythm Science (Cambridge, Mass.: MIT Press 2004), at 76 [Miller, Rhythm Science]. 336. "Digital Radio Sounds Too Good for the RIAA" , Masons, 18 June 2004, on-line: http://www.out-law.com/ php/page.php?page_id=digitalradiosounds 1087554136 (last accessed 30 June 2004). 155 The impact of law on the informational ecosystem can be a liberating one, or it can be a restraining one. In any case, the law helps define the entry costs for participation in the new age of media. Studies of the Commons suggest that the digitally networked environment would greatly profit from the freedom provided by a series of Commons on all layers. The digital culture we now live in is by no means a static construct; as McLuhan observed,337 the medium is the message, and it is represented by the free flow of information - the lifeblood for creativity, public discourse, access to knowledge and innovative commerce. But will the medium be an open democratic one, or a centrally controlled one? The manner in which we regulate emerging media technologies will determine this question. But, in order to address this question, the common link all communication laws share must be properly understood. James Boyle's call for cultural/digital environmentalism is the starting point for a discourse about the future of all cultural and informational resources. While the Commons can serve a a theme for information policy, the different legal modules have different perspectives and need different solutions. It is paramount, however, that the ecological balance of the information environment is respected at all times. 40 years after the birth of the environmental movement, this should be all too obvious. But in the realm of the intangible, a debris of individual, scattered interests seems to shape regulatory structures. Not only legal reforms but also efforts from other organizations, interest groups, and the public are needed if copyright is to find its balance for the coming years. In Chapter Five, some initiatives to reconstruct the public domain have been portrayed. None of them can be successful without a change of thinking within society as a whole. But all of them are essential in facilitating such change. 3 3 7 . M a r s h a l l M c L u h a n , Understanding Media: The Extension of Man, 10th ed . ( C a m b r i d g e , M a s s . a n d L o n d o n , E n g l a n d : M I T Press 2 0 0 2 ) , at 8-9. 156 2. Reclaiming the Commons 2.1. The Future Path of Wireless The spectrum wars are fought in a far more moderate style than the copyright wars.338 While such terminology is used in both contexts, most participants in the spectrum debate acknowledge that both the property based approach and the Commons approach are superior to the current licensing model used by most governments.339 The future for a spectrum Commons arguably looks better than the one envisioned for copyright.340 The optimistic outlook for the model of open spectrum is ironically not based on the moral and political insights of decision-makers but largely on economics. The explosive success of Wi-Fi continues to dazzle the world and cannot be ignored by those who take part in the discourse about how to regulate the radio spectrum.341 Mobile phone companies currently implement Wi-Fi networks into their product portfolio to profit from its tremendous success. Many carriers have announced to soon offer instantaneous compatibility between proprietary mobile phone transmission standards and Wi-Fi 802.11, promising the ultimate convergence and co-existence of commercial and non-commercial networking architectures.342 The economic advantage of the spectrum Commons is rooted in the 338. For publications utilizing metaphors of war, see e.g. Jennifer A . Manner, Spectrum Wars (Boston, Mass. and London, England: Artech House 2003); Jessica Litman, "War Stories" (2002) 20 Cardozo Arts & Entertainment L . J. 337. 339. See e.g. Benkler, "Some Economics of Wireless Communications", supra note 148; Gerald R. Faulhaber and David Farber, "Spectrum Management: Property Rights, Markets, and the Commons" Working Paper 02-12 (2002), available on-line: http://www.aei.brookings.org/admin/authorpdfs/page.php?id=217 (last accessed 30 June 2004). 340. Both the entertainment industries and many academic scholars seem to be rather pessimistic about the future prospects of copyright law. See e.g. the daily updates on-line at: http://www.corante/copyfight/ (last accessed 30 June 2004) or the press releases on the Motion Picture Association of America (MPAA) web-site http:/ /www.mpaa.org (last accessed 30 June 2004). 341. See for instance Wi-Fi Planet on-line: http://www.wi-fiplanet.com/, exemplifying the growth rate and popularity of wireless technology (last accessed 30 June 2004). 342. GSM/GPRS/UMTS describes the standards used by mobile telephony carriers. These devices operate in 157 technological nature of wireless networks. As David Reed explains, wireless networks are not in danger of overuse by too many participants, they actually grow by such accretion.343 By regulating the equipment so as to share frequency bands, interference and scarcity of spectrum can be greatly reduced. Wi-Fi exemplifies how. equipment regulation, together with industry standard settings can work here. So what is the spectrum Commons? Is it the absence of property rights or does it constitute a form of common property in public networks? Either one is possible, depending on the design of every local area network. The NYC Wireless initiative shows the great value of public networks, accessible to everyone.344 The "nature" of wireless communications as a resource makes the commons the best possible governance solution: spectrum is renewable, inexhaustible and potentially abundant. Although the radio spectrum might seem overcrowded by today's devices, it does not have to be that way. Radio-waves do not "collide," interference is always an issue of the receiver. Spectrum is a basic resource for communications, and its future use is manifold and uncertain. Such a resource should best be held in a Commons, environmental studies scholars have told us.345 Spectrum wants to be free, as Kevin Werbach asserts;346 an argument supported by the fact that the transaction costs of a property scheme would potentially be prohibitive for managing a resource that does not have to be scarce. Stanford Law School held a conference on the future management of spectrum in 2003.347 Legal scholars, economists, engineers and technologists licensed parts of the spectrum, and in the case of UMTS, frequencies have been auctioned off in many countries. See on-line e.g.: http://europa.eu.int/scadplus/leg/en/lvb/124202.htm (last accessed 30 June 2004). The convergence plans have been covered on-line at: http://www.3g.co.uk/PR/Sept2003/5884.htm and on-line at: http://www.wi-fiplanet.com/news/article.php/3312851 (last accessed 30 June 2004). 343. David Reed, "Why spectrum is not property: The Case for an Entirely New Regime of Wireless Communications Policy" (2001), available on-line at: http://www.reed.com/Papers/OpenSpec.html (last accessed 30 June 2004). 344. New York City Public Wireless Initiative, on-line: http://www.nycwireless.com (last accessed 30 June 2004). 345. Rose, "The Comedy of the Commons", supra note 56 at 769; Ostrom, Governing the Commons, supra note 30 at 88-89. 346. Kevin Werbach, "Spectrum Wants to Be Free" Wired Issue 11.01 (2003), available at http://www.wired.com/ wired/archive/11.01/view.html?pg=l (last accessed 30 June 2004). 347. Conference Spectrum Policy: Property or Commons? Stanford Law School, March 1-2, 2003, see on-line: http://cyberlaw.stanford.edu/spectrum/ (last accessed 30 June 2004). 158 came together and weighed the advantages and disadvantages of property and Commons regimes. At the end of the conference, a moot court was held to explore the question of which approach Ronald Coase, who first criticized the governments allocation policy,348 would favour. The panel of judges decided Coase would have chosen a spectrum Commons, precisely because of the transaction and social costs involved in a property regime approach to spectrum management.349 Michael Heller's thesis of the "Tragedy of the Anti-Commons" is most applicable to the radio spectrum, where the necessity of price negotiations for the use of frequencies could lead to a high degree of inefficiency and unused spectrum.350 Perhaps more important however, is, that a commons regulatory system would keep more developmental options open for the development of spectrum technologies at this early technological stage of wireless development. Given that it is easier to propertize the commons than to free a commodified spectrum, a commons seems to be the best regulatory option at this stage. The Wi-Fi revolution is now upon us. But it can be stopped by keeping the tiny unlicensed bands of the spectrum in its current state. Open spectrum needs more space, and established licensees must be encouraged to use "sustainable" equipment that is able to share frequencies properly. Hope for a democracy friendly policy for radio spectrum derives from the regulatory structure of the subject. The ubiquity of the resource has shifted the decision-making process to international fora, and so far the ITU and its WRC conferences have proved a good place to allocate spectrum. If the world recognizes the value of an unowned, decentralized wireless environment, frequencies will be opened up. Social benefit and economic viability go hand in hand with respect to the radio commons. Every communications revolution started with disruptive technologies. In Free Culture, Lawrence Lessig shows how innovations like FM Radio have been stifled by the industries threatened by new technology.351 We should not let this 348. See Coase, "The Federal Communications Commission", supra note 71. 349. See supra note 347 on-line at http://cyberlaw.stanford.edu/spectrum/schedule/ (last accessed 30 June 2004). 350. Michael A . Heller, "The Tragedy of the Anticommons: Property in the Transition from Marx to Markets" (1998) 111 Harvard L. Rev. 621 at 622-26. 351. Lessig, Free Culture, supra note 6 at 3-6. 159 happen again a mere 70 years later. The industries entrenched in the old architecture of broadcast media are the largest consumers of radio frequencies. The boost of interactivity and non-commercial production enabled by open spectrum is not in their interest. While they are not to be blamed for acting in their share-holders short-term interests, a structural shift from being consumers to users can only be achieved if the law promotes the new possibilities of a shared spectrum, even if is against the resistance of the media giants of today. Commercial media will always be there. But alongside the mainstream mode of centralized production, a free society would culturally benefit from a liberation of some of the airwaves. Wi-Fi is only the beginning. In the wireless age, freedom is in the commons 2.2. Copyright in a Sampled World: Reconstruction of the Public Domain "Sampling is like sending a fax to yourself from the sonic debris of a possible future; the cultural permutations of tomorrow, heard today, beyond the corporeal limits of imagination. The mesh of sound, symbol and sentiment that electronic music represents is another way of speaking, another fusion of arte, techne, and logos - a melding of the Greek words for art, craft and word. " Paul D. Miller, Rhythm Science, supra note 335 at 72 ,77 . All culture is recombinant. All cultural works build themselves out of pieces of other works. This basic insight calls for further theorization of the public domain in its function as the essential pool of resources for new cultural forms of expression. This thesis has only given two examples of the emerging conflict between propertization and the effort to reclaim public space 160 in the cultural and communications sphere. Economic welfare, public discourse, diversity in media production, access to resources, and democratic stability depend not only on the well-being of a sophisticated property regime. The existence of a rich cultural and intellectual Commons is the foundation of the Information Society. Information is the in- and output of the production process in this world, and likewise, the Commons is the support system of all decentralized networks as well as their greatest promise. The transition from the industrial age into the information age has caused a misunderstanding of property applied to cultural resources. This misunderstood notion of intellectual property allows for the unprecedented expansion of privately owned informational resources. Property has a long tradition. Its application to intangible, non-rivalrous goods is not questioned by society yet, it is still supported by Common sense. And, as Lessig puts it, "common sense must revolt."352 But many of the essential resources in the Information Society must be freely available to all if it is to become a Free Information Society. Airwaves for radio-communications, ideas, facts, and sound fragments used for sampling should not be privately owned. The heart of copyright law has been a delicate balance between private property rights and public interests. Recalibrating that balance in the face of disruptive technologies and political interventions represents a major policy challenge. It is fair to say that, as a vast new communications infrastructure has emerged, we have reached a new juncture in our cultural history. The public domain, a quiet but powerful underpinning of the system, has been greatly enhanced by digital technologies that enable individuals to access more information more easily. In the context of these changes cultural consumers have, for the first time in centuries become cultural producers participating in peer-to-peer production models. While such an environment stands to benefit from the development of digital archives of public domain materials, these advances should not be taken for granted. The combined impact of DRM technologies, restrictive Court decisions such as Eldred and recent legislative measures such as the Sonny Bono Act, and the Digital Millenium Copyright Act threaten to completely denude the public domain of 3 5 2 . L e s s i g , Free Culture, supra note 6 at 2 7 1 . 161 content before a popular conceptualization of it can emerge. The Commons is a useful term because it does not imply a static set of information genres (copyright- expired books, government documents, etc.), but a dynamic "ecological system" of creativity and communication. The Commons implies that what matters is the flow of creativity and information and the overall vigour and complexity of those flows in our society. In this sense, copyright, trademark and patent law all affect the public domain, as do the ways that the communications infrastructure and government information resources are managed. The public domain should not be regarded as a peripheral outland of science, education, communications and culture, known only as the shadowy obverse of intellectual property. It is in fact much more. The public domain is the vast realm of raw material, the collection of human knowledge and creativity. It is our cultural heritage as well as an important matrix for commercial activity. Contrary to typical assumptions that the public domain merely comprises the static collection of works past their commercial exploitation date, the public domain is in fact highly dynamic. As we have seen, it expands and contracts in scope in relation to the interaction of technology, markets and law. As we have seen, the public domain is an essential component of copyright law and should no longer be treated as a mere side effect of the law, technology and commerce interface. As Litman argues, all of the key concepts of copyright law, for example the concept of originality, can only be defined in terms of the public domain, which provides the necessary cultural context for information products. But the public domain is much more than a backdrop, because no work is truly original and culture grows be accretion, the public domain must always remain the ultimate purpose of any copyright system. It is both the beginning and the end of every act of creation. It is the origin of a creative work as well as its final destination. The public domain thus is the public's share of the copyright bargain. The "promotion of progress" can only have be meaningful if progress is tied to the public benefiting from this progress, understood as the advancement of learning, 162 knowledge, and culture. It is this open, non-commercial semiotic space of the public domain that is indispensable to our democratic society.353 Despite its crucial role in the information ecosystem, like the air we breathe and the water we drink, the public domain will remain invisible until it is extinguished unless it is theorized in such a way that makes its role obvious. As with other projects such as feminism, or environmentalism, having a language that makes discrimination and exploitation visible is a crucial part of the battle. The thematic paradigm known as the Commons could help raising awareness for the value and systematic enclosure of the public domain. As we have seen, a Commons implies that the social ecology of creativity and information is important to everyone; it is not just a proprietary concern of copyright owners and industries. The Commons provides a means to shift the focus of discussion from market and property categories alone, and to begin to validate a conceptual framework in which a broader array of personal, social and democratic values have standing. It also allows the consideration of the role of the communications infrastructure (such as the end-to-end architecture of the Internet and spectrum management policies) in facilitating a public sphere that is open and accessible. It allows us to see that copyright law and spectrum management share a common link. A major challenge, for the short term, is realizing that these seemingly disparate controversies are thematically related. As Boyle puts it, we need something like an "environmentalism" for the Information Society.354 The Commons is the idea than can convey a new consciousness for the value of public resources in the digitally networked environment. We are in the midst of a revolution; innovations like wireless communications and digital networking technologies promise liberation but can also result in enclosure and exhaustive commercialization and monopolization of culture. Now is the time to build a free environment for a connected culture. Future generations rely on 353. David Bollier, "Why the Public Domain Matters: The Endangered Wellspring of Creativity, Commerce and Democracy" (2002) New America Foundation, on-line: http://www.bollier.org/ (last accessed 30 June 2004). 354. James Boyle, " A Politics of Intellectual Property: Environmentalism For the Net?" (1997) 47 Duke L. J. 87. 163 us to discuss the architecture of the informational ecosystem. How can we reach an advanced discourse about the public's side in this one-sided evolution? For this purpose, the Commons is the paradigm that offers the greatest promise to unite the many groups whose interests are at stake. Surely, it is only the beginning. But the Commons may currently be the most resourceful intellectual pattern to capture the interconnected issues influencing the architecture of all layers in the digital ecology. It is the most promising theoretical vehicle for the struggle to reclaim an open culture and free flow of information in a digital environment. 164 B I B L I O G R A P H Y Pr imary Sources: JURISPRUDENCE 321 Studios v. Metro-Goldwyn-Mayer Studios, Inc., [2004] U.S. Dist. LEXIS 2771 (N.D. Cal. 19 February 2004). Associated Press v. United States, (1945) 326 U.S. 1. BMG Canada Inc. et al v. Jane Doe et al, (2004) FC 488, Ottawa T-292-04. Buckley v. Valeo, (1976) 424 U.S. 1, 49. CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] S.C.J. 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