[DMCA-Activists] Lawrence Lessig - The BBC's lessons for America

[Seth Johnson]

-------- Original Message --------
Subject: [Random-bits] FT: Lawrence Lessig - The BBC's lessons for America
(and WIPO)
Date: Mon, 13 Oct 2003 07:46:52 -0400
From: James Love <address@hidden>
To: address@hidden

Lawrence Lessig: The BBC's lessons for America
By Lawrence Lessig
Published: September 8 2003

http://news.ft.com/servlet/ContentServer?pagename=FT.com/StoryFT/FullStory&c=StoryFT&cid=1059479642853


Greg Dyke, director general of the BBC, announced last month that the
broadcaster would make the contents of its vast archive available to the
public so long as any re-use of that content was for non-commercial
purposes. (Commercial re-users will have to strike their own deal.) The BBC
Creative Archive would enable the British to cultivate this national
resource - for which they have already paid - for educational, critical or
comedic purposes. The very structure will also make it much more likely that
commercial creators will be able to identify content valuable to them, and
then license that content from the BBC. The idea is a brilliant response to
the extraordinary explosion of creative capacity enabled by digital
technologies, in light of the BBC's founding mission - as Lord Reith put it
- to "inform, educate and entertain".

It also required a bit of creative thinking. For the natural intuition of
content owners is control. The very idea of giving up perfect control over
how and whether content is re-used is treason among insiders. But as the BBC
understands, it does not live in Disney World. And in the course of its
internal review an obvious question has become increasingly pressing: if the
BBC could make its archive available cheaply, what reason is there for
keeping it from the people who have already paid for it? Moreover, such
access would increase the BBC's chances of selling content commercially and
make it more likely that the technology to cultivate this content
(computers) will be more eagerly bought.

On the other side of the Atlantic there is little evidence of similarly
creative thought. Instead, the US government remains captured by the
extremists. The very same week that the Creative Archive was born in
Britain, it was exercising its power to kill a planned meeting of the World
Intellectual Property Organisation (Wipo), the United Nations' intellectual
property agency, to consider "open and collaborative projects to create
public goods". The examples that had led Wipo to call for that meeting
included the internet and World Wide Web (whose protocols are in the public
domain); a consortium of biomedical researchers and companies exploring
single nucleotide polymorphisms (SNPs); and the Global Positioning System,
which Ronald Reagan had set free for any use, commercial or non-commercial,
in the United States in the early 1980s. It also included the phenomenon of
free and open source software (F/OSS). It was this last category that
excited the opposition of Microsoft.

While there are many commercial developers who build and rely upon F/OSS
(IBM and Apple to name two), Microsoft is not one of them. For it, F/OOS is
instead a competitor. And it therefore launched a lobbying campaign to get
the US to have the meeting cancelled.

There is no surprise in Microsoft's behaviour. Nor is there anything wrong
with a business lobbying the government to behave in a way that benefits it,
even if it harms everyone else.

But what was surprising was the US government's reasoning for the meeting's
withdrawal. Lois Boland, director of international relations for the US
Patent and Trademark Office, explained "that open-source software runs
counter to the mission of Wipo, which is to promote intellectual-property
rights". As she further explained: "To hold a meeting which has as its
purpose to disclaim or waive such rights seems to us to be contrary to the
goals of Wipo."

These statements are astonishing for a number of reasons. First, they are
just flat wrong. Neither "free" nor "open source" software is in the public
domain. Both depend fundamentally upon strong intellectual property rights,
and supporters of both are eager that Wipo facilitate easy enforcement of
their rights in any jurisdiction.

Second, who said Wipo's sole purpose was to maximise intellectual property
rights? Is Wipo against generic drugs? Is it a failure of Wipo's objectives
that patents do not run for 100 years? As every serious economist since Adam
Smith has taught, good intellectual property policy is not the same as
maximal intellectual property rights. And as every serious policymaker
should therefore understand, Wipo's objective should be good policy, not
maximal rights.

But third, and most troubling, why would it be "contrary to the goals of
Wipo" for intellectual property rights holders to "disclaim or waive" their
rights? Property is all about individuals having the right to choose what
they do with their property rights. Does Bill Gates undermine private
property generally when he gives $20 billion to do good in the world? The
last time I wrote about the United States Patent and Trademark Office on
these pages, it was to praise the apparent scepticism of the Office's new
boss. I was quickly scolded by the USPTO press office. The only problem with
the patent system in the US, I was told, was that patents were not issued
fast enough.

Ms Boland's comments confirm that the US administration remains captured by
a simplistic and fundamentally misguided idea: that if some control is good,
then more control must be better. That idea is simply wrong. And if the BBC
survives the pressures now bearing upon it from the intellectual property
extremists, perhaps its Creative Archive will help the US think more
creatively as well.

Lawrence Lessig is a professor of law at Stanford Law School and author of
The Future of Ideas: The Fate of the Commons in a Connected World

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