This week’s work on copyright in the OpenEd MOOC should ring a bit of a historical bell. James Boyle’s chapter on Jefferson (assigned reading for this week) does a great (and lengthy) job analyzing the various positions of the founders, and European intellectuals of that time, on copyright. (I did find something a little more succinct here.)

Although Benjamin Franklin, having earned enough on his inventions to retire at a young age, apparently didn’t patent or copyright his work, other founders were most vociferous in their support of copyright. Without much debate, it was put in the Constitution (Art. I, Sec. 8, Cl. 8):

“the Congress shall have 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.”

But apparently this wasn’t enough. By 1790, there was a Copyright Act, called An Act for the Encouragement of Learning, by Securing the Copies of Maps, Charts, and Books to the Authors and Proprietors of Such Copies. Note the language: the encouragement of learning. The idea was to encourage authors and scientists not to keep it to themselves – to share. Since, as I teach my students, there is no reason for a law unless people are doing the opposite, this encouragement must have been needed at some level.

So one can assume there was a dearth of publications in the new country.

Interestingly,  the acts themselves were clearly copied from England’s own copyright laws (the Licensing Act of 1662, the Act of Anne in 1710). I wonder whether they cited these?

Jefferson’s letter, which seems to oppose copyright but actually proposes a short, socially agreed-upon copyright, was written in 1813. By then, there were significantly more publications and Jefferson, who did not make his living with his writings, was sharing his complex opinion on the subject (all the founders were complex intellectuals – it’s actually difficult to peg most of them to a “position”).

So on to now. Let’s say the original reason for copyright was because there were too few ideas out there. We do not have a dearth of ideas now. Some of them, of course, are heinous yet available to all through the medium of the web. So let’s hold them to the standard of the 1790 law: does copyright today encourage learning?

Open education, open sources, open access – it seems to encourage more learning than something as restrictive as copyright. Jaron Lanier, author of You Are Not A Gadget,  would disagree. In fact he does, here in this interview and elsewhere.

Lanier sees that what seems to be free and open can be detrimental to society as well as to creators who are not paid for their work. But someone is getting paid, and getting paid a lot, in the sharing economy: companies like Facebook, Google, Amazon. They are benefitting from the labor of others: “ordinary people are expected to share while a few companies at the center get all the money”. The solution?

I would like to see more systems where ordinary people can get paid when they contribute value to digital networks; systems that improve their lives and expand the overall economy.

Right now, I’m contributing to something. For free. Sharing what’s in my head (whether Boyle’s sources see that as natural, or even mine, has been debated). I benefit from others doing the same. But Lanier’s point of view makes me wonder: who else is benefiting from my work?

I agree with Lessig and others who say copyright should not be perpetual, and with the founders that it shouldn’t be for long. Extension of copyright beyond the lifetime of the creator has always seemed ridiculous to me.

But Karl Fogel’s article claims that copyright was never about creators or jobs, but about publishing rights and vendor claims. Intellectual property law was created by and for business interests, not starving artists. He suggests copyright is doomed anyway:

The abolition of copyright law is optional; the real force here is creators freely choosing to release their works for unrestricted copying, because it’s in their interests to do so. At some point, it will be obvious that all the interesting stuff is going on in the free stream, and people will simply cease dipping into the proprietary one.

In the academy, it remains very difficult for ones work to be taken seriously unless it’s published in a proprietary, copyrighted journal. While I am aware of trends toward more open sharing of ideas and science, I am unclear as to how one would actually reach an audience without those nasty publishing types.

Editorial cartoon from 1925

So I’m considering things in a different way, as small and large markets for knowledge. One possible historical argument might claim that in the past (17th-18th centuries),  there were not enough ideas in published circulation, so it made sense to give legal rights to those who were willing to publish under condition that their ideas be attributed to them and not claimed as original by others. They were reluctant to share their ideas, inventions, stories, without that assurance. Publishers could expand their reach and markets, making a large profit for doing so. Thus authors and artists have always been at the mercy of business, at least if they wanted their ideas widely accessible.

Now, the argument goes, everything is widely accessible via the web. So we don’t need copyright and we don’t need publishers. I think this leaves out a crucial piece: access to the appropriate market. I “publish” freely on this blog. I pay WordPress.com for the privilege of not having nasty hackers hog CPU percentage on a rented server (the reason I had to leave off blogging in my own installation). Since they are “out there” on the web, my ideas presumably have a large potential audience. But my blog does not have many readers. Traffic peaks during MOOCs and such, but I rarely get more than 40 readers in a week, and most only stay for a few minutes until they figure out my blog isn’t what they wanted to read. I’ve never particularly cared, since I don’t really write for an audience.

But let’s say I wanted to do that, reach a larger audience, perhaps even get paid for doing what I spend so many hours doing. Would I value copyright? You bet I would. I’d need those evil publishers, who have connections to readers beyond my measly scope. The learning that I want to encourage simply won’t be seen by many interested parties unless I use the system, and I won’t be able to benefit much financially if I don’t.

Why? Because it seems to me that openness as a way of serving ideas benefits those with access to that which is not open – those with PhDs, connections to businesses, government grants, and/or startup money. And Lanier is right – it does it by using the labor of people like me. I am a “free” student in this MOOC, since I’m not paying EdX and the University of Texas for a “verified certificate”. George and David have done what I do for students, putting up readings and videos, but quite a bit of content is expected to come from us free participants. When I search around about this MOOC, I see corporate sponsors, and Gates grants and things, and research. Someone is making money. It isn’t me. Perhaps I am a rat in the lab?

Or am I a member of the commons? I have thus far used Creative Commons on all my lectures for my classes. But I am rethinking. In medieval times, the commons was used by everyone, but it was owned by the lord of the manor. On the web, this landlord could be Facebook and Google (as Lanier notes), or my ISP, or WordPress.com. But unlike a peasant on a manor, the sheep I’m tending in their field really are mine. (Yes, they derive from the sheep of others, as all do, but they are mine.)

Exploring these issues, even after 20 years in online teaching, makes me more uncertain, not less, about what’s going on. And that, at least, has encouraged my learning. It may also encourage me to copyright my work.

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