Reactions to the Enclosure of the Information Commons: 2000-2004

Bulletin of the American Society for Information Science & Technology, Oct/Nov 2005 by Campbell, James

In the U.S. Constitution, Congress is tasked with granting only one specific property right: "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" (Art. 1, S 8). That grant of right is the basis of what we today call copyright, in the case of "Writings," and patent, in the case of "Discoveries."

This review summarizes initiatives underway during the period 2000-2004 that are designed to counteract the perceived limiting effects that recent developments in copyright law in the United States, coupled with technological changes, have had on the information commons. The goal of those initiatives is to restore the balance of rights between copyright holders and users of copyrighted materials in the digital age which, in the eyes of the initiative promoters, has been thrown out of balance by recent changes in law and technology.

A brief note on terminology: the term information commons in this review refers to the imaginary "place" where works in the public domain and works affirmatively made available under conditions less restrictive than full copyright "reside." For the purposes of this report, any references to "intellectual property" are also applicable to copyright per se.

The discussion in this review focuses primarily on the situation in the United States. Where applicable, specific reference to other legal systems is indicated.

Background and Context

In the United States, copyright is a socially granted right establishing a "bargain" between creators and the larger society. Creators get an "exclusive right" to exploit the value of their work in economic terms, and society gets the benefit of having that work available for everyone to use and build on after "limited times."

Yet since 1976, and particularly in the past decade, three key elements in U.S. copyright law have, in the eyes of some, changed that contract:

1. The necessity for claiming copyright changed from affirmatively making a claim to affirmatively denying a claim (Copyright Act of 1976).

2. The term of copyright protection changed to life of the author plus 70 years with commen surate extensions for corporately generated works (Copyright Term Extension Act, 1997 (CTEA)).

3. The role of government in protecting copyright in a digital environment changed, for example, through the criminalization of infringing con duct in the Digital Millennium Copyright Act (DMCA).

There is insufficient space here to examine these changes in law and technology in detail. The focus of this report is, therefore, on the reaction to these changes. However, in the eyes of those who oppose these changes, they collectively represent a watershed in U.S copyright history, a situation that James Boyle refers to as the "enclosure of the information commons."

Those who found this landscape alteration undesirable or unacceptable began to respond over the past decade and particularly in the past five years. Dozens of conferences dealing with copyright change, the public domain and/or the information commons emerged in the wake of these acts, and they continue to occur. Responses that emerged from these and other venues took a variety approaches in addressing the problem of enclosure. We classify the responses for the purposes of this review as follows and will examine them in turn:

* Legislate

* Litigate

* Limit

* Create competing systems

* Legally reinterpret

* Philosophize and mobilize

Legislate

The following brief summaries indicate the types of remedies proposed during the 108th Congress (2003-2004) to offset effects of the automatic grant of copyright, the extension of copyright term and government involvement in enforcement of what was formerly largely a civil matter.

The Public Domain Enhancement Act (HR 2601) would have ensured that only those works whose owners actually assert continuation of their copyright after 50 years by paying a small registration fee of $1 would have copyright protection beyond that point. While the bill attracted 13 co-sponsors, it was referred to a subcommittee of the House Judiciary Committee and never emerged.

The Digital Millennium Copyright Act (DMCA), another of the "enclosing" laws, has had a number of unintended consequences, based on the rationale that led to passage of the act. Some businesses, for example, have attempted to use threats of suits or prosecution based on section 1201 of the DMCA to stifle reporting of shortcomings in their products (e.g., HP and Microsoft) and stifle competition (e.g., Lexmark). Examples of the DMCA being applied against businesses and consumers in ways that do nothing to thwart large scale digital "piracy," which was Congress's avowed intent in passing the DMCA, led to the introduction of several bills designed to rectify some of the imbalances that the sponsors felt the DMCA created in favor of copyright owners.

For example, the BALANCE Act (HR 1066) was designed to make legal in the digital realm what has been - and remains - a set of user's legal rights under copyright law in the paper realm. This proposed legislation, according to its sponsors, simply makes traditional fair use and first sale rights available in the digital domain and would allow a user who has lawfully obtained a copy of a digital work to defeat Digital Rights Management (DRM) restrictions that interferes with exercising those rights. The bill, in plain language, got nowhere in the 108th Congress.