Transcript for Lawrence Lessig's WIPO keynote (Nov. 4, 2010) no pictures

So I want to start with the words of Jessica Litman

who in 1994 wrote this in an article titled

"The Exclusive Right to Read".

Jessica wrote: "At the turn of the century,

U.S: copyright law was technical, inconsistent

and difficult to understand,

but it didn't apply to very many people or very many things."

"If one were an author or publisher of books.

maps, charts, paintings, sculpture, photographs or sheet music,

a playwright or producer of plays, or a printer,

the copyright law bore on one's business."

"Booksellers, piano-rolls and phonograph record publishers, motion picture producers,

musicians, scholars, members of Congress, and ordinary citizens

however could go about their business without ever

encountering a copyright problem."

"90 years later, the U.S: © law is even more technical, inconsistent and difficult to understand;

more importantly, it touches everone and everything."

"Technology, heedless of law, has developed modes

that insert multiple acts of reproduction and transmission

- potentially actionable events under the © statute - into commonplace daily transactions.

"Most of us can no longer spend even an hour without colliding with the © law."

In 1906, this man, John Philip Souza, traveled to this place, the US Congress,

to talk about this technology, which he called the "talking machines".

Souza was not a fan of the talking machines.

This is what he had to say: "These talking machines are going to ruin

the artistic development of music in this country.

When I was a boy... in front of every house in the summer evenings

you would find youg people together, singing the songs of the day or the old songs.

Today, you hear these infernal machines going night and day.

We will not have a vocal chord left" Souza said

"The vocal chords will be eliminated by a process of evolution,

as was the tail of man when he came from the ape."

Now this is the picture I want you to focus on, this picture of young people together

singing the songs of the day or the old songs.

This is a picture of cultureP We could call it, using modern computer terminology,

a kind of read-write culture.

It's a culture where people participate in the creation and re-creation of their culture,

in that sense, it's read-write. And Souza's fear was that we'd lose the capacity

to engage in this read-write creativity because of these "infernal machines".

They would take it away, displace it, and in its place we'd have the opposite

of read-write creativity, what we could call, using modern computer terminology,

a kind of read-only culture.

A culture where creativity is consumed, but the consumer is not a creator.

A culture, in this sense, that's top-down,

where the vocal cords of the millions of ordinary people have been lost.

Now if you look back at culture in the 20th century

at least in what we call "the developed world",

it's hard not to conclude that John Philip Souza was right.

Never before in the history of human culture

had its production become as concentrated.

Never before had it become as professionalized.

Never before had the creativity of ordinary creators been as effectively displaced

and displaced, as he said, because of these "Infernal machines".

A technology - a technology of broadcasting and vinyl records

had produced this passive, consuming culture.

It's a technology that enabled efficient consumption

- what we could call "reading" - but inefficient at least what we'd call

amateur production - what I want to call "writing".

It was a great culture for listening, not so great technology for speaking;

a great technology for writing, not a great technology for democratic creation.

The 20th century was this unique century in the history of human culture

where culture had become "read only",

against a background of read/write creativity since the beginning of human culture.

OK, that's here our introduction to an argument I want to make here today.

And the argument invokes an idea that my friend and colleague Jamie Boyle

has been speaking of for more than a decade.

So this Idea is that we recognize first that creativity happens within an ecology.

An ecology, an environment that sets the conditions of exchange.

And number 2 these ecologies are importantly different.

There are different ecologies of creativity.

Some of these ecologies have money at the core

Others don't have money at the core.

And some have money and practices that don't depend upon money

right at the core. They are different ecologies of creativity.

So think about the professional ecologies of creativity,

ecologies that the Beatles or Dylan or John Philip Souza created for.

For these ecologies the control of the creativity is imposrtant

to assure the necessary compensation that the artist needs

to create the incentives for that artist to create.

In these professional ecologies, these ecologies depend upon

an effective and efficient system of copyright.

But in what we could call an amateur ecology of creativity

by which I don't mean amateurish, In stead I mean an ecology

where the creator creates for the love of the creativity

and not for the money. In that kind of ecology,

an ecology that lives within what we could call, following Yochai Benkler,

the sharing economy. That's the economy that children live within

or friends live within, or lovers live within -

in those kinds of economies, for these -

people don't use money to express value

and to set the terms of their exchange.

Indeed if you introduced money into those sharing economies,

you would radically change the character of those economies.

So imagine friends, inviting the other for lunch the following week

and the answer is "Sure, how about for 50 bucks?"

Or imagine dropping money right in the middle of this kind of relarionship

we radically transform it into something very different.

The point is to recognize how creativity in many contexts,

in the context Souza was romanticizing,

is a creativity that exists outside of an economy of cash.

In this sense, this amateur ecology depends not upon control

and copyright, but instead depends upon this opportunity for free use and sharing.

And then finally, think about the scientific ecology

of creativity, of the scientist, or the educator, or the scholar.

There's a very interesting picture here, this 16th century scholar

notice the kind of guilty look on his face. And look down

and see exactly what he's doing: he's copying from that book.

He's just a pirate from long ago this scholar here, right?

because of course, scholarship is and has always been this activity

of creating within a mixed economy of free and paid

A creator here has a love for his or her creativity,

a love that exceeds how much she or he is paid.

But it's that economy that defines the mixed ecology of scientific knowledge.

This ecology depends not upon exclusive control, but

but both on free and fair use of creative work that is built upon

and then spread. Now, the key here is to recognize that these ecologies

coexist. They complement each other.

And here is the critical point: a copyright system must support

each of these separate ecologies. It's not enough for it to support one

and destroy the others. It must support each of them, it must

support the professional ecology of creativity,

through adequate and sufficient incentives.

But it must also support the amateur and scientific ecologies of creativity

through essential freedoms that they depend upon.

Or again, more graphically, copyright needs to do two things, not just one.

It needs to provide the incentives that the professionals

need by protecting the freedoms that the amateur and scientific creations need.

So these ecologies change. Technologies change them,

technologies of broadcasting and vinyl changed them

in a way that Souza feared. Government change them.

Think about the Chinese government's relationship

to the Tibetan cultural heritage.

Economics changes them. So in the 18th century opera was king

and singers were troubadours. In the 20th century the economics had made

the troubadours kings and opera fell into increasing disuse.

These ecologies change, and interestingly and obviously the Internet

has changed them dramatically, has changed professional

ecologies of creativity through technologies like Napster

or Apple and their iTunes music store, producing radically

new markets, and radical increase in the diversity of culture that is accessible,

the opportunity to buy and consume culture produced

anywhere and in any form, is the opportunity that this digital culture

for this form of creativity has produced.

In the scientific context,we've seen a dramatic change

in the way in which scientific knowledge gets produced and shared

through extraordinary listservs that facilitate immediate

spread of knowledge in certain fields to free publications

like the Public library of science, which assures free access

to the underlying work perpetually, to an increasing spread of

even blog structures producing a radical new opportunity

to spread these ideas broadly. And in the amateur culture,

we've seen an explosion through platforms such as YouTube

of what I want to call a kind of call and response culture

that has revived thre read/write culture fundamentally.

So I want to give you some examples of this,

So we just have a clear sense of what I'm talking about.

Everybody knows this -

(music) piece of work by Pachelbel, canon in D?

A teenager, sitting in his room, [name not understood], remixed it then.

(remixed music)

79 million people have watched this remix

and more fundamentally for me, as 79 million people have watched it,

more than 2600 people have reinterpreted it,like this

writing their own version for other people to view from YouTube.

Or here's another example- This video:

(video)

that inspired somebody to produce this video:

which then inspired somebody to produce this video:

Here is one more example.So everybody should know the Brad Pack

which was a collection of actors who performed first in the Breakfast Club

And the Brad Pack was an inspiration to a certain culture,

certain generation. And the song Listomania, produced by the group Phoenix

has become a certain cultural icon to a generation.

So somebody decided they would take the video from

the Breakfast Club and remix it and create a music video

for Listomania. And this is what they produced:

So recognize, this is just re-editing the underlying movements, setting it to music

And then somebody got the idea that they ought to create (...) of exactly this. So

Brooklyn decided he would be first,

And of course not to be outdone, San Francisco decided it would be next

And another (...) scores of these on YouTube, from cities around the world (?)

as people reinterpret the same original scores and create

in this amateur ecology of creativity, their own version.

which they then share and inspire others to create (...)

This is what I refer to as remix. But what I want you to recognize

is that it is what Souza was romanticizing

when he spoke of young people getting together and singing the songs

of the day or the old songs. But today, that getting together

is not in the backyard, it is through this free digital platform

that encourages people from around the world to participate

in this act of cultural reinterpretation and share it

in an ecology that does not trade on money, but an ecology

that instead trades upon this activity of sharing.

The internet has changed these 3 ecologies of creativity.

But the question that this organisation needs to address is,

has copyright kept up with the change in these ecologies?

Has it kept up with the changes as they have affected

these 3 ecologies? Now my own view of the answer to this question

is quite simple: it has not

It has failed. It has failed to assure the adequate incentives

in the professional culture, and it has failed to protect

the necessary freedoms in the amateur and critical or scientific culture.

It has failed at both of its objectives and its failure is not

an accident. Its failure is an implication of the architecture

of copyright as we inherited it.

This architecture makes no sense in the context of the digital environment.

The architecture, which triggers the application of copyright law

upon the production of a copy, in a digital environment

makes no sense. It regulates too much, and it regulates too poorly.

So think of a simple example of a book in physical space.

If these are all the uses of a book in physical space,

an important set of these uses are just technically unregulated

by the law of copyright in physical in physical space.

So to read a book is not a fair use of the book,

it's a free use of the book, because to read a book is not to produce a copy.

To give someone a book is not a fair use of the book,

it's a free use of the book, because to give someone a book is not to produce a copy.

To sell a book is explicitly exempted from the reach of © law

in many jurisdictions, including the United States,

because to sell a book is not to produce a copy.

In no jurisdiction in the world is sleeping on a book a regulated act

because to sleep on a book is not to produce a copy.

These unregulated acts are then balanced by a set of necessary regulated acts,

necessary to create the proper incentives to produce great new works.

And then in the American tradition, there is a thin sliver of exceptions,

acts that otherwise would have been regulated by the law

but which the law says are to remain free

so that culture can build upon those creative works

in a way unhampered by the law. Enter the internet,

where because a digital platform, every single use

produces a copy. And we go from this balance of unregulated and regulated

and fair uses, to a presumptively regulated use for every single use,

merely because the platform through which we get

access to our culture has changed. This is the consquence

of an architecture, an architecture of copyright law, an architecture of digital technologies.

It is that architecture that produced what Jessica spoke of

when she said, "a world where we can't even go for an hour

without colliding with copyright law", and the collision is a problem

not with some generation that can't learn to respect the rules,

it is a problem in the design of this system of regulation.

Now 15 years into this revolution, where we're waging war

- well, in the US we waged many wars, but the particular war here is the

copyright wars - against the implications of this new technology,

a war which my friend, the late Jack Valenti, former head of the

Motion Pictures Association of America refered to as

as his own "terrorist war", where apparently the terrorists in this war

are our children, 15 years into this terrorist war, we need finally to recognize

the failing, not of our kids, but of this architecture.

And we need to fix it. So, how would we fix it?

Well, I fling myself across the Atlantic to come to WIPO to say that

WIPO must lead in this reform. And the reform has both

a short term and a long term component.. In the short term,

WIPO should be actively encouraging systems of voluntary licensing

that create a better balance between the traditional ecologies

of cultural production in the professional space

and the amateur and scientific ecologies of creativity

that I've also identified. That was the objective behind the project

that I helped to found, called the Creative Commons project,

which was to design a simple way for authors and copyright owners

to mark their content with the freedoms that they intended it to carry.

So rather than the default of All rights reserved, this was a Some rights reserved model

reserving certain rights to the copyright owner,

and releasing certain rights to the public.. You obtain this license

by going to our site, or to a numberr of sites that have implemented it,

independently, and selecting the uses or freedoms you'd like to allow.

Would you like to allow others to make commercial use of your work?

Do you want to allow others to make modifications, and if they make modifications,

do you want to require that they release their modified work

under a similar license, what we call "share alike".

Those choices produce a license. And the thing to recognize is

the way that these different licenses support these different ecologies

differently. So the simplest and freest license, the attribution-only license,

supports each of these ecologies, as it produces free resources

that these ecologies can draw upon to do whatever

each within these ecologies wants. The non commercial license

however, supports the amateur ecology of creativity,

allowing people to know that their work will be used by others

according to the rules of sharing, not to the rules of buying and selling.

And we've added, in this non commercial space, a - what we call a CC+ protocol

that allows an option to click through to license for commercial purposes

work that has been released to the world under non commercial terms.

So you can release your photograph to be used and shared by people

in a non commercial way, but have a simple transaction costfree way

to link back to a licensing organization that could license the very same work

for commercial purposes. The share alike license is designed to facilitate

collaboration in both the professional and in amateur culture.

This was the inspiration we took from the GNU-Linux operating system

which of course is licensed under a similar copyleft license

permitting commercial as well as non commercial developments

and we've extended that to culture. And then just this year, we have released

a set of protocols to facilitate marking work that's in the public domain

or waiving rights that otherwise might exist, so that work can support

once again each of these different ecologies in different ways.

Last year was one of the most important years in the history of this organization.

Al Jazeera announced that a huge archive of video material

from the struggles in the Middle East would be available under a

Attribution license only, meaning you can take their raw footage

and use it in your film, or on your television station, or in your commercial applications,

so long as you simply give attribution back to Al Jazeera

The White House released its content under a Creative Commons license,

Wikipedia increased - adopted the Creative Commons licenses,

the infrastructure for all of its licensed material.

So that last year, we saw the biggest bump in the growth of the Creative Commons

license projects since its inception, now marking at least 350 million objects on the web.

Now my view is, organizations like WIPO, and WIPO in particular

need to embrace this architecture, not just Creative Commons

but any of these architectures that import and assert the value of

copyright licenses. Of course, the Creative Commons is

not an alternative to copyright, it builds on copyright.

It's a simple, valid and traditional license that had as its primary intent

supporting of these ecologies, of creativity.

But in supporting these ecologies of creativity, it also supports a cross-over

into the professional ecologies of creativity. And these licenses

are valid and enforceable, as we just discovered this week, in a Belgian court,

which gave this band a 4500 Euro award, a damages award, because their

because their content was used in a way inconsistent with the Creative Commons license

that it was released under, so that it protects the author to assure that their work

is used in the way they intended, and keeps the copyright enforcement mechanism

open for those who violate or go beyond those terms.

Now, my view is that these voluntary systems are not enough.

In addition to the voluntary systems, we are going to need changes

in law, and this is where there's a longer term change that's required.

And in my view, once again, WIPO has to lead this longer term change.

And I want to very strongly endorse the suggestion that has been made

by the Director General, that in the context of this longer term inquiry,

WIPO needs to support something like a Blue Sky commission,

a group that has the freedom to think about what architecture for copyright makes sense

in the digital age, freed from the current implementation of copyright

which we inherited from the analog stage of culture.

Now my own view is that this conclusion of this commission will have certain recommendations

for elements to any copyright system: They'll want that the system be simple.

If copyright is going to regulate 15-year olds, it must be something that 15-year olds

can understand. Right now, they don't. Indeed no one understands the full reach or complexity of copyright law.

I've been studying it intensely for 15 years and still I make fundamental and obvious mistakes.

It needs to be re-made to make it simple. And it can be re-made

to be made simple, if that were an objective of the reform.

Number 2, it needs to be efficient. Copyright is a property system.

But it is also the most inefficient property system known to man.

The simplest idea of a property system, to know who owns what,

Under the current system. we can't know who owns what

because the system has been architected to give up the infrastructure necessary

to know who owns what. And the only remedy to address this problem is to go forward

to a modern version of formalities, not at the moment of creation,

but at least to maintain the rights under copyright. And in this respect, I'm happy to

acknowledge that the RIAA and I agree about the importance of formalities in a digital architecture

for copyright in the 21st century. They have expressly endorsed the idea

of considering formalities as a way to deal with efficiency of copyright

and I think that suggestion is absolutely right.

Number 3: the law has to be targeted. It means to regulate selectively.

So if we think about the difference between taking whole copies of another person's work,

and remixing that work, and the difference between the professional and the amateur

I apologize, I'm an academic, I can't help but thinking in matrix like this,

we have a matrix like this. And copyright now presumes to regulate all of these

spaces. But that presumption makes no sense. Copyright, of course, needs to regulate

effectively and efficiently, to stop professionals from pirating copies of other people's

copyrighted work. That needs to be regulated as the core area

of copyright's regulation. But just as obviously, amateurs' remixing other people's work

should be free of copyright's regulation. Not fair use, but free use.

There should be a presumption that such use is outside of the reach of copyright,

and that presumption should guide and encourage this amateur building upon

our cultural past. And then in the middle there are cases that are more mixed and more complicated,

where the law needs to carefully figure out how to assure that the incentives are protected

while the freedoms are assured. But the point about this model is to see

that the objective needs to be, to deregulate a significant space of culture

relative to the current architecture of copyright and to focus regulation where it can do some good.

Number 4 the law must be effective, it must actually work,

in the sense of it getting artists paid, and as any artist will tell you, the current system of copyright

doesn't actually do that well.

And finally number 5: it needs to be realistic about the capacity of law

to regulate human behavior. If you think about the problem of P2P

file-sharing internationally; what people refer to as "piracy"

well, just after a decade into this war, a war that has totally failed.

The objective has been to eliminate copyright "piracy".

Now I know the response of some to a totally failed war, maybe

some from my part of the world, is to continue to wage an ever more effective war

against the enemy, to up the stakes, to punish more vigorously

to win the war. My suggestion is we adopt the opposite response.

that we find a way to sue for peace here, and adopt proposals

where the compulsory licenses are voluntary collective licenses

which achieve the objectives of copyright to compensate artists

without achieving the insufficient objectives that the current regime has done.

And we should recognize that if we had had those systems in place a decade ago,

when they were first suggested by people suggesting changes to the existing regime

then over the last decade, artists would have received more money

then they did under the current system, because under the current system, P2P file-sharing

rewards nobody except the lawyers suing to stop P2P file sharing.

This is, we would have seen more competition, as more would have been encouraged to engage

in a behavior that built upon this kind of creative use, because the rules would have been clearer

but to me, the most important feature, as a father of three young children,

is that we would not have had a generation of criminals that have grown up

being told by us that they are criminals and internalizing the idea

that they are criminals and living life according to that internalized idea.

The objective of this Blue Sky commission will be to launch at least a 5-year process

to map what we could think of as Bern 2, or I encourage you to come to Boston

and do it in Boston as Boston 1, but they could begin to think about a system

here that could work in the context of this digital culture. Now let me end with just one more

reflection. So I was once asked to come participate in an event here,

at the Association of the Bar of the city of New York. Bill Patry, who I think is going to speak

later, was at this event with me. The room for this event is this beautiful room

with these red velvet drapes and this red carpet. And the event was packed

with a wide range of people, from artists and creators and at least some lawyers

all eager to learn how the system of fair use could succor their own form of digital creativity.

In American law, fair use has four components, four elements, and so the organizers of this event

decided they would ask 4 lawyers to speak for 15 minutes on each of these 4 elements.

And the theory was, after an hour, the audience would understand the law of fair use

and go out and create consistent with the law. But as I sat there and I looked out at the audience

the reaction after about an hour was more like this. And that reaction

lead me to a kind of daydreaming, which was, as I looked out at this room, I began to wonder

what it reminded me of. Because I knew there was something that room reminded me of

its colors and its drama. And I realized that it reminded me of something I used to do

as a kid. Just after college I spent a long time traveling through this part of the world

and focused on this system of government. And I thought, as I was sitting there

looking out in the room, I began to have a daydream about when was it, in the history

of the Soviet system, that you could have convinced members of the Politburo

that the system had failed. When, in history? I mean 1976 was way too early:

It was puttering along and working pretty well in 1976. 1989 was too late: if they didn't

get it by 1989, they were never going to get it, right? So when was it, between

1976 and 1989 that they would have gotten it? And more importantly

what could you have said to them to convince them that this romantic idea that

they had grown up with had crashed and burnt, and to continue with the Soviet system was

to betray a certain kind of insanity? Because, as I listened to this debate among lawyers,

at least those of us in the United States, who engage in this debate

lawyers who insist that nothing has changed, the same rules apply,

it's the pirates who are the deviants - they might be right about that - but it's the pirates

who are the deviants, I begin to believe that it is we who are insane, here.

The existing system of copyright could never work

in the digital architecture of the internet. Either it will force people to stop creating, or

it will force a revolution. And both options, in my view, are not acceptable.

We, especially here, need to recognize,there is a growing copyright abolitionist movement out there.

People who believe that copyright might have been a good idea for other centuries

it makes no sense in the modern era. I am against abolitionism.

In this sense, I feel more like Gorbachov than I feel like Yeltsin

Right, I feel like an old communist who's just trying to preserve this system

in a new era. And I wage this war against these two extremisms. Because both extremisms

are going to lead to the destruction of the core value of copyright.

Now if and only if, in my view, WIPO leads in this debate, will we have the chance

to avoid these extremisms. Now most people around the world don't care

about preserving copyright. So one last plea, if you are in that camp,

not likely if you're here, but one last plea: we all need to recognize

we're not going to kill these technologies. We can only criminalize them.

We're not going to stop our kids from being creative in a way that I at least was not creative

as I grew up in the last century, we can only drive their creativity underground.

We're not going to make the passive. We can only make the pirates.

And the question we have to ask is whether that is good for free societies.

In America, kids live in an age of prohibition. All sorts of activities in their lives are

technically against the law, and they live life against the law.

But that way of living life is corrosive and corrupting of the rule of law

in a democracy. This entity needs to lead the copyright system out

of that regime of corrupting law violations. And I urge, after 15 years

that we at least start that process now. Thank you very much.

(applause)