the MIT Communications Forum will sponsor three linked conversations
about changing notions of ownership, markets, invention and
will center on universities and on contested or emerging views
of research and teaching. Who owns scientific data
bases? Should research results be private and for sale? Are
current definitions and emerging ground rules for patents comparable
to recent changes in copyright law? Topics will include MIT
initiatives in Open Course Ware and other non-commercial projects.
Forum examines Creativity/Markets/Copyright.
The final Forum explores Copyright
(Hal) Abelson is a founding director of Creative Commons
and was instrumental in MIT's open courseware initiative. Abelson
is Class of 1922 Professor of Electrical Engineering and Computer
Science at MIT and a Fellow of the IEEE.
is Director of MIT Libraries and a member of the MIT Committee
on Copyright and Patents. She also chairs the management board
of the MIT Press and the board of directors of Technology Review,
Inc., which publishes Technology Review.
Mark Lloyd is the Martin Luther King Visiting Professor
at MIT and is the executive director of the Civil Rights Forum
on Communications Policy where he works with leaders in the
civil rights and public interest community to influence federal,
state, and local communications policy. He worked on communications
and arts policy in the Clinton Administration, co-founded the
Civil Rights Telecommunications Forum in 1997, served as national
coordinator of the People for Better TV campaign, and chaired
the board of directors of the Independent Television Service.
is an edited summary, not a verbatim transcript.]
THORBURN, director of the MIT Communications Forum,
introduced this Forum as the first of three devoted to changing
notions of intellectual property and copyright. Tonight's Forum
will center on these matters as they touch upon research and
teaching. Thorburn remarked that by ushering in new modes of
capturing, sharing and creating data, the digital age has raised
fundamental problems for traditional conceptions of creativity
and the ownership of intellectual work. The purpose of tonight's
discussion is not to solve such complex problems but to participate
in a broad national and international conversation on these
photos by Nadya Direkova
quickly distilled his argument: "The main point is that
this whole discourse that we get sucked into about copyright
and who owns what is, I think, destructive to universities."
of universities --that of handing down the values of civilization
-- is, "fundamentally hostile to the values of the information
economy." In recent years, "Universities have become
the target of a massive fraud that says that a university is
some kind of factory for some kind of thing called content."
that universities have been tempted by the enormous financial
promise of a paradigm that runs counter to their mission. To
illustrate this point, he showed a recent statement from the
University of Southern California, made in response to threats
from the Motion Picture Industry and Music Industry about peer-to-peer
file swapping. The statement explained that USC's purpose is
"to promote and foster creation of IP." Such a rationale
for an institution of research and learning, Abelson said, narrows
and commodifies research, much of which must be free of commercial
intent. " It's not that this is wrong, it's just that you
look at this and you say, I don't want to think about things
then discussed a statement from the University of Chicago which
asserted that since knowledge-building at the university is
a collective enterprise, the university formally declares its
ownership of all the IP created by its faculty on its premises.
This position, too, seems dangerous to Abelson: "We fall
into a trap when we conflate what we call academic freedom with
some notion of property rights."
recommended Corinne Mc Sherry's book Who Owns Academic Work
(2001), which he described as a discourse analysis of the thinking
about IP ownership in universities. "What goes on in the
university is not hospitably thought of in terms of property
rights," he said. Citing the inappropriateness of legal
discourse in an academic context, Abelson said "There is
a difference between copyright infringement and plagiarism."
problem of getting into this legal stuff is that IP law frames
everything in terms of rights and ownership. The way you fight
lawyers is with more lawyers. The second law of thermodynamics
where there is the eventual heat death of the world can be applied
here. I worry about the legal and intellectual property death
of the academy."
of the Forum, Abelson had come upon a "little vision"
of the intellectual property death of the academy. While browsing
the web, Abelson discovered a recent note to faculty from the
Office of General Counsel at the University of Texas. The letter
explains that when students take notes at a lecture, they are
in effect creating a derivative work. The letter encourages
faculty to consider asking students to sign a license to take
notes in class from a lecture, explaining that " A limited
license to take notes could be very important to protecting
the intellectual content of lecture materials." (UT, August
2001). The general counsel for the University of Texas had even
prepared a template for such a license for the faculty's convenience.
Abelson jokingly suggested that MIT should offer a differential
tuition; one allowing you to sit in class and another allowing
you to sit in class and actually use what you learn.
regretted that the first half of his talk had been inevitably
depressing and devoted the second half to what he felt were
positive developments in knowledge-sharing and digital technology.
MIT's Open CourseWare
project, to be launched September 30 of this year, as an example
of how MIT understands the opportunities of the Internet. Open
CourseWare will make available on the Internet, not an MIT education,
but "the stuff from which we make an MIT education."
He described Open CourseWare as an act of leadership by MIT,
an effort to make the world beyond the university more hospitable
to the values of the academy. "The wonderful thing about
information is that it increases in value the more people use
it. In the parlance of the economists, it is anti-rivalrous."
The notion that MIT chooses to give away its course materials
challenges the discourse about ownership and control of information.
initiative in which Abelson is actively involved is Creative
Commons. The establish a context for understanding the Creative
Commons project Abelson offered a brief review of copyright
law. "I have compressed copyright law onto one slide, Abelson
said. Copyright, according to this distillation:
a bundle of specific rights,
a long time (lifetime of author) plus another 70 years,
automatic,(the actual copyright sign need not be appended
to original work to assure its protection)
a strict liability regime (ignorance of the law is no defense)
exceedingly complicated, (250 pages of law).
most ridiculous thing about copyright," Abelson said, "is
that people are talking as if it is reasonable to ask human
beings to understand it. And that's a very serious comment
Copyright law was made in a world where there were large publishers
who hired experts who were copyright lawyers and the copyright
law was made for the experts. It is not designed for ordinary
people to use."
of law makes it difficult to share creative and intellectual
work. "All rights reserved" may not always be the
best option for an author or his/her work. Ever since copyright
became automatic in 1978, it has been "surprisingly hard"
for an author to opt for something other than "all rights
reserved." To declare something "no rights reserved"
or to abandon works to the public domain is almost impossible
to do in legal terms. Controlled sharing, "a reasonable
thing that universities might want" is excessively complicated.
"You have to hire a slew of lawyers to turn that easy expression
into legal language," Abelson said.
these and related difficulties, Creative Commons has created
a commons deed defining four categories for licensing or authorizing
the use of creative and intellectual work:
(author shares work, but requires right of attribution)
(author shares work but only for noncommercial use)
(author allows distribution but disallows derivative works)
(share and share alike)
lawyers have worked carefully on the commons deed to assure
that it is legally binding. Code and documents are now being
developed, Abelson said, that some day will allow people to
search Google for works that use a particular Creative Commons
Abelson closed by suggesting that Open Courseware and Creative
Commons are two initiatives that resist the Intellectual Property
ownership discourse and create alternative ways for thinking
about the dissemination of learning and knowledge.
WOLPERT noted that today, September 19, is an auspicious
one for this conversation: the great Gutenberg died on
this day in 1468, and 360 years later, on 9/19/1928, Mickey
Mouse made his movie debut. "So we have both ends
of the spectrum that is currently driving copyright for
us, " she said.
discussed why the question, "Who owns knowledge and
learning?" is so "pervasive and pernicious"
and why it is increasingly focused on copyright as a "legal
two key aspects of the new copyright protection regime. The
first is that it creates a monopoly right in a tangible medium
of expression. The remarkable difference in longevity of copyright
versus patent creates an enormous potential for financial gain
for copyright holders. Wolpert reminded the audience that US
copyright law currently excludes from ownership ideas, data
and other "raw" knowledge.
Wolpert explained that over the last twenty years, the owners
of journals in which many academics make their careers and share
advances in knowledge have "changed the rules of the game."
These owners are usually either professional-society publishers
who have built a financial model for the societies from income
from their publishing program or large, publicly traded commercial
publishers. Both have a vigorous interest in gaining financial
returns from academic publishing. Traditional publishers are
increasingly concerned about their "property" moving
into digital form and becoming freely available on the Internet.
These publishers are also "unreasonably optimistic"
that they can generate revenue from digitalized materials.
and entertainment companies who have an interest in controlling
digital information have taken their case to those who write
laws both in the US and internationally. As a result, the terms
by which the public may gain access to academic materials are
set by publishers and entertainment companies. As publishers
and entertainment companies' interest in copyright grows, so
do the penalties for copyright infringement. "The Digital
Millennial Copyright Act introduced the idea of felony into
copyright," Wolpert said. Copyright infringement had been
understood as a civil disagreement, now you can go to jail or
be fined for what has been redefined as a serious crime.
of entertainment industry's influence over copyright has been
in the extension of the copyright term from 50 to 70 years (plus
author's lifetime), result of lobbying by the Walt Disney corporation
to protect the copyright of Mickey Mouse. In the international
sphere, the European Union has created new controls over such
items as formulae and data, which cannot currently be protected
in the US. Because of international treaties, the US is under
pressure to implement those changes as well.
is creating new challenges for academics. In the digital environment,
if you take your own published work (having relinquished the
copyright to a publisher) and put it up on the Web for anyone
to use, you are violating the law. "It is a very different
environment that most faculty and others are generally oblivious
to," Wolpert noted. Academic publishers do not provide
permission for their authors to use their own published material
as freely as one might expect. In the Open Courseware project,
80% of requested permissions were denied.
praised a recent mission statement from MIT. "There is
nothing here about intellectual property, " she noted "and
there is no assumption that we will make money." An open
environment in which ideas, images and texts are easily available
is critical for the survival of academy, said Wolpert. "We
know that the best students come from everywhere and they don't
all have money." Wolpert imagined a scenario in which a
student would have to decide between having lunch or accessing
a costly text on-line. Intellectual spontaneity, according to
Wolpert, would be impossible in an environment where everything
is locked down. MIT believes information should remain open
believes the academy needs new tools to deal with this environment.
Faculty and students need to have a reasonable ability to use
intellectual materials and to learn and exchange knowledge without
fear of criminal prosecution. "Making the use of someone
else's material a felony means that something is seriously wrong
with the law," Wolpert said. She remarked that the cost
of permissions and fees for reprinting or reproduction are horrific
in a not-for-profit environment such as the academy.
briefly discussed two MIT responses to the challenges posed
by copyright controls and emerging digital media. The first
is Open Courseware, which has been seriously hampered by existing
copyright law. As a single example, Wolpert noted "It turns
out that it is easier to take another photo than to trace the
owner of the original photo." The act of putting MIT course
materials on the web, it turns out, involves a huge problem
"in terms of what you can and cannot do in the intellectual
regimes in which we currently operate."
initiative is "D space," a collaboration between Hewlett
Packard and MIT libraries. Wolpert thinks of it as an "enormous
digital filing cabinet." It is a secure repository for
digital works of all kinds. D Space serves faculty who to store
course materials that they wish to share with faculty and students.
LLOYD: "There are fewer questions more important to
the academy today than who owns
ideas." He noted that the founders had limited copyright
to 14 years, following British copyright law of the time. Copyright
law did not expand substantially in the U.S. until the birth
of the giant corporation. The current status of copyright law,
Lloyd said, is far from the intention of the founders.
the issue of copyright and the control of ideas has low visibility
in the major media. Most Americans are unaware
of it. He sees the issue as an essentially political problem,
not a legal one. "Politicians changed the law due to large
donations from large companies," Lloyd said.
of intellectual property "gives the University an incredible
opportunity to be relevant to most Americans," he said.
MIT is in a particularly strong position to provide leadership
in this area, and ought to enlist both Massachusetts' senators
to educate the public and work in Congress to change the law.
Lloyd said, "The copyright law has been distorted because
people we voted for voted to change it." Lloyd encouraged
the MIT community to work actively on this issue. "If the
law has been changed once, it can be changed back."
DIREKOVA, an MIT graduate student, asked, "Who owns
answered, "You own it but MIT extracts a license to reproduce
member asked "If MIT has a monopoly on making updates to
the courseware, isn't there the danger that they will shift
away from some particular courseware and maybe shift to a whole
different set of materials?"
replied that one might think of Open Courseware as way of publishing
faculty manuscripts. The Open Courseware's publishing process
standardizes faculty work in terms of design and formatting,
but makes no substantive alteration to it. "The intellectual
control of Open Courseware remains in the hands of faculty,"
audience member said he saw some parallels between Open Courseware
and the Open Sourceware movement. He said that in the ideal
case he'd like to see a model that addresses the issue of derivative
works. "Is one of the goals to take a lot of these licensed
and copyright materials and make new open versions of these
classes so that they can be freely shared around the world so
that universities don't have to license these over and over
again and so that basic knowledge can be open?"
replied, referring to derivative works, "As far as I know,
no one's decided that yet. . . . One possibility is that you
leave it to individual contributors to decide whether they allow
derivative works, though that's a little messy. I would be very
much in favor of allowing derivative works on the model of free
added that she believes that a lot of these are not legal issues.
They they are questions that faculty must decide among themselves.
They must define standards of behavior in the digital environment
for works that are born and managed digitally."
TAN, MIT graduate student, asked "What happens when
a syllabus in Open Courseware includes works that MIT really
doesn't want the public to see -- for example if I come up with
word problems that are basically racist? Or really poor fact
checking? The things that MIT does not want to be associated
with? Is MIT obliged to put them up?"
laughingly said that MIT hadn't yet come to that bridge, let
alone crossed it.
by Heather Miller, CMS 2003
recording of the "Who
Owns Research and Teaching?" is now available. In order
to listen to the archived audiocast, you can install RealOne
Player. A free download is available at http://www.real.com/realone/index.html.