Creativity and code
Lawrence Lessig delivered a powerful speech at the Oxford Union last week, courtesy of the Oxford Internet Institute and the Oxford University Centre for Socio-Legal Studies, joint hosts of the Politics of Code conference.

While pointing to the hypothetical freedom we presume to have on the Internet 'because the technologists said so', Lessig - the recent loser in the US Supreme Court copyright judgment Eldred v. Ashcroft - argued that recent legal moves are making the Internet far more regulated than the physical world.

If on the Internet every act is a copy, then every access of every digital document, every thing, becomes a case of publication. This effectively grants rights to publishers far beyond those available in 'real space', where only the generation of an additional physical copy causes copyright law to kick into force (reading, giving or selling a copy are all in fact unregulated activities in 'real space'). Lessig argued that this advance of the digital copyright holders - invariably the large corporations - has arisen because legislators have not yet understood the Internet.

Using the examples of Middlemarch - a book clearly now in the public domain - and Aristotle's Politics - a text never subject to copyright in its original form - Lessig described how e-book readers forbid the copying or pasting of text selections from non-copyright works, or arbitrarily forbid their buyers from listening to 'read aloud'.

Such texts have become presumptively regulated because of an accident of technology design, argued Lessig.

Creativity is constrained, with copyright owners wielding the US Digital Millennium Copyright Act (DMCA) against innocents attempting to create new interactions. The DMCA has been used to try and prevent a Sony Aibo fan from producing and distributing code that teaches these pets to 'dance jazz'. However legal dancing jazz may be, Sony's lawyers decided to send threatening letters to the 'rogue' fan. On the Internet, fair use - perfectly permissible under national laws in 'real space' - disappears. (While copyright violation has never been a criminal act, the DMCA now turns anyone who tries to circumvent digital protective mechanisms into a criminal.) Lessig argued that the increase in term, scope and reach of copyright control now threatens to alter fundamentally how creativity functions, and therefore affects the entire practice of cultural creation.

Responding to Peter Davies, Visiting Fellow at the OII, concerning the latter's claim that copyright terms were extended under US law "to give artists more protection", Lessig was firm, in the tradition of his Oxford Union venue: "Bullshit! This is not about protecting artists at all - these artists are all dead. The benificiaries are the major corporations."

The conclusion of Lessig's argument is that current trends in copyright law and the obsession of large corporations with protecting their intellectual property are already affecting the usability of products, and will lead to more of the same anti-creative repression if the content industry continues to see the Internet as merely a means for conducting piracy of their content rather than as a creative medium in its own right.

It's hardly surprising that Luddite industry, unable or unwilling to discover new business models, should seek to impose a protectionist position. What is surprising, says Lessig, is that governments should be so keen to take the side of the large corporations against the general public, both consumers and creators.

While gloomy about possible solutions, Lessig's conclusion was that by letting ordinary people understand what has happened - much in the same way as the activities of the pharma companies selling AIDS drugs to South Africa was highlighted - it might be possible to generate a change of heart among legislators to help alter the balance in this debate. We can live in hope that when 'consumers' realise the extent to which they are being taken to the cleaners, they will up arms and rebel against corporate greed.

PS I've just spotted this article concerning the same issue by Stephen Downes, courtesy of Lucdesk.

PPS And now having caught up with the Sunday papers on Monday evening, I find that John Naughton also addressed the subject of copyright on the Internet in his Observer column.