Thinking about Open Culture and Copyright: The CREATe IP Summer Summit 2017

Tibbie McIntyre reflects on open culture and on her experience of CREATe’s IP Sumnmer Summit, #cipss17. This post first appeared on the 1709 blog.

The CREATe IP Summer Summit 2017 took place from Monday 26 – Friday 30 June. In this inaugural year, the theme of the Summit was ‘Open Science and Open Culture’. A range of speakers from around the globe presented on an array of Open Innovation issues, with attendees travelling from the National Law University in Delhi, IP Australia, the American University and the University of Trento in Italy. Organised by Dr Sukhpreet Singh – Senior Lecturer and CREATe Programme Leader – the Summit explored the benefits of developing openness within our culture, particularly within the global south. Dr Singh is an expert on market based approaches to IP protection and exploitation, and this shone through in the interdisciplinary reach of the Summit, with speakers from industry, government and academia in attendance.

Background

The granting of property rights in intellectual creations is intended to facilitate scientific and creative progress. The archetypal expression of this approach is probably to be found in Article I, § 8.01.8 of the U.S. Constitution:

Congress is empowered “to promote the progress of science and the useful arts, by securing, for limited times, to authors and inventors the exclusive right to their respective writings and discoveries.”

The rationale behind intellectual property protection is that our society benefits if authors and inventors can generate profit from their work. If authors and inventors were not able to generate profit from their endeavours, why would they go to the trouble and expense to innovate at all?

A view that qualifies the property-based approach posits that where intellectual property rights are exercised in an over-restrictive manner, they can potentially inhibit the advancement of culture and knowledge, thereby undermining the very purpose for which these rights exist. Since all creative innovations are built upon work that has come before, the cultural and scientific advancement of our species relies upon accessing and using existing works.

Creating a counterpoint to an ‘all rights reserved’ culture

The open movement seeks to facilitate the dissemination of knowledge. It can be understood as a cultural shift against an ‘all rights reserved’ culture (where lawfully accessing and using works can pose difficulties for follow-on innovation), to a culture where use of copyrighted material is promoted through licensing or copyright exceptions and limitations. The ‘open’ paradigm is still evolving, with the concept potentially conveying varying meanings depending upon the context. In academia, the open science movement is focussed on making research available to anyone with an Internet connection, as also promoting the transparency of scientific methods.

The Creative Commons movement is focused on creating a standardised legal structure that allows copyright holders to make their works available to content users on a royalty-free basis. In Government, ‘openness’ can mean the use of policy tools that encourage licensing practices:

  • The Orphan Works Licensing Scheme in the UK is a tool which facilitates the licensing of copyrighted works for which the rights-holder cannot be found. This licensing scheme reduces the risk associated with making use of orphan works and thereby potentially increases the likelihood of these works being used.
  • IP Australia’s IP Toolkit for Collaboration provides template contracts, guides and collaboration agreements that support collaboration between entities engaged in innovation activities. This tool helps those participating in collaborative projects to develop clear guidelines with partners, thereby promoting open innovation.
  • Policy for open access in the post-2014 Research Excellence Framework has been a driver of open access in the academic environment. This policy requires that certain research outputs be made open access to be eligible for submission to the Research Excellence Framework, a framework which is used to measure the quality of research in higher education institutions within the UK. By correlating measures of excellence with a necessity for researchers to take an open access approach, this policy drives the goals of the open access movement.

International co-operation on the importance of a more open approach within culture can be traced back through a number of international efforts, such as the Budapest Open Access Initiative, the Montreal Declaration, the Bethesda Statement, the Berlin Declaration, the Durham Statement of Open Access to Legal Scholarship. These efforts focus on making scholarly knowledge available to anyone with an internet connection. The Berlin Declaration asserts that:

“The Internet has fundamentally changed the practical and economic realities of distributing scientific knowledge and cultural heritage. For the first time ever, the Internet now offers the chance to constitute a global and interactive representation of human knowledge, including cultural heritage and the guarantee or worldwide access.”

The Internet has been the major driver behind the Open Innovation movement. Our ability to share creative works around the globe instantaneously has the potential for our society to work together on a collaborative basis that has never before been possible, and these international efforts have endeavoured to enshrine into law values that will promote the development of culture and science.

The Summit

The Summit ran the gamut of what ‘openness’ can mean within society, as well as the potential benefits it brings. Peter Jaszi from the American University gave the keynote of the Summit, presenting on fair use as a driver in promoting openness within the U.S. jurisdiction. Professor Jaszi argued that that the fair use doctrine makes the U.S. economy far more competitive than jurisdictions that employ a closed system of fair dealing. This is exemplified in text and data-mining; the fair use doctrine provided sufficient flexibility to allow for text and data-mining activities to take place in the U.S., whereas within the E.U. for example, text and data-mining exceptions are still being discussed after a dialogue of numerous years (for more, see this IPKat post). It is the flexible nature of the fair use doctrine that promotes a more ‘open’ agenda within the U.S. economy, while jurisdictions that employ a closed list of exceptions and limitations may have a tendency of lagging behind when new innovations are made.

Professor Bajpai of the National Law University of Delhi presented on a hugely ambitious open education project being undertaken in India called ePathshala. The ePathshala resource provides free access to educational materials to anyone with an Internet connection. There is also epg-Pathshala, which provides resources for students of post-graduate courses across a bewildering array of disciplines – readers can feel free to take a look at resources provided for students wishing to study intellectual property law here. Professor Bajpai linked the ePathshala programmes to the Indian government’s obligations under the various international efforts towards Open Access mentioned above (the Budapest Open Access Initiative, et al.), as well as Article 19 of the Universal Declaration of Human Rights:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

The Open Science movement received particular attention over the Wednesday of the week-long Summit, with Arul George Scaria from the Centre for Innovation, Intellectual Property and Competition with the National Law University of Delhi presenting on open access in science. For Dr Scaria, open science encompasses not only freely accessible scientific papers but also transparency in research methods and data collection. To this end, Dr Scaria discussed Retraction Watch – a blog that monitors retractions and revisions of previously published scientific papers. Transparency and repeatability in data collection are essential factors that will ensure the continued progression of science, with these qualities being more readily attainable in an Open Access environment.

Chris Banks from Imperial College London discussed her driving role in the development of the UK Scholarly Communications Licence (“UK-SCL”). The current practice in academic publishing is that universities generally do not claim copyright in the academic output of staff, with rights in articles instead being assigned to publishers by academics. This approach entails a number of drawbacks, including restricting the author’s use of his or her own work and making compliance with funder Open Access mandates more cumbersome. In contrast, the UK-SCL would see research organisations retaining a non-exclusive licence to works their academics have generated. The benefits of this licence are numerous, including reducing the necessity for authors to rely of copyright exceptions in order to make use of their own academic works, academics will not have to negotiate with publishers directly and academic output will be freely available faster than ever before. Developments with the UK-SCL will be moving quickly in 2017, and the results should be interesting to observe.

Margaret Haig from the UK Intellectual Property Office (“UKIPO”) discussed the planning and implementation of the UK Orphan Works Licensing Scheme. Orphan works are copyright works for which one or more of the rights-holders is either unknown or cannot be found. The genesis of the UK Orphan Works Licensing Scheme emerged from the Gowers Review (2006) and the Hargreaves Review (2011). A rather pleasant anecdote describing the value that Orphan Works can create for society can be found on page 70 of the Gowers Review:

“Many works that lie unused could create value. For example, the film It’s a Wonderful Life lost money in its first run and was ignored by its original copyright owners. When the owners failed to renew their copyright in 1970, it was broadcast on the Public Broadcasting Service channel in the USA. It is now a family classic, and worth millions in  prime time advertising revenue. The book The Secret Garden, since copyright has expired, has been made into a movie, a musical, a cookbook, a CD-ROM version, and two sequels. For works still in copyright, if users are unable to locate and seek permission from owners, this value cannot be generated.”

It is the purpose of the UK Orphan Works Licensing Scheme to reduce the risk associated with making use of orphan works and consequently creating value within society, rather than merely allowing these works to languish in disuse.

The week-long Summit covered a whole host of important and interesting topics which would be impossible to capture in a single blog post. In the future, this writer (hopefully working collaboratively with speakers from the Summit) will be exploring and developing further some of the issues raised in a series of blog posts on the 1709 blog that will examine the current ‘open’ paradigm and how this interacts with copyright law. It is hoped that this series will generate discussion amongst 1709 readers, as well as creating a legacy resource for the 2017 CREATe IP Summer Summit.

The open graphic is reproduced with the kind permission of Libby Levi.

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