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CAUT Intellectual Property Conference Report

Ottawa, October 27-29, 2006

by John Blazina, Centre for Academic Writing, Faculty of Arts, York University

9 Nov 06 - As a signifier, intellectual property has a thinly solid, almost transparent sheen, as if it knew perfectly well what it stood for, something with the masculine force of private property and the feminine grace of intellectual beauty. But with every speaker at CAUT’s Ottawa Conference on Intellectual Property, the phrase lost more of its lustre, cracks emerged, and the porcelain revealed its feet of clay. Who owned, I wondered, the five day forecast on www.weatheroffice.com that led me sadly to pack gloves, scarf, toque; who interpreted the relevant meteorological data, predicted the future, and published online a page of graphs and guesses? Whose property this might be I neither knew nor ordinarily cared. I went to the site, saw the forecast, took possession of it thoughtlessly, as I assume our students do when downloading songs or films or unexamined data destined for their essays. As I do myself, come to think of it, when appropriating a poem for an overhead five minutes before a lecture, usually without checking whether someone, Anon, has typed it in correctly.

An unprecedented source of information and misinformation, the internet is now the world’s library and museum, shelving virtual copies of the primary sources of most academic disciplines, all the documents that constitute the past now easily accessible unless, of course, still protected by copyright. As usual at CAUT conferences there was bad news and good news about this information commons.

First, the Bad News. In three days we heard about enemies of academic freedom, of libraries, of our cultural commons: among others, the WTO, NAFTA, GATS, TRIPS (Trade-Related Aspect of Intellectual Property Rights), WIPO, and DRM (Digital Rights Management); in general national, international, and corporate efforts to enhance CR (Copyright) protection at the expense of fair dealing and users’ rights. So far, academic staff have been immune from these attacks (except that most academic journals assume CR in return for publication), but there are signs that the usual culprits have their greedy eyes on IP (Intellectual Property) as a potentially profitable product.

I mentioned users’ rights as the bleeding corpse. Several speakers worried about the looming enclosure of the knowledge / information commons. In jeopardy is our freedom to quote, to disseminate our own ideas and publications, to introduce students freely to their cultural heritage. Even universities, increasingly corporate in their governance, have become interested in ownership of faculty production in a time of reduced budgets, as John Sutherland discovered when the University of California required him to sign away half of his IP ownership as a condition of hiring (LRB, Jan 7, 1999). And the Canadian government has new CR legislation underway, driven by commercial interests and ignoring recent decisions by the SCC (Supreme Court of Canada) reinforcing users’ rights. And while I’m listing culprits, let us not forget US, that’s us, our own assumption that IP ownership rights are a certain good (some of us hoping to make a fast buck and even BIG bucks when we invent a cure for the cold).

The Good News: many academics are aware that IP can be overprotected and must be balanced against users’ rights and the public good. Many are surfing the first really new tool in 50,000 years (Do I exaggerate? What were cuneiform tablets, papyrus, the printing press, radio, or television in comparison – flakes of snow preceding glaciers, a few drops of rain ahead of the 100 year wave. Only the invention of language compares, which turned us from apes into creators of nuclear bombs and concentration camps, intellectual property at its most malign).

Good news, as I was saying. We heard about Google’s Books Library Project, YouTube, fanfiction.com, PostSecret and more, as well as MIT OpenCourseWare, PLOS (Public Library of Science), and many other seriously academic sites – all of this a new, thriving information commons apparently infinite in extent and likely immune to all forms of repression (barring the occasional virus or power cut). There’s a gold rush, of course. We have to pay to get in, and some sites sell really good stuff. But much of the web is commercial- free and anathema to CR and DRMs, opting instead for old-fashioned theft and newfangled shareware solutions like www.CreativeCommons.com, a site enabling a limited form of CR protection. 150 million works have been licensed so far – go to www.michaelgeist.ca to learn more about this.

So, good news and bad news: those trying to corporatize education, privatize thinking, commercialize everything – and the resistance, defenders of the public interest. Whose side we are on, as academics, isn’t always clear. We believe necessarily in both owners’ rights and users’ rights. We serve the public good as educators, and as writers, musicians, inventors we serve ourselves, sign our names, take modest pride in what we produce. The mandate, for all speakers, is to find the balance between owners’ rights and users’ rights that most promotes the public good and the information commons.

There was consensus on a variety of strategies. As individuals we can join the debate: should creations of the mind (whatever that is) be defined as intellectual property? Should universities and academics claim ownership of work produced under a regime of public funding (Claire Pollster)? We can educate ourselves and our students about an issue once peripheral and now central, resist all efforts to lock down our cultural heritage and close down the fair dealing exception, lobby MPs currently engaged in problematic legislation, publish quickly and preemptively (like the scientists engaged on the genome project), republish our work in open access archives, and in general learn about and join the information commons. As members of faculty unions we must protect but not overprotect copyright in our collective agreements, in a way that balances owners’ rights and users’ rights.

During the last coffee break I learned about the generation gap. I asked one of the speakers to tell me why DRM [Digital Rights Management: any of several technologies used by publishers (or copyright owners) to control access to and usage of digital data (such as software, music, movies) and hardware] was a bad thing. They threaten fair dealing, he said. They are ways of locking down DVDs and the like, preventing us from making copies. Probably twice his age, I wondered what the problem was: weren’t the makers of films, music, novels entitled to profit? I reminded him that John Milton made a fribbling amount for Paradise Lost when selling it to the printer, the owner of CR before the Statute of Anne (1709),and further decades of litigation finally allowed writers to make a living. Shouldn’t we resist theft even by our own children and students? (I took a high moral line, having often refused student offers of a CD here and a DVD there, but forgetting my own misdemeanors like accepting from a friend’s son a CD of my favorite hits of the 50s - Lavender Blue, Blueberry Hill, Brokenhearted Melody and other songs too embarrassing to admit to. One of the CAUT organizers then told me about mix tapes and how important these were to teenage love in the 80s. And what about my DVD, he said, when one of my kids scratches it? Shouldn’t I be able to make a digital backup? I saw the generation gap widening to an abyss, confirmed after an informal survey of two older folk at the next table; both insisted on buying software like Word even when their kids said don’t bother, I can get it from X for free. Those good guys, conference organizers, union men to the bone, were also bad guys, young pirates disguised as defenders of the public good. As are we all. Given that we help destroy the planet whenever we turn up the heating or log on to the internet, we can’t entirely blame the predatory market for everything gone wrong. 

Speakers list:

  • Michael Geist, U of Ottawa

  • Laura Murray, Queen’s U

  • Angela Regnier, VP, Can Federation of Students

  • PaulWhitney, City Librarian, Vancouver Public Library

  • David Robinson, Associate Executive Director, CAUT

  • Myra Tawfik, U of Windsor

  • Paul Jones, Professional Officer, CAUT

  • Sam Trostow, U Western Ontario

  • Paul Kniest, NTEU, Australia

  • Claire Pollster, U of Regina

  • Martin Phillipson, U of Saskatchewan

  • Andy Kaplan-Myrth, Creative Commons Canada

  • Kathleen Shearer, Can. Ass’n of Research Libraries

  • David Bollier, Editor, OntheCommons.org

Other Reports from this Conference:
 Ruthann Dyer's Report
Jay Rahn's Report
Dominique Scheffel-Dunand
Sharon Wang's Report