Owning Creativity - Guest Post from Oscar Nicholson

Guest post from Oscar Nicholson, who runs a film production company, but whose professional life began in biochemistry and is a subject off never completing a Masters in Intellectual Property Law. Creative Commons may be one more reason he’ll never finish his Masters.

Innovation is not its own reward. Like musos of the present, the Cro Magnon man drumming a beat on the skin of a cave ostrich drawn taught between the ribcage of a sabre-toothed orangutan also performed for tribal esteem and the promise of poon tang. Without reward, innovators are less inclined to share their ideas or go to the trouble of realizing them. Without reward, the human propensity for innovation alone might only now have us tentatively climbing down from the trees.

Every development in the framework supporting intellectual property has been driven by new commercial and social forces arising out of historical epochs. Cultures continually seek ways to encourage creativity by protecting creator’s work and income. The file sharing nirvana of the internet is now provoking a massive paradigm shift in the dynamics and economy of creativity. To look forward, we need to look back...

3000 BC
The shekel, a unit of currency and weight, replaces bartering and gift economy as the first known system of money in Assyria with the advent of the Bronze Age


3200 BC
Marks are used by tradesmen to identify their work in Mesopotamia and Assyria, the first known instance of individuals establishing authorship over work. Connect the history bullet points; the first introduction of a monetary system coincides with the first use of marks. The sell-out artist is born.


50 BC
Roman sword-makers use trademarks to identify their product for export to customers throughout the expansive Roman empire.

1439
Johannes Gutenburg builds the first movable type printer, accelerating the dissemination of knowledge. The Renaissance proliferated in print and the subsequent Scientific Revolution got to a cracking start with the widespread publication of Copernicus’ On the Revolutions of the Heavenly Spheres in 1543.

1449
Exclusive rights to a process for manufacturing coloured glass are granted by the Catholic Church to John Ulytman. A monopoly on stained glass supply to the cathedrals of Europe made him a very wealthy man.



1474
Venice passes a patent statute, building on the craftsmens guilds’ guidelines, establishing creativity as a commodity protected by the state and instituting fundamental tenets of present patent rights. Already a powerful trading state, the statute attracted foreign investment and development to Venice. Some guy called Galileo files a few patents

1710
The propagation of printing brings widespread unauthorized reprinting of works, leading the Kingdom of Great Britain to pass the Statute of Anne, the first copyright law.


1883
Western nations sign the Paris Treaty, the first unilateral agreement for harmonizing intellectual property rights internationally. It is now one of the most widely adopted international treaties, presently administered by the WIPO, an agency of the U.N.


1936-1937
Alan Turing demonstrates the first working mechanical computer, humbly named the “Turing Machine”, by validating algorithms still theoretical at the time. The following year George Stibitz built the first electronic computer utilizing relay controlled binary circuits capable of arithmetic. In the same year, Claude Shannon’s seminal MIT Masters thesis A Symbolic Analysis of Relay and Switching Circuits heralds the Information Age. The first generation of computer geeks involuntarily chortle in utero.


1971
IBM commercially releases the first floppy disk, enabling transfer and propagation of digital information. Phallocentric humour ensue.


1973
The Xerox Alto is released, the first PC available commercially. Although only 1000 were sold, both Apple and Windows based systems subsequently derived from what was the first desktop with a mouse, graphical user interface and network capabilities.


1990
ASCII pr0n, pornography illustrated with 98 text characters, is distributed over the fledgling internet by those impatient for the bandwidth to handle images of real porn with women not made of hashes with zeroes for nipples. This is believed to be some of the first online file sharing for recreational purposes.

1994
After development of the internet in the 60's by the US military and refinement thereafter by the education community, the World Wide Web becomes widely, publicly and easily accessible with Netscape‘s release of the first commercial web browser.

1995
With the popularity of Navigator, Netscape releases the SSL encryption protocol to secure transfer of data, preventing tampering and eavesdropping. As SSL was free, it is believed development was funded by online porn entrepreneurs.

1999
Napster brings file sharing to the masses. Having founded their careers on outlaw appeal, Dr Dre and Metallica now turn to the law to stop piracy of their music. Will the ironies never end?

2001
Lawrence Lessig, a law professor at Stanford University and a prominent figure in the free software movement, founds Creative Commons. Dissatisfied with rigid “all rights reserved” copyright laws, he devises a system of licenses for authors to define the rights in their works that they reserve and waive.


All of us infringe copyright simply by using a computer, every installed program or opened web browser copies information to a computer. You are infringing Julian’s proprietary copyright just by reading his blog. IP laws have either had to adapt, which they tend to do slowly due to corporate interests, or turn a blind eye to these innumerable infringements.

Lawrence Lessig‘s book Free Culture criticizes outdated IP laws and the political influence of corporate interests, where profits take precedence over a free exchange of ideas. Lawrence Lessig unsuccessfully challenged the constitutional validity of the Sonny Bono Copyright Term Extension Act (I’m serious, being married to Cher is akin to joining the dark side), a statute allowing the extension of copyright protection for works falling under old copyright law. Disney was a strong opponent to the repeal of this statute, as their early groundbreaking animation would now be public domain otherwise. Uncle Walt would do backflips in his grave if anyone mashed up Steamboat Willy with gangsta rap.

Its pretty obvious by now that vehemently maintaining copyright only benefits lawyers. Record companies made a fatal mistake wasting money on file-sharing lawsuits when they should have bought Napster and developed models for online music sales. A mash up of Steamboat Willy would bring the outmoded Disney icon into the 21st century for free. Sesame Street’s Bert & Ernie rock even harder since they started rapping in this mash up.


It is also increasingly apparent that embracing free culture is a profitable business model. Radiohead released In Rainbows online independently of a record company. They may have been inspired by the pre-Assyrian gift economy; fans made whatever donation they thought appropriate for the album. In a market where music piracy is rife, Radiohead permit users to download an album for 10 cents and they predominantly pay full album price! Trent Reznor releases Ghosts with a Creative Commons Attribution-Noncommercial-Share Alike license and tops Amazon’s album sales for 2008.

Some corporations are already embracing aspects of the free culture movement, probably without even knowing it. The marketing potential for user generated content has not gone unnoticed by savvy online strategists. Doritos received 2000 submissions to their You Make It, We Play It competition, that’s a lot of free content bearing their brand. But nowhere in the terms and conditions or competition rules does it mention permissions for use of the Doritos trademark protected by Trademarks Law, Copyright Law, Section 53 of the Australian Trade Practices Act 1974 and the common law of Passing Off. So Doritos are inviting users to infringe their IP and then turn a blind eye to it?

Should corporations be more flexible by Creative Commons licensing some of their IP, giving users free reign to mash up content and getting free branding in the bargain? Online goodwill is increasingly important to corporate public relations and as the social media folks reading this will better articulate, conversation is preferable to simply being spoken to like a self-important buffoon. Despite recently getting on the Hulu bandwagon, Disney has copped a lot of flak for being a copyright curmudgeon. They could have turned that public scrutiny into love by being a little more generous with their IP. The Disney corporation may have created and distributed content, but its public enthusiasm that made it a cultural phenomenon.

There is still considerable debate about the changes forced upon intellectual property laws and enforcement. Andrew Keen is a vociferous proponent of traditional IP and critic of the cultural damage caused by widespread online IP infringements resulting from what he describes as the “Cult of the Amateur”. He calls Lawrence Lessig an "intellectual property communist", although unfortunately not while being interviewed on The Colbert Report:-

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Andrew Keen
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Have I missed any milestones in the history of creative dynamics? Can anyone suggest ways of compromising existing IP with the free culture movement? Does anyone have any interesting anecdotes regarding IP or Creative Commons?
olson