WHEN THE COPY’S NO EXCEPTION: Interview with Kennisland’s Paul Keller

Interview with Kennisland’s Paul Keller on Creative Commons, Mick Jagger, and the changing role of the archive.

Go here to listen to the original interview of  May 18, 2010

Paul Keller, one of the founders of Creative Commons Nederlands, recently sat down with me to talk about freeing society’s creative silos, a conversation ranging from how we might circumvent stale copyright law to the surprisingly robust underground of p2p networks innovating in the margins.

Keller hails from Kennisland, a future-oriented Dutch think tank that puts its stake in an economy driven less by the production and circulation of 3-D goods than by creative knowledge flows. An overarching goal is to bolster society’s cultural commons and improve access as far as possible to these resources. Their partners include Creative Commons, Images for the Future, Communia, and Wikimedia.

Kennisland is working with several cultural heritage institutions on copyright issues. What have you found to be so deficient about the current copyright system?

Our aim at Kennisland has been to improve access as far as possible to digital cultural resources, to make them available under free licenses or without restrictions. Now if you decide to license something, you need to know who was involved in producing something, then you must find them and negotiate with them, and that’s usually when it ends. Because with large diverse collections, it can be very difficult to find the people who own copyrights in your archive. So we’re looking to find practical solutions for existing projects, but also shaping policies and practices on the national level to overcome these hurdles. How can you align stakeholders so that material becomes available? All the talk about innovations taking place in the shadows, in an unregulated sphere that ignores copyright and the interest of authors – it’s simply not an option for organizations funded by public money and run by boards with respectable retired ladies and gentleman. You need to negotiate these problems in a way that doesn’t put too much burden on archives and respects the rights of the producers and authors involved.

For instance, copyright still is organized around national boundaries. Organizations may have permission to display something on the internet in France but not in Belgium. From the perspective of an internet user that is absurd, but if you don’t have right to do so, and you risk being held liable, you probably won’t make it available.

So how does Creative Commons then nuance the law to address the way digital technologies are changing cultural production and circulation?

Copyright law usually makes the distinction between private and public. Private is what I show in my own house, legally defined as people I have personal bonds with, in a close community. A public performance requires permission from the copyright holder, while with a private doesn’t. The internet has of course dramatically enlarged the range of our public. If I look at my flickr collection of pictures, hundreds of thousands of people have looked at them, while it it is still essentially the same collection that started its life in a shoe box on my shelf that maybe 5 people looked at back in the days. You can argue that the private has become global, and as a consequence this public-private distinction doesn’t work well for triggering copyright anymore.

In place of this public/private distinction, the difference between commercial and non-commercial uses might be a much more relevant. In a way Creative Commons introduced this idea. The non-commercial sphere needs much less regulation and restrictions, and it is probably a good thing if copyright holders focus on generating income from commercial uses of their works. These days not making a copy of something is damn difficult to do. The unique is the exception and copies are the new normal. There needs to be some kind of acknowledgement of this, or the rules that govern copying will stop functioning.

You were one of the founders of Creative Commons Nederlands seven years ago. Can you talk to me about what effects its licenses may have had on the public domain since? What are some of your successes?

I don’t see the main value of Creative Commons in licensing individual works, someone’s blog that isn’t that interesting to use in the first place. What’s more substantial is when a large platform like Flickr becomes tightly integrated with Creative Commons. Flickr is an amazing resource for freely licensed imagery that can be very useful in educational settings, and the cc licensed imagery there provides value to a large group of people. It’s becoming a real threat to professional photographers because you find so much freely licensed stock imagery there.

Another recent case was the decision of the Dutch government to release information published on government websites under CC0, a statement that the government doesn’t assert copyright at all. Here we see Creative Commons as a tool to support government policies about how we can best structure access to information in the networked environment. So we are trying to spread this idea that what’s important isn’t if it’s 3 or 17 videos become available, but that sharing information is beneficial to entire organizations, so that they start integrating these instruments into their platforms and procedures.

We see this happening more and more. One of the most signifficant projects we’ve done is with Buma/Stemera, the collective rights management organization for authors of musical works in the Netherlands, exploring if it is possible to combine collective rights management and individual rights management. When we started talking to them, they had the perception that we were working against them: you want to make stuff available for free, and we’re in the business of extracting money from people who want to use music, so you should get out of our way. Instead, we’ve come up with an understanding of how one approach can drive the other, the free availability of material can actually drive your ability to extract money.

So with the aid of Creative Commons, large amounts of digital objects are being released by massive silos, such as Flickr, Youtube, and the Dutch government, as you mentioned. How do you see this changing the role of the public archive?

We see a transformation of archives away from being the central place where we store stuff that no one uses, into resources that people actually want to use. In this process the real innovation probably isn’t happening at the central archiving nodes, but at the fringes of the network, in the distributive archive and metadata systems, where you make sure that I have access to what you archive, and you have access to what I archive. Peer-to-peer networks are a natural way of selecting what’s worthy of being preserved and what’s not. If there’s at least one person assigning enough value to one object to keep it, then it’s available to the entire community. There’s no policy that says we can only conserve more of our glorious history. Underground bittorent communities that specialize in specific genres of film, for instance, are surprisingly responsible archives, operating outside the realm of copyright permission. It’s fan driven, distributed and very responsive. One would expect those networks to do a lousy job of preserving, but in the end they can be far more complete than centralized systems that have to stick to the rules.

Copyright in this sense is like a one way mirror: one the one side you have this institutional world of archiving, and on the other side, you have these informal activities that are doing very interesting things but are invisible to the institutional players who can’t look back through the mirror. From the perspective of these informal communities, institutions are still operating in structures based on a time when the main characteristic of the archives were thick walls, controlled temperatures and enough space to have everything in one place. The current copyright model does not enable them to fundamentally transform the way they grant access, and as a result a lot of material that could be available to society is hidden away.

There’s a criticism of Creative Commons floating around that claims these licenses don’t address how artists will make money once their content is offered up for free, and that it doesn’t prevent companies from exploiting all this open content created by unpaid labor. How do you answer these complaints?

The criticism you refer to argues against this idea that free availability can be a good thing, because if something is given away free, how will the artist be paid? That’s a relevant question, but Creative Commons isn’t necessarily the organization with an answer to this. We are not making a claim that the Creative Commons licenses are the tool to use if your primary objective is to earn a living from producing artistic works. Creative Commons has always been careful to say we don’t oblige people to use our licenses. Our licenses are tools that you can use if you have come to the conclusion that you want to share something.

Right now there is a much more fundamental problem with generating income from artistic production. In a recent interview with the BBC Mick Jagger stated that he is rather skeptical of the current discussion about how musicians can earn money from selling recordings of their music. He observes that in the history of modern music, the period from 1970 to 1997 is about the only period that a substantial group of musicians managed to earn a living by selling music as a recorded good. This period probably needs to be seen as an exception, while we are currently treating it as the rule. So How do you value the production of cultural goods in society of resource abundance, and what economic mechanisms can reimburse people who do that? How do we regulate it or not? What’s the point of value creation when everyone has access to everything? Creative Commons, copyright – neither are the final answer to that question. We need to rethink this not from a rights-based perspective, but from an economical perspective. So far we haven’t found the business model that will solve these discussions.

Earning money by selling cultural goods, where I give you a cultural good and you give me money, and this ends up being a good deal for the artist, is the absolute exception. So it’s probably more productive to look at what’s wrong with copyright as an underlying system. Copyright currently justifies a simple binary transaction. I have cultural goods, you have money, and we do a proper exchange, or otherwise I’m in violation of copyright. Given that everybody can make copies of pretty much anything, this is clearly not the smartest system for organizing knowledge transfer or the distribution of cultural goods. Creative Commons is built on top of the existing copyright system to offer ways to escape these effects.

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