Influential copyright scholar Larry Lessig yesterday issued a call for the World Intellectual Property Organization to lead an overhaul of the copyright system which he says does not and never will make sense in the digital environment.

A functioning copyright system must provide the incentives needed for creative professionals, but must also protect the freedoms necessary for scientific research and amateur creativity to flourish.

In the digital environment, copyright has failed at both, said Lessig.

Reading, lending, or reselling a book is not “fair use” – it is free use. They are unregulated acts.

-Larry Lessig

“And its failure is not an accident,” he said. “It’s implicit in the architecture of copyright as we inherited it. It does not make sense in a digital environment.”

The copyright system will “never work on the internet. It’ll either cause people to stop creating or it’ll cause a revolution,” said Lessig, citing a growing system of copyright “abolitionism” online in response to a worrying tendency to criminalise the younger generation.

“If and only if WIPO [the World Intellectual Property Organization] leads in this debate will we have a chance” at fixing the copyright system, he said.

Lessig spoke at the 4-5 November WIPO Global Meeting on Emerging Copyright Licensing Modalities – Facilitating Access to Culture in the Digital Age. This event is a part of the ongoing implementation of the WIPO Development Agenda. Lessig is a professor at Harvard Law School.

He also spoke on video with Intellectual Property Watch after his speech, which can be seen below.

Copyright Online: What has Changed?

Reading a book in physical space is unregulated, said Lessig: reading, lending, or reselling a book is not “fair use” – it is free use. They are unregulated acts.

But online, every use is a copy. This is “not about a generation that can’t respect the rules, it’s a problem in the design of the system.”

“Most of us can no longer spend even an hour without colliding with the copyright law,” Lessig said, quoting University of Michigan Law School Professor Jessica Litman.

“At the turn of the century, US copyright law was technical, inconsistent and difficult to understand, but it didn’t apply to very many people or very many things.… Ninety years later, the US copyright law is even more technical, inconsistent and difficult to understand; more importantly, it touches everyone and everything,” Litman wrote.

Francis Gurry, WIPO director general, said in his opening speech that the technical infrastructure of the digital environment is both key to the description of what is lacking about copyright and key to the solution.

“An idea whose time has come” is a global database of repertoire, which called “an essential piece of global infrastructure or as an essential global public good.” This was mentioned frequently in subsequent panels at the event.

WIPO Blue Sky Commission

Creative Commons licences, a suite of licences that build on copyright law by allowing a user to select allowed freedoms, have helped but are not enough, said Lessig.

WIPO needs to form a “blue sky commission,” a “group that has the freedom to think about what architecture for copyright makes sense.”

This architecture must be: simple – “if it’s going to regulate 15-year-olds it should be something that 15-year-olds can understand”; and targeted – regulation makes sense in some areas, such as protecting professionals, but not in others, such as in amateur remixing. It also must be effective, and realistic in consideration of “actual human behaviour.”

This realism involves acknowledging what has changed since the advent of the internet, and also what has not.

For all of human history, Lessig said, human culture was “read-write.” That is, people participated in the creation and recreation of culture. The 20th century has been unique in human culture, because the development of technologies of broadcasting and vinyl records produced an environment which enabled “efficient consumption, but inefficient amateur production.” This created a world that was “read only,” a “passive, consuming culture.” The internet has brought back that read-write environment.

The war on piracy has been going on for 10 years. “For some, the response to a totally failed war is to up the stakes, to punish more vigorously.” But this will only fuel the copyright “abolitionist” movement, said Lessig, adding he was “against extremisms, because both lead to destruction of core value of copyright.”

“We are not going to kill these technologies,” Lessig said. “We can’t stop the kids’ creativity, only drive it underground. [We] can’t make our kids passive, we can only make them pirates.”

Larry Lessig and Francis Gurry speaking at WIPO.