 such a warm welcome and for such amazing words that we had to live up to, and it's a real pleasure and a real privilege to be here among such distinguished company, many of whom your work I've known off, your names I definitely know off, so it's really a thrill for me to be here, and I hope that we'll have a really interesting discussion today. As John has said, I don't plan to talk for very long, I think Amar's instructions were around 15 minutes, and I haven't actually timed myself, so if I go on beyond 15 minutes and there's something that you want to raise, please feel free to cut me off. Essentially I'm going to talk a little bit at a fairly general level about something I'm very interested in and something that I'm doing research on, which is the intersection between copyright law and policy and the access to knowledge of the A2K movement. As you can see from the title of the talk, there's also a bit of a frustrated writer and poet in me in that I have an affinity for alliteration, although that's as far as the flourishes go. I thought what I should do is first explain why I picked this title aside from the fact that it sounded really neat. As we all know, I think copyright and the other intellectual property rights or IPRs are exclusive rights in the form of private property. And there's been a lot of discussion, a lot of development, a lot of rhetoric, if you like, around what that means, what it implies, and what risks a further expansion of property rights in this area might mean for access to knowledge and a lot of other competing, conflicting public interests. To that end, and here's where the rhetoric comes in, we've got a bunch of labels behind which there's quite a lot of substantive discourse and a lot of what I might call fashionable terms, some of which are rooted in obviously legal doctrine, but some of which either are misconceived, I think, by the wider public or have become some sort of convenient political label behind which to rally the troops to whatever cause one might have. Hence we have this interplay between existing property rights and rhetoric that aims to either critique or cut down those rights. Where openness and opacity are concerned, I think those are also pretty self-evident. As those who work at the Bergman Center and related initiatives are all too familiar with, there has been a recent and increasing, and I dare say welcome trend towards a greater openness in the sharing of content and the licensing of rights and overall in greater accessibility and access to knowledge. Coupled with or rather perhaps contrasted against that is what I've termed opacity. Either of traditional legal institutions, say in the international norm setting arena possibly, national legislatures, certainly entrenched interests who have no reason or have no incentive to change the existing regime, and they can present roadblocks, obstacles towards any growth in openness and greater access to knowledge, which then of course leads me to the final part of the topic. What is the future if we've got rights battling rhetoric, if we've got openness battling opacity, and are some of the fears that have been very well expressed in some of the literature going to come to pass? So this is where I hope the discussion will go today, and I'm just going to, I'm glad that of all the disclaimers that John gave about this being a short and open-ended introduction, to see what sort of ideas, what sort of reactions and feedback, some of the suggestions I'm going to make might generate today. So essentially going back to the first point, the starting point for all our discussions, and first I should say that I'm not going to propose that we do away with copyright. I'm not even going to propose that we stop seeing copyright as a form of private property or as a set of exclusive rights. I think like many who work in this area, while I find a lot of the theoretical discussions intriguing, interesting, and helpful, I think what we're all looking to do is find some sort of workable alternative or compromise or at least some sort of resolution or whatever impasse we might have arrived in copyright law. So that is the existing framework, and that's the starting point for the discussion. And as we all know, those here and those watching, copyright in its incarnation as a private property right has gone through a rather colorful history. Starting from the 17th, 18th century on to today, is history of 300 years or so standing. Starting as a censorship tool of the crown, if you were in England, to a mode of trade regulation against the stationers' guilds, to a recognition that it could stand alone as a form of private property. All of these developments took place against a background where philosophical thought and scientific progress encouraged the age of reason, the use of rational discussion, the wanting of individual achievement, which then led into the romantic era where the cult of the individual creator, the poet, the artistic genius, took hold. So copyright law developed within that context against that background, and it's therefore not surprising that a lot of the tropes and a lot of the considerations that influence what we consider to be the bedrock of copyright law derive from that particular background and from those particular philosophies. And there are consequences and implications to that that I'll try and come back to a little bit later on. Recently, in the 20th century at least, some of these tropes and assumptions have been questioned and even deconstructed by the lights of Michel Foucault, for example, or Roland Barthes. But two things here. One is that they are so entrenched. And I'll talk a little bit about the view of the romantic individual author as being central to copyright as an example. They are so entrenched in our view of copyright law. That second, I don't see that even with a lot of the deconstruction that's going on as to whether the author is a myth, for example, as to whether there is a further reality to the text beyond the author, and we're not going to go any further down that path. Despite, I think, the possibilities that throws up for us to reexamine this notion of authorship, I don't think the essential framework is going to change that much or the underlying assumptions about how copyright law works is really going to change that much, not in the short term, not in the medium term. So like I said, I'm going to try and work within the existing framework. But it is important for us to understand that background to try and get a sense of how we got where we are in order to figure out where we should be going from here. So the essential question that I think many of us struggle with is this. Given that background, given the fairly accepted longstanding framework, and given, I should think, it's a fact, whether or not we think it's a good thing or a bad thing, that particularly in recent decades we've seen an expansion of copyright in terms, say, of duration, in terms, say, of the nature of the rights protected in terms of its scope of protection, what are those of us that are concerned about this expansion and who wish to see that either cut back or, at least in my view, balanced by some other countervailing considerations or interests in the interest of greater access to knowledge, what can we do? And there's been a few attempts, not all of which I can go through here, that have tried to achieve that sort of balance or that have tried to point to either a way forward in an alternative direction. And they can be more or less described in several categories. For example, and this is a particularly rich academic field to mind, there has been recognition and a push towards alternative property rights. In other words, when we start off saying copyright as private property, first of all, is that necessarily so? Secondly, let's focus in on property, what kinds of property, what kinds of ownership can there be? And within this realm of discussion, we start to see the emergence of terms such as the public domain, the commons. And in a particular context on the internet and for cyber law, the information commons. And within that, there are obviously subsets, like within the commons, there's talk of the semi-commons as well. I'm not gonna explore all of that, but I do wanna spend a little bit of time on the concepts of the public domain and of the commons as to whether or not these present alternatives. Secondly, and this is something that's a little less well established in the literature, but there's been allusions and movements too and towards this, and there's been certain indications on the lawmaking and judicial front that it may be possible. And this is to balance out the exclusive private property rights represented by copyright, what we tend to think of as limitations and exceptions to those rights, for example, fair use, could be elevated, reconfigured and treated as rights equivalent and in and of themselves. In other words, a type of user rights to balance the copyright holders' exclusive rights. And I'll talk a little bit about that. In fact, what I'm going to try and do is offer suggestion. This is to keep everybody awake for the next few minutes. That will hopefully tie together all of these possible alternatives. The third being something that's somewhat more specific and that those amongst us working on open source projects and creative commons type projects will be all too familiar with, the creation of specific flexible mechanisms that work within the existing property regime, but that really offer effective workable alternatives to those who have created copyrighted works. So let me tackle the first general issue initially, the alternative properties that we've talked of in relation to copyright. And like I said, given the time that I have, I want to just, I want almost to pick on, but let's just say I'll pick two, the public domain and the commons. And there are two reasons why I've picked these two concepts. One is that they have both been increasingly widespread in terms of usage. They've certainly become buzzwords, which to my mind leads to point number two, the risk that they might either be misunderstood or undefined in a way that it could be shaped into rhetoric and agenda for, like I said before, whatever cause somebody is pushing. I think we'll all agree on this statement, which was taken from a very recent book, which is a collection of essays on the public domain by two very notable European professors and academics, that we need a robust, a strong, a vibrant public domain as an essential requirement, for development economically, culturally and socially, and for progress towards a greater democratic process, not just here in the US or anywhere in the West, but globally. I don't think anybody's going to, around the table's going to disagree with that statement. But those statements don't necessarily make for concrete policy proposals. Furthermore, we don't really know what the public domain actually means in the sense that we don't even know if we can define it in a way that would be useful to serve as an alternative to an existing copyright model. Like I said, there's been a bunch of academic discussion and a lot of conferences and discourse and papers on this. And one of the shorthand summations of this entire discourse might be that the public domain is defined more in terms of what it is not than what it is. It serves as a contra distinction to the copyright regime, which, as I've said, is the exclusive rights in private property. So whatever is not copyright is the public domain. That's useful, but I'm not quite sure how far it gets us in trying to determine whether copyright has overreached too far and if so what we should do about it. Similarly, with the commons, that's been another term that, like the public domain, has gained currency of late. The question that I then have is, as with the public domain, do we know what that means? And I suspect that if you ask different people with different qualifications or different interests, they might give you a different answer. I suspect that even if you ask a bunch of lawyers, they might give you a different answer. And I say this on global television or technology. I don't find an agreement, a common understanding, a consensus, even amongst lawyers and academics as to what the commons means. I mentioned earlier that someone has suggested that we should look at not just the commons generally, but specifically at something within that called the semicommons. But before we even go there, I want to return to that point, what do we mean by the commons? And certainly, there'll be some people, particularly users to whom the Creative Commons movement has resonated that would say, that means the Creative Commons. I think most of us will say, well, Creative Commons is part of that, but that doesn't define, nor does it represent, the VL and NL of what we mean by the concept of the commons. Well, if you go back to old English law, the commons doesn't mean like what some people would say it means something that's not owned. Others would say, well, it's something that's owned, but by a group of people. But a group of people could be a bunch of individuals. It could be a corporate entity. It could be a broader institution or any combination of the above. A third alternative that some might offer is, yes, well, the commons is owned, but not by private individuals, not by corporate entities, not by institutions, but by the public generally, by society. If you dig back into some of the legal literature as I've had the fortune or misfortune to do, you find all of those usages used at one point or another. And to complicate matters, sometimes use interchangeably the public domain, which, as I've said, it's kind of what copyright is not, which would tend to imply it's not owned by one person. My point here is that we don't have a consensus on a definition or a meaning for either of those terms, but we find that both of these terms, like I said, have gained currency in this debate or this discourse about where copyright is going, has it overexpanded, what should we do to push back or what kinds of alternatives can we offer that will be a countervailing weight to the expansionist push of copyright law? So I guess what I'm suggesting is that while these are useful hooks, while they are certainly very important direction indicators, they're not necessarily not at this stage where we don't have that consensus, the solution. So can there be a true comments? We have, well, what I've called floss or what in some parts of the world is called floss, free and open source software or free, libre and open source software. And I'm not gonna go into the differences between free software and open source software. That's a topic for another day and I think familiar with a lot of people here anyway. On the one hand, which probably represents the first significant major effective move towards some kind of alternative to the traditional private property regime where one owner controls the rights and that owner determines how to license those rights normally on a fairly closed model. Where floss focused on software, the Creative Commons, again a concept familiar to everyone here, uses the same kind of model and applies it to non-software content as we all know music, video, text and various other kinds of copyrighted content. The point that I wanna make here is not to get into a critique of whether it works or whether it doesn't work. In fact, it's become rather fashionable, it seems to me, to engage in a critique of either floss or the Creative Commons. But to say that they are partial mechanisms rather than full alternative solutions. And they're partial mechanisms because they're very specific. They are licensing mechanisms. And to a certain extent, I could venture to say that initiatives like the Creative Commons sometimes runs the risk of being a victim of its own success in that it is so successful and it's so global, having been translated into and localized into licenses that apply to more than 30 countries across the globe that that almost de facto then becomes the solution for most people. Well, you know, if copyright is too broad, if we want an alternative, let's just persuade more people to use this particular licensing model and then we'll be fine. Like I said, I think it's very successful, it's highly effective, but in the grand scheme of things if we're looking at this discussion as a much broader one, then it represents only a partial solution. And so, so far while the rhetoric has been useful, a good starting point and suddenly something to come back to, except for FOS and the CC models, they haven't really thrown up concrete proposals or results. One encouraging thing I want to add here, kind of as a sidebar, is however that a combination of all of these concepts and certainly the continuing discussion over all of these possibilities has led to increasing involvement by groups other than lawyers, groups other than entrenched interests and certainly we've seen greater participation by NGOs, civil society groups. And interestingly from my point of view, civil society groups not just from the US or the rest of the West, but also from other parts of the world, Africa, Latin America, and to an increasing extent Asia. And this will actually bring me to part of my conclusion later on. So here's the challenge, right? How do we use these concepts which have so far been rhetorical but useful hooks and that so far seems to have been, I don't want to say dominated, but been prevalent amongst Western discussants, be refocused towards more concrete, workable results and changes. And by that token, how do we encourage a greater participation in the discourse amongst a greater number and a wider variety of people? The other thing that I want to just touch on before I try to draw this all together into some sort of recommended suggestion is, and don't take this as an attack on vaulted and vaunted idols, it's not. It's simply observations. Like I said, we had the romantic conception of who is an author and that conception started influencing copyright law a couple of hundred years ago and continues to be a central, if somewhat shadowy and lurking figure. An academic who's very well known in the field actually called this person the specter of the author. He looms, he lurks, but we don't quite know who he or she is. And the reason is that if you look at the governing international treaty for copyright, which is the Berne Convention, we see the word author everywhere. It's very clear that the premise is if you're an author of something, certain exclusive rights come to you subject to certain limitations and exceptions. That doesn't define it. Similarly with the US Copyright Act and even with a lot of other national legislation, they might address specific facets of authorship, particularly when it comes to assigning the ownership rights, but they don't necessarily offer you a comprehensive definition of who an author is. And one of the results and one of the critiques from that is that this means that by default, we cling on to this notion of the individual author dating from the 19th century. The problem with that is, as has been pointed out by many academics, this notion, this author, this shadowy figure isn't necessarily the best figure to deal with what we all in this room know, the increasing, maybe not new, but certainly newer and more common forms of creativity that involve sharing, collaboration, and openness. Similarly, that individualized hope doesn't necessarily deal well with the realms of traditional knowledge and folklore and other forms of knowledge creation and knowledge sharing that are more communal or community-based. And like I said, that's been a well-known criticism. But what has happened is that that entrenchment of that shadowy specter has, to my mind, contributed to a one-size-fits-all copyright model which has resulted in some good things, harmonization and uniformity being the most obvious, but also in a similar model of copyright legislation based on that late 18th, early to mid-19th century model of individual achievement, the individual author being the governing default model for copyright legislation everywhere. So the question is, can we do something about it? Can we lose this figure? Or can we at least try to reconfigure? Or in some way, and I've lost the challenge here, so let me just say it to you already, in some way, try to, in this audience I can say manipulate this notion to better serve this greater understanding of what creating something in this world actually means. Have it be more inclusive? There we go, that's the challenge, which I've just paraphrased myself on. And so here's what I suggest, as something that could allow us the framework, the flexibility and the breadth while moving away somewhat from the loaded rhetoric and the lurking figures that have been with us in copyright law and discourse up to now. And that is to look beyond property, to look beyond contract, to look beyond economic and commercial considerations to something that I have to confess, I didn't really think very hard about until relatively recently, not being an international lawyer of any sort. But then I started looking at the human rights framework and I started discovering that in something like the past two or three years, there's been a small handful of academics that have also started thinking about this, what this area of law can teach us as we move forward in intellectual property policymaking, not just in copyright but clearly in patents, access to medicines and all those other worthy endeavors. If you look at the Universal Declaration of Human Rights, I think you see right there in Article 27, the two things we keep talking about that sometimes are in conflict in the copyright world. If you look first at 27.2, that's something we're very familiar with under the property and exclusive right regime. If you create something, you own it, whether it's for utilitarian reasons because that's the best incentive to get you to create a rational, very familiar to students of US law or for other reasons, either because of say, lock-in theory or personality theory or some other natural rights considerations. We're familiar with that. If you then look at 27.1, however, you start to see something that could counterbalance it or that in some way can be in conflict with that entitlement that I've just spoken of, the right to freely participate in cultural life and to share in the benefits of scientific advancement. Here is where I think we can get some guidance as to how do we equalize the equation? Instead of just talking about exclusive rights, property rights, ownership, private property on the one hand as being the hammer of copyright, let's look at the other side, which we look at through limitations and exceptions, which we look at through fair use, through the public domain and through a number of other concepts. Can we elevate that to a right similar in provenance, similar in power to the other side, the exclusive right side of the equation? I put in article 10 of the ECHR, the European Convention on Human Rights, simply because of two things. One is that the conditions or the built-in limitations are kind of interesting and provide a nice starting point if we're going to decide how we can limit or trample this world that we're opening up, but also because in the United Kingdom, as some of you might know, there was a copyright case that was based on infringement and the defense was the UK equivalent of the Fair Use Defense, which was the Fair Dealing Defense, but the defendants, which was a big newspaper publication group, also brought in the Public Interest Defense under UK law and then argued that on top of that, because of the incorporation of the European Convention on Human Rights into UK domestic law, that the court in considering a copyright case also had to consider freedom of expression and other human rights considerations. So I bring that in to indicate that we are seeing these little hints that it can be done and that it is at least being pushed. And similarly, not quite in the human rights vein, but certainly in the user rights vein, there was also a recent case in Canada that some of you might know about where in applying the Fair Dealing Defense under Canadian law, which is specifically and expressly referenced as a limitation and exception, the Supreme Court of Canada referred to Fair Dealing and equivalent fair use rights as a user right. So I think there is some glimmer that is a possibility and ultimately what I'm not proposing is to substitute out our existing framework and put in place a human rights framework and just say, let's just go back and re-look at copyright, wipe off the last 300 years and start all over again. I don't think that's practical and I don't think that's necessary. Nor am I saying that copyright and therefore other IP rights should therefore be considered human rights. And the jurisprudence points out some problems with that. What I am saying is that if we adopt that framework, we can use it to do a number of things. Like I said, bring in more broad and flexible considerations, give us some sort of foundation to consider whether or not we want user rights, to consider that the limitations and exceptions so phrased operate with equal footing and power as the exclusive rights we give to copyright owners. It also allows us to then, like I said, manipulate this notion of authorship to take into account collaborations, communal creativity, beyond that individual romantic author trope. And in so doing, we can start to move away from the one-size-fits-all model where the same copyright law and model applies across the board to all countries, to all societies, irrespective of cultures, state of development and so forth. This not only does not conflict with the utilitarian framework of US copyright law for those of us who are concerned about how this is going to work domestically. Even though we've got primarily utilitarian framework here, as has been recognized in numerous Supreme Court cases, I happen to be of the dualist school which thinks that there is, underlining all of this, a minor but an existing consideration that has to do much less of the utilitarian rationale and more with natural rights-based reasoning that has come out through various decisions as well as legislative provisions. So even within a very heavy constitutional utilitarian framework, especially the United States, I don't think we're precluded from looking at this more broad and general framework. And the final point I'll conclude with is, as some of you will have followed the progress of the WIPO development agenda that was first tabled in the fall of 2004 and that has gone through a number of committee meetings, some very exciting, some very heated, a couple of setbacks, but most recently, late February last month, some progress was achieved towards making recommendations for progress of a development agenda calling on the World Intellectual Property Organization to more clearly and fully integrate the development dimension into its norm-setting and technical assistance activities. And those recommendations will be put forth to the General Assembly this September. Some of the other recommendations which are quite controversial will continue to be worked on. So the last benefit and beauty they'll offer up today of adopting this broader beyond-property framework is that it actually fits very nicely and it allows us to tap right into some of the other currents and discourses that are going on on the IP stage. And with that, I welcome questions and comments. It was more than 15 minutes, I apologize for that. Professor Nelson, do you want to start us off? You must have comments on this, sorry. I was nervous when I saw him taking notes. You'd be nervous if you were not taking notes. Okay, that's good to know. Well, I'm completely taken with your initial approach. The idea of recognizing at once the fluidity of the rhetorical frame, but also with stability and going for the question, what can we actually do as opposed to, well, how do we just keep talking about this? That just seems like totally right to me. I resonate totally with your idea of the user right as a place to build. The thoughts that were going through my mind just because of what I've been so much into is the user that I'm the most interested in at the moment is the university. And the university writ large, universities. And the single most practical place where the university meets the ground on user rights is with fair use. Absolutely. And the single most outrageous feature of the law with respect to fair use is that the burden of proof is on the user rather than on the holder. That's unfair and particularly unfair to universities, which are essentially litigation phobic. And so it's just tremendously constraining. So when I hear you then go forward speaking about the success of the open movement, the brilliance of Larry's creative comments and how the sensibility has really changed and is actually expressing itself in various ways. It's showing up in courts and the way people are thinking. Your question comes to focus for me. Well, how could one focus this increasingly powerful and broad sensibility on something truly practical that would pull a thread and change the structure? And so I'm thinking, we're lawyers, how about thinking about getting in back of a law that sees university as the client and asserts the change and procedure of putting the burden of proof, relieving university of the burden of proof on fair use. It has some advantages. It has the advantage of making no change in substantive law. Right. So it fits totally with your, let's keep the existing framework. It definitely puts the question on the user and I would hope university wouldn't be seen as a user long-term antagonistic to individual users, but as a user that has a potential political constituency and could be focused and is seen as a fair broker because we have use on both sides. We're using it and putting it out. It seems like it could be a focal point for just the kind of thing you're looking. What could we do? We could conceivably focus as lawyers on changing the law with respect to the procedure of the burden of proof on fair use. I mean, I'm with you on that totally and I'm glad and relieved to find that there's some resonance with you in my remarks. And I agree that that too is going to be an increasing issue. And as you were speaking, one thing that came to my mind is this concept of the user. And again, just as we are guilty of generalities when we come to talk about property owners, for example, what some of us forget, not you and your remarks certainly, but is that there are many kinds of users, right? Not just individual or group or corporate, but many different users in terms of their motivations for wanting to use something in terms of the outcomes of what they do and also in terms of the uses to which they put existing material as well as their own. And the university is someone or an entity that up to now has been the concern of obviously librarians and a few academics. I think that one of the things we need to do is to go back to what I think we're both saying is that we need to change the way it's done. User rights may be one way to do it, basically push it up. Make it more important, make it stand on equal footing with the private rights. But before we can do that, we need to change the mindset of what it means. And one of the ways that the human rights framework can help, and so far it's still a very sort of general thought, is to build in the fact that universities are educational instances and institutions first and foremost, right? And, sorry, and ultimately, access to knowledge includes access to education. The right to a basic education includes access to the materials necessary to it. It's part of the Millennium Development Goals of the UN and it falls very nicely therefore into both the development of the human rights framework. So I absolutely think that if we can take that as the rallying cry, maybe use some of the rhetoric ourselves, but focus that in on maybe a specific kind of project, the universities. Certainly, obviously, we want to also look at how institutions such as your neighbor down the street and have it itself and a lot of other institutions have they approached open licensing? What do they find lacking about it? And I think that would be a way forward that combines the mindset change as well as the procedural change. And I would very much like to see that happen. I guess your question is, let's, if we are going to focus on the users, how do we do it? Do we say here are the things you can't do, therefore you can do everything else? Or here are the things that you can do and let's define it very, very broadly. I think those are some of the ways we can do it before I actually sort of try and figure out what one specific way might be. I think before we run away of ourselves, before I run away of my brilliant idea, it's going to be difficult, not just because of the mindset change that I talked about, but it's going to be difficult because even within the existing framework, we might need to shift the language. Like I said, we talk about copyright as a set of exclusive rights, a bundle of sticks, property and so on and so forth. We talk about fair use and other doctrines that permit users to do things with copyrighted content as a limitation on that right, as an exception on that right. If you look at how legislation is drafted, if you even look at how the Berne Convention phrases it, the famous three-step test in Article 92, they are viewed as very specific accommodations to this very broad rights-based regime. So I think that while we want to, if you get to the stage where you're starting to recommend specific language, whether it's statutory language or best practices, one thing that you're going to run up against is what do we do with the existing language we already have? So unless we adopt some sort of fairly creative mode of statutory interpretation, let's say we take a second look at how the Supreme Court of Canada did it with what seemed in on the face of it a very clear defense and limitation, fair dealing. Unless we adopt something like that, we're going to have a very initial obstacle. And then and only then do we start talking about how do we want to define the rights or leave it broad? Charlie's specific suggestions is one that I've long covered would be a good law reform idea and the idea of the university as a client in essence from a focal point, I think is a wonderful one rhetorically to think of your opinion. But I think you had a wonderful set of provocations through this, the fun, the brief, is it? But once you're further provocation, it seems that Charlie likes the user as the university, but what if we think about the user as the re-user of the content? It seems like the zone of derivative works, particularly where we're focused on the Web 2.0 or the Read-Write Web or Semantic Web or wherever we're at, the heck we want to call it. David Weinberger probably has a better term for it for the participatory culture. Most of what we're talking about is taking some bit of stuff and then reusing it in some way. Think about little bits of ICOM content, gotten for bid reused in the YouTube context, maybe to teach a guitar lesson or used as part of a mashup and so forth. I wonder if somehow the rethinking of who the author is could help somehow just in this rhetorical sense, which is you rightly point to the romantic question of the author who is in their room by themselves thinking of something genius. I wonder if the generation of digital natives or whatever we're thinking about are people who recognize I think in a way intuitively that it's about taking other people's work. It's not standing on the shoulders of giants, necessarily standing on the shoulders of everybody else and picking stuff. If the creative reuse is in fact the primary art form and the role of the author changes, somehow I wonder if there's something in there about refocusing our notion of the author in the core social and collaborative kind of way. I'm glad you asked that because I had meant to but kind of omitted to pick that up because I think you're absolutely right that the reconfiguration in terms of furthering the rhetoric as well as the cause of authorship can definitely fit within that paradigm and I actually see it as mutually fortified to the extent that we want to focus on the user and say, you know, so far the way that we've approached it so far the way that we have legislated it has been to downplay who the user is, what the user can do. Let's try and change the mindset and the procedures for that correspondingly and in parallel if we reconfigure this notion of authorship I think this will lend force to the user argument and the user argument, the user rights argument will lend force to the reconfiguration of authorship and one of the things that obviously we need to do in reconfiguring the notion of authorship is take on board the on the shoulders of giants argument as well as the deconstructed author and the new scholarship, not just legal scholarship but everything from semantics to psychology and social sciences as to the social construct if you like and the layers of creativity that contribute to us creating our work and definitely reusing content and remixing content becomes part of it. One of the things that I think is unfortunate is that because that image has resonance with both the people who wanna do it because it's exciting, it's new technology, it's new ways of exploring creativity but at the same time with the rights holders who are afraid of everything from appropriation to misappropriation to plagiarism is that that seems to be most people's singular notion of what we mean when we say a new form of authorship what we mean when we say a new form of user I think they're part of what I'm talking about but they certainly shouldn't just take center stage because I think then that distorts the sort of discussion that we wanna have. So we have this opportunity now, we have this reality of entire libraries being standing, being available for, failing to be made available digitally. They are waiting to be, look at, how would this, there's a really concrete opportunity. Right. It seems just a hideous shame but you can't get at this stuff. How would reconfiguring the way that you're suggesting play out in that environment where there are important economic interests? Just as an example, one of the things. I think that's a great and difficult question. Just trying to come at it from some specific aspects. I think your question reminded me of something that Professor Nelson said a while ago about the burden of proof and to the extent that things like book digitization projects puts us in mind of the litigation around Google book search. That is one exemplar of this particular kind of situation as in, so Google has the hawks and the pockets to be put to prove but that's exactly what they're gonna have to do, right? To say it is fair use and to say that the fact that we are reversing how copyright operates not that we ask you for permission and you give it to us or we negotiate a deal transaction costs aside but that if you don't want us to digitize your books you can opt out. So it's not that you don't have a choice it's just that the choice operates in the reverse of how it's always operated and the reverse of how you would like it to operate. I haven't thought through what the mechanism might be to get us there but given that that is the example then to the extent that we succeed in changing the minds and the procedure then we won't see this burden of proof. What we will see and the litigators will probably say that's not realistic but taking a step back and looking at it generally speaking then we're gonna see a battle, right? Between the right holder traditionally recognized with his private property rights and the bundle of sticks and so forth and another right holder, right? The user in this case not just Google but other digitization projects, libraries, archives, educational institutions and then I think it'll be a lot of fun. It was relating to me over IRC was that terms like user and access and centricism all apply subordinate status and he was saying how we print the web largely in terms of real estate and we have sites and addresses and locations and names we call them names and we have architects and builders and designers and he says this is sort of a for better or worse this sort of sets the web as a set of places that are owned and there can be no countenance there by design. So I mean he says even when we use the frame for publishing like authoring and posting and writing and indicating with demeaned by borrowing on that frame so he just wanted to make that comment I don't know if you want to. And I think it's a great comment totally that represents what a lot of people are concerned about. I'll just make one comment it's not necessarily a response but as a follow up that that's here's another reason to try and step away from some of the phrasings terms and rhetoric to the extent that we talk about the public domain even to the extent we talk about the comments. So for example we talk about the public domain a lot of people think about it as fencing in something as an enclosure of something and the comments as I've explained it is it's derived from real property law. So to the extent that those represent if not the soul but certainly the primary concepts that we're trying to use to reshape the discussion I think that we're always gonna be tied to the real property metaphor and it's useful to a certain extent but then I think it also has its limitations. So I do think we need to move a little bit beyond that and hence I offer something broader, more flexible also a little bit more uncertain but let's see where that gets us. I very much admire the attempt to sort of reframe and I think going and reframing the nature of the author is a really interesting direction to go in. I think going and questioning whether we do wanna view property as the appropriate analogy here I think is a great direction to go in. I worry a great deal about reframing specifically along the lines of human rights and I wonder specifically whether you aren't sort of suggesting building user rights sort of on one of the shakiest foundations that we can find in international law in framing the Universal Declaration of Human Rights you're referring to a document that is not legally binding that was adopted by 48 nations over the objections of eight other nations that has now become a huge intellectual battleground with a number of Islamic nations saying that they find the Declaration of Human Rights incompatible with their views with a number of people on the right in the US and in other free market nations arguing that the economic rights that the Universal Declaration of Human Rights puts forward are incompatible with individual rights. I mean, I guess what I wonder is if you're going to build user rights this is like choosing to build it in Palestine. I mean, you're trying to build this in one of the most disputed and least respected pieces of international law and law has to be in quotes because it isn't even a binding document. So why would this be where you try to put this argument? Thanks for the question. Great question is a question that I don't think I've answered to my own personal complete satisfaction. What I've tried to do is to try and distance the suggestion that I'm making from wholeheartedly wading into that very sensitive fray that you have so aptly described. And to me, I think there's a number of ways that we can do it without necessarily avoiding all the problems that you pointed to but I think those problems also come with some potential upsides. The specific ways I think would include the fact that I certainly am not proposing like I said, swapping out property for human rights. I'm certainly not proposing to elevate copyright or IP to the status of a universal basic inalienable human right, which is what we talk about and think about when we move to the human rights paradigm. And here's where I probably need to get a little bit more specific as I get deeper into thinking about this as to what I mean when I say human rights considerations. So far, I think I've gotten to a point where I'm thinking that sort of framework provides not just a useful basis but a good hook in a number of ways. One is that it allows us to tap into the development dimension. And you are right. There is absolutely a political minefield in there and it's not terribly stable, certainly not from the legal perspective. There is certainly a lot of debate as to whether the universal declaration is even a part of international law. It's not soft law, it's not hard law, it's not customary international law and we can have another lunchtime discussion about that. You're welcome back. Thank you. But if we take that as just the starting point and say if there is something else out there that we as IP lawyers, as property lawyers, as commercial lawyers don't necessarily tend to think about because we think about that as all the international stuff, that the political stuff, can't we use what's going on there to help us? And I think we can because the disputes in that arena are not over article 27, specifically. So if we simply say, we just wanna say if there is some form of consensus or at least a lack of controversy over article 27.1 and 27.2, then we're using that to say that there's a recognition that that is fundamental. And to the extent that article 27 recognizes both the right holder and the user, that gives us the ammunition. And then by tapping into the development dimension we can bring in the NGO, Civil Society, WIPO Development Agenda. And to the extent that WIPO Development Agenda might at least cause some re-examination into if not WIPO's mandate, at least to the way it conducts some of its programs. Let's say it's willing to move away from the one size fits all model in recommending legislation and model laws to developing countries, then I think we've gotten somewhere. So that's a very long partial answer to a very real problem. A lot of the conversations we've had lately about this topic is that the property right and the U.S. copyright framework is so entrenched that you really can't say let's pick up and move or let's really shift it. I think the benefit of the human rights and I didn't realize it was such a terrible field to this point because I haven't said it at all. But I think, like you said, it's the hook that's gonna be most useful. I guess my pushback would be to say, so first of all, I'm a non-warer and one of the things that I find really interesting about working this place is particularly around intellectual property, there's this desire to get law to catch up with what's actually happening. There's this tension that we feel because what actually occurs and what's actually legally permissible has such a gap at this point. I listened to Larry give a recent version of his patented 200 slides in 10 minutes talk and the sort of punchline of it is that we're turning our children into criminals because the way that they behave is so far from what's legally possible. But what's interesting about your approach is, I guess I would describe it as sort of as aspirational law and I guess I would push the universal declaration of human rights as sort of the ultimate picture of aspirational law. Depending on who you follow, it's either as Jean Kirkpatrick termed it a wistful letter to Santa Claus or it's either the highest hopes that we have, which is how John Paul termed it. I fall more into the second camp than into the first. Because in the first camp, one could say, well, that depends on your cultural perception as to do you believe in Santa Claus and who is he? And this is obviously, this is obviously where the sense of coming in. It is someone's set of aspirations and whether or not it's universal aspirations has a whole set of problems to it. There's another approach to this, which is to say, what is it that we actually do and then figure out how to legislate around that? What do we do in universities? We take chunks of text and we Xerox them when we hand them out to students. No, we don't. No, we just put them on the internet. Certainly, you know, certainly that's been my experience in universities over the years is, you know, that there are certain practices we engage in. Why don't we instead, rather than finding the sort of aspirational structure for this, move from the structure of what it is that we actually do and then attempt to get a lot in line with that? And I agree that, you know, that may be the most effective way of actually getting something that works, right? And that may in fact be the way that things will happen. And I think to a certain extent, even though the Creative Commons emerged out of, well, a legally based idea and framework, to a certain extent, that is representative of the real world, what is going to do. One of the things that you mentioned, you're absolutely right. Lawyers like starting points that are definable, that are neat, and that can be generalized. But I think there's also good reason for that in that the number of real world solutions will vary. And one of the criticisms, well, I won't say criticism, because that's a lawyers based criticism. One of the things that emerged is that you tend to then have very sector specific solutions. You tend to have very varying numbers of solutions. And not only is there no one repository where you can say, oh, look here, the 200 ways that people are dealing with university content and industrial content and innovations, but you don't get a sense of what would be the appropriate law or laws then to either catch up or to regulate or to in some way track what's going on. And so I think that, and I'm happy and I'm thankful that you actually called it aspirational because that probably is the one word that I would like to use. So you kind of copper in a single word, right? So I can use that in my next talk and then in writings. Oh, excellent. And it won't be a derivative work or put to commercial use. Essentially, I think it is necessary to have an aspirational framework. And that's why rather than propose specific language or changes to specific laws, what I'm proposing by the change of mindset that will hopefully lead to changes of rules and procedure is that through that mindset, you can also change the norms and the assumptions. And then from that, you get new ideas of the real world solutions. And from that, you get a willingness to move away from the opacity that has so far plagued, you know, lawmakers, policymakers, lawyers, and so forth. So I do think maybe I'm just being too naive and optimistic. I do think it's necessary and I do think it will be helpful in response to your comment, although I agree that it's a little strange at times. I think of these in America, when people hear the word right, they tend to think of a discrete individual with ownership over a regular resource, whether it's a body or property or something like that. And I'm not sure how you can convince people to see rights as being something more for the good of their community and how would you decide which work they should do that? I think that that will be a very difficult thing to accomplish, even though, you know, I continue to say it's something that we have to do. And I absolutely agree with you that, you know, particularly with the utilitarian emphasis and all its accompanying economic analysis, implications, calculations, and so forth, that people do think of rights in a particular way, in a very personal way, in a very proprietary way, in a very economic way. And personally, I would say that that's a little disappointing and it's certainly to me a little too narrow a view of what copyright is. I think certainly some of the cases out there and even some of the writings don't really help this because to the extent that you're already inclined towards this kind of very transaction-based thinking, if I can phrase it that way, you're gonna find a lot of things to support that. But returning to what I said earlier, I think that even if you look at existing U.S. copyright law, and I don't just mean the obvious examples, like, you know, fair use or, you know, idea expression in the public domain and things like that, if you look at very specific provisions such as the ability to terminate a transfer of copyright after 35 years and such as the recognition, and people have read the seminal case of feist, you know, any dozens of ways and outside down, but certainly the sense that some creative spark is required encourages me to think that there is this minor strand of non-utilitarian thinking that has continued to exist in copyright law. Maybe it's even more shadowy and spectral than this author that we keep fixating on, but it's there. And so what we need to do is dig that out, make that more prominent, and use that to say, hey, utilitarian's all very well and good, but copyright is much more than that. That would be what I would like to see happen. Thank you so much for coming. We're very grateful you had this wonderful time. Thank you, thank you very much. Thank you. Thank you. Thank you.