New Media Economy: Intellectual Property and Cultural Insurrection
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The new media landscape has created tensions between content producers (scholars, computer programmers, and even the general public) and copyright holders (institutional publishers and entertainment corporations) who are increasingly engaged in a form of culture war over access to and dissemination of information.
This paper explores the emerging culture war as a struggle over definitions of culture and rights. On the one hand there are those who accept the traditional bargain between creators and society (sharing information, publicity, and reputation) and on the other hand are those who seek proprietary rights (ownership of material and all accompanying rights). Further, the battle over the definitions of intellectual property and copyright is taking place in a number of separate arenas including the music industry, academic publishing and the software industry. In each of these arenas the challenge of intellectual property in the digital age is manifested in similar yet distinct ways.
In 2002 in a Journal of Electronic Publishing article I argued that the emergence of a new media economy would have a number of significant impacts on the information and communication industries (Downes 2000). I suggested that traditional focus on the technological and industrial infrastructure would be replaced with a focus on content and, most optimistically, that the so-called convergence of computer, telecommunication, and entertainment industries might result in an acknowledgement of the importance of audiences.
The new media economy promised a new relationship between institutions and audiences. In the end it created consumers, not citizens. Today I can say that the failure of the new media economy to fulfill the promises implicit in digital culture is due to the fact that economic and cultural power remains in the hands of those who control access to and the dissemination of information (Burhkart 2005). The players in the new media economy have consolidated and lobbied for regulatory convergence, particularly with regards to intellectual property. These processes have polarized the communication industries and members of the culture at large (Hunter 2005).
The new media landscape has created tensions between content producers (scholars, computer programmers, and even the general public) and copyright holders (institutional publishers and entertainment corporations) who are increasingly engaged in a form of culture war over access to and dissemination of information.
The emerging culture war is a struggle over definitions of culture and rights. On the one hand there are those who accept the traditional bargain between creators and society (sharing information, publicity, and reputation) and on the other hand are those who seek proprietary rights (ownership of material and all accompanying rights).
New Media Economy: Setting the Scene
Economist Mark Porat (1977) defined the information economy based on a shift in the nature of occupations in the American labor force during the early 1960s from manufacturing to service-industry jobs. Manufacturing had defined the economy because it engaged a plurality of the workforce and produced the preponderance of the gross national product. By 1966 47% of the workforce held jobs in information-related activities that generated about the same percentage of the GNP. A similar claim can be made that as revenues for media shift from national to international markets a new media economy emerges.
For example, Thomas Shatz describes a shift from domestic to international revenues as the dominant market for American movies between the early 1980s and 1995 (Shatz 1997, 83). In 1996 more than 15% of the total value of world-wide mergers and acquisitions (US $1 trillion) was generated by activity in what can be broadly termed information and communication industries. To gauge the significance of this new industrial structure, consider that the two largest media firms in 1990, Time-Warner and Disney, almost tripled in size during the decade. Merger mania was not limited to the American media in the latter half of the nineties: European media groups took part in 72% of all mergers and acquisitions in the media sector around the world during the first half of 1998 (Gapper 1998). By the end of the decade it made sense to view the media industries in general as a global commercial media system dominated by a small number of powerful, mostly American transnational media corporations (McChesney 1997; McChesney and Herman 1997).
The technological impetus for convergence was to combine the telephone, the television and the computer to a common communications connection (Glick 1998). However the new media economy was the result of an industrial convergence of content and carriage - the direct interplay of production-oriented companies with distribution outlets, technological manufacturers, and other industries involved in entertainment, hospitality, and services (Mansell 1993; Shatz 1997, 84-5).
The AOL/Time-Warner merger of 1999 stands as the watershed event in the transformation of the media industries. Worth an estimated $300 billion (US), it was the largest transaction of all time. AOL joined with what was already the world's largest media corporation. AOL hoped that Time-Warner would act as its content specialist, providing the type of compelling material that would make users want to use AOL, and Time-Warner saw AOL as its privileged pipeline to new audiences (Krantz 1997; Manes 1997; Egan 1999). However, the convergence strategy was fraught with difficulties, even for the newly hyphenated AOL-Time Warner. As Patrick Burkhart reports:
the results of AOL-Time Warner's 2000 merger disappointed, beginning with the very first financial quarter: by mid-2002 its stock price had declined by 70% since the merger, and the company experienced turmoil in top management. Time Warner (so renamed by dropping the 'AOL' in 2003) settled securities fraud charges with the US Justice Department in 2004 for $210 million, in a case involving payments from Berteslmann. ... In a cost-cutting move, Time Warner sold Warner Music to an investment group led by Edgar Bronfman Jr. in 2003. (Burkhart 2005, 493-4)
Consolidation of New Media Economy
With the bloom off the mega-merger rose during the recession of 2000-01, a number of failed mergers in the music industry between 2000 and 2003 might suggest that the business strategy of large media conglomerates might be outdated. However, consolidation of companies and markets has continued.
For example, in the music business four companies control the majority of the market. They assert their control by bottlenecking access to the majority of the world's commercial music catalogs, and they create scarcity by managing online access to recorded music using digital rights management and an Internet based system of distribution, and by lobbying for stronger international property rights controls (Burkhart 2005, 495). The result is a reorganization of 'network power' on the Internet that gives the record industry powerful controls over licensing and distribution, while strengthening a lopsided power relationship with musicians and fans — with the distributor holding all the cards (Burkhart 2005, 490).
In the publishing industry a similar pattern is evident: Bertelsmann acquired Random House, whose holdings include Knopf, Crown, Doubleday, Bantam, and Dell. The German giant now controls over 50% of the US book trade (Mellin 2001). Random House recently acquired a significant minority share in VOCEL, a company that provides content to mobile phones (Econtent 2005, 10). The big commercial publishing houses control the trade in books, textbooks, and academic journals.
Thus, ownership of the means of large-scale reproduction and distribution gives institutional publishers, record companies, and other content distributors the ability to govern which works will enter the marketplace (Notes 2001, 2445).
A second crucial aspect of the new media economy is the global trend toward harmonization of media-related regulation. This is the result of over a decade of telecommunication policy reform that culminated in the WTO Fourth Protocol in 1994. In most cases the Fourth Protocol's influence takes the form of a commitment to liberalization and market competition as the basic structure of the sector. The commercial separation of telecommunications and television was traditionally mirrored in regulatory authorities. As commercial distinctions become blurred some are calling for a similar merger of sectoral regulators (Cowie and Marsden 1998). The importance of telecommunications as the model for regulation is, in part, explained by the fact that the largest of the information economy companies are, not surprisingly, telecommunication companies like AT&T and computer systems and service companies, including IBM, Digital, and Unisys. In 1994, the largest of the entertainment companies (Time-Warner, Disney, and Capital Cities/ABC) ranked around the twentieth largest companies in the sector (Noam 1995).
Eli Noam argues that the American media industries have passed through two stages and are entering a third. These stages are:
- the limited media stage dominated by an oligopoly
- the multi-channel stage, which began in about 1984 when cable television was deregulated, AT&T's monopoly was broken, and the federal government dropped an anti-trust suit against IBM due to the firm's loss of dominance
- the cyber-media stage characterized by converging delivery platforms for telecommunication, media and data distribution; decentralized, high-capacity, multi-point to multi-point communication on the Internet (Noam 1995).
Noam argues that government regulation has changed over time to adapt to the changes in the media landscape. For example, in the limited-media stage government regulation was directed at limiting the market power of a few powerful players. As media moved to the multi-channel phase, these restrictions were changed or lifted, as in the Telecommunications Act of 1996. However, Noam expresses concern that regulatory liberalization has not led to openness or competition even in the American market. Instead, media concentration has increased dramatically. This is, in part, the result of convergence. In the past telecommunications and mass media were separated by law and, within the computer industry, by practice (Noam 1995). With convergence, firms cross industrial and regulatory boundaries, making structural regulation difficult, if not impossible. This is in part because media ownership is constantly shifting but far from concentrated, and because technology has made it impossible for any monopolistic or oligopolistic group to control the substance or process of delivery of information (Compaine 1985, 96).
In Canada the Information Highway Advisory Committee made a recommendation to the Canadian Government that multi-channel delivery services reduced the need for structural regulation. The committee further argued that vigorous domestic content is best promoted through incentives and production support rather than through positive content regulation (IHAC 1995). Some scholars agree, arguing that complete regulatory harmonization is impossible due to cultural and economic differences between nations (Holznagel and Werle 2004).
For other scholars, the basis for the perceived need for regulatory harmonization is the sense of "the intangibility of the property rights" (Lipton 2002, 55). This position is often expressed by business interests who argue that in the digital age traditional intellectual property laws are inadequate to protect the transnational character of e-commerce transactions or to protect the new commercial value of information (Lipton 2002, 64).
Not everyone agrees. Because computers and digitization make it possible for many to enter the content market there is less need for governments to regulate telecommunications and broadcasting companies - in an ideal world. The fact is that as well as offering multi-channel services electronicaly, telecom and broadcast companies are merging and expanding their traditional areas of concentration. This poses short-term and mid-term problems for regulators who have in the past treated them as separate industries requiring different regulatory conditions (Cowie and Marsden 1998). Others argue more pointedly that the use of copyright laws could actually strengthens the position of firms that compete in the global information marketplace (Rice 2002; Lipton 2002; Hunter 2005; Burkhart 2005).
For example, Burkhart argues that the music industry has passed through three phases of development, each dominated by a different kind of organization: music publishing houses, record companies, and transnational entertainment corporations. With the completion of large entertainment mergers (AOL-TimeWarner; Vivendi-Universal; Sony BMG), the recording industry has created an oligopolistic market structure, with fewer than five firms sharing a market (Burkhart 2005, 492).
From these different arenas of convergence we can make two important observations:
- convergence highlights the extent to which things we once considered distinct are increasingly interconnected, making it difficult to think about technologies, industries and regulatory institutions without considering their global implications; and,
- communication industries and content become increasingly important since cultural products — creative works — are the goods that drive the new media economy.
Media Pluralism: philosophical ground for the Culture War
Traditionally, media content was understood to promote social integration within national boundaries. Beginning in the 1980s, pressures from the IMF, the World Bank, and the US government to privatize and deregulate media and communication systems coincided with the development of new satellite and digital technologies (McChesney 1997). At that point content was understood as a vehicle for the expression of individual preferences, and became crucial to the entertainment model of the mass media. Today this view is dominant, particularly from the perspective of the globalized media industries. Media pluralism is a concept that embraces a number of ideas, such as diversity of ownership, and variety in the sources of information and in the range of content available in a nation's media. In the global context, media pluralism has come almost exlusively to mean plurality of ownership: different organizations owning media companies. The argument for media pluralism maintains that pluralism of ownership should encourage, though it is not synonymous with, diversity of opinion, the cornerstone of the western liberal model of discursive democracy. Concentration of ownership, it is feared, may result in a skewed public discourse where certain viewpoints are excluded or under-represented. Further, because some viewpoints are represented while others are marginalized, abuse of political power can occur through the lobbying of powerful political, social, or commercial interest groups.
The roots of media pluralism can be traced to the free marketplace of ideas described in Milton's Areopagitica. Today, debates about media pluralism have been refocused on convergence and the democratic potential of new media. New interactive media can shift power from the source of information (the sender) to the receiver, which, it is argued, can increase pluralism.
The swift development of the Internet inspired claims that it would erode the influence of organized groups and political elites, that the nature of community and the social order would themselves be restructured by new forms of communication and social interaction (Poster 1995). I have explored such claims elsewhere (Downes 2005; Downes and Janda 1998). Such claims are significant not simply because they pertain to the fashionable subject of the Internet but also fundamental questions about the causal role of communication in public life. For Canadians, it is almost a cliché that nationhood is to a large part the result of technological projects that connected the country (see Charland 1986; Raboy 1990).
Traditional role of copyright
With the establishment of a new media economy, large hybrid organizations produce, distribute, and exhibit copyrighted material in a global information market. Copyright thus becomes a key issue as it becomes ever more difficult to control who copies and circulates images, texts, sound, and visual information over the Internet. The control and monitoring of legitimate and illegal copies of copyrighted material is important to those who create information and media content that might be re-distributed in digital form. Further, copyright is important to traditional copyright holders (such as publishers, record companies, or film studios) who want to protect their ability to exploit their copyrights when faced with new distribution systems such as the Internet. Such issues are not unique to the digital era. With the introduction of new technologies — radio, the VCR and the personal computer — tensions between the rights of copyright owners and creators have often been pitted against the rights of users to have fair access to information.
In fact, these tensions are as old as the idea of copyright itself. For example, the Statute of Anne in 1710 shifted control of artistic endeavor from the patron to the publisher, printer, or bookseller. According to legal scholar Dan Hunter, while authors, artists and creators were granted control over the product of their endeavors, individual inventors and authors typically don't have the capital to exploit their invention or idea, and so they sell or license their patent to the capitalist (Hunter 2005, 1125-6).
Hunter observes that "intellectual property is not property in the sense that we typically understand it . . . most obviously, the grant of the interest from the state does not last in perpetuity, it is subject to all manner of limitations and challenges, the 'property' at issue is nonrivalrous, and so on" (Hunter 2005, 1122). Thus, in intellectual property there are material rights such as the payment of royalties and nonmaterial rights such as acknowledgement of authorship and the guarantee that a work will be transmitted without distortion (Alekseev, Ashkinazi and Kuznetsova 2005, 76). It is tempting to see these rights as directed at different right holders (material rights for the publisher and nonmaterial for the creator of a work).
Digital media and copyright protection
As technological developments such as tape recorders, VCRs, photocopiers, and computers make it easier for people to copy information without paying for it, policy makers have tried different policy and legal solutions to protect intellectual property. These solutions include making unauthorized copying a crime; making copying more difficult; and appealing to people not to take advantage of creators by denying them money or recognition for their creative work.
Industry players and copyright holders have also lobbied to protect their rights to exploit the creative works under their control. The Motion Picture Association of America (MPAA) fought the manufacture and sale of VCRs for commercial use as well as the practice of home taping of music. However, their attempts to block the technology were unsuccessful. Home copying of television broadcasts is allowed under the Copyright Acts of Canada and the US. Copying from one VCR to another is not.
As in the US cases, new media in Canada must confront copyright issues. The Canadian Radio-television and Telecommunications Commission (CRTC), a Federal government agency responsible for regulating Canada's broadcasting and telecommunications systems, has refrained from regulating the Internet as a broadcasting technology on the grounds that new media complement rather than replace traditional media services. According to the CRTC, the Internet gives Canadians access to more information about the things they find interesting and to expanded programming from that available through their televisions.
Copyright - Good or Bad?
What are the benefits and dangers associated with copyright protection in the global economy? To answer this question we must evaluate the main arguments invoked to justify strong copyright legislation and enforcement. First, it is claimed that copyright protects the rights of individual creators; it ensures some compensation for them and for their heirs. Second, it is claimed that copyright provides the necessary incentives for creators to continue to produce works of art: copyright ensures innovation. Third, it is claimed that by ensuring the continued creation of creative works, copyright benefits all of society.
From this perspective copyright protects individual creators from those who would deprive them of the fruits of their work. In the digital age, where copying becomes easier and policing more difficult, some call for stronger laws. From the perspective of the digital age, "the fact that [a work] eventually falls into the public domain, or that the property grant might come with fair use limitations, appears completely unfair" (Hunter 2005, 1124). Jack Valenti, former president of the MPAA, argues that stronger intellectual property laws are needed to protect media against challenges posed by the Internet. Valenti has been aggressive in his attempts to prosecute copyright violation cases, arguing that piracy threatens the incentive structure on which the creative arts depend and could destroy the market.
Let's deal with each of these claims separately.
Shift from author to publisher
First, does copyright actually protect the rights of individual creators? It can, but the fact of the matter is that, ever since the first copyright act became law, protection has been more likely to benefit those who publish and distribute creative works than those who create them. This is because individual creators frequently turn to large enterprises to make their work widely available. They assign or license their work to the enterprises because the costs associated with the production and distribution of creative works is extremely high. The traditional mass media have always been capital-intensive enterprises. As a result, the most powerful copyright owners are large corporations that lobby for strong protections for the copyrights they own as well as those they administer. Indeed copyright reform since the 1970s has seen a shift from author to owner interests as the subject matter of protection (Rice 2002, 115).
Copyright as an incentive to create
If copyright protects business interests, does it actually promote new creative work? Again, the answer is, not really. Indeed, because copyright protection is so extensive and broad, it can actually impede new work. Copyright vests within its holders, often large corporations, the right to be protected against infringement by others. This means that the disposition of ideas contained within commercial activities is afforded the same protection as the disposition of ideas contained in an individual creative work. For example, the VISA symbol is not only a trademark, it is also a copyrighted work of art. As a result, the company using it is not merely protected against the use of its name by other companies operating in the same field, it is also protected against any company - even one not competing with it - from using the same disposition of ideas at all. The corporate interest in the form of expression allows the largest rights holders to police the activities of others and, in that way, to limit creativity.
Copyright as a social benefit
This leads us to the third argument for strong copyright: such protection benefits society. As already mentioned, those who argue for strong copyright protections talk about protecting starving artists from plagiarists and pirates. However, once we realize that copyright actually protects the interests of copyright owners (who are as likely to be big businesses as individual artists or authors), we can think of the debate over copyright as a tension between private interests (copyright owners) and society (the public domain). The problem is that the concept of protection for life plus 50 years provides almost perpetual protection to commercial rather than artistic work. Further, since such work is frequently produced by employees, copyright belongs to the employer and no benefit goes to the creator's heirs. In the end, copyright protection does not provide incentive to produce. Indeed, it is absurd to think that computer software needs protection for up to a century, or that industry needs to amortize profits over a long period of time in order to innovate (Vaver 1996, 69-76). The lengthy protection period actually makes it easy for the corporation to avoid innovation and to prevent others from innovating in the same area.
What, then, are the effects of copyright reforms on the nature of the new media economy? It can be argued that copyright has become a strong tool for the propertization of information, and information is the fundamental commodity in the global media economy.
Shift from copies to access
The focus on new legislation like the DMCA is "on access to copyright works rather than on copying" (Lipton 2002, 59). Given the scale of markets in the new media economy, it is not surprising to find large corporations using anti-competitive practices to gain access to new markets, to determine the shape of emerging markets to offset the costs of technological development, and to bar entry into the global marketplace to new competitors. Some recent examples illustrate this last point.
The Recording Industry Association of America, representing Sony, Universal, BMG, Warner, and EMI, launched a lawsuit against MP3.com, an AOL subsidiary, for alleged copyright violations. Specifically, MP3.com was sued for selling digitized music over the Internet without paying royalties to the record companies. To guarantee that MP3.com and others of its ilk get the message, the RIAA was seeking $6.8-billion in damages (Anderson 2000).
In another lawsuit, the same assembly of dominant players used the courts to shut down Napster, a company that facilitated trading music files across the Internet. Napster.com provided users with free software for exchanging MP3 files. The site also acted as a hub for users to connect with each other in a point-to-point transfer of music files. Napster was the digital equivalent of two friends meeting somewhere to trade cassette tapes of their favorite music. Because there was no sale involved, Napster hoped to invoke the Fair use concept in its defense. Although Napster received a temporary reprieve while the case was in appeal, the company did not survive the legal attacks from the big players.
According to the Canadian Copyright Board, however, Napster does not offend Canadian copyright law because its server is located outside Canada. Further, because Canadian copyright legislation has a provision whereby copyright collectives (i.e., the Canadian Private Copying Collective) collect fees on audio recording material on behalf of Canadian copyright holders, there is no problem of compensation for Napster's activity. In other words, the administration of copyright means that in Canada, with its tradition of collective copyright collection, a technology such as Napster does not pose a problem. In the US case, Napster agreed to charge for downloads even though the basis of its case was that the site simply facilitated the trading of music files between individuals, which was not a copyright violation. Charging for downloads meant that Napster now had something it could give to the big record companies, a percentage of the download fee.
A similar suit was launched over the issue of re-broadcasting television programs over the Internet. The major US networks joined together against Canadian Internet company iCraveTV.com. iCraveTV.com streamed television signals without paying royalties or licensing fees to the copyright holders of the programs. iCraveTV.com collected over-the-air signals with an antenna and broadcast the signals over the Internet. Not only is the practice of retransmission legal in Canada (it is based on a provision in the Copyright Act that allows for retransmission of a local or long-distance signal under certain circumstances), it is also the very basis of the cable industry in Canada. Signals that are piped to private subscribers are not considered public broadcasts. Although cable operators are subject to compulsory license, iCraveTV.com argued that it was exempt from compulsory license under the CRTC's 1999 order on Internet broadcasting. Even so it offered to pay a tariff to be administered by a copyright collective. The offer was rejected.
The problem was that that iCraveTV.com's Web site could be accessed by users outside Canada even though the Web site had a sign-in mechanism that was supposed to limit access to Canadian users. US copyright holders, including Twentieth Century Fox Film Corporation, the Disney Corporation, ABC, CBS, NBC, the CBC in Canada, and the National Football League, sued iCraveTV.com. The basis of the suits was that iCraveTV violated copyright infringement and the content owners saw the Internet company as posing a real threat to their ability to exploit their copyrights (Stern 2000).
The company's lawful activities in Canada could offer no protection against copyright infringement in the United States. The case was settled when iCraveTV.com agreed to shut down operations should the plaintiffs drop their suits. Since then the Canadian Association of Broadcasters has lobbied for amendments to the Copyright Act to specifically ban Internet streaming of television signals.
Propertization of Intellectual Property
In the late 1970s Duke law professor David Lange said that the public domain was a vital, affirmative entity, "the publicly-accessible collection of knowledge, ideas, history, and expression from which creators draw in order to make new works. It was, in short, the repository of public culture" (Hunter 2005, 1111).
This "repository of public culture" is being challenged by the very laws that were passed to protect it, copyright laws. The concept of copyright is increasingly used as a "talisman" to lobby for stronger regulation that extends the rights of owners to protect works and aspects of works that have traditionally fallen outside the reach of copyright protection (Rice 2002).
Two important pieces of copyright legislation in the United States have dramatically reshaped the information landscape and are nibbling away at the repository of public culture: the Sonny Bono Copyright Term Extension Act and the Digital Millennium Copyright Act (DCMA). These laws extended copyright terms, renewed copyrights on some works that had already fallen into the public domain, and made illegal the circumvention of digital locks on copyright works (Hunter 2005, 1113).
The DMCA marks a change in the ultimate purpose of copyright protections. If at one time copyright was seen to maximize information dissemination and access, it has now become a tool for maximizing commercial return on information dissemination, access, and use" (Rice 2002, 127). The outcome of these expansions in scope is that copyright owners increasingly treat a creative work "like a fenced property or possessed object and its owner as entitled to all economic value rather than a composite of specific and limited exclusive rights in some but not all elements of a creative work" (Rice 2002, 114). However this modern-day enclosure movement has not gone entirely unchallenged. On a number of fronts a similar assertion of the public domain can be observed.
Challenge to the Music Industry
In the music industry, copyright is a battleground over Internet piracy, the unlawful downloading of recorded content. However, the root of the problem is not that technology empowers the public to flout copyright law. The problem is that "the public has no aversion to seizing this opportunity" (Notes 2001, 2451). Internet piracy is often described as theft with the victims the artists who are denied the revenue from their creations. Yet financial incentives are not the only motivation for artists to create. Otherwise, as some have observed, artists would advance a unified front against piracy, which strikes at the core of that interest. Indeed, from the perspective of any artist, "the unauthorized, unpaid circulation of a work has a countervailing promotional benefit" (Notes 2001, 2454). Indeed, a 2004 survey of American musicians and songwriters suggests that the recording industry's tactics in dealing with Internet piracy do not have the wholehearted support of creators. According to the survey, 87% used the Internet to advertise and post free music and 60% thought the tactics used by the recording industry will not benefit musicians and songwriters (Hermida 2004).
Challenge to the Publishing Industry
For the publishing industry it is possible to assess the impact of the Internet in a number of ways. For our purposes, the impact is different if we set the interests of creators and publishers apart. For creators, the Internet has a positive effect because publication and distribution are inexpensive on the Internet, and because the Internet is almost uncensored. For the publisher, the benefits of the Internet are not likely to change the relations of power between publishers and authors due to what has been called the tyranny of the printing press. "Even if it becomes technically feasible to produce e-books in a format that cedes nothing to paper books ... [it will not change things] because the new solution will be no cheaper than the old one if it falls into the hands of the book trade, while inordinate amounts of initial capital will be needed to ensure meaningful competition between them" (Alekseev, Ashkinazi, and Kuznetsova 2005, 88-9).
In reality, the entry of the big commercial publishing houses into the journals market has largely undermined the old, university-based system for provision of knowledge as a public good and replaced it with a private market (Edwards and Shulenburger 2003, 13).
Edwards and Shulenburger recognize that scholars have long understood the public-goods nature of scholarship and have organized to ensure that their work is made freely available to the public. This arrangement has been dubbed a gift exchange whereby scholars give free access to their research and in return receive access to the research of others (Edwards and Shulenburger 2003, 13). In terms of copyright, the fact that a creator's needs are subordinate to the public's has contributed to the exploitation of artists by the publishers who argued that "the high cost of reproduction and distribution has been the crucial limiting factor in the marketing of artistic works" (Notes 2001, 2448). Consequently, by the 1970s, as commercial publishers began to enter the market for academic journals, the gift exchange began to break down.
The development of the World Wide Web in the 1990s has had a significant impact on scholarly communication: it provided researchers with new ways to share results, to combat the rise in journal costs fast outpacing a library's ability to afford them, to overcome the barriers raised by the transfer of intellectual property rights from author to publisher, and to improve on the hitherto slow turnaround of traditional publishing (Correia and Teixeira 2005, 15).
Authors began to favor a version of "open access" scholarly publication. Research universities throughout the world became the sites of open archives, which contain research manuscripts published by faculty at those institutions (Edwards and Shulenburger 2003, 17). The first of these open access archives was the Los Alamos Physics Archive, which has, since its launch in 1991, become the largest repository of un-refereed research papers in the world (Correia and Teixeira 2005, 15). Open-access publishing has a number of effects: "work that is freely available is more cited [and] [e]-print repositories also provide rapid dissemination of information to a wider audience and improve archiving of scientific data" (Hitchcock 2005 cited in Correia and Teixteira 2005, 16).
Challenge to software
Perhaps it is not surprising that one of the strongest counter-movements in copyright reform originated in the computer software industry. In particular, the open source movement was an attempt to combat the commercialization of network software and to reassert the values of the gift economy into software development. The standard justification of intellectual property is that without financial incentives no one will create new works. But the open-source movement shows that people will engage in creative activity outside the mechanisms of the free market, in this case by sharing source code, and adapting and adding to software in order to see it function more effectively. In contrast to the copyright reform movement (led by corporate interests), the open-source movement "genuinely involves the transfer of the means of cultural and creative production from capital to the worker" (Hunter 2005, 1127; Lessig 2004).
The global media scene raises a number of questions about the operation of the media in the new economy: Who owns the creative works we see, hear or read? How are the rights of authors and other creators protected such that they will continue to inform, enlighten, and entertain us? Conversely, how do we guarantee that everyone has reasonable access to new information and new ideas? To what extent can we ensure that innovations will not be controlled by a few at the expense of the rest of society? Questions such as these are the elements of an emerging cultural war between those industries that distribute information and those who produce, receive, and use cultural material.
The battle over the definitions of intellectual property and copyright is taking place in a number of separate arenas. In the music industry the attempt to fence in sound recordings through the use of digital rights management and Internet distribution systems has been met with a peer-to-peer revolution. In scholarly publishing the commercialization of publishing has been met with the Open Access Initiative as a challenge. And, in the software industry the commercial logic of the industry has given rise to an open-source movement.
To conclude, the scholarly community, rooted in the concept of sharing information in the promotion of knowledge, is perfectly placed to challenge the enclosure of the information commons.
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