[Upd-discuss] On the 'Creative Commons': A Critique of the Commons without Commonalty

[Zapopan Martin Muela-Meza]

Subject: <nettime> On the 'Creative Commons': A Critique of the Commons
without Commonalty
Date: Thu, 30 Jun 2005 15:01:09 +0100
From: David M. Berry <d.berry@sussex.ac.uk>
Reply-To: David M. Berry <d.berry@sussex.ac.uk>
To: NetTime <nettime-l@bbs.thing.net>


On the 'Creative Commons': A Critique of the Commons without Commonalty
- - David M. Berry & Giles Moss
Free Software Magazine, No. 5, June 2005
http://www.freesoftwaremagazine.com/current_issues/#issue_05
http://www.libresociety.org/index.html

Is the Creative Commons missing something?

On the face of it, the Creative Commons project appears to be a
success. It has generated interest in the issue of intellectual property
and the erosion of the 'public domain', and it has contributed to
re-thinking the role of the 'commons' in the 'information age'. It has
provided institutional, practical and legal support for individuals and
groups wishing to experiment and communicate with culture more freely, and
a growing number of intellectual and artistic workers are now enrolling
in the Creative Commons network and exercising the agency and freedom it
has made available. Yet despite these efforts, questions remain about
the Creative Commons project's aims and intentions and the vision of
free culture that it offers. And these questions become all the more
significant as the Creative Commons develops into a more influential
and voluble 'representative' and public face for libre culture.

We recognise the constructive nature of the work done by the Creative
Commons and, in particular, its chief protagonist, Lawrence Lessig.
Together they have generated interest in important issues that we hold
dear. But here we wish to stand back for a while and subject some of
the ideas of the Creative Commons project to interrogation and critique.
We don't do this because we think that we have a better understanding of
the actions of and motivations of individuals and groups involved in
libre culture. In fact, without a great deal of symbolic violence, we
think it would be impossible to faithfully represent libre culture in
all its diversity. So rather than attempting to represent what libre
culture is, an ill-fated and thankless task, we work on the basis of
what it could become.  This isn't a question of mimesis, of
Archimedean points, of hermeneutics.

It's a question of thinking about libre culture in a more experimental
and political way.

We argue that the Creative Commons project on the whole fails to
confront and look beyond the logic and power asymmetries of the
present. It tends to conflate how the world is with what it could be, with
that we might want to be. It's too of this time 96 it is too timely. We
find an organisation with an ideology and worldview that agrees to readily
with that of the global 'creative' and media industries. We find an
organisation quick to accept the specious claims of neo-classical
economics, with its myopic 'incentive' models of creativity and an
instrumental view of culture as a resource.  Lawrence Lessig is always
very keen to disassociate himself and the Creative Commons from the
(diabolical) insinuation that he is (God forbid!) anti-market,
anti-capitalist, or communist. Where we might benefit from critique
and distance, the Creative Commons is too wary to advocate anything that
might be negatively construed by the 'creative' industry. Where we
would benefit from making space available for the political, the Creative
Common's ideological stance has the effect of narrowing and obscuring
political contestation, imagination and possibility.


* * * * * * * * *


Like others before him, Lawrence Lessig bemoans the loss of a realm of
freely shared culture. He writes about the colonisation of the public
domain brought about by extensions in intellectual property law and
the closing down of the technical architecture of the Internet. He rightly
identifies the way in which global media corporations have lobbied to
extend the terms of copyright law so that they can continue to profit
from their ownership of creative works. He also identifies the way in
which private interests are simultaneously encoding and enrolling
digital technologies in order to support their control of artistic and
intellectual creativity. But whereas others who problematise these
trends turn to the political, the legal professor's penchant is to
turn to the field of law and lawyers. What follows is a technical attempt
to (re-)introduce a commons by instituting a farrago of new legal
licences in the existing system of exploitative copyright restrictions.
This is the constructive moment of the so-called 'Creative' Commons.

We'll return to this shortly. But first, before getting ahead of
ourselves, we should recognise that the action that the Creative
Commons project takes is already anticipated in how they represent social
reality and define the 'problem' in hand. The way in which we
construct a problem is always also to render certain beliefs and actions
(and not others) obligatory and justified. And so, if anywhere, this is
where we must look first.

For us, Lessig's particular understanding of the world, and his desire
to strike a balanced bargain between the public and private that
follows from this, appear naive and outmoded in the age of late
capitalism.
Listen to the political economists. Capital is continually rendering
culture and communication private, subject to property rights and the
horror of commercial exploitation and beautification. When immaterial
labour is hegemonic, the relationship codified in intellectual
property between the 'public' and 'private', between labour and capital,
becomes a crucial locus of power and profit. And it is quite natural that
private interests would want to protect and extend this profit base at
all costs. Their existence depends on it. If libre culture or the
Creative Commons threatens this profit base in any way, wars of
manoeuvre and position will ensue, where corporations and the state
will set out either to crush or co-opt.

The paramount claim of Lessig's prognosis about the fate of culture is
that we will unable to create new culture when the resources of that
culture are owned and controlled by a limited number of private
corporations and individuals. As far as it goes, this argument has
appeal. But it also comes packaged with a miserable, cramped view of
culture. Culture is here viewed as a resource or, in Heidegger's
terms, 'standing reserve'. Culture is valued only in terms of its
worth for building something new. The significance, enchantment and
meaning
provided by context are all irrelevant to a productivist ontology that
sees old culture merely as a resource for the 'original' and the
'new'. Lessig's recent move to the catchphrase 'Remix Culture' seems to
confirm this outlook. Where culture is only standing reserve it can be
owned and controlled without ethical question. The view of culture
presented here is entirely consistent with the creative industry's
continual transformation of the flow of culture, communication and meaning
into decontextualised information and property.

This understanding of culture frames the Creative Common's overall
approach to introducing a commons in the information age.  As a
result, the Creative Commons network provides only a simulacrum of a
commons. It is a commons without commonalty.  Under the name of the
commons, we actually have a privatised, individuated and dispersed
collection of objects and resources that subsist in a technical-legal
space of confusing and differential legal restrictions, ownership rights
and
permissions. The Creative Commons network might enable sharing of
culture goods and resources amongst possessive individuals and groups.
But these goods are neither really shared in common, nor owned in
common, nor accountable to the common itself. It is left to the whims
of private individuals and groups to permit reuse. They pick and choose
to draw on the commons and the freedoms and agency it confers when and
where they like.

We might say, following Gilles Deleuze, that the Creative Commons
licensing model acts as a 'plan(e) of organisation'. It places a grid
over culture, communication and creativity, dividing it and cutting it
into discrete pieces, each of which have their own distinct licence,
rights and permissions defined by the copyright holder who 'owns' the
work. Lessig's attempt to make it easier to understand which creative
works can, or cannot, be used for modification (due to copyright) has
spawned a monster with a thousand heads. The complexity of licences
and combinations of licences in works has expanded exponentially.

This plane of organisation ensure that legal licences and lawyers
remain key nodal and obligatory passage points within the Creative Commons
network, and thereby constitute blockages in the flow of creativity.
But what is happening is that the ethical practice of sharing
communication and culture is being conflated with a legal regime that
seeks
bureaucratically to enforce the same result through comprehensively
drafted and dense legalese. At least Richard Stallman and his
ingenious GNU General Public License (GPL) is honest in claiming to be an
ethical rather than purely legal force. The GNU GPL has tenacity not due
to
its legal form alone. The GPL is based on a network of ethical practices
that continually (re-)produce its meaning and form. The commons is
always more than a formal legal construct. The commons is based on
commonalty.

Very simply put, the commons has historically been understood as
something shared in common. In pre-capitalist times the commons were
referred to as 'Res Communes'. This included natural things that were
used by all, such as air and water. This ancient concept of the
commons can be traced through Roman law into the various European legal
systems. Through migration and colonisation, it can also be found in the
United State and other countries around the world. In the UK, there's
still
the concept of common lands, albeit a pale shadow of what went before. In
the United States, the concept of public trust doctrine is an
application of the ancient idea of the commons. To a certain extent
the commons, as Res Communes, lies outside the property system. It is
separate from both private (Res Privatae) and state (Res Publicae)
ownership. Through copyright the Creative Commons attempts to
construct a commons within the realm of private ownership (Res Privatae).
The result is not, dare we say it, a commons at all. The commons are
formed through commonalty and common rights, resistant to any mechanisms
of
privatisation, whether those of the Creative Commons or not. Without
commonalty, without the common substrate through which singularities
act, live and relate, there could be no commons at all.


* * * * * * * * *


The marketing and PR of the creative industries, their lobbying
attempts and their lawyers, have not managed to persuade us that they are
true friends of creativity. They don't convince us of their specious
incentive claims nor of the idea that sharing knowledge, concepts and
ideas is criminal. If anything, property is the corruption and the
crime, an act of theft from the common substrate of creativity. But
still global media corporations continue to work to transform the
system - -- legally, technologically and culturally -- to facilitate their
ownership and control of creativity. This is a social-factory of
immaterial labour where all of life -- loving, thinking, feeling and
sharing -- is subject to the corruption of privatisation and property.

As we've already suggested, the commons is an ethical and not just a
legal matter. We underscore the point. The commons rests on
commonalty, on ethical practices that emerge rhizomatically through the
actions, experiences and relations of decentralised individuals and
groups,
such as the free/libre and open-source movement. For this reason, libre
culture is far more than just a protest movement. It is not only
reactive; it is productive. It creates new forms of life through its
practices. It creates new possibilities. Yet, in our view, there has
to be a political dimension to libre culture as well.

This expresses itself through political imagining, action and a
broader struggle for true democracy. And, as such, it is important to
recognise the damage that could be done to libre culture by those
spokespeople who seek to depoliticise it. In the world in which we find
ourselves, political awareness, resistance and struggle are essential in
order to defend the idea and practice of a creative field of concepts and
ideas that are free from ownership -- to stand up, that is, for the
commons
and commonalty. It is to the political struggle of libre culture and
the commons that we finally turn.

Where is the politics of libre culture to be found? The answer: at
numerous levels. Political struggle will no doubt be orientated
towards the nation state (as Maureen O'Sullivan argued in the last Free
Software Magazine). For the time being at least, nation states are
obligatory passage points that retain a privileged position in upholding
and enforcing law. But it cannot remain there alone. The commonalty of
creativity shows little regard for national boundaries and, of course,
neither does the global reach of the profiteers from the creativity
and media industry. Creativity is at once too small and too large.
Political action and the struggle for true democracy will have to also be
aimed simultaneously at local and global levels.

For the latter, we might envisage a treaty obligation through measures
such as preventing the commodification of human DNA and life itself.
Or a UN protectorate to defend the sanctity of ideas and concepts. We
might picture something akin to Bruno Latour's 'Parliament of Things', a
space where not just the human is represented, but all of life has a
defender, all of life has a voice.

Law is a juridico-legal grid placed on social life. This grid is
upheld and enforced by a network of states and other forces of governance
and governmentality. Reliance on law and the state makes the legal
licences of the Creative Commons (or other legal versions of the commons
for that matter) vulnerable and precarious. We cannot be sure, as yet, how
Creative Commons licences will stand up in legal practice. For they
have not been properly tested. But there is one thing of which we can be
relatively sure. In principle, we might all be equal in the eyes of
law. In principle, the ladder of the law might not have a top or a bottom.
But, in practice, economic power matters. We know that law and the
state are not immune to economic persuasion, to lobbying, to favours and
so
forth. And, because of this, the commons remains subject to the threat
and corruption of privatisation and commodification.

We do not want to suggest by this that all legal and public rights,
including the protection of the commons by the state or global
institutions such as the UN, are worthless. This would be a perversion
of our position. What we would stress is that such rights originate
with the people through political struggle, not with legislators or legal
professors setting them down on pieces of paper.

And if these rights are to be maintained, if a commons is to be
instantiated and protected, there is a need for political awareness,
for political action, for democracy. Which is to say, any attempt to
impair commonalty and common rights for concepts and ideas must meet
resistance. We need political awareness and struggle, not lawyers
exercising their legal vernacular and skills on complicated licences,
court cases and precedents. We're sorry to say, however, that this
does not appear to be a political imaginary (and political struggle) that
the Creative Commons project shares or supports.



- ----------------

David Berry is a researcher at the University of Sussex, UK and a
member of the research collective The Libre Society. He writes on issues
surrounding intellectual property, immaterial labour, politics,
open-source and copyleft. See
http://www.libresociety.org .

Giles Moss is a doctoral student of New College, University of Oxford.
His research interests span the field of social theory, but he
currently works on the intersections of technology, discourse, democratic
practice and the concept of the 'political'.


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Originally published in http://www.freesoftwaremagazine.com/

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----------------------------- v -------------------------------
"Tiranos y autócratas han entendido siempre que el alfabetismo, 
el conocimiento, los libros y los periódicos son un peligro 
en potencia. Pueden inculcar ideas independientes e incluso
de rebeldía en las cabezas de sus súbditos.
----------------------------- v -------------------------------
"Tyrants and autocrats have always understood that literacy, 
learning, books and newspapers are potentially dangerous. 
They can put independent and even rebelious ideas to the heads 
of their subjects."
----------------------------- v -------------------------------
-- Sagan, Carl (1997). The Demon-Haunted World: Science as a Candle
in the Dark : El mundo y sus demonios: La ciencia como una luz en la 
oscuridad. México: Planeta, p. 390; New York: Ballantine Books, p. 362.


		
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