On the 'Creative Commons': A Critique of the Commons without Commonalty

On the 'Creative Commons': A Critique of the Commons without Commonalty
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Is the Creative Commons missing something?

- David M. Berry, Giles Moss

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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