copyright

Can creativity flourish and remain within the control of commoners? Or will businesses inevitably capture creativity and convert it into private property to make money? 

Copyright and trademark law are certainly designed for those purposes. They presume a market identity for creators of art, software, and new knowledge. And in fact, the corporate world routinely vacuums up creativity that's developed through commoning – images, music, know-how, social sharing.

Yet history tells another story. It shows that creativity naturally thrives in commons, and need not enter the marketplace to find support or fruition. Commoning is an ideal vessel for the collaborative development of new ideas. The process may involve direct cooperation or merely proximate respect and influence, but in either case, introducing property rights and profit-making can seriously mess up the collective collaborations that yields innovation.  

When I learned about Professor Aaron Perzanowski, a legal scholar at the University of Michigan Law School, I decided to quiz him about his work on my podcast, Frontiers of Commoning (Episode #45). I wanted to learn more about the bottom-up, social dynamics of creativity, how commoners sustain them, and the inevitable collisions with intellectual property law.

Perzanowski's 2017 anthology of essays, Creativity without Law, edited with Kate Darling, goes into great detail about this topic. The essays show that, contrary to the premises of intellectual property law, artists share. They come up with new ideas by working within a community of peers. They are not solo geniuses,but "nested-I's" working within a community.

Chefs constantly come up with new entrees and desserts even though they don't have copyright protection for recipes. Fashion designers dream up "new" and revamped dress designs all the time, and the industry flourishes, even though any garment can be copied by anyone. (It's the trademarked name that remains proprietary.)  

Not so long ago, the language of “intellectual property” (IP) was the only serious way of talking about creative works and inventions.  Copyright and patents provided the default framework for explaining how someone’s bright idea grew into a marketable product, and how that in turn contributed to economic growth and human progress. It was a neat, tidy, reassuring story.  It had an irresistible simplicity – and the endorsement of the ultimate authority, government.

And then…. the pluriversal realities of life came storming the citadel gates!  Over the past fifteen or twenty years, the monoculture narrative of IP has been attacked by indigenous cultures, seed activists, healthcare experts, advocates for the poor, the academy, and especially users of digital technologies.  It has become increasingly clear that the standard IP story, whatever its merits on a smaller scale, in competitive industries, is mostly a self-serving, protectionist weapon in the hands of Hollywood, record labels, book publishers, Big Pharma and other multinational IP industries. 

We can thank the authors of a new anthology for helping to explain how the standard IP narrative is profoundly flawed, and how an array of challengers are showing how knowledge-creation so often emerges through social commons.

Free Knowledge:  Confronting the Commodification of Human Discovery, edited by Patricia W. Elliott and Daryl H. Hepting, provides a refreshing survey of the many realms in which corporations are enclosing shared knowledge -- and a sampling of commons that are democratizing the production and control of knowledge. (The book is published by University of Regina Press, and is licensed under a Creative Commons BY-NC-ND license.)

Michel Bauwens of the P2P Foundation recently published a short essay noting that the economic fruits of peer production in today’s world tend to be captured by capitalists – whereas what we really need is a system to enable capital accumulation for and by commoners themselves.  To that end, Bauwens embraces the idea of a Peer Production License, as designed and proposed by Dmitri Kleiner.  

The idea is to emancipate online commons from the control of capital and corporations, and to enable cooperatives working within the market system to reorient themselves to the larger common good, and not just their members. Bauwens’ essay, originally published on the P2P Foundation blog, follows below:

The labor/p2p/commons movements today are faced with a paradox.

On the one hand we have a re-emergence of the cooperative movement and worked-owned enterprises, but they suffer from structural weaknesses. Cooperative entities work for their own members, are reluctant to accept new cooperators that would share existing profits and benefits, and are practitioners of the same proprietary knowledge and artificial scarcities as their capitalist counterparts. Even though they are internally democratic, they often participate in the same dynamics of capitalist competition which undermines their own cooperative values.

On the other hand, we have an emergent field of open and commons-oriented peer production in fields such as free software, open design and open hardware, which do create common pools of knowledge for the whole of humanity, but at the same time, are dominated by both start-ups and large multinational enterprises using the same commons.

Thus, we need a new convergence or synthesis, a ‘open cooperativism’, that combines both commons-oriented open peer production models, with common ownership and governance models such as those of the cooperatives and the solidarity economic models. What follows is a more detailed argument on how such transition could be achieved.

Book publishers love that libraries can act as free marketing venues, introducing readers to new authors and keeping them focused on books.  But publishers don’t like it when libraries act as commons – that is, when they promote easy access and sharing of knowledge.  A successful commons may modestly limit a publisher’s absolute copyright control – and even minor incursions on this authority must be stoutly resisted, publishers believe.     

One of the more egregious such battles now underway is a lawsuit filed by Harvard Business School Publishing, John Wiley and the University of Chicago Press against the Institute for the Study of Coherence and Emergence.  ISCE  is a small, nonprofit membership group that “facilitates the conversation between academics and business people regarding social complexity theory, particularly the implications for the management of organizations.” 

The focus of the publishers’ lawsuit is ISCE’s virtual library of 1,200 books.  May ISCE self-digitize and lend its virtual books to its members on a one-usage-at-a-time basis, for private, educational, non-commercial purposes? 

The publishers say no, and are seeking to establish their legal authority to shut down such unauthorized “reproduction, display and distribution” of the books.  But ISCE counter-claims that the fair use and first-sale doctrines of copyright law give it the legal right to lend its virtual books.  (Fair use is the legal doctrine of copyright law that allows excerpts to be shared noncommercially.  The first-sale doctrine prohibits the seller from controlling what a consumer does with a book or DVD after it is purchased, such as renting it, lending it or giving it away.)  ISCE claims, in addition, that libraries are entitled to special-use privileges under copyright law, which apply in this instance.

It is time to pause and celebrate the improbable, wonderful life and career of Woody Guthrie, born a century ago today.  Could such a voice of ordinary people ever make it as a songwriter/performer today?  It’s remarkable how the “Oklahoma cowboy” drew together the strands of American folk music, hillbilly lyrics, cowboy songs and countless other regional influences to create songs that sound as if they had existed from time immemorial.  In a way, they had.  He was often renovating folk tunes that had already endured for generations and giving them more timely, politically inflected lyrics:  derivation as original creativity.  He sang about dignity and social justice; he sang about hard personal truths and political struggle.

Guthrie himself said, “A folk song is what’s wrong and how to fix it or it could be who’s hungry and where their mouth is or who’s out of work and where the job is or who’s broke and where the money is or who’s carrying a gun and where the peace is.”  In today’s media-saturated world, in which posturing and PR optics drive talent to become facsimiles of the authentic (but never the real thing, lest it be caught by surprise in an unflattering light being all-too-human), Guthrie was the unvarnished, plain-spoken real thing. 

Out of that stubborn authenticity came a raw eloquence that could not be suppressed.  When Irving Berlin wrote the sanctimonious “God Bless America,” which went on to become a hit, especially as sung by pious conservatives like Kate Smith, Guthrie set out to write a song that would not be so darn complacent about America.

A federal judge has ruled that Google’s ambitious attempt to digitize all books, including those for which the copyright holders cannot be found, cannot go forward as planned.  That’s great news.  It will prevent Google from claiming a de facto monopoly over millions of “orphan works” whose copyright holders cannot be found.  The company will not be able to charge exorbitant prices for access to books that ought to be free or at-cost. 

Even better, the rejection of Google’s plan means that the nation’s libraries and research institutions can now entertain the idea of building their own repository of digitized books.  It can be a real commons, and not a “free” proprietary platform that would come with all sorts of strings attached. 

Robert Darnton, the director of the Harvard University Library, makes these points in a terrific oped piece in the NYT today.  After detailing why Google’s book project deserved to be rejected, Darnton asks:  Why not build a digital library better  than Google’s?  Let’s build “a vast collection of resources that can be tapped, free of charge, by anyone, anywhere, at any time,” he writes.