David Bollier

Ever since the World Wide Web went wide in 1994, film studios, music labels and publishers have tried to neuter this unparalleled communications commons.  Much of the Web’s power stems from its open technical protocols known as hypertext markup language, or HTML, which are used to build webpages.  HTML has always put users, not "content-makers," in control of content, and as a result, people could (for example) copy and save the “source code” for a webpage.  Bottom-up innovation could emerge and prevail.    

The truly dismaying news is that the official steward of technical standards for the Web – the World Wide Web Consortium, or W3C – plans to adopt a new set of standards, HTML5, that will let content owners add digital rights management, or DRM, to their web content.  As Cory Doctorow writes on BoingBoing, “the decision to go forward with the project of standardizing DRM for the Web came from Tim Berners-Lee himself [who invented the Web in the early 1990s], who seems to have bought into the lie that Hollywood will abandon the Web and move somewhere else (AOL?) if they don’t get to redesign the open Internet to suit their latest profit-maximization scheme.”

What makes the new HTML5 standards so alarming is that it kicks open the door for still other new forms of proprietary control over Web-based video, images, fonts and more.  Danny O'Brien, International Director at the Electronic Frontier Foundation, has a good account of the struggles to prevent this outcome at the W3C, which could lead to the piecemeal privatization of the Web infrastructure.  

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.

Here’s a development that could have enormous global implications for the search for a new commons-based economic paradigm.  Working with an academic partner, the Government of Ecuador has launched a major strategic research project to “fundamentally re-imagine Ecuador” based on the principles of open networks, peer production and commoning.   

I am thrilled to learn that my dear friend Michel Bauwens, founder of the P2P Foundation and my colleague in the Commons Strategies Group, will be leading the research team for the next ten months.  The project seeks to “remake the roots of Ecuador’s economy, setting off a transition into a society of free and open knowledge.” 

The announcement of the project and Bauwens’ appointment was made on Wednesday by the Free/Libre Open Knowledge Society, or FLOK Society, a project at the IAEN national university that has the support of the Ministry of Human Resource and Knowledge in Ecuador.  The FLOK Society bills its mission as “designing a world for the commons.” 

The research project will focus on many interrelated themes, including open education; open innovation and science; “arts and meaning-making activities”; open design commons; distributed manufacturing; and sustainable agriculture; and open machining.  The research will also explore enabling legal and institutional frameworks to support open productive capacities; new sorts of open technical infrastructures and systems for privacy, security, data ownership and digital rights; and ways to mutualize the physical infrastructures of collective life and promote collaborative consumption.

In this age of marauding markets, it almost seems quaint to ask, “Who owns culture?”  We know the answer.  When push comes to shove, the owners of copyright, trademarks and patents own everything.  We may think that the music, images and stories of our culture belong to us, but as a matter of law, in the 165+ countries that have signed the Berne Convention, our designated role is....to buy (and not use someone else's "property.")   

A new book of essays complicates this picture.  Negotiating Culture:  Heritage, Ownership and Intellectual Property -- just published by the University of Massachusetts Press -- points out some of the distinct limits to “intellectual property’s” dominion.  The book is a series of essays by academics from various disciplines that explores how social practice and culture have their own moral legitimacy and social power -- enough to push back on claimed property rights. 

The book chronicles controversies over who should have legal rights of ownership and control over Native American remains, Green and Roman antiquities, works of art looted by the Nazis, among many other objects and resources.  We are asked to consider whether culture should be treated as property that can be bought and sold (and treated accordingly), or whether it must be considered inalienable, or not suitable for sale on the market, and treated with the utmost dignity and respect.  

These are the magic words:  It seems that the core issue in so many of these disputes is a matter of identity, dignity, respect and, of course, power.

Museums are increasingly at the epicenter of cultural ownership issues these days.  The 2005 trial in Italy of Marion True, the former curator of classical art at the J. Paul Getty Museum, is a beautiful case study of how social norms about the ownership of ancient antiquities have dramatically shifted.  Prior to that trial, museums often bought or accepted donated antiquities without too much thought about the provenance of the work.  After all, antiquities don’t usually come with title deeds or receipts, and it was an open secret that many of them were dug up by looters and spirited out of the country into the hands of profit-minded dealers.