Prodromos Tsiavos – Re-inventing protection: Autonomy, the commons and the untold copyright saga

The Creative Commons initiative comes as a solution that seeks to establish the commons/autonomy principles in multiple levels. Creative Commons, more than anything else is a call to reclaim the commons in regulation and law as it is a call for reclaiming the commons in Intellectual Property Rights.

What does it really mean to protect creativity?

Protection means many things to many people.

You may want to think of protection in the way environmentalists do. Let us call this the environmental protection model. In such a model, the aim is to preserve the common environment; to ensure that access to the environmental commons is preserved and enhanced; you would fight for the commons to remain open in the same way air remains free for everyone to enjoy. Protection in the “green” world signifies openness, preservation, inclusion and care for a common resource.

However, the environmental model is not the only one. Another equally powerful metaphor for conceptualizing protection is that of the owner. As an automobile owner you would be interested in knowing who uses your property, how and when; you would try to make sure that thieves will not steal it; you would regulate access and try to profit from it. In an owner’s world, protection entails exclusion and presumes access and control.

So where does Copyright stand on this issue? Are we to believe the Recording Industry Association of America (RIAA) on that copyright is all about protecting creativity by restricting access? Are we to go for the model of the likes of the Centre for the Study of The Public Domain or the Creative Commons that talk of protecting creativity through sharing and reproduction? Is Copyright about pastures or automobiles?

An Illustration of the Commons/ Autonomy principles

Think of how the Internet Protocols or any open technical standard is formed: developers are providing input into a common resource to which everyone retains rights of access, modification and reproduction. The standard derives its value from its use. The more it is reproduced by various contributors the more valuable it becomes. At the same time individual contributors, either natural persons or companies, draw value from the common use of the standard. Their unique selling point becomes thus the services or applications they provide on the standard. The services then feedback to the common information infrastructure the standard constitutes. Autonomy exists in the form the standard is implemented, and the way the services are provided. Autonomy is possible only because the commons exist.

In this example we observe a clear pattern: there is a common resource which is produced through creative interactions. The value of this commons resource is the result of the uninhibited access to it and of the participants’ interactions. The commons infrastructure has no self-contained value: value is created only in and through its use. Hence, its protection equals to its reproduction, enrichment, modification and dissemination.

At the same time the autonomy of the individual entity lies precisely on the fact that in an open market the choice is based on the differentiated service provision. In other words, all other factors remaining constant, if everyone has access to a common resource, I will choose the service that is most suitable to my needs, causing innovation and diversification in services. The more open the access to the commons is, the more the creator is forced to individualize her creative output. In a world where access to ideas is open we have seen works like Romeo and Juliet but also works like the West Side story. In a world where access to content would be free we may have a White Album by Beatles, a Black Album by Jay-Z but also a legal Gray Album by DJ Dangermouse.

What Copyright further teaches us is that originality and creativity may be protected only through constant expansion of the commons; not the other way around. This was indeed the original design of the copyright system. The heuristic of the idea – expression dichotomy serves precisely this purpose. By ensuring that access to ideas remains free and in non-discriminatory terms, original forms of expression may emerge. As these new forms of expression emerge, whichever new ideas they may contain feed into the public domain. The limited protection time awarded further ensures that the realm of original expression is always renewed. It also pushes the market in the direction of an evolution spiral towards added value creative products and services.

The operation of a copyright based market over time is fuelled by the interaction between commons and autonomy. The non-temporal treatment that the issue of incentives and copyright has received in the relevant literature is surprising. Focusing the protection merely on ensuring original expression of an idea is not copied without appropriate compensation may make some sense in a static and closed creative market. However, it is doubtful whether any creative market may really be neither of the two. If we are to design protection policies not only for the existing but for the future authors, we need to make sure that today’s value added creativity is tomorrow’s baseline commons.

In a dynamic creative environment innovation is pushed to the edges, while the commons keep crystallising at the core of the evolutionary process. Disney’s Snow-white that has been once the added value on the commons of the snow white story will become the commons for a remixed future story. In such a scenario, if property rights are the carrot, the commons are the stick. In a creative ecosystem the motto should be rather system: innovate or let others innovate.

From Copyleft to the Creative Commons project

Even at the early stages of computing where costs of equipment made the organizational entity essential, free and open sharing of source code has been the prevailing practice. Such practices have been crystallized in the Copyleft licences. These express in legal terms a rule of zero cost role switching: whichever rights you receive you shall pass. By providing access to the source code and rights to modify and re-produce as long as you pass the same rights to the next person the Copyleft licences are ensuring that the commons are refuelled. By placing this choice in the hands of the individual creator they ensure that the autonomy element is preserved. By providing an open market for the provision of services or additional products over an open domain they ensure that the choice is to be made on the basis of the quality of the individual service and that diversification and innovation will emerge.

The name Copyleft may predispose for the opposite, but it actually constitutes more an effort to return to the original commons/ autonomy principles of copyright rather than an effort to undermine it. What it aims at is reversing the tendency seen in Copyright over the last couple of decades to facilitate a single mode of protection, that does not necessary promote creativity and innovation. The principles and values that Copyleft licences encapsulate are the same as in the original copyright.

An even more conscious effort and explicit effort to return to the original copyright values is found in the work of Lawrence Lessig and is materialized with the Creative Commons project. Lessig has been particularly involved with the Creative Commons project and often been projected as its public face.

Creative Commons as ecology of regulations

The Creative Commons initiative comes as a solution that seeks to establish the commons/autonomy principles in multiple levels. Indeed, Creative Commons is licensing oriented and indeed it encourages the creator to think in terms of licensing her work. However, the licensing procedure is entirely compatible with the concept of autonomy of the creator and the user: the creator has to consciously agree on how her work is to be further used and disseminated. The user through the plain-language explanations and icons accompanying the licences is able to understand the gist of each licence.

However, if there is a context in which the elements of both autonomy and commons are most clearly displayed, then that is the one of the licence creation process. Each licence draft is originally posted on the CC licence mailing lists and the members of the list have the opportunity to comment on it. The transition from one version of the licence to the next is the result of the interactions occurring on the relevant mailing lists that thus becomes a public debate space for the content of the licence. For instance the fact that the Attribution element is a fixed licence element in version 2.5 of the licences is the result of the comments and feedback coming from the previous versions of the licences. In the same way proposals for version 3.0 of the licence are based on the experience and feedback from the use of version 2.5. In such a process the user of the licences, whether a creator or a consumer, is placed at the centre of the licensing process. Not merely as an informed user of the licence but also as an active participant in the way it is built. Such a regulatory system manages to combine the virtues of techno-legal regulation in the contractual level without forging the principles of transparency and participation existing in the legislative forms of regulation.

An even more interesting aspect of the whole licensing creation process is the spill over effects it has for the policy making process. The process of porting the licences in national jurisdictions is materialized through the action national hosting institutions. Such institutions are almost invariably manned with legal experts that have great experience in their respective jurisdictions and are aware of the various policy initiatives in national or regional level. For instance in the UK, members of the CC England and Wales team have participated in public consultations in relation to Copyright reform, the CC Scotland team has completed a study on the Common Information Environment on behalf of the Joint Information Systems Committee and both the CC-UK groups have given numerous seminars on the way the licences should be deployed or received feedback by users of the licences and drafted reports for organizations like the Arts Council or the Royal Society of Arts. In other words, the licence making process has had a great impact not merely in terms of increasing participation of creators and users in the definition of the terms but as a vehicle for participation in a broader debate concerning the future of Intellectual Property. Such initiatives are even more apparent with respect to providing responses to public consultations initiated by the European Commission on issues related to Intellectual Property Rights issues, where the input by various Creative Commons national groups has been quite substantial.

Advocates of the Public Domain preservation have placed particular emphasis on the ecological dimension of the problem and the need to create a movement similar to the one of environmentalists. The objective of such a movement would be to focus on the protection of creativity through the protection of the public domain. The multiplicity of conceptualizations of the Public Domain or the Commons has lead to a multitude of approaches, ranging from entirely denying concepts of private property on intellectual creations to the ones seeking to revert to the original principles of the copyright law.

Creative Commons proposes an ecological model though a slightly different one. Instead of focusing directly on trying to preserve the ecology of the pubic domain, Creative Commons primarily aims at cultivating an ecology of regulations: It accepts the regulatory shift from the legislative to the contractual level, but tries to enforce upon such mechanisms the fundamental regulatory principles of transparency, participation and accountability. In such a model the fact that more than one notions and formations of commons exists is a virtue rather than a vice. The complexity and versatility of technology-based environments does not leave much space for monolithic centralised solutions. At the same time, the intervention in the policy making level is also occurs as a result of the educational effect the Creative Commons Project has and the increasing autonomy the user is awarded with. Creative Commons, more than anything else is a call to reclaim the commons in regulation and law as it is a call for reclaiming the commons in Intellectual Property Rights.

Conclusion

The case of Creative Commons, increases the level of autonomy in an even greater extent since it allows the individual to participate both in the process of drafting the licences and to decide which licence to use. In such a model there is no single commons but rather an ecology of micro-regulatory regimes that each constitute the commons in which creators and users decide to organize themselves.

The creativity protection debate has been dominated by a rhetoric which insist in a singular model based on exclusion and centralized control. This paper has been an attempt to show that such a model is inconsistent with the original copyright principles, not necessarily applicable to all forms of creativity and certainly not the only or optimal model for perceiving protection.

Protection has different meanings for different people. Initiatives like Creative Commons give you the opportunity to contribute to the construction of such meaning. Will you take it?

Further links:

Icommons summit – Rio de Janeiro

Creative Commons: FAQ

Special issue: commons, recent articles
Tags: commons, creative commons, creativity, prodromos tsiavos