On the "Creative Commons": a critique of the commons without…

On the "Creative Commons": a
critique of the commons
without commonalty
Is the Creative Commons missing something?

David M. Berry               Giles Moss




                n the face of it, the Creative Commons project


O
                                                                                  Art by Trine Bjørkmann Andreassen
                appears to be a success. It has generated in-
                terest 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 ex-
periment and communicate with culture more freely. 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. These questions become all the more signif-
icant as the Creative Commons develops into a more influ-
ential and voluble "representative" and public face for libre
culture.                                                           culture is, an ill-fated and thankless task, we work on the ba-
We recognise the constructive nature of the work done by           sis of what it could become. This isn't a question of mime-
the Creative Commons and, in particular, its chief protag-         sis, of Archimedean points, of hermeneutics. It's a question
onist, Lawrence Lessig. Together they have generated in-           of thinking about libre culture in a more experimental and
terest in important issues that we hold dear. But here we          political way.
wish to stand back for a while and subject some of the ideas       We argue that the Creative Commons project on the whole
of the Creative Commons project to interrogation and cri-          fails to confront and look beyond the logic and power asym-
tique. We don't do this because we think that we have a            metries of the present. It tends to conflate how the world is
better understanding of the actions of and motivations of in-      with what it could be, with what we might want it to be. It's
dividuals and groups involved in libre culture. In fact, with-     too of this time ­ it is too timely. We find an organisation
out a great deal of symbolic violence, we think it would be        with an ideology and worldview that agrees too readily with
impossible to faithfully represent libre culture in all of its     that of the global "creative" and media industries. We find
diversity. So rather than attempting to represent what libre       an organisation quick to accept the specious claims of neo-

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classical economics, with its myopic "incentive" models of         cal economists. Capital is continually rendering culture and
creativity and an instrumental view of culture as a resource.      communication private, subject to property rights and the
Lawrence Lessig is always very keen to disassociate himself        horror of commercial exploitation and beautification. When
and the Creative Commons from the (diabolical) insinuation         immaterial labour is hegemonic, the relationship codified in
that he is (God forbid!) anti-market, anti-capitalist, or com-     intellectual property between the "public" and "private", be-
munist. Where we might benefit from critique and distance,         tween labour and capital, becomes a crucial locus of power
the Creative Commons is too wary to advocate anything that         and profit. And it is quite natural that private interests would
might be negatively construed by the "creative" industry.          want to protect and extend this profit base at all costs. Their
Where we would benefit from making space available for             existence depends on it. If libre culture or the Creative Com-
the political, the Creative Common's ideological stance has        mons threatens this profit base in any way, wars of manoeu-
the effect of narrowing and obscuring political contestation,      vre and position will ensue, where corporations and the state
imagination and possibility.                                       will set out either to crush or co-opt.
                                                                   The paramount claim of Lessig's prognosis about the fate
A commons without commonalty                                       of culture is that we will be unable to create new culture
                                                                   when the resources of that culture are owned and controlled
Like others before him, Lawrence Lessig bemoans the loss           by a limited number of private corporations and individu-
of a realm of freely shared culture. He writes about the           als. As far as it goes, this argument has appeal. But it
colonisation of the public domain brought about by exten-          also comes packaged with a miserable, cramped view of
sions in intellectual property law and the closing down of         culture. Culture is here viewed as a resource or, in Heideg-
the technical architecture of the internet. He rightly identi-     ger's terms, "standing reserve". Culture is valued only in
fies the way in which global media corporations have lob-          terms of its worth for building something new. The signif-
bied to extend the terms of copyright law so that they can         icance, enchantment and meaning provided by context are
continue to profit from their ownership of creative works.         all irrelevant to a productivist ontology that sees old cul-
He also identifies the way in which private interests are si-      ture merely as a resource for the "original" and the "new".
multaneously encoding and enrolling digital technologies in        Lessig's recent move to the catchphrase "Remix Culture"
order to support their control of artistic and intellectual cre-   seems to confirm this outlook. Where culture is only stand-
ativity. Whereas others who problematise these trends turn         ing reserve it can be owned and controlled without ethical
to the political, the legal professor's penchant is to turn to     question. The view of culture presented here is entirely con-
the field of law and lawyers. What follows is a technical at-      sistent with the creative industry's continual transformation
tempt to (re-)introduce a commons by instituting a farrago         of the flow of culture, communication and meaning into de-
of new legal licences in the existing system of exploitative       contextualised information and property.
copyright restrictions. This is the constructive moment of         This understanding of culture frames the Creative Com-
the so-called "Creative" Commons.                                  mon's overall approach to introducing a commons in the
We'll return to this shortly. But first, before getting ahead      information age. As a result, the Creative Commons net-
of ourselves, we should recognise that the action that the         work provides only a simulacrum of a commons. It is a
Creative Commons project takes is already anticipated in           commons without commonalty. Under the name of the com-
how they represent social reality and define the "problem"         mons, we actually have a privatised, individuated and dis-
in hand. The way in which we construct a problem is also           persed collection of objects and resources that subsist in a
to always render certain beliefs and actions (and not others)      technical-legal space of confusing and differential legal re-
obligatory and justified. And so, if anywhere, this is where       strictions, ownership rights and permissions. The Creative
we must look first.                                                Commons network might enable sharing of culture goods
For us, Lessig's particular understanding of the world, and        and resources amongst possessive individuals and groups.
his desire to strike a balanced bargain between the public         But these goods are neither really shared in common, nor
and private that follows from this, appear na¨ve and out-
                                                  i                owned in common, nor accountable to the common itself. It
moded in the age of late capitalism. Listen to the politi-         is left to the whims of private individuals and groups to per-

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mit reuse. They pick and choose to draw on the commons            realm of private ownership (Res Privatae). The result is not,
and the freedoms and agency it confers when and where             dare we say it, a commons at all. The commons are formed
they like.                                                        through commonalty and common rights, resistant to any
We might say, following Gilles Deleuze, that the Creative         mechanisms of privatisation, whether those of the Creative
Commons licensing model acts as a "plan(e) of organisa-           Commons or not. Without commonalty, without the com-
tion". It places a grid over culture, communication and cre-      mon substrate through which singularities act, live and re-
ativity, dividing it and cutting it into discrete pieces, each    late, there could be no commons at all.
of which have their own distinct licence, rights and permis-
sions defined by the copyright holder who "owns' the work.
Lessig's attempt to make it easier to understand which cre-       A commons with commonalty
ative works can, or cannot, be used for modification (due to
copyright) has spawned a monster with a thousand heads.           The marketing and PR of the creative industries, their lob-
The complexity of licences and combinations of licences in        bying attempts and their lawyers, have not managed to per-
works has expanded exponentially.                                 suade us that they are true friends of creativity. They don't
This plane of organisation ensures that legal licences and        convince us of their specious incentive claims nor of the
lawyers remain key nodal and obligatory passage points            idea that sharing knowledge, concepts and ideas is criminal.
within the Creative Commons network, and thereby con-             If anything, property is the corruption and the crime: an act
stitute blockages in the flow of creativity. But what is hap-     of theft from the common substrate of creativity. But still
pening is that the ethical practice of sharing communication      global media corporations continue to work to transform
and culture is being conflated with a legal regime that seeks     the system -- legally, technologically and culturally -- to
bureaucratically to enforce the same result through compre-       facilitate their ownership and control of creativity. This is a
hensively drafted and dense legalese. At least Richard Stall-     social-factory of immaterial labour where all of life -- lov-
man and his ingenious GNU General Public License (GPL)            ing, thinking, feeling and sharing -- is subject to the cor-
is honest in claiming to be an ethical rather than purely legal   ruption of privatisation and property.
force. The GNU GPL has tenacity not due to its legal form         As we've already suggested, the commons is an ethical and
alone. The GPL is based on a network of ethical practices         not just a legal matter. We underscore the point. The com-
that continually (re-)produce its meaning and form. The           mons rests on commonalty, on ethical practices that emerge
commons is always more than a formal legal construct. The         rhizomatically through the actions, experiences and rela-
commons is based on commonalty.                                   tions of decentralised individuals and groups, such as the
Very simply put, the commons has historically been under-         free/libre and open-source movement. For this reason, libre
stood as something shared in common. In pre-capitalist            culture is far more than just a protest movement. It is not
times the commons were referred to as "Res Communes".             only reactive; it is productive. It creates new forms of life
This included natural things that were used by all, such as       through its practices. It creates new possibilities. Yet, in our
air and water. This ancient concept of the commons can be         view, there has to be a political dimension to libre culture
traced through Roman law into the various European legal          as well. This expresses itself through political imagining,
systems. Through migration and colonisation, it can also          action and a broader struggle for true democracy. And, as
be found in the United States and other countries around the      such, it is important to recognise the damage that could be
world. In the UK, there's still the concept of common lands,      done to libre culture by those spokespeople who seek to de-
albeit a pale shadow of what went before. In the United           politicise it. In the world in which we find ourselves, politi-
States, the concept of public trust doctrine is an application    cal awareness, resistance and struggle are essential in order
of the ancient idea of the commons. To a certain extent           to defend the idea and practice of a creative field of concepts
the commons, as Res Communes, lies outside the property           and ideas that are free from ownership -- to stand up, that
system. It is separate from both private (Res Privatae) and       is, for the commons and commonalty. It is to the political
state (Res Publicae) ownership. Through copyright the Cre-        struggle of libre culture and the commons that we finally
ative Commons attempts to construct a commons within the          turn.

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               Art by Trine Bjørkmann Andreassen                   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 prac-
                                                                   tice, 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 pub-
                                                                   lic 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 polit-
Where is the politics of libre culture to be found? The an-        ical action, for democracy. Which is to say, any attempt
swer: at numerous levels. Political struggle will no doubt be      to impair commonalty and common rights for concepts and
orientated towards the nation state (as Maureen O'Sullivan         ideas must meet resistance. We need political awareness
argued in "A law for free software" in issue 2 of Free Soft-       and struggle, not lawyers exercising their legal vernacular
ware Magazine). For the time being at least, nation states         and skills on complicated licences, court cases and prece-
are obligatory passage points that retain a privileged posi-       dents. We're sorry to say, however, that this does not appear
tion in upholding and enforcing law. But it cannot remain          to be a political imaginary (and political struggle) that the
there alone. The commonalty of creativity shows little re-         Creative Commons project shares or supports.
gard for national boundaries and, of course, neither does the
global reach of the profiteers from the creativity and media       Copyright information
industry. Creativity is at once too small and too large. Po-
litical action and the struggle for true democracy will have        c 2005 by David M. Berry, Giles Moss
to also be aimed simultaneously at local and global levels.        This article is made available under the "Attribution-
For the latter, we might envisage a treaty obligation through      Share-alike" Creative Commons License 2.0 available from
measures such as preventing the commodification of human           http://creativecommons.org/licenses/by-sa/2.0/.
DNA and life itself or a UN protectorate to defend the sanc-
tity of ideas and concepts. We might picture something akin
to Bruno Latour's "Parliament of Things", a space where
                                                                     About the author
not just the human is represented, but all of life has a de-         David Berry is a researcher at the University of Sussex,
fender, all of life has a voice.                                     UK and a member of the research collective The Libre
Law is a juridico-legal grid placed on social life. This grid is     Society (http://www.libresociety.org). He
upheld and enforced by a network of states and other forces          writes on issues surrounding intellectual property, im-
of governance and governmentality. Reliance on law and               material labour, politics, free software and copyleft.
the state makes the legal licences of the Creative Commons           Giles Moss is a doctoral student of New College, Uni-
(or other legal versions of the commons for that matter) vul-        versity of Oxford. His research interests span the field
nerable and precarious. We cannot be sure, as yet, how Cre-          of social theory, but he currently works on the intersec-
ative Commons licences will stand up in legal practice. For          tions of technology, discourse, democratic practice and
they have not been properly tested. But there is one thing           the concept of the "political".
of which we can be relatively sure. In principle, we might

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