Cultural Commons in the Digital Ecosystem

Maud Pelissier

• Publisher: Wiley-ISTE
• Year: 2021
• Print ISBN: 9781786306371
• eBook ISBN: 9781119842620
• Edition: 1
• Topic: Ciencia de la computación
• Subtopic: Ciencias computacionales general

INTELLECTUAL TECHNOLOGIES SET Coordinated by Jean-Max Noyer and Maryse Carmes The dynamics of production, circulation and dissemination of knowledge that are currently developing in the digital ecosystem testify to a profound change in capitalism. On the margins of the traditional duo of knowledge markets and exclusive property rights, the emerging notion of cultural commons is opening the door to new modes of production based on hybrid market arrangements and an inclusive understanding of property.
This book studies the political economy of cultural commons in the digital ecosystem, outlining the contexts and areas of thought in which this concept has emerged and identifying the socio-economic, technical and political issues associated with it. It also analyzes the specific physical conditions that enable the implementation of the economy of cultural commons in a specific digital ecosystem, that of books, by studying the effects of digital libraries and self-publishing platforms.

PART 1
The Intellectual Movement of the Cultural Commons

Introduction to Part 1

In the cultural field, our investigation into the origins of this notion of the common has led us to identify its birthplace on the other side of the Atlantic. It is indeed there, at the heart of a movement of revolt against certain identified misdeeds of contemporary cultural capitalism, that the notion of the common has been reactivated. This movement was initiated by a group of American jurists gathered at the Berkman Center for Internet and Society (BCIS), founded in 1998 at Harvard University, a unique meeting place for academics and activist experts of the digital world. Among these jurists, all specialists in intellectual property, some, more than others, positioned themselves at the forefront of the scene, such as James Boyle, Yochai Benkler and Lawrence Lessig¹.

The target of their critique was the “proprietarist” evolution of information and cultural markets, symbolizing a drift of the neoliberal economy and a fundamentalist vision of the market. In particular, the evolution of the institutional ecology of cultural markets in the digital ecosystem is, in their view, a major obstacle to free culture, which, after being supplanted throughout the 20th century by a hegemonic commercial popular culture, found a new space for expression. Free creative practices do not fall directly within the scope of copyright, but, for all that, they were quickly condemned by the cultural² industries. They symbolize a willingness to share in an ecosystem that facilitates and democratizes popular expression. The notion of the commons was then mobilized by these jurists to account for these transformations. It embodies the possibility of a free cultural economy that is not intended to replace the commercial cultural economy, but rather to find ways of balanced cohabitation.

The notion of the common was not chosen by chance; it has an ancient history. In the economic domain, it has long been disqualified, evoking the subsistence of forms of resource exploitation perceived as an incomprehensible survival of a system deemed inefficient (Guibet Lafaye 2014). It was updated in the 1970s by the economist Elinor Ostrom, who was awarded a Nobel Prize for her work in the field in 2009. On the basis of numerous empirical research works, she has shown that many common natural resources, which were neither managed by the State nor exclusively by the market, constituted an effective yet efficient regulation based on an original model of self-governance and a conception of property in terms of a body of law.

Much later, in the early 2000s, Elinor Ostrom proposed an extension of her approach from land commons to knowledge commons. James Boyle, a jurist with the BCIS, invited her to a conference at Duke University on this topic. On this occasion, in association with librarian Charlotte Hess, Director of the Digital Commons Library at Indiana University³, she presented a paper entitled “Ideas, Artifacts and Facilities as a Common-Pool Resource” (Hess and Ostrom 2003). They extended these reflections in a book on knowledge commons that paid particular attention to digital archives and libraries as knowledge commons (Hess and Ostrom 2007). This Ostromian intellectual current constitutes the second intellectual locus in which the notion of commons in the digital ecosystem has found a new conceptual life.

Ostrom‘s intellectual output in this field is not equivalent to what she has produced on the analysis of land commons. However, she has opened up and legitimized the creation of a research program on the theme of knowledge commons in the field of scientific communication, thus offering a theoretical framework for identifying the conditions of their institution and their deployment in the digital ecosystem. In France, Ostrom’s approach has been extended in a multidisciplinary research program initiated by the economist Benjamin Coriat in 2013. The scope of this program and the interest it shows in the commons in the digital ecosystem, even if it does not focus primarily on the cultural field, deserves to hang around. The rapprochement with the social and solidarity economy also shows their desire to anchor their thinking on communities in a political economy perspective.

1. 1 James Boyle, founder of the Center for the Study of the Public Domain, is a professor at Duke Law School in Durham, North Carolina. Yochai Benkler and Lawrence Lessig are professors at Harvard Law School.
2. 2 This chapter is an in-depth version of a French article written in the journal TIC et Société, “Communs culturels numériques : origine, fondement et identification”, vol. 12, no. 1, 2018.
3. 3 The Digital Library of the Commons is a portal archiving international literature on the commons. All articles are free and open access. This is a collaborative project linked to the Workshop in Political Theory and Policy Analysis by Vincent and Elinor Ostrom. See: https://dlc.dlib.indiana.edu/dlc/.

1
The Pioneering Approach of Jurists from the Berkman Center for Internet and Society

1.1. A critique of the maximalist doctrine of intellectual property

At the end of the 20th century, an ancient debate on the social compromise on which the first copyright legislation was based came back, with force, to the forefront. It originated in the United States. The Berkman Center for Internet and Society (BCIS) was the nerve center of this intellectual battle.

Created in 1998 at Harvard Law School, it brought together lawyers from prestigious universities, specialists in intellectual property and digital law, among whom the most well known are Pamela Samuelson, James Boyle, Julie Cohen, Yochai Benkler and Jonathan Zittrain¹. Other prominent intellectual figures of the time include constitutional lawyer Lawrence Lessig, libertarian activists such as John Perry Barlow², co-founder of the Electronic Frontier Foundation³ and entrepreneurs such as Jimmy Wales, founder of Wikipedia. As Anne Bellon points out, within this place “two social universes, law professors and Internet activists, gathered around a critique of the evolution of intellectual property. They contributed to bringing about a counter-discourse that defends the information commons and the value of sharing” (Bellon 2017, p. 166, author’s translation).

The exchanges between these two communities, Internet experts and law professors, resulted in alliances around militant actions against the various laws on adapting copyright to the digital age that were passed in the United States in the 1990s. The BCIS, as a venue for the dissemination of theoretical and practical knowledge, is also “a structure of engagement where political discourse mixes with scholarly discourse” (Bellon 2017, p. 181, author’s translation). Subsequently, it has become an international model; other similar institutes have been established in different parts of the world. A Global Network of Internet and Society⁴ was created in 2012. Today, in France, the CNRS has just formalized the creation of a similar institute: the Centre Internet et Société (CIS)⁵, considered as a research unit of its own by the Institut des sciences humaines et sociales. Mélanie Dulong de Rosnay, director of this center, specializes in issues of digital commons and the link between regulation by law and regulation by technology. She coordinated a research project with one of the members of the BCIS, Juan Carlos de Martin, on the issue of the digital public domain (Dulong de Rosney and de Martin 2012), a theme directly related to the issue of cultural commons, as we will see. Their work is in direct line with the pioneering approach of BCIS jurists.

The intellectual production of these American jurists is consequently on this issue. We will refer here to the writings that we have found most enlightening on the question of the foundations of the political economy of cultural commons. The advantage of their approach is also to translate, on a practical level, into very concrete legal proposals, which have proved to have a decisive influence in the evolution of cultural creative practices in the digital ecosystem.

1.1.1. The enclosure of the intangible commons of the mind

Starting in the 1990s, the cultural and creative industries began to make a significant contribution to economic growth. This has made the US Congress particularly receptive to the arguments put forward by some lobbyists about strengthening intellectual property rights in the face of the rise of an economy where knowledge (in a broad sense) is now seen as the main driving force of long-term economic growth and development⁶. Thus, the prospect of creating new markets justified the ownership of all the intangible forms of knowledge that were at the heart of these new economic valorization processes. According to these jurists, the agreement given to the legalization of the extension of the scope of the patent to the human genome or to the patentability of software were emblematic illustrations of these new commercialization perspectives. For their supporters, the extension of the scope of intellectual property legislation was essential for supporting the new path taken by contemporary capitalism. For their detractors, such as Lawrence Lessig, Yochai Benkler, Pamela Samuelson and James Boyle, these developments in intellectual property legislation in the United States were considered alarming because they called into question the foundations of intellectual property.

These jurists are not opposed to the foundations of the liberal economy and the development of a knowledge-based economy. On the contrary, they are opposed to its excesses and downward spirals that inexorably lead to an “enclosure of the intangible commons of the mind”, as James Boyle (2003) put it. Recent developments in intellectual property legislation symbolize what they call a “maximalist teleology”, which stems directly from the ideology conveyed by the Washington consensus that markets and exclusive property are the sine qua non for economic growth. This growth is based on a rhetoric that equates ownership and economic progress. In this perspective, the granting of exclusive property rights over all forms of culture or knowledge that can be valued in a market is considered the indispensable condition for their efficiency and for economic performance as a whole. However, intellectual property rights are fundamentally different from other property rights.

This approach aims to maintain a non-separation between liberalism and market fanaticism, as they point out, referring to the arguments put forward by the Nobel Prize for Economics winner Joseph Stieglitz. This economist rebels against the dominant idea that there is only one form of capitalism, only one “right” way to manage the knowledge economy. As they were imagined and put in place by the first legislation with Thomas Jefferson, intellectual property rights establish a form of social compromise. In other words, the restriction on the dissemination and use of knowledge (through the establishment of a temporary monopoly situation) is justified as long as it stimulates innovation dynamics and thus promotes growth. This social compromise is a kind of unstable balance that must therefore be preserved. Yet, in the field of knowledge, Stiglitz clearly shows that the beneficial effects of an increasing o...

Table of contents

• Cover
• Table of Contents
• Title Page
• Copyright
• Introduction
• PART 1: The Intellectual Movement of the Cultural Commons
• PART 2: The Commons in the Digital Book Ecosystem
• Conclusion
• References
• Index
• End User License Agreement