Copyright, Copyleft and the Creative Anti-Commons,
by Anna Nimus
Part 4: The Creative Anti-Commons Compromise:
The dissidents of intellectual property have
had a rich history among avant-garde artists,
zine producers, radical musicians, and the
subcultural fringe. Today the fight against
intellectual property is being led by lawyers,
professors and members of government. Not
only is the social strata of the leading players
very different, which in itself might not
be such an important detail, but the framework
of the struggle against intellectual property
has completely changed. Before law professors
like Lawrence Lessig became interested in
IP, the discourse among dissidents was against
any ownership of the commons, intellectual
or physical. Now center stage is occupied
by supporters of property and economic privilege.
The argument is no longer that the author
is a fiction and that property is theft, but
that intellectual property law needs to be
restrained and reformed because it now infringes
upon the rights of creators. Lessig criticizes
the recent changes in copyright legislation
imposed by global media corporations and their
powerful lobbies, the absurd lengths to which
copyright has been extended, and other perversions
that restrict the creativity of artists. But
he does not question copyright as such, since
he views it as the most important incentive
for artists to create. The objective is to
defend against IP extremism and absolutism,
while preserving IP's beneficial effects.
In his keynote at Wizards of OS4 in Berlin,
Lessig celebrated the Read-Write culture of
free sharing and collaborative authorship
that has been the norm for most of history.
During the last century this Read-Write culture
has been thwarted by IP legislation and converted
to a Read-Only culture dominated by a regime
of producer-control. Lessig bemoans the recent
travesties of copyright law that have censured
the work of remix artists like DJ Dangermouse
(The Grey Album) and Javier Prato (Jesus Christ:
The Musical). Both were torpedoed by the legal
owners of the music used in the production
of their works, as were John Oswald and Negativland
before them. In these cases the wishes of
the artists, who were regarded as mere consumers
in the eyes of the law, were subordinated
to control by the producers -- the Beatles
and Gloria Gaynor, respectively -- and their
legal representatives. The problem is that
producer-control is creating a Read-Only culture
and destroying the vibrancy and diversity
of creative production. It is promoting the
narrow interests of a few privileged "producers"
at the expense of everybody else. Lessig contrasts
producer-control to the cultural commons -- a
common stock of value that all can use and
contribute to. The commons denies producer-control
and insists on the freedom of consumers. The
"free" in free culture refers to the natural
freedom of consumers to use the common cultural
stock and not the state-enforced freedom of
producers to control the use of "their" work.
In principle, the notion of a cultural commons
abolishes the distinction between producers
and consumers, viewing them as equal actors
in an ongoing process.
Lessig claims that today, as a result of commons-based
peer-production and the Creative Commons project
more specifically, the possibility of a Read-Write
culture is reborn. But is the Creative Commons
really a commons? According to its website,
Creative Commons defines the spectrum of possibilities
between full copyright -- all rights reserved
 -- and the public domain -- no rights reserved.
Our licenses help you keep your copyright
while inviting certain uses of your work -- a
"some rights reserved" copyright. The point
is clear: Creative Commons exists to help
"you," the producer, keep control of "your"
work. You are invited to choose among a range
of restrictions you wish to apply to "your"
work, such as forbidding duplication, forbidding
derivative works, or forbidding commercial
use. It is assumed that as an author-producer
everything you make and everything you say
is your property. The right of the consumer
is not mentioned, nor is the distinction between
producers and consumers of culture disputed.
Creative Commons legitimates, rather than
denies, producer-control and enforces, rather
than abolishes, the distinction between producer
and consumer. It expands the legal framework
for producers to deny consumers the possibility
to create use-value or exchange-value out
of the common stock.
Had the Beatles and Gloria Gaynor published
their work within the framework of Creative
Commons, it would still be their choice and
not the choice of DJ Dangermouse or Javier
Patro whether The Grey Album or Jesus Christ:
The Musical should be allowed to exist. The
legal representatives of the Beatles and Gloria
Gaynor could just as easily have used CC licenses
to enforce their control over the use of their
work. The very problem of producer-control
presented by Lessig is not solved by the Creative
Commons "solution" as long as the producer
has an exclusive right to choose the level
of freedom to grant the consumer, a right
that Lessig has never questioned. The Creative
Commons mission of allowing producers the
"freedom" to choose the level of restrictions
for publishing their work contradicts the
real conditions of commons-based production.
Lessig's use of DJ Dangermouse and Javier
Patro as examples to promote the cause of
Creative Commons is an extravagant dishonesty.
A similar dishonesty is present in Lessig's
praise of the Free Software movement because
its architecture assures everyone (technologically
as well as legally, in the form of its licenses)
the possibility to use the common resource
of the source code. Despite its claim to be
extending the principles of the free software
movement, the freedom Creative Commons gives
to creators to choose how their works are
used is very different from the freedom the
GPL gives to users to copy, modify and distribute
the software as long as the same freedom is
passed down. Stallman recently made a statement
rejecting Creative Commons in its entirety
because some of its licenses are free while
others are non-free, which confuses people
into mistaking the common label for something
substantial when in fact there's no common
standard and no ethical position behind the
label. Whereas copyleft claims ownership legally
only to relinquish it practically, the references
to ownership by Creative Commons is no longer
an ironic reversal but real. The pick and
choose CC licenses allow arbitrary restrictions
on the freedom of users based on an authors'
particular preferences and tastes. In this
sense, Creative Commons is a more elaborate
version of copyright. It doesn't challenge
the copyright regime as a whole, nor does
it preserve its legal shell in order to turn
the practice of copyright on its head, like
copyleft does.
The public domain, anticopyright and copyleft
are all attempts to create a commons, a shared
space of non-ownership that is free for everyone
to use. The conditions of use may differ,
according to various interpretations of rights
and responsibilities, but these rights are
common rights and the resources are shared
alike by the whole community – their use
is not decided arbitrarily, on a case by case
basis, according to the whims of individual
members. By contrast, Creative Commons is
an attempt to use a regime of property ownership
(copyright law) to create a non-owned, culturally
shared resource. Its mixed bag of cultural
goods are not held in common since it is the
choice of individual authors to permit their
use or to deny it. Creative Commons is really
an anti-commons that peddles a capitalist
logic of privatization under a deliberately
misleading name. Its purpose is to help the
owners of intellectual property catch up with
the fast pace of information exchange, not
by freeing information, but by providing more
sophisticated definitions for various shades
of ownership and producer-control.
What began as a movement for the abolition
of intellectual property has become a movement
of customizing owners' licenses. Almost without
notice, what was once a very threatening movement
of radicals, hackers and pirates is now the
domain of reformists, revisionists, and apologists
for capitalism. When capital is threatened,
it co-opts its opposition. We have seen this
scenario many times throughout history – its
most spectacular example is the transformation
of self-organized workers' councils into a
trade union movement that negotiates legal
contracts with the owners of corporations.
The Creative Commons is a similar subversion
that does not question the "right" to private
property but tries to get small concessions
in a playing field where the game and its
rules are determined in advance. The real
effect of Creative Commons is to narrow political
contestation within the sphere of the already
permissible.
While narrowing this field of contestation,
Creative Commons simultaneously portrays itself
as radical, as the avant-garde of the battle
against intellectual property. Creative Commons
has become a kind of default orthodoxy in
non-commercial licensing, and a popular cause
among artists and intellectuals who consider
themselves generally on the left and against
the IP regime in particular. The Creative
Commons label is moralistically invoked on
countless sites, blogs, speeches, essays,
artworks and pieces of music as if it constituted
the necessary and sufficient condition for
the coming revolution of a truly "free culture."
Creative Commons is part of a larger copyfight
movement, which is defined as a fight to keep
intellectual property tethered to its original
purpose and to prevent it from going too far.
The individuals and groups associated with
this movement (John Perry Barlow, David Bollier,
James Boyle, Creative Commons, EFF, freeculture.org,
Larry Lessig, Jessica Litman, Eric Raymond,
Slashdot.org) advocate what Boyle has called
a smarter IP, or a reform of intellectual
property that doesn't threaten free speech,
democracy, competition, innovation, education,
the progress of science, and other things
that are critically important to our (?) social,
cultural, and economic well-being.
In an uncanny repetition of the copyright
struggles that first emerged during the period
of Romanticism, the excesses of the capitalist
form of intellectual property are opposed,
but using its own language and presuppositions.
Creative Commons preserves Romanticism's ideas
of originality, creativity and property rights,
and similarly considers "free culture" to
be a separate sphere existing in splendid
isolation from the world of material production.
Ever since the 18th century, the ideas of
"creativity" and "originality" have been inextricably
linked to an anti-commons of knowledge. Creative
Commons is no exception. There's no doubt
that Creative Commons can shed light on some
of the issues in the continuing struggle against
intellectual property. But it is insufficient
at best, and, at its worst, it's just another
attempt by the apologists of property to confuse
the discourse, poison the well, and crowd
out any revolutionary analysis.
ATTRIBUTION: This text developed out of a
series of conversations and correspondences
between Joanne Richardson and Dmytri Kleiner.
Many thanks to all who contributed to its
production: Saul Albert, Mikhail Bakunin,
David Berry, Critical Art Ensemble, Johann
Gottlieb Fichte, Michel Foucault, Martin Fredriksson,
Marci Hamilton, Carla Hesse, Benjamin Mako
Hill, Stewart Home, Dan Hunter, Mark Lemley,
Lawrence Lessig, Karl Marx, Giles Moss, Milton
Mueller, Piratbyran, Pierre-Joseph Proudhon,
Toni Prug, Samuel Richardson, Patrice Riemens,
Mark Rose, Pamela Samuelson, the Situationist
International, Johan Soderberg, Richard Stallman,
Kathryn Temple, Benjamin Tucker, Jason Toynbee,
Tristan Tzara, Wikipedia, Martha Woodmansee,
Wu Ming.
Berlin, 2006. Anticopyright. All rights dispersed.
