JILT 2005 Issue 2 & 3 - Between Commodification and ‘Openness’
Between Commodification and 'Openness': The Information Society and the Ownership of Knowledge
Professor of Political Economy, Department of Politics and International Relations, Lancaster University
In this paper I explore how commodification in the newly emerged information society undermined what was once a popular claim that ‘information wants to be free’. However, in the last couple of years the (re)exploration of ‘openness’ as a model for information and knowledge exchange, building on the example of work in the software sector, helps us recognise a countervailing dynamic to commodification that has emerged within the ‘information society’. While it is unlikely that all information will ever be free, it is now also clear that it is equally unlikely that the commodification of knowledge and information can ever become complete, nor even continue as it has in the last decade. As so often in the history of intellectual property the key is balance; a balance between commodification and openness.
Keywords: Commodification, intellectual property rights, openness.
This is a refereed article published on: 30 January 2006.
Citation: May, 'Between Commodification and "Openness": The Information Society and the Ownership of Knowledge’, 2005(2-3) The Journal of Information, Law and Technology (JILT). <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2005_2-3/may/>.
For at least four decades the information revolution has been heralded as imminent. Since Fritz Machlup, in his groundbreaking study The Production and Distribution of Knowledge in the United States (published in 1962), first suggested that knowledge and information were the resources that would underpin the next stage of societal development, there has been no shortage of analysts arguing that we are emerging into a bright new ‘information society’ (1). Here I briefly explore how commodification in this (so-called) information society undermines claims that ‘information wants to be free’, popular in the 1990s. Conversely, in the last couple of years the (re)exploration of ‘openness’ as a model for information and knowledge exchange, building on the example of work in the software sector, suggests that there may be a countervailing dynamic to commodification that has emerged within the ‘information society’.
To explore this question, in the first section I briefly explore the key functions of intellectual property rights (IPRs) and suggest that this commodification establishes intellectual property as the legal form of the information society. In this information society, information and knowledge are organised in forms that are amenable to market relations, distorting previous societal engagement with knowledge and/or information. In the second section I set out the emerging alternative of ‘openness’, before examining the relationship between these two dynamics, by relating this to the political economic history of intellectual property. Finally, this leads me to examine the pressures on, and supports for, the public domain of knowledge and information dissemination, use and (re)deployment. While it is unlikely that all information will ever be free, it is equally unlikely that the commodification of knowledge and information organised along capitalist lines can ever become complete. As so often in the history of intellectual property the key is balance.
Since 1995 intellectual property rights have been subject to the Trade Related Aspects of the Intellectual Property Rights (TRIPs) agreement which is overseen by the World Trade Organisation (WTO). This agreement does not determine national legislation, but for members of the WTO to be TRIPs-compliant their domestic intellectual property law must support the protections and rights that are laid out in TRIPs’ 73 articles. As well as including general provisions and basic principles, TRIPs also represents an undertaking to uphold certain standards of protection for IPRs and to provide legal mechanisms for their enforcement; for the first time a multilateral trade agreement has required the amendment and revision of states’ domestic legislation. Additionally, the WTO’s robust dispute settlement mechanism encompasses international disputes about IPRs. Prior to 1995, although there were long standing multilateral treaties in place regarding the international recognition and protection of IPRs, overseen by the World Intellectual Property Organisation (WIPO), these were widely regarded as toothless in the face of ‘piracy’ and the frequent disregard for the protection of non-nationals’ intellectual property outside the most developed countries (and even sometimes between them) (2). Here, however, I will focus more generally on the processes and practices that compliance with TRIPs makes potentially universal, although currently the global harmonisation of IPR-law is uneven and incomplete.
The most important role that IPRs play generally, and specifically of importance in an ‘information society’, is the formal construction of scarcity (related to knowledge and information use) where none necessarily exists. Unlike material things, knowledge and information are not necessarily rivalous, co-incident usage does not detract from utility; with certain exceptions (such as the use of trademarks to identify makers of goods) the deployment of knowledge and information resources by multiple users does not detract from is usefulness, nor diminish the quality or quantity of such resources. In this sense, usually knowledge (before it is made property) does not exhibit the characteristics of material things before they are made (legal) property: knowledge is not naturally scarce in the same way materially existing things are. Where there are information asymmetries then advantage may be gained by keeping information ‘scarce’ (i.e. reducing its circulation), but this seldom serves the wider social good. Thus, as it is difficult to extract a price for the use of non-rival (knowledge) goods, a legal form of scarcity (IPRs) is introduced to ensure a price can be obtained for use.
Although predicated on the notion of individual creators’ and innovators’ rights, most IPRs are owned and exploited not by innovating individuals but rather by commercial enterprises. Individual innovators either find they are unable to exploit their innovations due to the ‘work-for-hire’ provisions of their employment contract that ensures their work is owned by their employer; or if independent, they find that in a modern and complex economic system, their only hope to exploit their invention or creation for monetary gain is to transfer the rights over its reproduction (or manufacture) to a corporation with extensive financial and organisation resources. In both cases corporate actors gain control of these IPRs. Furthermore, a significant element of IPRs is not the freedom for an individual rights holder to do something or not to have something done to them, but rather is the owner’s ‘right’ to halt certain rights’ infringing behaviour by others, beyond the traditional property right against physical trespass. Thus, IPRs establish owners’ right to halt others’ actions at a distance, even when such actions produce no loss to social utility for owners (although such infringements clearly have a commercial impact). Although these limitations on use have always been circumscribed by the assertion of public benefits in most IPR-legislation, these (commercial) rights still have a significant effect on the rights of others. For example, due to the costs of medicines, there is a clear tension between the rights of AIDS-patients to receive life-extending drug treatments and the rights of multinational pharmaceutical companies to receive financial rewards for the utilisation of their patents.
It is important to remember that even material property in a legal sense can only be what the law says it is, it does not exist waiting to be recognised as such, but rather is the codification of particular social relations, those between owner and non-owner, reproduced as (property) rights. Many years ago Walter Hamilton remarked that it has always been ‘incorrect to say that the judiciary protected property; rather they called that property to which they accorded protection’ (quoted in Cribbet 1986, p.4). But, whereas material property rights merely codify the existing materiality of things (and their relations of possession), IPRs transform the existence of that which they encompass. There is an important difference between property in knowledge and information, and material property. As Arnold Plant put it, unlike ‘real’ property rights, patents (and other IPRs)
are not a consequence of scarcity. They are the deliberate creation of statute law; and, whereas in general the institution of private property makes for the preservation of scarce goods, tending (as we might somewhat loosely say) to lead us ‘to make the most of them’, property rights in patents and copyright make possible the creation of scarcity of the products appropriated which could not otherwise be maintained. Whereas we might expect the public action concerning private property would normally be directed at the prevention of the raising of prices, in these cases the object of the legislation is to confer the power of raising prices by enabling the creation of scarcity (Plant 1934, p.31).
This protection of rights for the express purpose of raising prices is, of course, central to the ‘problem’ of commodification in the information society, and most specifically the relationship between the realm of the ‘knowledge commons’ and the market exchange of knowledge-related resources.
As part of the early history of capitalism, the feudal notion of commonly held land, utilised and enjoyed jointly rather than parcelled out through ownership, was progressively destroyed. By ‘enclosing’ lands previously held in common, land-owners claimed such land as their property, and by so doing denied the more diffused social claims linked to the previous (often traditional rather than formal) common tenure. This was a process that took place over a number of centuries (in Britain between the Fifteenth and Eighteenth centuries), and was a violent and often contested social transformation (Wood 1999, p.83-84). In the realm of knowledge it has been a little different; the collective (free) commons of knowledge are not amenable to comprehensive commodification. Both the social, and technical, limits to commodifying language, for instance, are insurmountable; to make language property would be to effectively halt free thought, and thus destroy humanity. The knowledge commons therefore, distinct from knowledge or information that intellectual property has rendered as scarce property, have been recognised (implicitly) in law since early forms of IPRs were initially codified in Renaissance Venice. Indeed, limits on the period of protection, making intellectual property temporary, are used to put socially useful knowledge into these commons once a suitable reward to an innovator has been achieved.
This limitation on the duration of IPRs recognises that much ‘new’ knowledge draws extensively from the extant pool of information and knowledge represented by these commons, and thus it should (indeed, must) contribute to the renewal of such common (informational) resources if the development of the human stock of knowledge is to continue. Although such commodification was originally (and into the Seventeenth and Eighteenth centuries) regarded as a privilege accorded only in certain specified circumstances, and included various duties/responsibilities of dissemination, the subsequent history of intellectual property has seen these privileges eventually gain the status of rights (May and Sell 2005). These rights construct a scarcity of legitimate use that is far from natural, or self-evidently beneficial to all.
This is not to say that the recognition of a public regarding interest in the limitation of commodification is absent from national legislation, or from the multilateral agreements (such as the TRIPs agreement or European directives) that increasingly shape and inform national legislative structures; often there is a formal recognition of the need to maintain a public domain of knowledge and information. However, as Phillipe Cullet has argued ‘the interests of society at large figure more as an addition to - or even as an exclusion from - the rights provided’ than as a central organising issue for these undertakings (Cullet 2003, p.152). Indeed, I would go further: the public good is now often only recognised as a residual after all other possible (private) rights have been exercised. Any public regarding aspect of IPRs is subsumed beneath the privileged role of commodification and market exchange.
Given the role that information and knowledge is now regarded as playing within the new social and economic practices that underpin the emergence of the ‘information society’ these questions of commodification and the control of informational resources have become increasingly important. The importance of controlling and exploiting information and knowledge resources for profit, mean that the key social relations in the information society, between those who own the key resources and those who only own their (intellectual) labour to work on these resources, as throughout contemporary capitalism, are expressed through the form of property relations. The key resource in the information society is controlled and accumulated through the operation of IPRs and thus, IPRs are the legal form through which the economic structures of the information society are established.
However, not only does this legal form establish the parameters of social relations in the information society (between those holding and controlling important resources, and those wishing to access these resources to work and live), information and knowledge themselves are distorted by commodification. The mobilisation of a property logic renders information and knowledge as separable modules that can be bought and sold, rather than as part of a complex and multifaceted resource. Indeed, by rendering knowledge and information as property their organic socially-embedded character is denied and each ‘property’ is rendered as a technical resource that can either be deployed or not (depending on whether a price has been paid). This can have a severe wealth effects (as has been demonstrated by the issue of access to patent-protected AIDS medicines in developing countries), and as such often may place the rights of ‘owners’ to receive payment above the human rights of those who may need informational or knowledge-related products but do not have the wealth to pay for them. Social disembedded knowledge becomes subject to the power to withhold access (a key property right) and thus forms an integral element of political economic power in an information society. Knowledge that is compartmentalised into units can be controlled separately, and thus power over users can be expanded by limiting contracted uses, as is clearly already happening with the deployment of Digital Rights Management software in the content and software sectors (May 2003). Thus, the social disembedding of knowledge and information often leads to under-use as flows are constrained by market transactions (they are no longer free – both in monetary terms and in the sense of being unrestricted).
Here the controls put upon software are emblematic. Users of software that is protected by IPRs are forbidden from amending the software for their own purposes; a complex informational tool is rendered as a black box that must be passively consumed, and similar limitations on use are evident throughout the information society. Although consumers are usually seen as passive actors, merely consuming intellectual products, consumers are often (if not always) active in their practices and use of knowledge and information resources. Consumers frequently want to use products in complex ways: they may use them to communicate ideas or messages to others (perhaps by circulating items they found interesting, or by critically amending texts to clarify an argument); they may want to rework these products for their own circumstances (related to their own usage patterns); indeed they may want to add various products together as part of a process of self expression, or to build new solutions to particular problems they encounter (3). However, many ‘owners’ see active consumers as a threat to the sanctity of their rights of control over the intellectual artefacts concerned.
Famously as the Internet spread from the universities into wider society, many commentators, of which John Perry Barlow is perhaps the best known, asserted that in this new age ‘information wanted to be free’. However, as the domain of communication represented by the Internet became more and more commercialised, the demand for the recognition of IPRs became (and continues to be) a major concern for corporations seeking to exploit this new medium for profit. Far from information wanting to be free, the key players want to ensure it is owned (by them). Although the practices of free exchange of information and knowledge had a long pedigree in the university and software communities, commercialisation, and specifically the rise of e-commerce, compromised this initial idealism. Nevertheless, the idea that information flows should be unencumbered by the restrictions of property rights was not defeated, nor forgotten. Indeed it is the problem of control and ownership of information and knowledge that has prompted an interesting social reaction, based in part on a return to the principles and practices of the technology that more than any other can be seen as foundational to this most recent technological revolution (4).
In software development, for some time a conflict has been shaping up between two approaches regarding how new technologies or tools are developed and marketed. At its simplest this is an argument between a proprietary model (based on the ownership of intellectual property) and an open source model (that denies the utility or legitimacy of owning) (5). The key issue for open source advocates is the liberty to access the source code of software (its underlying architecture), with the connected freedoms to copy, modify, distribute and/or share software with others, without the limitations that constrain such activities under proprietary software licenses. Supporters of open source argue that the treatment of software’s source code as property obstructs co-operative working between developers and constrains, or even halts, subsequent improvements (de-bugging). Indeed, much of the interest in open source practice is a reaction to the inability of software developers and technicians to legally take apart (reverse engineer) proprietary software to fix problems that emerge through use. In contrast open source software allows a continuing process of improvement, as well as free use.
Supporters of open source are not necessarily anti-capitalist, rather they advocate something that is differently capitalist; the role of money and ownership is acceptable and even desirable outside the core realm of the software code, but not within it (6). As Maura Lendon notes: ‘The profit proposition for LINUX business is primarily in the associated products and services’ (Lendon 2001, p.194) (7). For open source advocates software business models should have more in common with language schools or dictionary publishers, providing services based on a freely available central resource (language), rather than seeking to control the basic resource itself. Guides and manuals are usually covered by normal copyright provisions, company logos and other marketing devices may be trademarks, but the underlying software itself remains free; open source and free software advocates resist the ownership of the basic tools that enable ICTs to work. As Mathias Klang puts it; ‘To lose control of software and to become dependent on the private property of others is tantamount to the loss of water rights, becoming dependent on the goodwill of others’ (Klang 2005). The control of software is not merely the control of a specific product through IPRs, but rather is the rendering of a vital social resource into private property.
Perhaps more cynically, Johan Söderberg (2002) suggests the desire to reduce costs (specifically, by accessing the free labour of the open source community) places open source business activity squarely within the traditional practices of capitalism (again differently-, rather than anti-capitalist). Capitalists have always, understandably, sought to reduce the costs of their inputs and thus utilising open source software may be one way of doing this (where specific companies calculate that the saving outweighs the advantages of the monopoly controls that intellectual property protection offers). Free and open source software vendors, having lower software input costs than their proprietary competitors, are able to profit from the normal users lack of developed software skills and knowledge, serving an extended market for support materials and manuals. The uptake of LINUX by some major industry players (IBM, Hewlett-Packard, Sun) underlines that there is nothing inherently destructive of capitalism in the character of open source-related products or services.
Furthermore, although these non-proprietary approaches do not suppose that individuals must be incentivised by rewards based on formal ownership, the logic of open source does not discount reward itself, nor the question of incentives. Open source programmers have earned money through selling enhanced services alongside their basic software, although they have also often depended on the ‘kindness of strangers’ to voluntarily contribute financial support. More generally, rather than focussing on financial returns, open source stresses its significant reputational benefits: because many programmers also work in the proprietary sector, esteem earned through non-proprietary work, can often help them advance their careers in the proprietary sector (de Joode et al 2003, p.40-41). Thus, there is a growing symbiotic relationship between the proprietary and non-proprietary software sectors with frequent migration between the two, or even simultaneous working on both sides of the supposed divide. Capitalising on their reputation in the open source realm, developers may get better jobs in the mainstream sphere, but equally many large companies allow their developers to work on open-source and free software (and not merely in the public or not-for-profit sector), letting these companies access up-to-date open innovations.
The non-proprietary model of software development is not a recent occurrence: in the early years of computer development source code was shared and work was collaborative and essentially unowned. However, after the US Department of Justice prosecuted IBM for anti-trust violations in the 1970s, the use of software and hardware was separated, allowing a distinct software industry to develop which sought to ‘own’ software’s code, so as to profit from it. This prompted Richard Stallman and others to establish the Free Software Foundation to attempt to keep software free from ownership. With some legal advice, Stallman produced what he regards as his ‘greatest hack’; the General Public License (GPL) sometimes referred to as ‘copyleft’ (Moody, 2001, p.26-27; de Joode et al 2003, p.8-9). The GPL permits the user to run, copy or modify software programmes’ source code, and if they so wish, to distribute versions of a programme. However, this does not allow them to add restrictions of their own and hence firmly places these programmes in the public realm, ensuring that they cannot be subsequently commodified or rendered as private intellectual properties (8). Open source replaces a property right to exclude with one that is a right to distribute (Weber 2004, p.228). It is this right to distribute, which when utilised serially by different actors produces an increasingly widely available resource from any specific original innovation.
The advantages of openness are not only related to the development and utilisation of software tools; as many of the Internet’s early celebrants fervently hoped the value of ‘openness’ is also now being (re)asserted as regards the availability of scientific and other information (Mulgan, Steinberg and Salem 2005). In the realm of biomedical research, the shift to open access publishing of results has been perhaps most pronounced, partly because the already high costs of research are compounded by the high costs of journal subscriptions. This reflects access concerns that are central to the politics of information in the information society. The crucial argument mobilised by the supporters of open academic publication, such as the Wellcome Trust and many Universities, has been that as most published research is funded by taxpayers (in various ways) there seems little justice in having to pay again to have such information disseminated to the public-sector community served by most specialised scientific journals (May 2005).
Already, many academics, writers and commentators circulate work in progress over the Internet, and much work that will subsequently appear in normally published outlets appears either as working papers or as pre-print versions of articles. Although there are few if any mechanisms that allow the quality of work to be independently judged, increasingly the notion of open comments and rankings appearing alongside the original publication are gaining ground as an open quality control device (Mulgan, Steinberg and Salam 2005, chapter five). This reputational system has been popularised by E-Bay and Amazon as a way of assessing both suppliers and products, and has potential to act as a way of establishing reputational value for open knowledge resources (Naughton 2005). Much academic work already circulates freely around the Internet and URLs are used to draw attention of colleagues to particularly useful or valuable ‘publications’. The spread of the weblog as a form of publication is merely the most publicly visible trend outside the academy of a process that has already seen in the last decade a shift to more and more information available on-line. However, some authors have started to worry that the circulation of work over the Internet might allow unscrupulous users to incorporate this freely accessible work into commercial products and profit from this reproduction; there remains the ever-present possibility of commodification.
The development of the ‘creative commons’ licence, is one response to this concern, where producers of information and/or knowledge want to secure widened access, but want to retain some control over their work. ‘Creative commons’ licences, similar to the GPL, allow distributed usage of content, but also, importantly, do not allow its subsequent commodification (or ‘enclosure’) when used in other contexts (9). The licence is formulated as a menu of options as regards the extent of open access that an author might wish to allow: it allows a selection from a series of increasingly greater ‘freedoms’ to use, modify and distribute. Championed by Lawrence Lessig, this model for content distribution is being actively promoted by a number of groups interested in the public domain and is a key element of the Open Society Institute’s information programme in Eastern Europe. By the first quarter of 2004 (less than a year after its launch) nearly half a million pages on the Internet had utilised this licence to allow various levels of open access and use (Lessig 2004, p.11), and in the subsequent year the number of pages available has exponentially expanded. For those who wish to add to the global stock of internet-accessible information and/or knowledge this model is likely to be increasingly important.
This expansion of the idea of ‘openness’ is partly a manifestation of the continuing development of ICTs and specifically the growing reach of the Internet and its associated technologies. However, these technical developments while clearly facilitative of the countervailing move against IPRs cannot be seen as its direct cause. Rather, and this is explicit in the software community where many of the ideas about openness have been reinvigorated, the appeal of openness is a direct response to the shift to more trenchant protection of IPRs in the post-TRIPs decade. The desire by ‘owners’ to protect their rights through technical means utilising Digital Rights Management (10), and through the courts (with, for instance, record companies suing music downloaders) has prompted a reaction against such expansive expressions of owners’ rights. Those who seek access to knowledge and information have responded to this expanding commodification by seeking ways (both technical and social) to undermine the rendering of knowledge as a passive and marketable resource (or product).
Openness enables those engaging with information and knowledge to amend and redeploy such resources as they see fit, and indeed this is how knowledge has been used throughout human history. The commodification of specific aspects of this resource to enhance its commercial exploitation has always fulfilled some key social goods (not least of all the support for commercialising ideas/creations and thereby allowing their wider distribution). However, historically these rights have also been balanced by the political realisation of the need to maintain an open realm (the public domain) of knowledge. The attempts by owners to consolidate and expand the scope of their private privileges has served to emphasises the value of openness; a value which until it was severely threatened had been less obvious than it might have been.
Certainly the call to ‘openness’ builds on the desire to maintain a public good, alongside the more selfish reputational motivation that can often be discerned in those contributing to open resources, but despite the rhetoric of both its supporters and critics the practice does little to challenge the overall capitalist model of social organisation. The declaration of ‘openness’ as regards knowledge and information is a direct response to one specific form of commodfication, but can also be mobilised against the expansion of the scope of intellectual property into new realms (of which genetic information is probably the most obvious case in recent years). Over its five hundred year history a series of debates have continued regarding the balance within intellectual property between the public realm and the private rights of the ‘owners’ of knowledge and information (11). The public realm of information (now often called the ‘knowledge commons’) has always been fed by knowledge and information that is no longer protected by time-limited IPRs; both patents and copyrights are rights with legally limited duration. And once they have become part of the public domain they are not available for fresh appropriation, but rather are permanently lodged in these (knowledge) commons. In this sense, the call for ‘openness’ is the most recent development in an ongoing political history, but this is in no sense to under-value or down-play the importance of this countervailing trend.
Over the course of the five hundred years of formal legislative history, the duration and scope of IPRs accorded to ‘owners’ have been the main arenas for the political negotiation of a balance between private rights and public benefits. From the very limited range of conditional privileges carved out from a more general limitation on monopoly at the beginning of this period, this history has included repeated attempts by owners to establish perpetual rights, but at other times has seen the severe limitation of the forms of knowledge and information that could be commodified at all (a narrowing of IPR’s scope). Most recently, the last decade has seen the consolidation at the level of global governance of a specific and owner-privileging legal settlement, one that has shifted these debates (once again) in a direction that has enhanced and expanded the protections available to owners of IPRs (May and Sell 2005, chapter seven). However, this much criticised global settlement has not completely destroyed nor fatally compromised the notion, nor the actuality, of the public realm of free knowledge and information.
At the same time, it seems unlikely that the whole of contemporary society could be patterned by the logic of ‘openness’, not least as the profound upheavals required to restructure society’s generalised political, economic and legal structures in this way would be essentially revolutionary. Indeed, it is also necessary to recognise that in many (but by no means all) circumstances, IPRs reward commercial activities that facilitate and support the widened circulation (and use) of creativity and innovation. This should not be regarded as the testimony of despair; the political programme of ‘openness’ can as easily be a reformist programme, a struggle of tactics rather than a grand strategic push to rid society of (intellectual) property, or prompt the downfall of capitalism. This is to say, there is much to be gained by incremental challenges to specific modes of ‘enclosure’ that are worthwhile on their own, however they might fit with a wider (more general) reformation of information capitalism; the open publishing of scholarly work (perhaps using creative commons licences) or the adoption of open source software at home (using Firefox perhaps) can both contribute to wider changes, for instance.
In this sense, rather than an either/or proposition, we can see a more fluid set of possibilities, reflecting pragmatic choices within the socio-economic relations of the growing (increasingly global) information society. ‘Openness’ can act as a ‘countervailing force’ in information society, balancing the more outlandish and excessive claims to property rights. The key to the successful development of something that resembles the early positive ideas of the information society, and thus something that reigns in the more pernicious aspects of a rampant information capitalism, may be the conjunction of ownership and ‘openness’ in an ongoing dialectical relationship, each modifying and depending on the other. Indeed, de Joode et al (2003, p.113-115) see this as the key role that government can play in this realm; ensuring that there is a suitable and publicly beneficial balance between the proprietary model and the open model. Although, the focus of de Joode et al’s study was on software there is no reason why such a balancing role might not be more general within the realm of knowledge and information (12).
Certainly this may be a reformist agenda, but it recognises both the continuing strength of the dominant regime of IPRs, as well as understanding the limited (although still important) challenge represented by ‘openness’; the dialectic between these two poles may be volatile and subject to political challenge and contest, but this in itself may be its main appeal: a process of continual balancing, seen as a process, not as an end, allows shifts in social needs and interests to be articulated and mediated. This is preferable to the domination of the ‘one-size-fits-all’ logic of IPRs, and also importantly reflects the historical development of the limitations to the rights accorded intellectual property owners. However, the social forces that support the currently dominant justifications for the protection of IPRs cannot be discounted, and nor are they ignoring the challenge. The WIPO, alongside a number of other agencies, has deployed extensive resources in capacity building and technical assistance to support and further the global governance of IPRs (May 2004). Furthermore, corporations in the software and pharmaceutical industries (to name but two) have been instrumental in shaping the political positions adopted by governments on intellectual property. While this political power can certainly be contested by other groups, the wealth and influence of industries that will benefit from the continued expansion of intellectual property far outstrips those who oppose this position with demands for ‘openness’.
Although earlier commentary on the Internet and its possibilities tended to assume that there was some sort of technological inevitability that would free information from the shackles of property, the last decade has demonstrated that the protection and expansion of the information commons is a political project requiring extensive agency. Indeed, as Yochai Benkler has warned:
There is no benevolent historical force, however, that will inexorably lead the technical-economic moment to develop towards an open, diverse, liberal equilibrium. If the transformation [into an open economy of information] occurs, it will lead to substantial redistribution of power and money from the twentieth-century producers of information, culture and communications – like Hollywood, the recording industry and the telecommunications giants – to a widely diffuse population around the globe. None of the industrial giants of yore are going to take this redistribution lying down (Benkler 2003, p.1249).
In other words, the supporters of a knowledge commons are going to have a fight on their hands. The notion of sharing rather than owning, of open access rather than gatekeeping has nonetheless begun to establish a social presence that suggests at the very least it will offer a clear alternative to the modes of relatively comprehensive commodification that continue to dominate the markets for new and innovative knowledge and creation.
As de Joode et al (2003, p.86-91) note, there are a number of direct strategies that can be used to protect and nurture the public domain (and again these can be generalised from their immediate focus on software). Firstly, there is the simple boycott of proprietary ‘products’ that has already been gathering pace in software procurement, but we might also recognise in the widened visibility of ‘blogging’, indymedia and other forms of open access dissemination. This reflects the continuing development of alternative models that are inspired by the ‘logic’ of openness.
This first strategy is perhaps best represented outside the realm of software by the Wikipedia . The Wikipedia in one sense reinvents the notion of mutualism; supported by a foundation that invites donations from users, it seeks to develop an open resource. However, like LINUX, it is far from anarchic or ungoverned; it is not the happy outcome of spontaneous unorganised activity that some utopians might hope for. Rather, the openness of the Wikipedia has clear limits: not only do a small team of editors monitor the pages, there has also been at least one case of an imposition of control to halt the site’s own flame-war. The George W.Bush page in 2004/2005 became the site of an extensive and protracted serious of successive (political) reorientations – from critical to supportive and back again. Nevertheless, the Wikipedia does suggest that open resources can be built where there is both the political will, and the available resource (here a business fortune invested in a foundation) that can support open access without the need to develop a user-funded model.
Secondly, there is also some advantage outside the realm of software in following the strategy adopted by the Free Software Foundation; looking to convince companies that adopting the open model may actually be a viable future business strategy (and indeed this might be related to the give-away-the-razors-charge-for-the-blades model often deployed in other markets). Finally, and perhaps most obviously is the need for authors and other information or knowledge developers to take advantage of the free and open access avenues available to publish their work outside a proprietary network; this is already happening in the academy and in other realms of knowledge production (May 2005).
Finally, it as well to stress that although openness is a valuable corrective to the over-arching rhetoric of ownership rights, it is not a replacement for the IPR system. Rather it works best as a reminder that within a globalised capitalist (information) society, there needs to be a carefully wrought balance between the rights of private owners and the benefits and access that can be legitimately demanded by a wider public. In this sense, we must place the call for openness in a longer historical context than the recent (so called) information revolution. This is useful firstly because it allows the call for openness to be seen as a legitimate and constructive part of an on-going political-legal history of negotiation of the realm of IPRs. And secondly, and flowing from this point, it enables us to recognise the self-interested arguments of the ‘owners’ as also part of an historical crusade towards the widest rights possible. This recent emphasis on private rights unfortunately sometimes forgets that IPRs have always been a legislative mechanism to utilise private rewards (to support creativity and innovation) for a greater public good. As has always been the case, the key is balance, and openness is the contemporary manifestation of an historical tendency for resistance to emerge when the privileges and rights claimed by owners inflict onerous and unacceptable costs (and duties) on non-owners.
(1) This literature is discussed at some length in May (2002).
(2) Space precludes a detailed account of TRIPs numerous sections; Keith Maskus (2000, chapter two) offers a good concise summary of the agreement, as does Matthews (2002, chapter three) but also see the discussion in May and Sell (2005: chapter seven).
(3) For an extensive discussion of the issue of active consumerism and its frequent denial by IPR-owners see Liu (2003).
(4) In parallel to the debates around the enclosure of the ‘knowledge commons’, especially in the USA, there has been a significant recent movement examining and criticising the commodification of other commons (ranging from Federal drug research to Public Natural Resources), see Bollier (2003) for an overview of these wider concerns.
(5) In the account in this chapter I have for rhetorical purposes conflated the considerable philosophical differences between the free software, and the open source movements, as they both share an antipathy towards IPRs, however although their approaches to the problem draw on similar initial arguments they have developed in quite different ways, see for instance Klang (2005). It is clear that some elements of the Free Software movement do conceive themselves as offering an anti-capitalist, non-property alternative that should be applicable throughout society. However, this is a minority position that is most often drowned out by the more common reformism described in the main text of this chapter.
(6) Here I differ from a relatively famous earlier analysis of free software that celebrated its anarchist credentials, see Moglen (1999).
(7) The LINUX operating system is perhaps the most famous of all open source programmes.
(8) See St.Laurent (2004) for an excellent guide to the practical issues around the deployment of the GPL and other open source and free software licences.
(9) See <http://www.creativecommons.org> for the licence.
(10) I have discussed DRMs at length elsewhere, see May (2003).
(11) This history is related at some length in May and Sell (2005).
(12) See Mulgan, Steinberg and Salam (2005, chapter five, and annex three) for a number of examples of areas where experiments with ‘openness’ can be found.
(13) See <http://en.wikipedia.org/wiki/Main_Page>.
Benkler, Y (2003), ‘Freedom in the Commons: Towards a Political Economy of Information’, Duke Law Journal 52 (6), 1246-1276
Bollier, D (2003), Silent Theft: The Private Plunder of Our Common Wealth (New York: Routledge).
Cribbet, J.E. (1986), ‘Concepts in Transition: The search for a new definition of property’, University of Illinois Law Review, 1, 1-42.
De Joode, R, Van Wende, A, De Bruijn, J.A. and Van Eeten, M.J.G. (2003), Protecting the Virtual Commons (The Hague: T.M.C. Asser Press).
Klang, M (2005), ‘Free Software and Open Source: The freedom debate and itsConsequences’, First Monday 10 (3) (March), available at: <http://www.firstmonday.org/issues/issues10_3/klang/index.html>.
Lendon, H.M. (2001), ‘The Linux Revolution’ Intellectual Property Journal, 15 (1/3), 143-203.
Lessig, L (2004), ‘Commentary: The Creative Commons’. Montana Law Review, 65 (1), 1-13.
Liu, J.P. (2003), ‘Copyright Law’s Theory of the Consumer’. Boston College Law Review, 44 (2), 397-438.
Maskus, K (2000), Intellectual Property Rights in the Global Economy (Washington: Institute for International Economics).
Matthews, D (2002), Globalising Intellectual Property Rights: The TRIPs Agreement (London: Routledge).
May, C (2002), The Information Society: A Sceptical View (Cambridge: Polity Press).
May, C (2003), ‘Digital rights management and the breakdown of social norms’ First Monday 8 (11) (November), available at: <http://firstmonday.org/issues/issues8_11/may/index.html>.
May, C (2004), ‘Capacity building and the (re)production of intellectual property rights’ Third World Quarterly, 25 (5), 821-837.
May, C (2005), The Academy’s New Electronic Order? Open Source Journals and Publishing Political Science. EPS-European Political Science, 4 (1) (March), 14-24.
May, C and Sell, S (2005), Intellectual Property Rights: A Critical History (Boulder: Lynne Rienner Publishers).
Moglen, E. (1999), ‘Anarchism Triumphant: Free Software and the Death of Copyright’ First Monday, 4 (8) (August), available at: <http://firstmonday.org/issues/issues4_8/moglen/index.html>.
Moody, G (2001), Rebel Code: How Linus Torvalds, Linux and the Open Source Movement are Outsmarting Microsoft (London: Allen Lane/Penguin Press).
Mulgan, G, Steinberg, T and Salem, O (2005) Wide Open: Open Source Methods and Their Future Potential (London: Demos).
Naughton, J, (2005) ‘Democracy can be saved – by following Ebay’s example’ The Observer (Business section) 1 May, p.6.
Söderberg, J (2002), ‘Copyleft vs. Copyright: A Marxist critique’ First Monday, 7 (3) (March), available at: <http://www.firstmonday.org/issues/issues7_3/soderberg/index.html>.
St.Laurent, A.M. (2004), Understanding Open Source & Free Software Licensing (Sebastopol, Calif.: O’Reilly Media Inc.).
Weber, S (2004), The Success of Open Source (Cambridge, Mass.: Harvard University Press).
Wood, E.M. (1999) The Origins of Capitalism (New York: Monthly Review Press).