In our P2P Encyclopedia entry on the Creative Commons license, we feature some critical comments from Benjamin Mako Hill and the Debian Foundation, about the insuffiency of the CC-licenses.

Here’s a more recent critique by Dmytri Kleiner, who argues that:

“For free cultural to create a valuable common stock it must destroy the privilege of the producer to control the common stock, and for this common stock to increase the real material wealth of peer producers, the commons must include real property, not just information.”

He explains this in greater detail:

“The questions must be asked: Is the “Creative Commons” really a commons? And in what way is the network really wealthy? Or more specifically, who is in a position to convert the use-value available in the “commons” into the exchange-value needed to acquire essential subsistence or accumulate wealth? Who are the real material beneficiaries of the wealth of the network?

The website of the Creative Commons makes the following statement about it’s purpose:

“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.” [Creative Commons.]

The point of the above is clear, the Creative Commons, is to help “you” (the “Producer”) to keep control of “your” work. The right of the “consumer” is not mentioned, neither is the division of “producer” and “consumer” disputed. The Creative “Commons” is thus really an Anti-Commons, serving to legitimise, rather than deny, Producer-control and serving to enforce, rather than do away with, the distinction between producer and consumer.

The producer is invited by the Creative “Commons” to chose the level of control they wish to apply to “their” work, including such choices as forbidding duplication, derivate works and “commercial” use of the work, specifically providing a framework then, for “producers” to deny “consumers” the right to either create use-value or material exchange-value of the “common” stock of value in the Creative “Commons” in their own cultural production.

This is more than evident by the fact that, even had the Beatles and Gloria Gaynor published their work within the framework of the 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 Creative Commons licences to enforce their control over the use of their work.

Thus, the very problem presented by Lawrence Lessig, the problem of Producer-control, is not in anyway solved by the presented solution, the Creative Commons, so long as the producer has the exclusive right to chose the level of freedom to grant the consumer, a right which Lessig has always maintained support for.

The Creative Commons mission of presenting for the producer the “freedom” to chose the level of restrictions their work is published under stands in distinct and essential contrast to the mission of advocates of commons-based production: The denial of the distinction of producers and consumers, and the denial of the right of Producer-control of the common stock.”

Conclusion (Michel Bauwens): this is an interesting critique, and shows some of the underlying differences between the free software license philosphy and the CC-options. However, I personally think that any move to build a commons-based free culture should be based on the voluntary decisions of the producers of content, and this is what CC-provides.

Furthermore, its very uptake by millions has ‘in practice’, given an incredible extension to free culture and the information commons, while the possibility to exclude commercial exploitation, does give the producer an added possibility to create an eventual income.

In our next installment, we reproduce D. Kleiner’s critique of Yochai Benkler, where he makes an opposite, and perhaps contradictory criticism, that Benkler does not provide for the sustainability of peer production.