Photo by Ron Guest

1. Versions Of Culture

Nothing, beyond the natural world happens ‘outside of culture’ and even our basic elements of existence — atoms, cells, time, chemistry, etc can be fundamentally manipulated and altered by it. For that reason, defining what we mean by ‘cultural’ always needs classification, like Cultural Commons (everything we do, make and say and, crucially, share ), Cultural Democracy (how we hold the power we have to make, say, do, share/not share) and Cultural Industry (how we give service to each other, by association) are equally all encompassing.

“Art and culture make life better, help to build diverse communities and improve our quality of life. Great art and culture can inspire our education system, boost our economy and give our nation international standing.” says the Arts Council’s website, before they offer a hashtag to explain why #culturematters…

There are differing representations of culture from sociology to ‘the arts’ to online versions, to a ‘commodified’ sense of ‘cultural heritage’, which has been generated to ‘drive growth’, we are told…

But it’s clear that culture IS our economy; it IS our education system and our ‘international standing’. In no way is ‘culture’ distinct from ‘the economy’. Equally clearly if it actually IS these things, it has to be more than just an instrument through which they are ‘improved’. At the root of our usage of the word ‘culture’ is a reference to how we grow stuff; in other words, how we produce versions of culture; businesses, buildings, stories, institutions, whole areas of ‘science’ and ‘art’; how, in fact, we reproduce ourselves in every way bar the absolutely fundamentally biological one (and culture has much to say about that too!).

‘Art’ may ‘make life better’ or even ‘help build communities and quality of life’ and we might even want to agree that some art is ‘great’ — or not. Saying the same of culture is a very different proposition. Culture isn’t a ‘means’, or an incentive, or an ‘inspiration’ or a ‘driver’. Nor is any artefact ‘culture’ in any way that any other artefact is not ‘culture’. You can’t ‘have culture’ — or not. It is all culture. I hope we can establish that as broadly agreeable. If it’s not animal, vegetable or mineral or any other naturally occurring phenomena — it’s culture. OK…?

If that’s established — ? — , I’d like to move on to one of the other few things of almost equal ubiquity and central to all cultural production: Creativity. Without this, culture is static. If Culture is the arena in which we recreate ourselves, creativity is, at some level, the means by which we do it.

Creativity then, is also a primary ‘commodity’ in a market economy for the exchange of cultural goods and services. It is therefore noticeable that the means by which we have, culturally and economically speaking, come to generate value from creativity, is largely ignored in many debates about ‘culture’ — and most surprisingly in debates about how we finance the arts, where creativity is so central…

2. Financing Creativity

So, how do we finance creativity itself and how do we turn creativity into financial value? Let’s take the second question first:

After Jeremy Bentham’s Utility Theory, Intellectual Property (IP) has become the means through which creativity is turned into economic or monetary wealth. Curiously, it is a means which is ignored in the state funded arts ‘sector’ by all bar a few. Accordingly, those engaged often talk about risks and reputations, but rarely rights and responsibilities. All are natural by products to the act of creation, but discussing ‘IP’ seems to make ‘us’ uncomfortable.

It’s not surprising: Handling IP for ‘The Cultural Commons’ is a complex subject with multiple stacks of issues which overlap incessantly. Likewise, it is a subject also often ignored in left leaning debates about funding structures and cultural policy. To some IP is a necessary evil, while to others it is simply an evil and should be resisted. Either way, it is ignored. The reality though, is that given most laws in most jurisdictions, it is, as Mark Getty termed it ‘the oil of the 21st Century’ and isn’t going away.

UK investment in intangible assets protected by IPRs has risen from £47 billion in 2000 to £70 billion in 2014. Likewise, “copyright-intensive industries contributed an estimated 8.4% (€168 billion) of UK GDP and 6.3% (1.9 million) of UK employment per year during the period 2011–13.7”.. The figure is rising exponentially and is forcing us to ask questions about when temporary and long term monopolies are necessary to create incentives to ‘create’ and, most importantly — ‘who for’? This is where the notion of ‘commons’ enters the fray…

For pragmatisms sake, it might help to identify the £92 Billion ‘worth’ of UK Creative Industries and the £1.6 Billion of lottery, government and philanthropically funded ‘arts and culture’ as the ball park (sculpture park?) in which we will try to carve out ‘our cultural commons’. Under the working title of CultureBanking® I’ve been doing just this and examining the financial ecologies operating across both sectors and seeking ways to re-connect, or ‘re-common’ both the tangible and intangible assets that feed them. The production and redistribution of wealth via lottery ticket consumption is also held in question as a method which is disinterested in it’s production of wealth and fails to enable the wealth producers to have any role in the management of the resources they contribute to.

3. ‘Cultural’ Assets

In relation to our material commons, it might be argued that there is a paucity of any sense of ‘us’ or ‘we’ in our ownership of Cultural Assets. There is now less that ‘we’ as a nation clearly own together than at any time since, at least, shortly after the second world war. Even social enterprise and many co-ops still produce private assets. It would be disingenuous to suggest that the growing hoards of CIC’s, Trusts, Foundations and Charities in this ‘sector’ do not compete with one another for all available ‘philanthropic’, ‘strategic’ ‘project’ or ‘revenue’ capital, whilst also competing with a myriad of private enterprises for earned income.

Monopolies also apply in our charities and would be cultural commons as they do in our private sector. The masses of intellectual property assets created and stewarded under the banner of state or lottery funded arts programmes and the activities which create them, are often effectively privately owned, but generally excluded from benefitting either their creators or their commissioners under not for profit rules (and lack of expertise). The same is true of so called ‘public assets’ such as public museum collections. On the rare occasions assets of this ilk interact directly with ‘the open market’, they will usually benefit the organisation which owns them, which is fine, but limits this kind of resource growth from cultural capital to all but the very few ‘nationals’. They do not share wealth accrued from their IP or “cultural capital’.

Even the very ‘assets’ in the collections are highly undemocratic in their selection and management: In a meeting recently, 6 Museum Development Officers were asked if they had heard of the Cultural Gifts And Acquisitions in Lieu Scheme. All bar one said ‘no’. The scheme is a 2013 invention of the conservative government allowing individuals and corporations to give and museums to receive cultural items of ‘pre-eminence’ in return for large tax allowances ‘on behalf’ of the nation. Apparently we need a panel of experts to tell ‘us’ what ‘we’ value. In this model of, literally, cultural protectionism and acquisition, not only is there no public ‘us’, not even regional museums consider themselves involved. The results are rising initial and ongoing costs to the tax payer for preservation and display etc. This is FAR from cultural democracy. There is no operating system for managing the assets at all other than expecting tax payers to pay without at least having some involvement in selecting the artefacts they pay for! Culturebanking proposes to democratise the production of this cultural wealth and ‘sweat’ these assets in order to create future common wealth. But, above all, why should the production of the ‘national cultural wealth’ not be open to all?

“Under the (gifts and acquisitions) scheme, 70 to 80 per cent of an object’s value is a charitable gift to the nation” says Peter Bazalgette, in his preface to the CGS and AIL Report of 2016. In fact it is an exchange between an individual or corporation and a variety of charities, none of which are actually producing commons or sharing wealth, even though a condition of being ‘open to the public’ for 100 days exists. Other questions about what constitutes ‘eligible institutions’ are equally un-answered. Surely, if it is a gift to ‘us’ then ‘we’ should have use and ‘possession’ — and be able to benefit from our tax gifts? CultureBanks would have it that ‘gifts to the nation’ can pass from the many to the many, without need for experts or ‘pre-eminence’ and would create a net gain for tax payers rather than a loss.

So, what happens if we imagine this to be the case and full use of such public goods includes all rights and income generating (including tax allowances) potential?

By creating local banks of common wealth in the cultural sector and by modernising the ‘banks’ (eg, museums and archives for holding IP assets, credit unions for holding shared wealth and community foundations for distributing it) we already have, we can do all of these things.

We have spun-out a largely pseudo-public sector, which is actually not acting in any democratically agreed ‘common cause’ or being held accountable to the public. Despite organisations having articles, associations and governing documents which act ‘in trust’ and for ‘public benefit’, the reality is that the first responsibility of each is to its own survival. Our commons and public sector are ill-served and neglected.

Our legal forms down to the level of individual companies and organisations are centralised, slow to change and non accountable. Real shared (cultural) value is not possible without legal forms to support it. The cooperative sector offers some hope in this direction but not an answer of itself. Even our coops are still producing privately held wealth. To simply pretend that we can create a material cultural commons, which actually feeds people, out of words or even politics alone is nonsense. Some fundamental change is necessary in marketplaces as well the public and legal spheres. The limited resources of middle income people tied down by responsibility and rootedness also do not create a climate for popular political change and ‘wealth sharing’…

4. A Note On ‘Policy’ and ‘Strategy’

We can and we must re-democratise culture and we can and must re-democratise the distribution of resources that drive it (and those ‘it’ drives). What we seem less insistent on doing is democratising how ‘cultural’ wealth is made and held. This is our Cultural Commons. Distributed Autonomous forms of ‘Organisation’ are slowly beginning to ally as ‘creators’, bonded, not just by purpose or production but as creators of cultural capital — and assets. If that capital is held privately, capitalism continues unabated. But if we can begin to hold that wealth in common, we start to democratise the production of cultural wealth. We incentivise people’s creativity without diminishing it to exchange value alone (ref – the art market). What this means at the local level is that art in communities can be financed against that community’s production of cultural wealth. A practical example of the imbalance in financing creative assets with creative wealth might be the relative incomes distributed to Ed Sheeran as the (part) composer and performer of a song, to the skilled work of a community choirmaster who uses the song to increase wellbeing for a community choir. There is every reason to believe that such a vocal artist may also write a song for Sheeran as well. It’s clear the cultural common wealth produced needs better re-distribution to reflect efforts and contributions, especially over ‘copyright life’ of, say 70 years…

As empowered ‘creative communities’, those involved in the actual coal face production of ‘cultural’ wealth (artists, musicians, writers, designers etc) can be better rewarded materially and better represented in ‘cultural forums’ like CIF, LEPS, Local Arts Boards and Funding Boards etc . A quick scan of my own Cultural Board of the East Anglia LEP reveals not a single artist! Sensible calls for ring fencing current lottery funds for local authorities community arts programmes and re-democratising the financing of our Arts NPO’s are overdue: ‘Culture’ can no longer be ‘administered’ by self elected, primarily business oriented bodies, to drive ‘growth’ alone. But equally, the ability of these bodies members to profit directly and monopolise ‘culture’ will be curtailed by placing the ‘big units’ under some democratic scrutiny. The bath water we need not throw out though, is much of the wealth already produced. Enabling common ownership of wealth within the market can help to solve this quandary by taking that ownership out of (as much as is possible) competing political interests. That sounds simple, but is actually unheard of. What Culturebanking is proposing is to create cultural public (or common) goods circulating in the market for public (or common) causes. The innovations required are in re-education, capacity to ‘hold’ wealth (in credit unions, CDFI’s etc) and distributed forms of creative alliance which can co-operate under sympathetic legal structures of a partner state; citizen assemblies may dovetail well with such a system. It is a new task for policy and strategy to either catch up with this agenda — or just get out of the way, since people can simply do it themselves if unhindered by bureaucracy. (Something IP owners have been relatively free from when it comes to wealth production!). As well as holding ‘wealth’, holding the ‘assets’ or rights is a capacity which also needs development. The expense of working with, let’s say, a Museums Service to develop new skills of rights based trading for social purpose amongst staff would be prohibitive without technologies which can be used by all simply and with lower training and running costs.

In addressing ‘new types of investment’ and the ‘place-making agenda’. The new Civil Society Strategy still treats ‘Culture’ as something outside of industry rather than an integral part of it: ‘Culture drives growth’ rather than ‘Culture IS growth’. This is evidenced, as mentioned, in the cultural gift scheme but also in how a very limited version of ‘Culture’ is invoked to recreate itself via cultural policy. We are told that The Cultural Development Fund: “will support place-shaping by investing in culture, heritage, and the creative industries to make places attractive to live in, work, and visit.” But, unlike investment in business ( which quite explicitly seeks to OWN the wealth it creates) there is no operating system proposed for the investment we make in ‘culture’. (or in the often ‘usual suspects’ who rely on ongoing grants). ‘Culture’ is treated as a commodity, arbitrarily ‘attached to the arts’. You never hear about ‘health and culture’, or ‘manufacturing and culture’, or even, those other major lottery recipients. Heritage and sport — ‘and culture’. They all have an equal right to claim ‘culture’ as ‘theirs’. ‘The Arts’, however, have always been used to reflect highest values and achievements — a nonsense in itself — and so, quietly we are all capitulating to a most damaging and degrading version of ‘the arts and culture’. The emperors clothes remind us if we look, that ‘business’ is also a sub-set of ‘culture’ rather than the opposite fallacy we have been growing accustomed to. A genuinely asset based system of financing the arts and cultural activities, which stems from the wealth actually created (social, material, financial etc) will not speak of ‘leveraging investment’ but of banking the surpluses of wealth already created — for re-investment. That wealth is out there but either restricted by the way it is owned or simply not ‘audited’, which means that what we call ‘culture’ is effectively rented or loaned out to us via disposable, un-secured financial resources which are entirely removed from the point of value creation — by, effectively, undemocratically licensed and selected organisations. To prevent distributed ownership taking hold, financial resources also arrive in large caches of short term, ‘spend ’til it’s gone’, needs based project funds and are usually now administered by un-elected and un-accountable ‘bodies’. There’s rarely a sustaining ‘operating system’. In short, we don’t ‘bank’ that cultural value, since it is not the assets or the skills held which generate revenue, but rather, the ‘social capital’ or status attached to them (eg, ‘case-making’ for projects based on top down assessments of ‘need’ or ‘cultural value’). Social capital, in this case, is usually a future promise rather than an existing artefact, product or service. The enormous expense and capacity needed to ‘evidence’ (through exorbitant hiring of consultants etc) that this social capital is being wisely used just makes the model both self fulfilling and, often, useless — ironically. ‘Cultural’ or ‘Social’ Capital is not our Cultural Commons. This is important to distinguish as a principle when we are seriously contemplating how we finance (‘cultural’) production. The aim should be that wealth is both retained at the point of its creation and targeted to that point rather than used as an instrument for leveraging future ‘investment’ (in the same restricted version of future promises and centralised, ‘independently expert’ administered wealth).

5. IP, Creativity, Funding and Wealth Creation

Creative Industries and (would be) Cultural Commons rely on the generative effects of creativity and it’s ensuing IP rights and legacies for their sustenance. Since IP is active somewhere in all systems for incentivising and monetising creativity and since Galleries, Libraries, and Museums (GLAM) as well as individual artists and our NPO’s are all engaged in the management and creation of artistic assets (and rights), it’s absence or lack of prominence in funding discussions is a huge ‘elephant in the room’. Our public cultural sector tends to rely on good old taxation of ‘the private’ to fund ‘the public’. For many reasons which others have expanded already, the boundaries between the two grow less and less clear. I’ve also argued elsewhere that the gross debt of the UK creative sector to it’s cultural commons might be much higher than at present, based on corporation tax rates, but this would be far better ‘collected’ by creating incentives for collaboration than by punitive ‘tax and spend’ policies. From road tax, to the BBC, licensing as direct taxation is not new and ‘peer to peer’ licensing of public goods in the marketplace is an under explored but potentially powerful means of creating ‘common cause’ as well as revenue to finance it. It is, essentially, at the heart of what CultureBanking® proposes. Monetising creativity is necessary to fund the commons at least in the short, transitional term.

To democratise our production of and access to ‘culture’ though, our use of IP needs ‘re-booting’ from the ground up.

6. IP and The Commons

IP exists for individuals and organisations and can be held under as many various legal terms as it and the governance structures of a nation state or confederation, allow. IP itself consists of 4 basic forms: Trademarks, Copyrights, Patents and Trade Secrets and Designs, although in some jurisdictions a fifth; ‘Right Of Publicity’, is included. This 5th element is described as a ‘right to control how your name, likeness and persona are used by others”. Clearly names and trademarks cross over with ‘rights of publicity’ and to an extent, data. The cross over between IP and Data is an important subject in itself, but is not specifically dealt with here.

Advocates for the commons reasonably resist trade secrets and usually patents in favour of open value creation, but these should not be confused with copyright, which has been re-engineered through ‘copyleft’ movements and the ‘Copyfair’. It seems fair to say that the broad goal for commons based initiatives has been to create knowledge commons — such as wikis and open knowledge where possible. There have been proposals, such as Harberger’s Tax, to re-design the tax system as a whole to incentivise material commons with taxes on ‘holding wealth privately’ rather than just taxing wealth as it becomes productive and “use the funds to create a publicly governed digital commonwealth. This could ensure that all revenue generated by proprietary usage of HCL (or ‘culturebanked®’ ) licensed software would be used to further grow the commons”. This task of creating material commons has been addressed to a much lesser extent and is still seen as a ‘radical’ arena. The task of CultureBanking® has been to design an asset based method of raising funds for culturally common interests as opposed to the more centralised needs based, ‘cap in hand’, sponsorship, tax moneys and philanthropic methods already mentioned as well as the usual tax, lottery and philanthropic financing. Rather than seek to overhaul the whole tax system, the notion of ‘tax under license’ is a way of allocating a ‘tax rating’ to individual goods.

Harberger’s tax was, in part, a response to the non fungibility of goods under IP regimes. Self assessment of your assets’ financial value might have been a way of dealing with endlessly variable goods, but it was invented at a time when no technology existed which could have ‘automated’ such a process. Blockchains, DLT etc are a potential change to all of this…

In bringing cultural (tangible and intangible) assets into use for all, some material will still be eligible for commercial use (as now). But this use may not need a ‘constant category of ownership’ rating — as in the Harberger version. The social use of an Ed Sheeran song can now be assessed transactionally, by the day, week, year, or by apportionment. All of this can be done by automation: What cannot be done, yet, is the social accounting necessary to complement it.

The principle of using ‘IP’ as ‘securities’, is that it makes more sense to agree to share wealth from assets we know we will own jointly and separately (ie our own creativity) and therefore can share, rather than wealth we will produce within already complex relationships and often under private proprietary ‘agreements’ and ‘expert relationships’ — and are therefore unlikely to be able to own and share. Having a common category of ownership — or stewardship — is a pre-requisite to re-commoning. Creative Commons have established networks of knowledge commons, but will not and cannot establish material commons (note the SmugMug takeover of Flickr which recently sidestepped the largest ever centralised database of Creative Commons material in order to monetise their newly enclosed — ie, NOT — Commons). Once money needs to change hands, commons go out of the window…

Similarly, initiatives to harness un-used, un-claimed and ‘orphan rights’ are being proposed to create community wealth. The tendency towards centralisation of resources which do not reach grass roots communities still applies though, unless we change the nature of HOW wealth is created, we face further corporatisation — and privatisation — of Cultural Wealth. Once established on these (neo-liberal?) grounds, assets are likely to be administered by ‘the few’ for ‘the many’.

CultureBanking® aims to harness IP rights to create shared assets, which in turn, will generate future common capital. It also seeks to create transitional incentives for cultural products and services to be placed into the common ownership, whilst maintaining possibilities for private wealth creation. Thirdly, it invites a ‘partner state’ to follow on by creating endorsements and ‘easements’ for this kind of production in recognition of social use values: ‘Cultural Commissioning’ is an example of this happening, without the hypothecation of taxes from, specifically, the cultural sector.

Social accounting requires new approaches as well: Since capital, in traditional accounting is not an asset like IP, but ‘shareholder equity’, by placing IP into common ownership, the portion of common capital which is created ceases to be ‘equity’ since its liquidity cannot be accounted for against ‘profits’ or ‘losses’ of individual agents. It represents the future securitisation of common needs in capital form, but will never ‘pay out’ in terms of a dividend or ‘profit’ share. Common capital is then, in non-traditional accounting terms, a common asset or resource. A distributed ledger of shared IP is an asset register against which liquidity for common capital needs can be secured — in much the same way the private sector practices asset management. Perhaps we are talking about tax payers acting as Non-Practicing Entities or Patent Trolls ( ie extractors of wealth!) — only this time, in the public or common interest. In this way, CultureBanks® would represent a foundation of Public IP Commons Trusts (PICTs) and a new model for Cultural Democracy and Citizens Cultural Wealth. It’s not a new idea, some refer to the ‘Digital Commonwealth’, but it has become achievable!

So, how might that work?

7. CultureBanking: Register, Bank Rights, Bank Incomes, Re-distribute:

It’s worth noting that a ‘cultural sector’ outside of the ‘free software movement’, does have slightly divergent interests and requirements for private property. It would be very difficult to convince a sculptor, who has spent 10 years digging clay (an admittedly common good) to produce one sculpture that he should now donate it to the commons, or pay taxes to keep on owning it privately. Even if convinced, this system still seems to accentuate huge value differences in financial worth which have little root in social worth. Art’s ‘uselessness’ is a feature of it’s high financial (exchange) value. There also exist artists, like the Meyer-Harrisons who extol a high use value and therefore work in a common interest and yet they are almost an exception which proves a rule. As a % of arts financial value these artists, working exclusively ‘for the community’ are broadly invisible. They also produce private goods to fund their practice — so the common is actually non-existent even where we might wish it into existence.

Going beyond wishful thinking and immaterial commons requires creation of legal forms of common ownership for goods and services. Having created this common public asset class and registered rights, the next objectives will be to harvest income from ‘banked’ IP. This may be done technologically using blockchains, payment gateways, escrows and other methods already in commercial use, but could also be done more simply, at the point of transactions. Most IP is sold, auctioned or licensed (see The Eady Levy as an early example) as non rights based levies on box office takings or sales. People are also now using all kinds of ‘open’ IP repositories (eg, instructables.com) and it seems entirely reasonable to enable a more easy transition from ‘amateur’ or ‘prosuming’ markets in to commercial ones, whilst extracting something for public needs in the process. Markets are changing beyond just open knowledge though. Open knowledge is essential, but if firms add value and use resources, they need to pay themselves and the common pot. Doing both under licence is the paradigm shift which I am proposing with CultureBanking.

Some criticisms have followed predictable lines about all new tax measures being likely to be resented but if the margins for generating private wealth are broadly similar and we are opening up new markets for income generation and public finance, objections should wane. This may also encourage more open knowledge platforms and more common ownership. To some extent the platform coop movement is addressing all of the above, but is still ‘prey’ to enclosures of its output. The Peer Production License made free licensing to other cooperative platforms a condition of use — a condition which is absent from the far more widely used Creative Commons licenses. Consequently the so called ‘commons’ are entirely unprotected: The Earlier mentioned SmugMug takeover of Flickr exhibits the failure of ‘commons’ to provide a ‘business model’ for platform owners — or for rights holders and has prompted Pando Network to, alongside culturebanking, begin writing new licenses. Beyond license proliferation though, the real answer is to enable fuller control for people over the assets they create.

Those in the p2p and commons communities often reject ‘license proliferation’ but the reality is that every license is an agreement between individual parties and therefore intrinsically unique by nature. So, perhaps, licensing alone is not the way to address the production of commons — especially in a transitional stage. Equally, it is hard to see how broad sections of Creative Industries can function without IP. A print-maker, film-maker or author can hardly be accused of creating ‘false scarcity’ or expect to make a living by selling their products once — unless they licence them to a publisher, who pays them whilst extracting a contribution for the commons — as well as to meet their own needs of course. Those functions all take place under tax laws currently, but using levies, gifts and ‘tax by licence’ — ie, ‘upfront’ transaction taxes or ‘levies’ changes the possibilities in the cultural landscape immeasurably. To succeed, cultural democracy therefore relies on the cooperation of a partner state. Preparations and ‘designs’ for such a possible future are underway, though may be over ambitious at times in scope in the absence of such a willing state. But there is reason to hope this may soon change….

This ongoing work outlines the development of licenses as an instrument of governance for distributed autonomous organisations — such as CultureBanks®.. As Harold Demetz stated in 1973 (it’s taken longer than it should have to begin to act on this):

“It is not the resource itself which is owned; it is a bundle, or a portion of rights to use a resource that is owned”.

This was a sage precursor to online living: We have a mandate to share and now we have a technology to do it. Capitalism, at least as far as it’s over weening use of IP as a tool for privatisation of assets, is coming to an end. There are other developments which suggest we are moving towards an entirely new ‘regime’ or practice in terms of how we manage our ‘Intellectual Property’..

8. Design For The Cultural Commons

The first UK MA in Cultural Commons from the CASS Business School promises: “You will create and develop a liveproject (anything from a novel to a supermarket) for your new operating organisation. The organisation will be formed, it’s governance designed, its financial structure set out and all policies written using Commoning as a model”. Whilst welcome, of course (enormous credit goes to Torange Khonsari for pioneering this first step in UK academia to re-commoning) establishing new ventures with ‘commoning models’ will not enable the growth of commons if the markets and laws within which they operate are still enclosing the wealth from which these organisations must seek funding and restricting the development of self-funding. For cultural commons to grow, a more enlightened ecology of social accounting needs to replace the cash focussed one we are stuck in now.

All be it a start, ‘wishing’ and ‘naming’ commons into action is not enough: For example, deep in the bowels of universities are ‘Research and Innovation’ departments employing multiple ‘contracts managers’ whose roles are to write contracts for the ‘commercialisation of research’. Nearly all of that future Intellectual Property is bound for private, rather than common, ownership. As our universities plead bankruptcy or creak under the weight of their over weening capital ‘vapour-trails’ including massive pension debts, the idea of tax under licence from the masses of ‘Cultural IP Assets’ created — looks far from Utopian, but somewhat overdue! Whether or not those assets ‘productive lives’ will compensate the public money and effort which went into their creation is left either to chance, accountancy, or future ‘executives’ (read ‘wealth extractors’)…. a little like our cultural experts and selection committees… and definitely not ‘ours’ at all. Where the ‘ours’ disappears is where we most urgently need change.

I look forward to talking to Torange more about this situation more as we discuss the growth of ‘design for commons’ in UK universities and colleges.We need fundamental changes in our approach to IP at a granular (and legal) level across all cultural institutions…

Using CultureBanking itself as an example; moving beyond traditional IP practices requires some strength of vision, much learning, time, material innovation and some innovation around executing and drafting licenses. In developing the project, I found that the necessary cultural or creative production required was obviously subject to all of the IP laws, incentives and dis-incentives around which it sought to innovate. Theory became practice — quickly.

The standard advice of IP lawyers has been that ’Culturebanking® ‘has sufficient novelty to file for protections’ so long as no public utterance has been made about the license-able IP beforehand (‘prior art’). The idea of sharing, or creating open value is annulled in our traditional business models before it can begin.. Clearly open value is never going to become established as long as this is the standard operating system for new business development.

An immediate quandary presents itself: Can ‘CultureBanking® be ‘CultureBanked®? (even successful open source projects like MakerBot have had no useful protection against enclosures). Any IP created can be made available to all — even using a Creative Commons license — but still, what is lacking is a business model or ‘operating system’ for the production of commons and enabling people to earn a living. This operating system will require payment gateways and fund clearing methods. There are plenty of options, but what is ‘new’ about the process, is the idea of ‘peer to peer’ rights trading. Anyone, who is a creator or rights holder, has the right to attach conditions of payment to the re-use of their work. This doesn’t mean ‘protecting’ it, it simply means enabling payment and requiring that condition be met before permissions are granted. The other key to ‘doing different’ is simply understanding that an asset can be both ‘public’ and ‘private’ and ‘common’ — and even ‘club’ either at the same time, by apportioning rights, or at different times in it’s lifecycle. This is a new possibility rendered by blockchains and distributed ledger systems.

Since Creative Commons does not yet fulfil this function and since nations are at a loss to find ways of taxing multi national internet based companies, this ‘taxation under license’ seems one worth examining. CultureBanking® proposes its own methods for doing this and obviously governments might decide to commission others. What is clear however, is that if we are to move towards such a system, the power for change lies in the hands of individual organisations and all who make and hold rights. For this reason CultureBanking® is also seeking resources to educate marketplaces and key players about new ways of handling Intellectual Property. The old ways of ‘protection for protections sake’ are no good. We need open knowledge and open products and we need to be able to collaborate whilst recognising working contributions and creativity fairly. Due to the prevalence of private property though, it seems that the best aspiration at this stage, is to try to create common capital from private property. This also accepts that scarcity is very real in the arts as are single authors and groups with needs to protect their main income sources.

Jon Phillips has called for public patents — http://wiki.p2pfoundation.net/Public_Patents, there are several projects already in place to set up public data handling trusts (not something this author is endorsing) and CultureBanking® repeats this call in the area of of copyright (which is more executable as it ‘exists as of right’.) and possibly some other areas of IP on case by case bases.

Management of IP as a ‘public’ or ‘common’ good has not had the same level of discussion as ‘data’. The current ‘model’ for IP as public goods amounts to all of the post copyrighted material which does, in fact, enter into our Cultural Commons once the life of the IP is over. Rights generally revert to rights creators. In fact, even this type of material — old wall paper designs, images, songs etc can endlessly be recycled by the IP system to reproduce private wealth for private companies, who then, arguably, contribute to the public good through taxation. Same old song…

What CultureBanking® proposes is to use the IP system to license this old — and new — IP to the commons. Allowing for necessary private incomes, either a proportion of future incomes or incomes from a set date can be recouped for the public interest or commons under license — rather than by the much more clumsy method of avoidable taxation. One crucial change is the idea that goods can be more than one thing: Traditional economics categorises goods as either ‘club’, ‘private’, ‘common’ or ‘public’. What technology offers is the ability to make these divisions into a continuum, focussed on decisions and definitions(much like the current approaches to sexuality and gender) made by ‘us’ rather than ‘authorities’.

The technologies for this kind of sharing and managing individual and community rights at a peer to peer level are being developed on several fronts: Here is our collaborator, Daniel Harris, talking about the Kendraio initiative’s work in developing user centred rights management tools for digital assets: https://youtu.be/UNl70Fd_LIc

These very possible and workable changes can also have the effect of creating ‘common goods and services’, which could cut out the need for monetisation in many cases by delivering their value directly in the public interest. At the same time, where companies and individuals choose to nominate a proportion of their future wealth via public goods from IP under license (up to 100%), they might also expect ( with just cause and under public scrutiny) some form of tax credit in return. The advantage to the public being that value is captured at the point of its making or monetising rather than far down the value added chain where many built in losses from legalised tax avoidance can be incurred.

There are many instances of similar ‘hypothecations’ in tax relationships with firms already operating: One example is social investment tax relief and tax credits for providing apprenticeships is another. It is also a direct route towards Universal Basic Assets through a vehicle which the public can own and therefore share direct common ownership.

Several things need to change in order to move towards a system of ‘tax by service’ or ‘tax under license’ ( if it were seen as desirable): Broadly a partner state approach and changes in the way public and private bodies engage in accounting for value creation would be needed. For an example see resource Event Agent Accounting.

Holding funds (and rights options) in the public interest in order to finance public and 3rd sector arts and culture out of the creative industries directly (an IP Levy’!?) has many advantages: In the case of reserving, or hypothecating finances from future or ongoing rights incomes under license (‘tax under license’) several current problems are overcome. Consider the following illustrative case:

One example of the inefficiencies in tax breaks for film production has been evidenced in the ‘sale and leasebacks’ fiasco which saw UK accountants showing all kinds of spurious costs and investments on films which were never made in order to re-claim £10Bn from HMRC in dubious taxes. There have been some arrests. By CultureBanking® even ‘microrights’ (small levies on rights values) from films like Avatar, it will be possible to see specific investments out of one ‘value chain’ and into another, with clear audit trails. The eventual goal in commons oriented development would be to see those value chains merged. This is a first step in that direction. For example, in the culturebanking of the distribution rights for Avatar, we might have seen an agreement to fund, let’s say, 27 regional ‘Music In Schools’ initiatives. This social investment would have come from takings, unlike tax, which comes from profits. The tax deductibility is effectively audited from those takings and is far more difficult to tamper with. It also arrives sooner and it is no longer so ‘viable’ for investors to invest in films which either failed or never actually got made…

9. About CultureBanking®:

To become a real option to extant funding methods, Culturebanking® needs to collaborate with software and app developers, legal IP and accounting professionals, mutual and cooperative banking organisations, project managers, users and partner organisations. In order to begin this work in earnest, we also need to produce a demo of how the process will work. The first need then, is to create awareness and debate and encourage at first, the creative and cultural communities and then the wider public’s receptiveness.

The ongoing project is to develop an operating system for banking cultural assets and redistributing value accordingly, alongside the wider goals of campaigning for open IP and new funding structures for cultural democracy. This will undoubtedly also involve working with policy developers and development of legal and accounting infrastructures alongside, it is hoped, a new ‘partner state’.

Finally, whilst future proofing projects like Pando may help create the conditions for CultureBanks® to thrive, not all communities are distributed or want to be — by geography at least — as David Goodheart reminds us. My ‘design brief’ for the project came from my experience in Great Yarmouth. In a place where the ‘Cognitive Elites’ are smaller and probably don’t want to be elite, the real problem is in incentivising creativity and action by demonstrating immediate value (feeding people). Whilst people can come together (and do) their collective access to wealth and resources is limited by the local monopolies of a few trusts, charities and organisations who ‘do for’ rather than ‘with’. One arts organisation alone claims to have leveraged £158 Million into a small town of 26,000 over 15 years — more than the whole budget for that period of the Borough Council itself! Compounding this centralisation of resources is the fact that, not for profit rules usually prevent local initiatives from creating surpluses — and more basically, wages. This was my reason for proposing the idea of a ‘content collective’, ie, a ‘culture-bank’. As Pando point out, organising around ‘creative law’ is far simpler and less cost heavy than around ‘corporate law’.

Although dependence on place is viewed as a disincentive to forming distributed interests:

“DAOs will not be constituted in the form of classical entity like “company” but will just drive network effects around a content — such as video-game, music, book or software” –

Some interests need to be localised. Essentially, communities want to exist in places. The definition of the common as it was thought by Elinor Ostrom i.e ‘a good or resource held collectively by a community that sets the governance rules for it’, risks, arguably, being entirely consistent with the production of private goods if those communities are not ‘open’ (this is what IP was designed to do and what blockchain could facilitate en masse if not regulated). What CultureBanking® seeks to do is use the Content DAO (content collective?) to produce common wealth from the proceeds of making shared goods available to the wider market. Where CultureBanking® diverges from what is possible with licenses derived from PPL is in this derivation:

“ Like the free software movement this licence does not allow special rights for an original author, but insists on the right for all to use and reuse a common good.”

This suggests that derivative open licenses will always be needed. For people who produce rivalrous goods such as original artworks and rely on their sale for their livelihoods, their ‘special rights as individual authors’ are actually crucial to living! The as yet un-tapped power of new technology and license developments, is to merge these rights with the rights of any DAO or collective they might be a part of and allow individual rewards as well as collective rewards. Doing this does not sure up the production of private property over commons, but simply facilitates contributions, under license — to the whole. For example, a visual artist might create a painting which takes her a year to complete. The ‘special right’ of being paid for that years work is clearly separate from the rights which might be conferred to her from being part of a content-DAO which is able to share copies of her work for some future generative purpose. There is also no reason why a proportion, like a ‘DAO tax’, of her sales of original works might not go back to the content collectives’ shared purse as it is quite possible that ‘originals’ will not find a home in the market until many copies have been sold… Importantly though, unlike a software developer, her contribution can be valued and sold as a distinct ‘thing’ — and this is how she will be paid for her labour in creating it. Under the terms of her license, some of that payment may return to the DAO or it’s stated purpose, but not all — and her ongoing ‘recompense’ should not be entirely dependent on some collective ‘use value’ — since her very individual work has already been done.

Essentially the goal for CultureBanking is to enable communities and those ‘sharing common causes’ to share their creative assets in order to produce both private and shared wealth .

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For donors, collaborators and supporters, there is an open collective account here:

CultureBanking® https://opencollective.com/culturebanks1?referral=12610#

Website: www.culturebanks.com

Twitter: @culturebanks

Please also feel free to contribute stills and video ‘assets’ at https://www.instagram.com/culturebanking/: under the common identifying hashtag #culturebanked

The Coalition for Cultural Commons is also very keen to work with people and organisations who want to reconsider their cultural rights and commons…

Contact liam@culturebanks.com

For a mission statement see also: http://wiki.p2pfoundation.net/Coalition_for_the_Cultural_Commons

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Bio:

Liam Murphy is a Civic Entrepreneur and Commons advocate who has worked variously as a Parent, Tree Surgeon, Bookseller, Administrator, Picture Framer, Teacher, Artist, Lecturer and Writer while raising his two (now adult) children in Norwich, England.

He is currently continuing to develop CultureBanking® as a process for creating shared wealth and writing a book entitled ‘Share?’ of which this article forms one chapter.

As well as being a writer and blogger, he has carried out research into the Civic Role of Arts Organisations on behalf of the Calouste Gulbenkian Foundation and sits on various boards and groups, where he advocates for open value and Cultural Democracy. He is currently continuing to develop CultureBanking® as a process for creating shared wealth and writing a book: ‘Sharing’….

The post Culture For The Many? Intellectual Property and Financing ‘Our’ Cultural Commons appeared first on P2P Foundation.

The Political Economy of the Common. Ed. by Andrea Fumagalli

(as yet untranslated Italian-language book)

Economia politica del comune, collects a series of essays, mostly published elsewhere, which summarize his analysis of post-crisis contemporary capitalism.

Capitalism has changed. Andrea Fumagalli says so. And he said that, for a long time, his school; the tradition of autonomy, starting from the early writings of Mario Tronti and Raniero Panzieri of the sixties, passing through the intellectually fertile experience of Potere Operaio of the seventies and the brilliant analysis of post-Fordism and the new figure of the social worker ‘of the eighties, always with the analysis firmly anchored in the thought of the now internationally recognized master of the Italian Theory Antonio Negri, has developed a Marxism for the digital age, focused on the Grundrisse, and in particular on the famous’ fragment on the machines ‘, more than on Capital. Together with Christian Marazzi and Maurizio Lazzarato, Andrea Fumagalli is the person who most contributed to this perspective, adding a solid empirical basis based on his experience as a professional economist.

The new book by Andrea, Economia politica del comune, collects a series of essays, mostly published elsewhere, which summarize his analysis of post-crisis contemporary capitalism. For the author, the scenario of the last ten years has been a strengthening of a model of biocapitalism where capitalist exploitation is based no longer on the mere theft of working time in factories or on the appropriation of intellectual production – in the form of technological innovation or intellectual property, central to the analysis of cognitive capitalism – but now on the subsumption – that is, the inclusion and putting to work – of the deepest dimensions of the human condition, such as those related to affections or relationships, particularly when they are articulated through the ubiquitous connectivity of smartphones and social media, and even to life itself as an object of biotechnology.

The man-machine union, visible and potential object of criticism or sabotage in the Fordist factories, has now progressed to become part of the human condition and in this way capable of making life itself – la nuda vita, Agamben would say – in its dimensions pre and post human, in vitro as well as in silico, object of appropriation and capitalist valorization.

In biocapitalism, production is based on putting the commons to work, a concept that is different from that of common goods, even if these are part of it, but which also refers to that life in common – made up of elements such as language, the gestures, the affections, the corporality and the relationships – which now, through digital technologies, is potentially put to work in its most varied manifestations: the freelancer who organizes his temporary cooperation with a team for a specific project, the Airbnb guest who strives to offer a positive stay experience or the teenager who posts a selfie with her favorite brand on Instagram.

Capitalist valorization has also progressed far beyond the Marxian model of the bourgeois drinker of the worker’ sweat. Financial markets play an increasingly central role and, through the financialization of life and productive relations, operate like giant vacuum cleaners that suck up crumbs of surplus value from the global productive and reproductive factory – the credit card, the shipping insurance required in the just-in-time value-chain – to then redistribute them, without transparency or democratic regulation, on financial markets. In this situation in which the socialization of the productive forces, the commons that constitute the true source of value – has now left the greedy pockets of the individual bourgeois to circulate on the financial markets in the form of digitized data – communism is already with us, only that does not belong to us. Biocapitalism represents the realization of the communism of capital, the famous concept taken up by Antonio Negri – and by Marx who, although he never uses it, mentions this possibility in the Grundrisse.

What to do then, comrades? There is no longer a factory to be sabotaged, nor a winter palace to be conquered. But, Andrea suggests, we can re-appropriate the tools in the hands of the capitalist class: finance and money. The currency, – writes Andrea – is now a direct expression of capitalist power, without the intermediation of the state. Andrea proposes the creation of coins and alternative financial instruments, suggesting the use of the seductive technology of the crypto-currencies: blokchain and bitcoin, which are able to establish circuits of valorization external to global finance; it would be desirable for a new currency of the commons suitable to finance a new welfare of the commons, triggering processes of local redistribution of wealth, to then let them grow and acquire more and more powerful autonomy. A strategy similar to that of the autonomy of the eighties, the age of the Hakim Beyi’s TAZ’s, the golden age of the Italian centri sociali of the nineties that, among other things, Andrea recognizes as his main source of inspiration.

The book offers a theoretical sum by one of the main representatives not only of the contemporary Marxist thought but of one of its most fruitful veins. As such it should be seen, in particular the introductory essay “The premise and Twenty thesis on bio-cognitive capitalism”, which sums up the subject with admirable clarity. For me it was a very fruitful reading: Andrea is and always has been, since its brilliant analysis of the new forms of self-employment of the second generation in 1994, a Master.

At the same time I think that the book a little exaggerate the grip and power of bio-capitalism. The result is a totalitarian image, where every human activity is immediately subsumed and exploited, from pedaling for Deliveroo to being on Facebook, and, using the same logic – why not -, playing soccer is actually a way to help reproduce the basics of the football market that exploits the fans as well as the television audience. What to me it sounds “weird”, however, it is the astonishing ineffectiveness of contemporary capitalism in exploiting the common which has partly generated. Facebook, Airbnb and Amazon earnings all in all modest, Uber and Deliveroo are at a loss, start-up incubators around the world are abandoning the cash for equity model, finding that they do not make a lot of money by incubating start-ups. Above all, there is a lack of innovation and ideas: large multinational companies have liquid reserves of unprecedented historical size – Apple announces a stock buy back of $ 100 billion – and no one seems able to find profitable use of big data or algorithms that go beyond the completion of the advertising targeting or the advice of other songs you may like on Spotify.

Capitalism like that will definitely not be able to survive the radical challenges that await us as we begin to cross the Anthropocene. To paraphrase another great master of Italian postwar Marxism, Giovanni Arrighi, the problem is not that the cognitive biocapitalism exploits our life, but that it isn’t able to do it well enough. I say this because as long as there is exploitation at least there is a rationality to criticize or sabotage. Instead contemporary biocapitalism looks increasingly like a rotting body that no one has the power to take away, as the German sociologist Wolfgang Streeck claims. In this context, the alternative currency will certainly contribute to creating alternative valorisation circuits. My intuition is that the protagonists of this process are not so much those of Macao or Teatro Valle, but rather the entrepreneurs of that pirate modernity that now connects the small Chinese factories with the needs of the popular classes of Lagos or Tangier, passing through Piazza Garibaldi of Naples.

Photo by Lanpernas .

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CERN is home to some of the largest and most complex scientific equipment on the planet. Yet back in March, scientists gathered there for a conference about DIY laboratory tools. Scientists in poorly funded labs, particularly in the global south, have used DIY tools for many years. But well-resourced institutes are increasingly interested in the collaborative possibilities of open labware. Citizen scientists are also using it to build instruments for tasks like environmental monitoring, which can then be used to support community demands for justice from polluters.

It is not only scientists – citizen or professional – who are going DIY. An open hardware movement of hobbyists, activists, geeks, designers, engineers, students and social entrepreneurs is creating ingenious versions of all sorts of technologies, and freely sharing the know-how through social media. Open hardware is also encroaching upon centres of manufacturing. In August, for instance, the global gathering of FabLabs met in Shenzhen (already host to Maker Faires) to review how their network can help to decentralise design and manufacture.

The free software movement is cited as both an inspiration and a model for open hardware. Free software practices have transformed our culture by making it easier for people to become involved in producing things from magazines to music, movies to games, communities to services. With advances in digital fabrication making it easier to manipulate materials, some now anticipate an analogous opening up of manufacturing to mass participation.

One online community has been developing DIY book scanners. These enable you to build a machine for automatically photographing book pages; and then download free software to process the images into a file. Having digitized your books, you might go further by sharing the files online (taking care to post anonymously to a site relaxed about copyright law).

The list of open hardware available to people continues to grow. The Open Source Ecology group is even developing a Global Village Construction Kit of tools for self-sufficiency, from machine tools to housing to tractors and beyond. A ‘global commons’ of accessible tools is emerging.

Open hardware can be serious business too. Take RepRap: a 3D printer community whose open source practices enabled its rapid growth. Its evolution took a controversial turn when members of the Resistor hackerspace in New York decided to commercialize their version of the RepRap, and protected aspects of its design through intellectual property. Their Makerbot business was subsequently bought for $400 million by 3D printer manufacturer Stratosys; a move which provoked fierce criticism from open hardware advocates.

Hobbyists have always tinkered with technologies for their own purposes (in early personal computing, for example). And social activists have long advocated the power of giving tools to people. The Whole Earth Catalogue was an early proponent of the liberating potential of digital technology. Then there were the dog-eared Appropriate Technology manuals that a generation of aid workers carried into the developing world in the 1970s and 1980s. Other antecedents include Victor Papanek’s Nomadic Furniture and Walter Segal’s self-build housing. We can compare these with their digital heirs at Open Desk and WikiHouse. Open, community-based technology workshops are not so new either.

So is this just old wine in new bottles? We think not. Open hardware lowers the barriers to participation in rapid prototyping in ways that earlier activists would find astonishing. And with community-workshops popping up in many towns, and online sharing platforms proliferating, the possibilities for doing technology differently are genuinely exciting.

Nevertheless, older experiences hold important lessons for the new. Our research into grassroots innovation movements, old and new, brings insights that activists today would be wise to consider.

The immediacy and connectedness of open hardware does not nullify the need for real skills in technology development. There remains a craft element to even the fleetest of digitally enabled tools. Experienced designers, engineers and machinists know the importance in understanding not just the tools themselves, but also the materials they work with. Practices that respect materials across their whole life cycle become imperative. Sustainable open hardware shifts the focus to making sufficiently, design for repair and repurposing, upcycling objects, and valuing the craft therein. Just because we can make almost anything, doesn’t mean we should.

And the materials involved are not simply physical. They are social too. If open hardware is to be genuinely inclusive, then its practices must actively empower people to become involved. Notionally accessible tools need to become actually available, and people need to feel confident using them. This requires social skills in community participation, as well as technology skills.

FabLabs are fantastic at combining face-to-face developments with online networks. These hybrid spaces contribute important infrastructure for open hardware. But maintaining infrastructure needs investment. Existing institutions, such as schools, museums, local governments, universities, and corporations are helping fund open workshops.

These institutional links bring the political dilemmas of open hardware to the surface. Is it really transforming technology development, or simply a refreshing input for business as usual? Education institutions see cool ways to induct people into conventional science, technology and manufacturing jobs. Local governments get excited about the entrepreneurial possibilities. Corporations see a reservoir of design prototypes offered up by the free labour of enthusiasts.

It is important to keep sharp open hardware’s more transformational edges, on agendas such as dismantling intellectual property and releasing investment for alternative business models. Only through a mix of craft, politics, and the support of social movements, will open hardware fully realise its potential to democratise technology.

Adrian Smith is professor of technology and society at the Science Policy Research Unit (SPRU) and a member of the ESRC STEPS Centre (Social, Technological and Environmental Pathways to Sustainability) at the University of Sussex. Dr Mariano Fressoli is a researcher at the National Scientific and Technical Research Council (CONICET, Argentina) and STEPS Latin America. Their new book, Grassroots Innovation Movements, includes chapters on social technology, fablabs, hackerspaces and makerspaces.

Originally published on theguardian.com

Photo by LarsZi

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Last month, an interesting article on Jean-Luc Danneyrolles was published (in French) on the site Reporterre. Danneyrolles is the founder of “Potager d’un curieux” (The Curious One’s Garden), a place in the Vaucluse region of France which is dedicated to the preservation and promotion of free seeds. In particular, the article explains the obstacle course this farmer had to cross in order to have his activities accepted by administrative authorities. Fortunately, he has been able to stabilize the situation more or less, but one point continues to create friction: the marketing of the seeds produced.

When Jean-Luc is asked the simple question of the right to sell all his seeds, he reverses the question. “By what right would we not have the right to produce good seeds and to market them? It is the reappropriation of this heritage that I defend. We do not have the right, we take the right” To take a right is not to steal something, he explains. “I never imagined that the police would come to arrest me because I sell my seeds. We are supported by civil society, that is to say that there are plenty of people who encourage me to continue and that is enough for me.”

Prohibition on the marketing of free seed?

As I have already had occasion to mention on SILex, seeds can be the subject of intellectual property rights in Europe through Certificates of Plant Production (VOCs) which protect varieties obtained by seed producers. Moreover, in order to legally market seeds, they must be registered in a catalog based on criteria excluding by definition old varieties, as explained in the article by Reporterre:

For the marketing of seeds or seedlings, Decree No 81-605 of 18 May 1981 requires the inclusion of varieties in the official catalog of plant species and varieties. To be registered, the varieties must undergo two tests: DHS (for “distinction, homogeneity, stability”) and VAT (for “agronomic and technological value”). First hitch, the old, peasant, terroir varieties, call them as you want, are essentially unstable. They are expressed differently according to biotopes and climatic conditions. So, they are checked by the catalog entry tests.

The varieties which respect the DHS criteria are generally “F1 hybrids” produced by the large seed companies, which yield plants with identical characteristics, whatever their environment. They also degenerate from the first reproduction, which prevents farmers and gardeners from reusing the seeds and obliges them to repurchase seeds each year from the same manufacturers. Thus, the system has been designed to mechanically privilege varieties protected by intellectual property rights, while so-called “free” seeds (those belonging to the public domain) are disadvantaged, specifically because they can not be marketed.

The regulation has, nevertheless, been relaxed somewhat at the European level since 2011, with the introduction of a list complementary to the official catalog based on criteria of less drastic homogeneity, which makes it possible to include old varieties. But this margin of maneuver remains insufficient to cover all seeds in the public domain, which means that militant peasants such as Jean-Luc Danneyroles remain largely illegal when they want to market seeds that they produce. They risk fines imposed by the repression of fraud, which can be high (even if they are rarely applied in practice). A French association called Kokopelli decided openly to brave these aberrant prohibitions, claiming as a right the possibility of marketing free seeds, to defend it before the courts. Last year it was believed that the situation would change with the Biodiversity Act, an article of which explicitly allowed non-profit associations to market seeds belonging to the public domain. However, unfortunately, the French Constitutional Council declared this part of the text to be annulled, on the very objectionable ground that it entailed a breach of equality towards commercial companies.

Ambiguous links between enclosures and commodification

What I find interesting with this story told in Reporterre, but more broadly with the issue of free seeds, is that they illustrate well the complex relationships that exist between the common goods and the market. Indeed, free seeds are considered to be a typical example of “common” resources. They have reached us through a process of transmission from generation to generation of farmers, which has led the process of selection and crossing necessary to develop the varieties and adapt them to their environment. The so-called “old”, “peasant” or “traditional” varieties are not protected by intellectual property rights: they are in the public domain and are therefore freely reproducible. That’s why they are very interesting for farmers, especially to rid themselves of their dependence on the seed industries.

Since these seeds are in the public domain, they should also be free to be sold on the market as physical objects. It is clear that this is a prerequisite for activities such as “The Vegetable Garden of a Curious One” or Kokopelli to be sustainable and develop. Even if these structures generally adopt associative forms oriented towards non-profit or limited profitability, they need a connection with the market, at least to cover the costs incurred by the production and distribution of seeds. However, this is precisely what is now theoretically prohibited by regulations, which has been organized to exclude traditional seeds from the market, notably via the registration requirements in the official catalog.

We see here that the specific enclosure that weighs on seeds consists of forced exclusion from the market, and it is somewhat counter-intuitive, in relation to the general idea that one can make of the phenomenon of common property. Historically, enclosures first hit certain lands that were collectively used by the distribution of private property rights to convert them into commodities. Landowners have been recognized in several waves of the right to enclose land that was previously the subject of customary collective rights of use. This is particularly the case in England during the 18th and 19th centuries. In France, the dismantling of the Commons took the form, in the French Revolution, of a process of “sharing the Communals”, which consisted in the sale in certain regions of these lands so that they became private properties. In both cases, enclosure takes the form of a forced inclusion in the market of goods that previously were “protected” and it can even be said that enclosure is then explicitly aimed at the commodification of the good.

In this regard, we must re-read the analyses of the historian Karl Polanyi in his book “The Great Transformation” in which he explains how “market society” has been constituted and generalized by producing three kinds of “fictitious goods”: the Land (and more generally nature), labor (human activity) and money. In his vision, it was the forced inclusion of these three essential goods in the market mechanisms that allowed the latter to “disentangle” the rest of society and become a self-regulated system that allowed the rise of capitalism.

Exclusion from the market as an enclosure

From the foregoing, one may have the impression that enclosure is thus intimately linked to “commodification”. Moreover, many of the social struggles carried out on behalf of the Commons demand that certain goods be excluded from the market or subject to a specific regulation which protects them from the most destructive excesses. This is the case, for example, for the fighting on water, in particular in Italy, which has gone through opposition to the privatization of water management by large companies.

Nevertheless, the case of seeds shows us that the issue of enclosures is much more complex. In order to grasp what happens to the seeds, we must understand them in two different ways: in their immaterial dimension, through the plant varieties that the seeds express and in their material dimension, through the physical objects that are the seeds produced by the peasants. Old plant varieties do not (and have never) been subject to intellectual property rights, unlike the F1 hybrids produced by the seed industry. As such, these varieties are actually ‘de-marketed’, in the sense that they can not, as such, be subject to exclusivity subject to authorization and transaction. But the seeds produced by the peasants constitute rival physical objects, which are the object of property rights and can be legitimately sold on the market. Except that the legislation on seeds has been organized to prevent these seeds from entering the market and being able to be marketed, unlike proprietary varieties. The enclosure of the common good which constitutes traditional seeds, therefore, does not have the same nature as that which has struck land or water: it consists of a forced exclusion from the market.

Indeed, it could be said that free seeds are subjected to a double process of enclosure, both working in opposite directions. It is known that some large companies like Bayer or Monsanto are working to file abusive patents on some of the characteristics of old plants, such as natural resistance to diseases. They do this to reserve rights over the “immaterial dimension” of plants, by creating new GMO varieties in which they will inject the genes carrying these particular traits. In such cases, they use an intellectual property right to induce a forced entry into the market on an element which previously belonged to the public domain and was freely usable. One of the best known examples of this phenomenon known as “biopiracy” has, for example, concerned a patent filed by a Dutch company on an aphid resistance of a lettuce, allowing it to levy a toll on all producers’ seeds for these salad greens.

Enclosure may therefore consist of forced entry into the market and is often the effect of the enforcement of intellectual property rights. Another example which could be cited in this sense is that of scientific articles. The vast majority of these products are produced by researchers employed by public universities. They are collected by private publishers through the transfer of copyright granted by the same researchers at the time of publication. They then resold at very high prices to universities. They are then obliged to buy back with public money what had originally been financed by public funds (salaries of researchers). To use Polanyi’s vocabulary, we are here in a caricature of “fictitious goods”, created by the artificial application of intellectual property rights on goods in order to forcefully include them in a market.

But conversely, there are also intangible goods which undergo, like seeds, phenomena of enclosure by forced exclusion from the market. If one takes for example the case of free software, one knows for example the problem of tied selling (sometimes also called “forced sale”) which means that one can not generally buy computers without proprietary software pre-installed, which conditions users to the use of protected software to the detriment of free software. Last year the Court of Justice of the European Union refused to consider that the tying of PCs and proprietary operating systems constituted an unfair commercial practice. The seed analogy is not perfect, but there is a link as long as the problem of tied selling prevents free software from reaching the consumer under the same conditions as proprietary software. The machinery market would be important for their distribution and adoption by the greatest number. In the end, the consumer is deprived in both cases of the choice of being able to opt for a free solution, radically with regard to the seeds and relatively for the software.

For a complex approach to the links between Commons and the market

To be able to grasp the phenomenon of enclosures in its complexity is, in my opinion, important, in particular to avoid misunderstandings on the question of the Commons. It is sometimes said that the Commons constitute a “third way between the market and the state”, but this way of presenting things is rather misleading. It would be better to say that the Commons, with the State and the market, constitute a way for humans to take charge of resources. These three poles can, depending on the moment in history, have more or less importance (today we are going through a period of overwhelming dominance of the mechanisms of the self-regulated market, resulting in a marginalization of the Commons and a weakening of the State). But the Commons are always articulated to the State and the market: they never constitute a completely autonomous sphere. In particular, they may need market opportunities to exist and weigh significantly in social relationships. This is clearly illustrated by the example of free seeds.

Of course, there are also cases where we have to fight for a “de-commodification” of certain goods and many struggles for the recovery of the Commons go through this confrontation with the market to “snatch” from the essential resources. But there are also cases where, on the contrary, it will be necessary to fight for the right to have resources joining the market to be traded. At first glance this may sound confusing, but it seems crucial to keep this in mind so as not to sink into a romanticism that would lead us to believe that the goal is to “get out of the economy”, as one can sometimes read … There is also a struggle to lead “in the economy”, as Karl Polanyi rightly said, in order to “re-integrate” this sphere within the processes of social regulation and in particular in the logics of reciprocity.

That is what Jean-Luc Danneyroles expresses in his own way at the end of the article by Reporterre, referring to the question of barter and the commons. One senses at the same time his reluctance to consider the seeds as goods “like the others” and his need to connect yet to a market:

Quietly, in his open kitchen, at the time of the coffee, as almost every day, Jean-Luc receives the visit. A curious one looking for Roman chamomile for skin care. Jean-Luc gives him advice, names of plants and methods of cultivation. She will leave with her sachets of seeds, in exchange for soap and toothpaste that she has made. Jean-Luc always has a little trouble with getting paid. “The ideal is barter, I like the idea of common goods, which one does not pay for what belongs to nature. Utopian, yes, but feet on the ground. “Every work deserves salary,” he knows, and his seeds are his means of living.

Photos used by permission, Éric Besatti/Reporterre

The post Forced market exclusion as an enclosure of the commons appeared first on P2P Foundation.

In this presentation George Nicholas reviews debates over the “ownership” of Indigenous heritage and provides examples of new research practices that are both more ethical and more effective. These collaborative research models, in which the community leads the research, highlight important new directions in protecting Indigenous heritage.

Originally published on Remix the Commons

The post Culture, Community, and Collaboration – New Directions for Protecting Indigenous Heritage appeared first on P2P Foundation.

CCCB, 7 October 2016: The idea of postcapitalism consists of two hypotheses, about the unique effects of information technology.

First, that information technology is preventing the normal adaptation process, whereby capitalism—as a complex system—reacts to crisis, to the exhaustion of old business models, to the low profitability of old businesses and old sectors.

Second, that information technology makes utopian socialism possible.

More precisely: information technology makes possible a transition towards relative abundance, through the rapid cheapening of some things, the automation of work, and through highly intelligent utilisation of capacity—of things, raw materials, energy and human services.

In a short space of time I can only outline the basics—because for this audience—of radical, networked people in a self-proclaimed rebel city—I want to propose some rebel actions, achievable at city scale.

My argument is that information technology changes the economy in three ways.

First, it dissolves the price mechanism. The economist Paul Romer pointed out in 1990 that information goods—if they can be copied and pasted infinitely, and used simultaneously without wear and tear—must fall in price under market conditions to a value close to zero.

Whether you use marginalist economics or Marxism, the same holds true: the act of copying and pasting takes up energy, mass and some labour. But the amounts are so small that the production cost is negligible.

Of course—and Romer anticipated this—capitalism responds by inventing mechanisms that put a price on this zero-cost product. Monopolies, patents, WTO actions against countries that allow copyright theft, predatory practices common among big technology vendors.

But it means the essential market relationships are no longer organic. They have to be imposed each morning by lawyers and legislators.

This information effect on price is affecting the physical world not just the world of information goods. Just as the price of bandwidth and processing power has fallen exponentially over the past 30 years, so has the price of DNA sequencing, or the number of defects in an engineering process.

So information is having a dramatic downward impact on the cost of production of real things, and the same vortex of cheapening happens everywhere.

The second impact of information is to automate work faster than new work can be invented.

Around 47% of all jobs are susceptible to automation, say Frey and Osborne (2013). And information does more to transform work: it makes it modular, loosening the link between hours worked and wages; and it makes work possible to do outside the workplace—blurring the division between work and life.

So falling prices and the automation of work have a very disruptive impact on the normal process of adaptation.

The typical process of adaptation involves: while old processes are automated and jobs destroyed, new processes are innovated requiring high-skilled work. The products command high prices. Wages rise in the new sectors, allowing high value consumption. The whole thing meshes together into what Carlota Perez calls a new techno-economic paradigm.

It’s happened four times in the history of industrial capitalism: the industrial revolution itself, the 1850s, the Belle Epoque before 1914 and then the post-1945 boom.

Today it is not happening.

Automation is destroying high value jobs faster than it creates them; the zero price effect fights against the need to raise production costs; neoliberalism has suppressed workers’ ability to demand higher wages—and the falling cost of inputs also suppresses this.

Instead of high productivity we have low productivity plus what the anthropologist David Graeber calls millions of bullshit jobs—jobs that do not need to exist. Like the car wash, which in the space of a lifetime has changed from being typically a machine to typically five men with rags.

Capitalism’s response mechanisms—apart from the imposition of monopolies and monopoly pricing; are

a) to maximise capacity utilisation of low-skilled labour and of assets. So we get Uber, Deliveroo and AirBnB are effectively capacity utilisation businesses. Or:

b) to artificially inflate the price and profitability of labour inputs: so housing becomes the major thing wages are spent on—and healthcare and university education.

Things that in all previous eras of capitalism the elite desired to be as cheap as possible—to ease wage pressures—are now made as expensive as possible, and capital migrates away from production and from private-sector services towards public sector services.

If we do not break this cycle, you can easily see capitalism being replaced by a stagnant neo-feudalism.

The growth engine is the central bank, pumping money into the system; and the state, propping up effectively insolvent banks. The typical entrepreneur is the migrant labour exploiter; the innovator someone who invents a way of extracting rent from low-wage people—like Uber or AirBnB.

Fortunately there is a third impact of info-tech. It has begun to create organisational and business models where collaboration is more important than price or value.

I hope everyone here understands the concept of externalities—for it is crucial. Networked business models create massive positive externalities—network effects –where the data, or the well-being, or the utility created by network interactions is capturable and exploitable.

But as soon as technology allowed it, we started to create organisations where the positive effects of networked collaboration were not captured by the market.

Wikipedia is the obvious example; or Linux; or increasingly the platform co-operatives where people are using networks and apps to fight back against the rent-seeking business models of firms like Uber and Airbnb.

But ask your tech people a more fundamental question: beneath the bonnet of our product, how much of what we use are tools commonly produced, outside the market sector, and maintained for free by a community of technicians? The answer is a lot.

In the 19th century the word for a strike was “taking tools out of the shop”. In the 20th century the management owned the tools. In the 21st century the tools are commonly owned, maintained and free.

The technology itself is in revolt against the monopolised ownership of intellectual property, and the private capture of externalities.

The postcapitalist project is simply: recognise the transition, its enormous potential, and promote it.

We must stop fantasising about a third industrial revolution, or a third capitalism based on immaterial wealth.

We must promote the transition to a non-capitalist form of economy which unleashes all the suppressed potential of information technology, for productivity, well.being and culture.

I don’t have a programme for this transition but a basic methodology: involving three sectors of the economy: the market, the state and the non-market—or collaborative sector—in which things are produced and consumed outside of monetary exchange; where the externalities are collectively owned.

The strategic aim is: to reduce the amount of work done to the minimum; to move as much as possible of human activity out of the market and state sectors into the collaborative sector; to produce more stuff for free.

My guess is this will take the best part of a century but there are some things we can do tomorrow to make it happen.

If the aim is for humanity to do as little work as possible, you can do it through three mechanisms. One is to automate. The other is to reduce the input costs to labour, so that we can survive on less wages and less work. The third is to push forward rapidly the de-linking of work and wages.

I have a strong hunch that the city is going to be the primary venue of change in this process. Cities have stopped eviscerating their centres; young, networked people want to live right in the centre—sometimes two or three to a room—because they understand the city is the closest the analog world comes to a network. The city is where the networked individual wants to live—at least for some of their life, and for some of their working year or week.

So what can a city do to promote the postcapitalist transition?

First—be overt. Help people to conceptualise the transition by actually talking about it. The renaissance happened in key cities because they set up institutions and a public discourse about the transition. The Rialto in Venice, as a market, was such a public institution; so was the round theatre in which Shakespeare dramatised a story from the Rialto; so was the Waag, in Amsterdam, where goods were weighed.

I would like to see Barcelona become a city where the ideas of co-operation, free stuff, non-privatisation and overt postcapitalism become part of the public discourse.

Next—switch off the great neoliberal privatisation machine.

We know what it’s there for—to hand public assets to the private sector so that the profits of decaying businesses are temporarily boosted—whether it by a prison contract, a smart city contract, a school maintenance contract.

Another way of understanding privatisation is to say: how can we do public services as expensively as possible?

You need to end it strategically. That does not mean the local state does everything—it has no expertise in engineering, in hi-tech, in transport infrastructure—and must trade with the market sector. But end the transfer.

The next proposal is more radical: model reality as a complex system.

Planning under socialism had a terrible reputation—the planned economy: nobody wants to return to that. But planning under neoliberal captalism is guesswork. We will look back at infrastructure planning in the late 20th century as negatively as we do on Stalinism’s 5 year plan.

We accept ludicrous cost-benefit proposals from engineers and architects for the big stuff we spend taxpayers money on. 50 years later, when the infrastructure fails to deliver the promised benefit, there is nobody around to care.

So we need accurate models. Behavioural, complex system models that we can ask radical questions of: like—what happens if no Barcelona City employee can claim expenses for an Uber ride? Or what happens if we mandate the use of the FairPhone, not the iPhone?

If the models says—radical solutions don’t work, and cause more trouble than progress, then you listen to the model.

But right now we have no way of conceptualising transition—and I would say to Barcelona it could, together with some other world cities, sponsor big tech, at scale, to model the urban economy and the measures needed to survive in a long transition.

Next—promote the basic income.

The basic income is an idea whose time is coming, because there won’t be enough work to go around. For me the basic income is a one-off subsidy for automation—to un-hook humanity from bullshit job creation and promote the delinking of work and wages.

However, it’s a transitional measure. It can only be paid for by the state taxing the market sector. As the market sector shrinks, that means you run out of taxes. So I never use the words “unconditional” or universal. I would make the basic income conditional on engagement with the demos of the city. For example, if you obliged peopel to take part in collective groups to manage the chronic diseases of poverty: mental illness, hypertension, stress, obesity; you could point to a payback from the basic income in terms of current spending.

Next—actively promote the collaborative sector over the market and the state. The building block is the co-op, the credit union, the NGO, the non-profit company, the peer-to-peer lender and the purely voluntary or social enterprise.

Most local enterprise models say they want high-tech businesses, but they often accept monopoly pricing or massive subsidies to entice monopoly tech businesses. OK fine. But if you only replaced the wasteful creation of low-skill, low wage businesses with a preference for businesses with some aspect of collaboration or sharing, you would spark a major change.

You have to understand the benefits of these entities are not completely measurable in GDP terms.

You have to promote new ways of measuring activity and progress.

A simple metric would be: how many hours work is performed for the state (for wages based on taxation); the market (wages paid out of business turnover, including inside a traditional co-op or NGO); and how much is provided not for wages at all?

Later on we can try and evolve metrics that capture complex social effects.

Finally, understand and fight the battle over the externalities. Whether it is in the roll-out of a smart city project; or public health data; or transport planning—the data produced by networks has value to the state, the market and the non-market.

I would not proceed from the absolute principle that “the state owns all the data”; or all public data should be held in common. But the state and eventually the commons should have first rights to all the data just the same as in a republic it owns all the land.

The state should ensure that network data remains anonymous—and that its collection is non-detrimental to the human rights of citizens. But then the exploitation of the data should be a matter for negotiation. If you need to incentivise the roll out of innovative new city-wide data technologies that could promote equality, cheapness and utility for all, maybe you make a deal over the data.

Ultimately, however, the greatest good comes from the common ownership and exploitation of data, because it establishes the principle that this vast new information resource—which is our collaborative behaviour captured as data—is part of the commons.

Suppose Barcelona did these things:

• Brand itself as a city of commons and collaborative production
• End privatisation
• Massively reduce the cost of basic services like housing, transport, education and health so that being in the precariat became more survivable
• Build an agent based, complex model of the economy, with real inputs, so that participatory democracy could model complex decisions
• Prefer and promote collaborative organisations over both the centralised state and the market solutions
• Institute a citizens basic income, conditional on some participation on non-profit activities
• Decree that the networked data of the population as it uses public services is non-ownable.

Would capitalism collapse?

No. The desperate, frantic “survival capitalists” would go away—the rip-off consultancies; the low-wage businesses; the rent-extractors.

But you would attract the most innovative capitalists on earth, and you would make the city vastly more livable for the million-plus people who call it home.

All the other challenges would remain: the environmental challenge—not just low carbon but the preservation of quality living environments in a city sometimes deluged with visitors. Also the ageing challenge and the debt challenge.

The agenda I have outlined is not—and never can be—the sole ownership of the radical left. I think it can provide a common platform for the left, for social democracy and for liberal capitalism.

I think people like me on the radical left were among the first to start talking about it because the elite of neoliberalism is so bereft of imagination: this is the first elite in capitalist history that reacted to a crisis by doubling down on the model that does not work.

I don’t think the postcapitalist era will be scarred by competitive empires, as early capitalism was. You will know that Genoa came first, to be followed by Amsterdam to be followed by London.

Right now, in the world, there are hundreds of towns in friendly competition to become transition towns—achieving as close as possible zero carbon footprints and radically changing energy use.

I could be completely wrong. But if I am right, it makes sense for all cities to ask themselves: could we become the first city to begin a demonstrable and tangible transition away from neoliberal capitalism, towards a society of high equality, high well-being, high collaboration?

If you really don’t like the word postcapitalist use something else—like the collaborative city, the city of participatory democracy, the networked city. Or the human city. But do it.

Republished from Medium with the author’s permission.

Image of Paul Mason: DTRocks [CC BY-SA 4.0], via Wikimedia Commons

The post Postcapitalism and the city appeared first on P2P Foundation.

When Getty Images sent photographer Carol Highsmith a $120 settlement demand for using one of ‘their’ images without permission, things were about to get messy. The image in question was actually Highsmith’s own work, displayed on her own website. Highsmith has now responded with a $1bn lawsuit.

This post originally appeared on torrentfreak.com

Seattle-based Getty Images is an American agency controlling an archive of dozens of millions of stock images. After paying the company an appropriate fee, customers are given the right to use Getty’s images in their own publications.

Like many copyright holders, Getty is extremely aggressive in protecting its rights. The company scans the web in search of instances where people have used its images without obtaining an appropriate license and pursues the alleged infringer for money.

What follows is a typical copyright-troll operation. Those supposedly using content without permission receive a scary letter from Getty agents warning that all kinds of terrible things might happen if Getty decides to take the case to court. All this can be avoided, however, if the supposed image pirate pays a cash settlement.

One such letter was received in December 2015 by the This is America! Foundation, a non-profit set up by Carol Highsmith, a long-established US-based photographer.

Penned by a company calling itself License Compliance Services (LCS) on behalf of Getty-affiliated Alamy, the letter got straight to the point.

“We have seen that an image or image(s) represented by Alamy has been used for online use by your company. According to Alamy’s records your company doesn’t have a valid license for use of the image(s),” the letter began.

unselfconscious

“Although this infringement might have been unintentional, use of an image without a valid license is considered copyright infringement in violation of the Copyright Act, Title 17, United States Code. This copyright law entitles Alamy to seek compensation for any license infringement.”

The company demanded $120 to settle the dispute, which admittedly isn’t a huge amount. However, the case contained a series of devastating flaws, not least that the photograph in question was taken by Carol Highsmith herself. But it gets worse.

During a near half-hour telephone conversation with LCS, Highsmith began by explaining that she is the author of the image. However, she also revealed that she had donated this and thousands of other images to the Library of Congress and makes them available to the public to reproduce and display for free.

In the dying days of December 2015, Highsmith received confirmation from LCS that the case against her had been dropped. However, Getty and Alamy clearly hadn’t got the message. Amazingly, the companies were also making available more than 18,000 of Highsmith’s other photographs on their websites.

In a lawsuit filed July 25 in a New York District Court, Highsmith’s lawyers make their position clear.

“Nowhere on its website does Getty identify Ms. Highsmith as the sole author of the Highsmith Photos. Likewise, nowhere on its website does Getty identify Ms. Highsmith as the copyright owner of the work,” they write.

“Instead, Getty misrepresents the terms and conditions of using the Highsmith Photos by falsely claiming a user must buy a copyright license from Getty in order to have the right to use the Highsmith Photos.”

In some cases Getty was demanding $575 for use of just one of Highsmith’s images, despite the photographer making the content freely available to the public. Worse still, the company has also been sending out settlement demands to people who used the images legally on their websites.

“The Defendants have apparently misappropriated Ms. Highsmith’s generous gift to the American people,” the lawsuit reads.

“The Defendants are not only unlawfully charging licensing fees to people and organizations who were already authorized to reproduce and display the donated photographs for free, but are falsely and fraudulently holding themselves out as the exclusive copyright owner and threatening individuals and companies with copyright infringement lawsuits that the Defendants could not actually lawfully pursue.”

As a result, the tables are now turned, with Getty on the receiving end of a settlement demand. For using her images without permission, Highsmith says that Getty is liable for statutory damages of up to $468,875,000.

However, since Getty lost another copyright case (Morel v. Getty) within the last three years, Highsmith believes that the court has the power to treble the statutory damages. In this case up to a cool $1 billion.

Considering Getty’s holier-than-thou position when it comes to infringement, thousands will be cheering Highsmith on to victory. In the meantime, check out her work, it’s something really special.

The post Photographer Files $1bn Copyright Claim Against Getty Images appeared first on P2P Foundation.

An interesting situation has developed with the proposed Star Trek ‘fan film’ Axanar which may highlight how we find ourselves in a transition period between two eras: the old era which relies on ‘Intellectual Property’ (IP), heavyweight corporate power and lawyers; against a new agile era based on crowdfunding and free access to information.

hollywoodreporter.com explains the situation:

“For decades, Paramount and CBS have tolerated and even encouraged fans of the Star Trek franchise to use their imagination at will, but on Tuesday the entertainment companies went to their battle stations and launched a legal missile at a production company touting the first independent Star Trek film.

Axanar, the subject of a lawsuit filed on Friday in California federal court, is no ordinary Star Trek film. The forthcoming feature film (preceded by a short film) is the source of more than $1 million in crowdfunding on Kickstarter and Indiegogo. The producers, led by Alec Peters, aim to make a studio-quality film. As the pitch to investors put it, “While some may call it a ‘fan film’ as we are not licensed by CBS, Axanar has professionals working in front and behind the camera, with a fully-professional crew — many of whom have worked on Star Trek itself — who ensure Axanar will be the quality of Star Trek that all fans want to see.”

Paramount and CBS see a violation of their intellectual property.

“The Axanar Works infringe Plaintiffs’ works by using innumerable copyrighted elements of Star Trek, including its settings, characters, species, and themes,” states the complaint.

Axanar has become one of the biggest film projects in Kickstarter history and has been nearing warp speed with the reported help of Star Trek actor George Takei. The film mines subject area referenced in the late 1960s Gene Roddenberry television series and appears to be a prequel.”

As mentioned, CBS/Paramount has previously turned a blind eye to fan films using the Star Trek mythology as long as they do not make any profit either from the film itself or from related merchandise.

The current state of affairs was complicated enough anyway, with the rights to the franchise being split between two separate corporations, and as explained here:

“A major stumbling block: “Star Trek’s” licensing and merchandising rights are spread over two media conglomerates with competing goals. The rights to the original television series from the 1960s remained with CBS after it split off from Paramount’s corporate parent Viacom in 2006, while the studio retained the rights to the film series. CBS also held onto the ability to create future “Star Trek” TV shows.

Paramount must license the “Star Trek” characters from CBS Consumer Products for film merchandising.”

So Axanar is entering an already fairly complicated universe with its proposed new movie. What seems to have awoken the CBS/Paramount interest in this film is the large amount of money raised from the crowdfunding campaigns, plus the fact that they have their own new ‘official’ ST film coming out in 2016.

So one question is: can a production still be described as ‘amateur’ or ‘fan’ when it has a budget of over $1 million, and is paying industry professionals to make it, even when it has stated that the film itself is a non-profit operation?

Granted, a million dollars is nothing compared to what the next ‘official’ Star Trek film will cost, but this brings us to the crux of the thing here: the cost of making ‘professional quality’ films has dropped enormously in recent years due to the increase in power of cheap personal computers and ‘prosumer’ CGI software. Add to this the power of the internet to publicise and raise the money via crowdfunding, and this looks like a very much more equal fight than could have been imagined a decade or so ago. This is not so much one David versus Goliath as a million distributed young Davids against one ageing Goliath.

So what do the big studios have in their favour? If everything else is more or less equal, it basically boils down to two letters: IP. These two letters hold the key to enormous corporate and state power. CBS/Paramount holds the ‘intellectual property’ rights and therefore can force the upstart production out of existence using the power of the US courts which will surely back its bid to reassert its sole right to exploit its ‘property’: that is, the collection of ideas and characters originated by Gene Roddenberry in the 1960s which have been added to constantly since then and now make up the Star Trek mythological universe.

Therefore unless the producers of Axanar can come to some sort of agreement with the rights holders, that will be the end of the story. But should it be? Or should they soon be able to do whatever they want with these ideas? As unpleasantfacts.com notes:

“This whole mess would be largely avoided if the Star Trek intellectual property was in the public domain. They’d still probably be making bad Star Trek movies, it just wouldn’t be as offensive when there were other options. Big studios wouldn’t be the only game in town when it comes to characters and a universe that has been part of people’s lives for many years.

If the 1909 Copyright act was still in effect, Star Trek would be in the public domain after 56 years. The original series first aired in 1966, so by 2022 the basics of the original Star Trek universe free to anyone who might be able to do it justice. Under current law, it is in the hands of the current rights holders until at least 2061 and likely longer since copyrights get extended when Mickey Mouse gets close to the public domain due to Disney’s lobbyists.”

Corporate capture of the legislative powers pretty much everywhere in the world means that franchises such as Star Trek are pretty much never going to enter the public domain, at least while this seriously broken system of copyright exists. As always, corporations proclaim themselves staunchly in favour of a free market until they themselves enjoy a monopoly.

In contrast, it doesn’t appear that the majority of the ‘IP’ related to Sherlock Holmes being in the public domain (although naturally even that is complicated) has harmed efforts to produce successful films and television series using the iconic detective as their main character – what has harmed them, if anything, is them simply not being very good.

Given that hardcore Star Trek fans are apparently disenchanted with the recent CBS/Paramount films and are putting their money where their mouth is by backing the new Axanar project, it may be that the lawsuit is revealing a previously unexperienced level of concern over fan-backed competition to their franchise. Imagine the embarrassment if the crowdsourced film got more views on YouTube than the mainstream one did at the cinema, with maybe one two-hundredth of the budget. Also if Axanar goes ahead, we can’t discount that the infamous ‘Streisand Effect‘ will in effect be granting free publicity to the project from now on.

Overall it does look likely that the corporate behemoths will win this battle, although Alec Peters, producer of Axanar, sounds hopeful that some sort of agreement can be reached. This does however point to a new front in the overall war between those who believe that long-running mythologies such as Star Trek should be effectively ‘open sourced’ into the public domain and who now have the power to create ‘professional quality’ retellings of them, and those who believe that ‘Intellectual Property’ is sacred and – at least for now – have the backing of the state to enforce it.

Connect with the author on twitter @guyjames23

The post ‘Star Trek’ Axanar: ‘Distributed Davids Against an Ageing Goliath’ appeared first on P2P Foundation.

It has become fashionable to toss copyright, patents, and trademarks—three separate and different entities involving three separate and different sets of laws—plus a dozen other laws into one pot and call it “intellectual property”. The distorting and confusing term did not become common by accident. Companies that gain from the confusion promoted it. The clearest way out of the confusion is to reject the term entirely.

Read more here: ‘Did You Say “Intellectual Property”? It’s a Seductive Mirage’

The post Richard Stallman on “Intellectual Property” appeared first on P2P Foundation.

This article by PSFK Labs describes how those involved in ‘Maker Culture’ are trying to steer a path through the murky waters of IP and ensure that there is benefit for all concerned – my reservation with the model of only allowing designs to be printed once is that although it protects the right of the designer to earn value from their work, it does so by imposing an ‘artificial scarcity’ where none is really called for – ultimately I would prefer designs to be shared freely in a Commons approach, possibly in conjunction with something like the Peer Production Licence so that capitalist entities not contributing to the Commons have to pay IP rent, and thus ensuring a flow of value back to the creators of the designs.

The key phrase from the article seems to be ‘Within the world of digital design, it can be hard to define where ownership begins and ends‘ – this is surely one of the pressing dilemmas of our age and if we get it right we can ensure a future that is more abundant than what we have known in the recent past.

An emerging set of platforms and services are making it easier for inventors to navigate the complex landscape of copyright and bring their ideas to market.

Between 2003 and 2008, the Recording Industry Association of America (RIAA) filed, threatened or settled more than 30,000 cases against individuals who used peer-to-peer (P2P) networks to share music. It was an unprecedented legal campaign designed to protect copyrights and intimidate into submission anyone who might be tempted to upload or download material without giving the industry its due.

And while music lovers and open-Internet advocates screamed, the RIAA argued that it was the only way to ensure that individual artists and their recording labels could survive. Since then, as society has become increasingly digitized, the balance of democratization and rights protection has become harder and harder to strike.

To see this struggle in action, look no further than the exploding industry around 3D printing and design marketplaces like Shapeways and Sculpteo. Catherine Jewell of the World Intellectual Property Organization (WIPO) wrote last year, “Ensuring that incentives and rewards are in place for those who invest in new ideas without stifling innovation and openness in the use of online designs will be a key challenge for IP policymakers going forward. Mechanisms that facilitate the licensing and legitimate sharing of design files will play a major role in meeting this challenge.”

The urgency of finding the right mechanisms is underscored by the fact that companies spent $13 billion last year dealing with assertions of copyright infringement. Fortunately for makers on both sides of the issue, there are a number of innovations emerging that will allow innovators to fully focus on their craft without having to worry about losing ownership of their work or infringing on the intellectual property of others.

We’ve called this raft of new tools ‘Gated IP’ and this week, we take a closer look at three examples of the trend.

Continue reading…

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