1/ The current legislation under review by the European Commission’s Digital Single Market Strategy regarding “neighboring rights”, to be voted on by the European Parliament in late March 2018, has little if anything to do with author rights

2/ All arguments about protecting revenue streams for publishers indicate that the true purpose is to fortify the rights of publishers (who have arrogated to themselves the rights of authors)

3/ The arguments from the public domain side against this legislation are equally problematic and suspect for the same reason that author rights are not part of the rationale for propping up the knowledge commons against the disputed proprietary rights of publishers

4/ The central issue, which is also hidden in plain sight, is – after all – the moral rights of authors (“Lockean natural rights”) as established in the Enlightenment and as enshrined in the Berne Convention for the Protection of Literary and Artistic Works (1886)

5/ Both the EC and the World Intellectual Property Organization (WIPO) have shown no interest in addressing this set of rights, given the inherent abstract nature of such rights and given that both are operating on behalf of industry in a global IP campaign that resembles the “weaponizing” of IP rights

6/ Given that economic data (or any empirical proof) confirming that free copying of works or appropriation by platform cultures benefits the author is impossible to produce, whether justified through the murky term “transformative use” or “discoverability”, all such arguments, as used on both sides of the debate (by publishers to e-license copyrighted works and by advocates of Open Access to justify authors giving their works away for nothing) devolve to mere speculation based on the bias of the beneficiaries

7/ Given the origin of copyright in the Venetian Renaissance, via the granting of privilegio to authors for books published in the Republic of Venice, and given the almost immediate arrogation of privilegio by printer-publishers in the Republic of Venice, the arguments associated with “neighboring rights” today merely revisit historic arguments waged then against the damage done to authors and presses through illegal copying

8/ What has not advanced, and what needs to be fully disclosed, is how mass digitalization from both sides of this battleground has forced the lion’s share of authors today into a class conveniently labeled the “precariat” by critics of capitalism for the benefit of a global “vectorial class”

9/ What is less obvious regarding this widening chasm between the precariat and the vectorial class is that almost all academic proponents of fortifying the knowledge commons through an enforced neoliberalized open-access regime for scholarly works are part of the global vectorial class by virtue of participation in the production of platform cultures that decimate author rights from the so-called non-profit side, while “Capital” takes care of the destruction of author rights on the for-profit side

Photo by Spongehoe

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At the end of October, I wrote an article entitled “Evgeny Morozov and personal data as public domain” .
I got a lot of feedback, including from people who had never heard about these kinds of theories, trying to break with the individualistic or “personalist”  approach based on the current law about the protection of personal data, to think/rethink about its collective dimension.

Actually, there are many theories which, I think, can be divided into four groups, as I tried to show with the mindmap below (click image for full mindmap).

Click image to view full mindmap

The four groups of theories are as follows (some make a direct link between personal data and commons, while others establish an indirect link):

• Free software theories (indirect link): personal data are not directly connected with common goods, but digital commons should be developed (particularly free software) in order to regain control of them. Furthermore, we must go back to a decentralised framework of the web and encourage a service-based economy if we want the Internet to be preserved as a common good, to prevent abuses of personal data and to limit the ascendance of state supervision.
• Collectivist theories (indirect link): personal data are not directly connected with common goods, but we have to allow people to pool and share them safely or to implement collective actions in order to defend individual rights (class action lawsuits, specific unionism, etc.).
• Commoners theories (direct link): the legitimate status of personal data has to be changed to secure its collective dimension and recognize it as a common good (for example, grant a common good status to “social graph” or “network of related data”). This will make it possible to rethink the governance of personal data as a “bundle of rights”.
• Public sphere theories (direct link): the legal status of personal data has to be changed to recognize its nature as a public good. This will enable states to weigh on digital platforms, particularly by submitting them to new forms of taxation, or by creating public organizations to enhance collective control of data.

I tried to make sub-divisions for each of those four theories and to give concrete examples. If you’d like more information, you’ll find links at the end of every “branch”.

I’m not saying this typology is perfect, but it has allowed me to better apprehend the small differences between the various positions. It can be noted that some of the authors appear in different theories, which proves that they are compatible or complementary.

Personally, I tend to be part of the commoners’ family, as I have already said in this blog.

Feel free to comment if you think of more examples for this map or if you think this typology could be improved in any way.

Photo by Sarah @ pingsandneedles

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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

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Everything is a coming of age short set in El Paso that tells the story of Sinai, a young woman faced with a life changing decision.

“Everything” is an interesting public domain film project. They are currently running a crowdfunding campaign, check it out here.

About

Established in 2016, Unkut is a nonprofit production company designing films in the public domain. Based in Austin, TX our goal is to help create a more sustainable future for independent cinema.

By moving to a nonprofit model, we hope to help create and contribute to a form of art, one that is based on openness and giving, transparency and hope. Our vision is to make cinema, like love, in all its forms, accessible to everyone, not only to viewers but creators alike.

Our films and all source material including fonts, screenplays, storyboards, music and props will be freely available to copy, distribute, display, perform, remix and sell. And by releasing our projects under a Creative Commons CC0 license, it’s our hope that we can, in some small way, help to contribute to the world’s cultural heritage that we all freely share in.

-Derek Kaler

https://unkut.org

Everything

Our first film, Everything, is a coming of age short set in El Paso. It follows the story of Sinai, a young woman faced with the decision of working at a motel or joining the Army after the death of her ailing father. Set during the backdrop of the recession in 2009 and torn between a life of uncertainty or ill will, Sinai must decide if circumstance or faith will determine her destiny.

CONTRIBUTE TO FINANCING THE FILM HERE

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Full title: Finding the Public Domain – Copyright Review Management System Toolkit.

“Copyright is meant to do something — several things — to accomplish socially desirable ends. One of those ends is to create a space for a free exchange of ideas that allows us to build upon a universe of expression that came before.

How can I tell if something is in the public domain? This is the central question addressed daily by the Copyright Review Management System (CRMS) project. It is a special question and one essential to the social bargain that society has struck with authors and rights holders.

It is also a deceptively simple question. There should be a straightforward answer, especially for books. It should be easy to know when something is — or is not — subject to copyright. And yet, in an age of absolute fluidity of media and medium, even plain old books can be highly complex embodiments of copyright. We need to make it easier to ascertain whether a work is in the public domain. If the rights of copyright holders are to be respected and valued as part of the social bargain, the public domain as a matter of copyright law should be ascertainable and enjoyed.

Given this complexity, consider the determination of the copyright status of a given creative work as a design problem. How do we move the copyright status of works in the collections of our libraries, museums, and archives from confusion and uncertainty to clarity and opportunity? Working over a span of nearly eight years, the University of Michigan Library received three grants from the Institute of Museum and Library Services (IMLS) to generously fund CRMS, a cooperative effort by partner research libraries to identify books in the public domain in HathiTrust. The Toolkit is a resource that aims to allow others to understand and replicate the work done by CRMS.”

The details of the developed toolkit can be found here.

Photo by PugnoM

Photo by Skley

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In essence, the problem is that Creative Commons allows people to grant others freedom, but with very specific and often mutually exclusive conditions. And that’s only sort of freedom.

The post Thinking about licensing appeared first on P2P Foundation.