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| ==Conversation transcripts== | | ==Conversation transcripts== |
| [[Conversation with Séverine Dusollier]] | | [[Conversation with Séverine Dusollier]] |
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| Radio podcast
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| Severine, Eva, Femke
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| Brussels, 12. November 2023
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| Eva 00:00
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| Hello. Welcome to this conversation on sharing and practices of reuse. We are here because we wonder how to make the conditions for reuse explicit, without falling back, neither on conventional copyright and the individual genius, nor on the colonial gesture of a universalist concept of openness as currently proposed in open access or open culture. This is part of a collective research around ecologies of dissemination, exploring the tensions between decolonial knowledge practice, feminist methodology and open access. My name is Eva Weinmayr.
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| Femke 00:58
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| And mine is Femke Snelting. And we're here with Severine Dusollier. Hello, welcome. So Severine is here with us because we really wanted to speak to her already for quite a while. Severine works on critical approaches to copyright and IP. And she has been thinking and writing on and with creative and cultural practices, free licences and commons in particular, she has been in conversation with artists and designers, practitioners around Constant – and we include ourselves in that – an association for art and media in Brussels, already for many years. Severine is also a professor of law at Sciences Po in Paris, and holds a senior chair at the Institut Universitaire de France. Her current research, and we will try to ask her some questions about that, focuses on ecologies of copyright, aiming at considering creators and their practices as part of a cultural and inclusive environment within copyright. So in other words, trying to pay attention to the relational aspects of creative practices.
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| Eva 02:15
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| Severine, why did you start working on the idea of inclusivity and exclusivity as a critical approach to IP, and copyright?
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| Severine 02:28
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| I've been working on copyright for more than 25 years. I started out with a very classical point of view, that copyright is a right that is granted to creators to protect their works, that is based on property, etc. and from the very beginning, I really worked on the limitations of copyright and copyright exceptions, the public domain. I was also involved from a very early stage with Constant on the critique against copyright that was emerging at the beginning of the internet and digital practices, a point when suddenly everything seemed to be open and possible and feasible. When the practice of copying and sharing was thriving, and its visibility increased, while copyright law kept on stating that copying was prohibited. So there was this tension between what the law said and what the practices were. Therefore, I started to think that exceptions or limitations of copyright carve out some space or tolerances from the exclusive rights. And that these practices of sharing and creation based on reuse could have also some cultural meaning. I was not the only one thinking about these issues at the time, and copyright could also be thought as as cultural environment, taking care of the condition of the creators, the artists, which are, of course, important too. So, my work on the limitations of copyright is not a challenge of copyright itself and of its need for artists and creators. It's more about how it is built around the concept of property and exclusivity.
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| Eva 04:34
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| {Could you say a bit more about the concept of property and exclusivity?}
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| Severine 04:34
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| Exclusivity in property was at the beginning not something that I was really paying attention to! Since as a very classical lawyer, for me, it was part of what the law was about. It was given, something that could not be criticised. Property is about exclusion. If I own something I can exclude others from "my" thing. As the owner of an apartment, of a house, I can decide who can live with me, and I can expel anyone who comes in without an authorization. So that, at the time, was what property was about and I always thought it was the essence of property. And then maybe as I became less stupid studying law, I realised that it was not the essence of property, it was just the narrative of property. And, you know, as any narrative, narratives are there to be subverted, to be retold, to be changed. It was a strong narrative, of course, and it almost became a mythology, but it was still a tale - so you could change it. And how I came to inclusivity? Actually, it was just by chance. I was thinking, I was working on a big research project, and I wanted to talk about all my different fields where I had developed research: on copyright exceptions, public domain in copyright, open access licences, and all those spaces where the purpose was to share or to make some uses that were not reserved to the author, but were collective. And then, I don't know, it was in the middle of the night, I said, Oh, actually, it's the reverse of exclusivity, then it must be inclusive. If it's not exclusive, it was inclusive. So, it just started like that and then I developed it into something that could matter, not just be a play on words, but could also have normative meaning.
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| Femke 06:53
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| If you say inclusivity, and you've made the connection to the ecosystem, could you explain us how this works? How shifting from focusing on exclusivity to inclusivity makes it possible to think about…
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| Severine 07:10
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| When I started thinking about these questions, I challenged the notion that copyright was a property and I said, it's not a property. And then I came back to that. I had two different lines of work: First is copyright property?
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| What property is about and can we also reconcile the fact that copyright could be property, but another type of property? So, to come back to traditional property, when we say that property is exclusive, we mean that you can exclude someone, because you're the owner. You are the one who can decide what to do with your thing and you can exclude anyone from its use. This is true for tangible property, but also for copyright and intellectual property. At the same time exclusivity means that if you are the owner, if you can exclude others, you are the only one enjoying it. This leads to individuality of the right. It cannot be a common. You cannot have exclusivity and common use. There is an ancient saying in property theory, dating back from the 17th century, that says le propre n’est pas le commun. Meaning what is proper, is not common. Because if you have property, it's completely opposed to commons.
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| When the commons movement started to re-emerge in the 80s and 90s, you know, it was seen as a challenge to property, as a sort of subversion of property. At the same time part of commons scholarship reminded that there were always commons in property, or systems of property that worked on common use and not on exclusivity. Research on commons at the time was more economic research, sociological research, historical research, while in law it mostly depicted commons as a governance system. It means that the research was still stuck with this idea of property as exclusive. So, the only way we can do it, as lawyers, is just to say, property is about exclusivity and commons is something else. Commons is a challenge of property, of law, of the system of law, but it's not part of property in any way. I was really puzzled by this conundrum. And then I found some scholars who said that exclusivity is not the essence of property, it’s just some model, just some construction. And it was a construction that was important in the modern emergence of property and in the liberal system of law and the liberal system or property where copyright formed a great part, because copyright was needed to make the individual subject, that was also the one who could get rid of the system from the Ancient Regime. The liberation of the subject is also the transformation of the subject to a liberal, legal subject that could be proprietor of things.
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| It was certainly important at some point in time, but today, we see that there are other systems of sharing, of the commons, etc. Therefore, my question was, are those system outside of property and outside of copyright? Or can they be a part of it?
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| So my point at the beginning, in the first years of my research, was that there is exclusive property, and then there are other systems that are inclusive properties. And they are just, you know, parallel in a way. And then after some point, I said that they are not parallel, but part of continuums. You know, we have systems of property that could be actually plural, you have different modes of enjoying a resource. And yes, you have the mythology of the exclusive ownership, that forms only a small part of copyright cases and property cases. And you have all the rest. It's just a continuum property gives the owner some power over the resource. And that power can be exercised in many different ways. And sometimes this is the owner who decides to include, and sometimes it is the law that says that the resource should be shared and inclusive. I think I wanted to deconstruct the paradigm of exclusive property to assert that a property is just the combination of different models that combine sharing, and individuality, exclusivity, inclusivity, etc. The relationality of property came two fascinating scholars, who were really looking at property in a completely different way. There are two Sarahs: Sarak Keenan and Sarah Vanuxem They really opened a new way of, of looking at how property could be understood and practised. Exclusive properties are very hierarchical. It's one owner who decides who can do what, and with inclusive properties it’s more like, okay, let's share that power. Let's share that thing! But it was still based on a legal entitlement, it was still mediated: all these legal entitlements that we decide to have in common in the thing. Those two scholars completely reversed the position by starting from the work, the creation, in copyright (even though they did not write about copyright at all). First Sarah Vanuxem, a French property lawyer, has developed a very ecological notion of property in land, when she says that all systems of property could be conceived as a milieu: you do not own a thing, you're not dominating a resource, but you live in it, you inhabit it. So whether you are the owner, whether you are the tenant, whether you are, you know, in any other legal positions, as to a piece of land, she says that all inhabit the thing and your legal relationship to the thing is just a position as an inhabitant. Her theory helps us to understand that you don't have only rights, you have mostly liabilities.
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| Because if you have a right to a resource, you are part of it, and then you need to take care of it. This changes completely the model of property! The other scholar is from the UK called Sarah Keenan. Her book is called Subversive Property. It's not only a book about property. She starts from about migrant women and lesbians who seek asylum in the UK and need to prove that they are persecuted because of their sexual orientation. They are told that they have to prove that they are part of and belong to the LGBT community. She denounces the post-colonial idea behind that because what does it mean to belong to an LGBT community as it is defined in the UK, when you are coming from a country where actually the communities are something else, and maybe you leave, because you are not considered as being part of a community? Sarah Keenan talks about what it means to have the property of being something. Property might not be about owning something, where you have this vertical relationship of dominance, so it's not about to have, but to belong. You don't own a thing, but you belong to a thing, and you belong to a community. And that influenced me a lot, because the inclusivity I wanted to develop as a model is not only the fact that the relationship you have to a thing is about including others, instead of excluding them. That is also that actually the relationship you have is about forming community, is about membership, about belonging. I think this is interesting for copyright, because it can mean that it's not only that you are the author of the thing, and as the owner of a copyright in a creation, you can decide to exclude or include, you have the power to exclude and decide to whom I will give a licence to do that and that. So copyleft licencing was about being more inclusive than traditional licences, but it's still the same relationship of allowing or permitting except that it is an inclusive permission, where no one is excluded as a principle. A model of property based on belonging and community, means that my relationship to the work is just that I'm part of the process that has led to this creation. I might have a major part in it, so it's not about that all people are equal. It's just like you are part and you recognize that you are part of something, that you belong to a process instead of having a right in something because you create it, then it changes completely how you could also authorize the use of the thing.
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| Femke 18:10
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| And really have to think about what Jen Hayashida said in a conversation on translation as a form of reuse. And she was speaking about commitment as relational authority. The commitment to certain politics of translation, and certain politics of caring for radical Korean poetry in this case, became a reason for having the authority to co-decide what was happening to the work. And I found that really powerful that it's through commitment, which is maybe a bit different than belonging, because belonging could be read as identarian. But through conviction and caring for the continuation of the work, that this would happen. And that's indeed a very different relationship than the legal authorship as we have now.
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| Severine 19:39
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| What is the interesting thing about property is not whether it's inclusive or exclusive but is the fact that you own something which makes it transferable. You can completely transfer the ownership. Or even if you give a licence in law, it means that you create a right out of your right that the other can also transfer – not necessarily in a technical sense – but it means it has its autonomous existence. If you say that you belong to something, actually, it doesn't create some rights that are autonomous, that people can take with them. In this way belonging means that you are always in a relationship. That’s very different from authorising others to do something and having not control afterwards if they comply with the condition for the authorisation.
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| As a result, the creation and its use, and its reuse, establish a network, a community of users around it, and it never stops. Then everyone who belongs to that community share the creation as a practice. The difficulty is to not go into a form of authoritarianism or to a form of closed community that excludes some people. So, this is also the paradox and the difficulty, to not be completely naive and think that communities are always good. We know, of course, that communities sometimes are really cruel.
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| Eva 21:37
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| Yes, of course. I am curious, when we think of ways how collective practices and inclusivity could receive a legal recognition, I wonder about their universal applicability. Thinking of a community-based code of conduct, for example, or mutual liabilities. Or do you see a way to transfer the context based and situated agreements into a more universal legal recognition?
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| Severine 22:18
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| I'm always a bit sceptical about codes of conduct or governance rules because most of the work on the commons, and most of the legal scholarship on commons is about governance. I was never attracted to that, because governance is about contract. It’s the same way of looking at rights. Governance might be important, how you call the different rules that you agree upon but I don't find them completely satisfying – I don’t know exactly why – perhaps because the aspect of discussion and negotiation is missing. Governance means you discuss at the beginning, and then that governs the use of a thing, but it's never dialectic or dynamic. And it can be much influenced by the power dynamics of different roles of people involved. And the second part of your question was about the legal force of that, right.
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| Eva 23:45
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| Yes, about the relationship of (universal) legal recognition and situated community-based agreements.
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| Severine 23:51
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| This is a question that I get constantly about legal enforcement and recognition. And I agree, it is important, but at the same time, I think that it is most of the time overestimated. Oh, it must be legally recognized, etc. But copyleft licences, for example, have never been formally recognized by courts. There are a few cases where a court has agreed about their contractual validity. But the point is that you have different types of norms that are binding for people, norms that are recognized by people and that doesn't mean necessarily it has to be recognized by law.
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| I am completely aware that exclusivity is not only the narrative, but also the model paradigm of property that influences a lot of rules. I have studied a few cases, in tangible property and in copyright that show that even if those cases are about sharing and about collective creation or collective enjoyment of a resource, if some legal question arises at some point, there is a lot of chance that the court will apply a model of exclusive property and will not understand and recognize the way people want to do things differently, because the rules are strongly modelled on the exclusivity.
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| But at the same time, we made some tests with scholars and experts in those fields of law. We made most litigations with legal experts and judges. We asked them whether they could be convinced by other legal arguments. And in all the cases, they were convinced that, yes, exclusive property was the way things were organized primarily, but nothing prevented a judge to apply a different rule if the judge has enough arguments to do so. Of course, it is not easy, and it needs a good argumentation. There have been some cases where they said no, this goes too far you cannot do that. Perhaps I'm playing a bit too much with the law which is still something you must be able to rely on. You can see it's not as flexible as we want it to be.
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| Femke 26:52
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| But I mean, maybe it's also the question of like, how do we practice differently with those? Like, well, how does practice change around authored objects, when we put them in the middle as a as a kind of a core of relations? Then in what way do we inform each other and make explicit what, what the limits are of reuse? And who is part of that decision making? I mean, we're really seriously trying to think about those practices, because we see people are struggling with finding more generous ways of working with cultural objects, but at the same time, when it gets tense, or when people get insecure, then often fall back to one person. Authored objects being personally owned somehow, and the original author is then asked for permission. And then all these not even so well known, but conventional, practices seem then to come back. In what way do you envision this as a community practice? What are tools we can think of around such an authorial object seen in its ecology? From your studies and what you've seen: What are the legal or non-legal tools to make those conditions explicit?
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| Severine 28:55
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| Any type of agreement, a licence, a condition that is accepted by participants of a creative process would have a legal value in any case, also indicating that these are the rules that bind those people together as a community and those rules can be recognised by law.
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| A lot of persons think that the law is something that decides for you. But the laws we are applying in our western societies are strongly influenced by liberal thinking. And liberal thinking is about the autonomy of the subject. It means that a big part of the law is actually recognising some legal autonomy of the subject that can decide on the rules that bind him or her.
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| The contract, for instance, is a really important instrument in law that says two people can agree amongst each other, what will be their obligation and rights. Of course, there are things that you cannot decide on if they will be against the law, but actually they are rather limited. So, it shows that there are a lot of flexibility to how you can organise your legal relationship or the norms that will bind you - more flexibility than you would think.
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| Eva 30:45
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| There is something interesting about the temporality. A contract is being negotiated at the beginning of a process whereas a licence is attached at the end of the process. A contract similar to a protocol is a document that lays out the steps of the process, for example, when we talk about sharing practices, distribution and reuse. In situations when you are actually working together, the protocol or contract defines the modes of this collaboration at the beginning, you are in dialogue, the licence is more like a stamp attached at the end, when the objects start to wander off to the reader, the reuser.
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| Severine 31:37
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| But all of that is contract! Contract is a very generic term. It's any private agreement between people and will be recognised by law and enforced by public authorities and the courts. It will govern the life of people but with a recourse to the public nature of law. We call it the private ordering norm, because it's not the public ordering norm which is a law, a legal instrument, a legal norm that has been decided by Parliament's etc, it is a tool that is private and organises the relationship amongst people from private source and through private negotiation.
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| The term licence is linked to authorisation and to property. So, it is still a contract, but a contract that decides what can be done with property. A licence has this supplementary element, but nothing prevents from setting the conditions of [future] creation by already integrating the terms of reuse in the licence. And that would be a contract and a licence at the same time. The only difference is that the licence can also apply to people that are external to the process of creation. And so suddenly, this contractual part extends to other persons who will be bound by the licence and will not be bound by the process of creation. So actually, you would have different contracts. And this is what makes it very difficult, for instance, in an open licence contract that is still a contract in a very traditional sense, a relationship between person A and person B, and after that person B and person C, and A and C. Having a multilateral contract is a very complicated legal instrument. Our liberal modern legal system is still about bilateral legal relationships of contract and so an open licence is based on a chain of contracts. So open licensing is not about sharing, it's still about authorising someone else to use a work in a bilateral relation.
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| It's difficult, of course to completely deconstruct that in law, and I don't pretend that I want to do that. But I think that particularly today, we need another type of legal instruments, of vocabulary to try to tackle new forms of commons, new forms of doing things together. Sometimes there are case laws and court decisions where imaginative judges apply different systems and norms, who are inspired by other normative systems or legal cultures.
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| We have to recognise that the modern Western legal system is very powerful everywhere in the world. It’s very much colonial, and it's very difficult to come back to previous systems that existed before the Western law expanded everywhere in the world. And this is why it's quite difficult to recognise that parallel systems could exist and could maybe have more value than our modern private law based on contracts and on property.
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| Femke 35:51
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| If we continue this thinking about different types of tools – legal or not – following our own work on trying to think through conditions and imagining conditions for work that either you belong to, or that you want to belong to. I think this is where the tensions often appear is not so much the issue with setting conditions for work that you feel you belong to – it has its own issues, but what happens when you consider creative practice as already part of a culture, and then want to somehow continue or comment or reuse something that you might not belong to.
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| This is when conditions become explicit and start to be really necessary or useful, because this could be a way to understand beyond your sense of belonging to your community, how another community might want you to engage.
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| Eva 37:13
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| Yes, how another community wants you to engage, or how to engage with works from another point in time. It is not only about contemporary materials, where you could just call up someone or write an email and ask… it is also about the reuse of work that has been done a long time ago.
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| Femke 37:15
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| We've been trying to think about different moments in the process to articulate conditions but also what it means to formulate conditions for those you don't know yet. And this is where the licence often functions. How could you do that without reinforcing this very position of ‘I am the one that owns this work; therefore, I tell you what can be done’? I'm just curious how you see the possible space for working on contracts, as you call them, from the beginning of the process to the end from communities that have strong belonging. When we studied the indigenous agreements, for example, it's very clear there is an assumed belonging which gives the authority to decide. So, how to deal with those transitions between communities in time, communities in belonging or not belonging?
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| Severine 39:00
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| It’s a difficult question. I think it's important that we build on the notion, that it's not finished. It's not sufficient to move from ownership to belonging, and then it's done. It is still a process. Think of the critical questions that we have been gradually asking about the openness of the commons – open source or open access. The openness is sometimes seen as an open space, open to everyone, and there are some commercial actors that come and grab what they want because it's open. It's there for use. There is a free licence that allows to take some creation and then republish it, make money out of it, or whatever. The fact that it is open, means that anyone can come and grab what they want.
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| That does not depart much from the notion of extraction, and extractive property, and this is why the concept of ecology is important. Because if it is inclusive it’s not only open in the sense that you can take anything you want, it should also be about having to sustain the resource. When applied to about intellectual creation that is never depleted, it's not about sustainability in a tangible way, but it's about sustaining the practice and make it not possible for someone to extract the thing for their own benefit.
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| To give you an example, the notion of the public domain in copyright: as soon as something is created it is copyrighted. In Europe, and in most countries of the world, the copyright duration is 70 years after the death of the author, and after that, and it is in the public domain. Then it's free for anybody to use. That notion has long been celebrated, but there has been also a lot of critique saying that it might be public, but if public in the sense that is open for everybody, it does not address the asymmetries of power and other interests. For instance, indigenous cultures because they don't satisfy the modern and Western condition of authorship are in the public domain. That means that it's free for everyone to use, to extract and appropriate. And this is a problem, of course, because then it doesn't recognise another forms of culture. And I shouldn't even say ‘another form’, because then I establish, again, the alterity of the other culture, which is already problematic.
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| It is imposing only one mode of legally encapsulating a culture and not recognising all the modes that are possible. The public domain itself, is a very modern and exclusive idea, actually, because, it's open, but it's just for everyone to take. And actually, most of the open licencing were also a way for a lot of entrepreneurs to take things and not remunerate the creators and the artists. This is also problematic.
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| Femke 42:51
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| Just to have it really clear, the problem of the public domain is twofold. It’s the category of open, maybe the most open as we know it, means it has no limit and extractive use is perfectly possible. There's no blockage to that whatsoever. But also, because the category of the public domain is also based on that, which does not belong to the modern concept of authorship, this means that some content enters the public domain…
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| Severine 43:42
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| … without ever being protected by copyright, so actually, unwillingly, it's considered as public domain, and it's just a very accidental concept of public domain. One that works towards, again, creating commodities, creative commodities, because all these indigenous cultures can be taken, for instance, by music industry to create some musical works and recordings without any compensation to the original community that have developed that song, that music. This is an extraction of value to the benefit of some under the pretext of the public domain. It completely hides the powers that are there. This is problematic, of course, and the mandates of open access are sometimes also a way to actually make everything open without even consulting the communities who can have an interest in the objects, in the data that are made open access. We need to think about what we want to put in open access, since we cannot just say, oh, open is always good, because then it's the same move like saying, oh, copyright is always good.
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| Eva 45:20
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| There has been recently, quite a big revival of conditional licences. So called ethical licences, which use the right to exclude in a literal sense. Still an open content licence, they restrict reuse for specific purposes, for instance, you can’t reuse, when you create harm or are involved in some way in wars. Or, this and that software can't be used by companies who contribute to climate change. It’s quite interesting, because these licences use their right to exclude in a very literal way. What are your thoughts on this?
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| Severine 46:19
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| It's interesting because it gives some place for negotiation. It's not black and white, you have the right to use, or you don't have the right to use. It’s more: you have the right to use, but think, and attend to the conditions of that reuse.
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| The difficulty with that is it's still a contract and at some point, you might need to enforce its conditions. If someone uses the object of the licence and is participating in the Fossils Industry and therefore in the climate change problem. When you realise that, you say, Okay, so now I will have to sue Total Energy. How do I do that? I am not completely convinced that it will work. At the same time, I have also some faith in the fact that stating the conditions of use also is a good step to maybe deter someone from engaging in some behaviour. I have faith in the normative power of explaining the condition. This is why I said before that, for me, the question of enforceability of those conditions is sometimes overestimated., The fact that you state something has already a normative force. So, you know, it might be enough. But yeah, I cannot have a clear opinion. I think these are interesting legal experiments. And I don't have any idea of how it could work. I don't think they are the solution, but they might be part of some attempts to experiment with different ways. But I think it's interesting, at least, because it is also going a step further than the contract, but also going into the direction of let's engage together at what we want, and in what environment we want to put that practice. I think this is interesting, in sort of collective way, instead of a licence that says, I decide what condition I impose to you.
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| Femke 49:09
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| It's been interesting for us to, to look at these also as a critique on the classic free software stance that that you should never constrain reuse. So, as long as you provide the sources anything should be possible and or you should not try to control use after something has been released. And all these experiments are actually going against that. They say yes, sometimes there are reasons to not make something a hundred percent open or even think that this would be a possibility. And in that way, it has really been helpful to somehow break that mantra.
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| Severine 50:02
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| I think what is interesting is with those new types of licences or conditions is that they make us think first before applying Open Access licence. I am part of a research project that we have just submitted the project for funding, so we hope we will have it because it will be important. It is a project about restitution of African cultural artefacts that are in museum collections in Europe or elsewhere, but mostly in Europe. Many European governments have agreed that now it's time for restitution of those objects to their communities of origin. Beyond that point, that is also disputed, this project will look at the Open Access dimension of such restitution. One report for the French government a few years ago that was written by Benedicte Savoy and Felwine Sarr pleaded for restitution but proposed that the museum digitise the object and put everything around the object, the data, the meta data, the digital image, etc. in open access, and that way it will be shared, it will be open. It will still be hosted by the Museum in a sort of digital museum. And it will be accessible from people in Europe, but also from people in Africa and all over the world. So actually, this open access solution is great – that was the museum’s rationale.
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| When the report was released, two UK researchers, Mathilde Pavis and Andrea Wallace wanted to think more about that open access suggestion. How can we as European institutions decide that it will be open access without consulting the communities of origin? Because some of those objects might have symbolic meaning or spiritual meaning and their digitization and complete availability to all may be offensive. Isn’t this still a colonial act to decide in the place of those people. This project will be about that, will be about working with museums in Europe, but also with communities in Africa to discuss how we should do it, because it's not to be against open access, but it's just to organise the access to this digital epistemic record of the object, to decide to look at it seriously and not only as a representation, since it has an existence of its own. At the end it's not only a copy or a representation of the object that has been returned. And then it could stay in digital format, but it has a life of its own, and how do we organise the access to that digital copy, its availability, but also the digitization itself. So, it is less not to apply the open access at the end, but start to think, how, whether it should be an open access and how we decide together. Maybe at the end, the decision will be to put it in open access, but at least we should discuss. We should have a conversation. And we’ll involve the peoples, all the stakeholders, and not only the communities of the region where the object is from, but also the diaspora because those objects have also meaning for people, for the Afro descendants, people who are in Europe, and might not see those objects again in European institutions, but only in Africa. So actually, the world today is much more complex and so it's important to have this complexity in mind. So that will be a fascinating project.
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| Eva 54:16
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| I hope you’ll get the funding!
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| Femke 54:17
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| We're keeping our toes and fingers crossed.
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| Severine 54:18
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| When we first thought about that project, I tried to have some allies in the open access movement, and went to people who were instrumental in pushing for open access. They didn't get it and wanted to keep the digital copies in open access without understanding the issue. And then I realised that those open access movements were also very, stubborn sometime and not open to discussion.
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| Femke 54:47
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| It might be changing a bit, but it's true. Also, when you have been in the trenches for open access, it might be very difficult to open up the thinking around it, it seems.
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| Eva 55:08
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| I always wondered, because I've stumbled across it several times: In the framework of the law, only legal subjects can be recognised as authors. And I wonder, could you briefly explain who would be excluded in this framework, when we say only legal subjects can be recognised as authors?
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| Severine 56:00
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| A legal subject is a subject made by the law. So, you know, a legal subject is just a fiction of law. So actually, it can be expanded. For the moment, the legal subject, in our legal culture, it's the physical persons who are immediately legal subjects as soon as they are born. And then you have also other legal subjects that are just fabrications like corporations, companies, you know, associations that have a legal personhood, that is just a fiction. It doesn't stop there. You can recognise that animals can be legal subjects. In European system, it doesn't exist, but it might in other countries. In Japan, they have granted legal personhood to robots. It means that it's not limited. In some countries that have decided to grant legal personhood to rivers to mountains, which means that the law can be imaginative. I don't say that it is always a perfect solution. For instance, legal personhood to rivers and mountains. Even if it intrigued me at the beginning, I don't think it's a good solution for the ecological issues we have, but in a way, it means that we can imagine other legal subject, but that, of course, has to be done by law. So here you have a limit, you cannot have people creating new legal subjects by their own will. It must come from legislation or a decision of a court or whatever. It means that it's not that easy, but the notion of legal subject is not limited.
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| Eva 58:00
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| In the European legal systems, who would be excluded? I understand that now, rivers are excluded. And but in terms of humans…
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| Severine 58:15
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| … all of humans are legal subjects. It's from birth, in some countries, it's even before birth, which can be also problematic. Outside of humans, individual humans, the notion of collectives, might be also an issue. At what point you can have a community and association, a group of people that is recognised as autonomous legal subject, and that is disputed in legal systems. So, most of the time, you have to register a group of people as a legal person to be granted some legal recognition. And you cannot have a group without this legal registration to exceed the status or legal object, or sometimes the interests of the group are recognised by court. And so, you have legal standing and you are not a legal subject, but you have legal standing and you can defend your interests. It depends on what you're looking for, if you look for creating legal identity or being able to, to defend your legal interest.
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| Eva 59:32
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| Yeah, I think it was more about who has the right to be an author
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| Severine 59:37
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| The right to be an author is clear. This is only humans and individual humans. You cannot have an author that is a company, for instance. Once you have an author who has created something, they can transfer it to a legal person, but a legal person from the beginning of the creation cannot be recognised as an author. The author is always a physical person or human. It cannot be an animal, it cannot be an artificial intelligence, it cannot be a robot, it cannot be a company. So that is clear. At least copyright is easy!
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| Femke 1:00:19
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| You've already answered indirectly, but mainly just to ask it again. Because I know you have something to say about this: when we work as artists, as organisers, as activists, the law often seems like an immutable object. And in many of the things you've been saying this afternoon, you have made clear that it is maybe not as immutable as we might think, that there are many legal processes that are in our hands. Could you maybe explain a bit, how does law change? Like if we think about the way that copyright operates right now, and we're trying to think it otherwise, because we're suffering from the way it intervenes in creative practice – how does it change? Like, what happens? We talked about the things that you can do in smaller groups, stating the ways you want to work and the normativity of a statement, for example, or making conditions explicit. This gives already much more space than we normally think there is. But if you would want to change copyright.
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| Severine 1:02:06
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| First to say that the law is composed of different things: you have rules, that are not immutable. They are, at some point, decided, and then you can change them by a new legislative act. For instance, to say that you can vote at the age of 18, this is a rule. So, it is 18 years, it's not 19, it's not 16. It’s 18 years, so you’d have to change that. But most of the law is not constituted by rules like that. It's constituted by processes of deciding cases. For instance, the norm of liability says that anyone who causes damage to someone is responsible for that harm and has to compensate for the damage. This rule seems very straightforward, but actually, it is just a standard. You have a lot of different ways to interpret it: what does it mean to cause a damage? What does it mean to say, a person who…
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| so you have all that things that are part of the law process, how you interpret it, and the courts do that work. This case law, as it’s called, can change and changes all the time. This is also a process of changing the law. And then you have all the things that are not determined, you have new issues popping up. For example, can a work that is created by artificial intelligence be protected by copyright? This is not written in the law anywhere in the world, it’s a new question.
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| And with a few norms and a few rules and standards and principles of copyright, we can deal with that question, but we can have different opinions, and then we can say, oh, maybe at the moment it will not be protected by copyright, but maybe we need to have a new legislation to decide about that case. The law is in constant change, always. How do we change copyright? And then we have a lot of things that we had earlier, that the law does not decide but leave for the parties of the persons to decide for themselves. So the contract, just states what are the rules that have to be followed, but the law doesn't say that, okay, if you write a book, and if you publish it, the publisher will have to pay you that amount of money. In some countries, it says the authors will transfer the copyright to the publisher and need to be paid to receive a proportionate and fair remuneration. It's just a standard, but it doesn't say it has to be 25% or it has to be 5%. You have the standard and then the parties decide.
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| How do we change copyright law? First, we experiment with it. And this is what has been done with Open Access, copyleft licences for the last 20 years. And I think it's interesting, you know, to recognise that open access licences have just been experimenting the law that recognises that authors enjoy copyright and the power to prohibit or authorise the use of their works.
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| Copyleft movements have experimented with the authorisation part of copyright in a new way. And they have created a new norm, as a new law. I think this is the first way to change the law in a way. The second thing is to plead for a legislative change. And then the other thing was to develop new legal arguments that can be welcomed by the courts, because there is still some uncertainty as to how to interpret that legal standard, or there is a new question where there is no legal answer.
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| And this is what the courts are doing all the time. And this is what we as copyright lawyers are doing all the time. We argue when to use the theories of copyrights or what copyright should be about or is about and to play with the rules and with what the rules are not ruling actually. What are the voids in copyright that have to be filled, or, that are sometimes not have to be filled, but have to be left maybe unexplored to allow for experimentation. There are a lot of ways to change copyright law. It is not immutable, and it isn't complete. Not everything a creator does is regulated by law, this is far from the truth. A lot of things are still in the shadow of the law in a way.
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| Femke 1:06:57
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| So maybe the last thing we can do is to try and come back to CC4r. This ‘not-licence’ that has been around now for a bit more than four years. And we start to see it in use, in different ways and it's interesting to see what is happening to it. It's slowly spreading, people are in conversation with it. One example we saw is that someone licenced a publication under a Creative Commons licence, but then used the CC4Ras a more as a political statement next to it, which was interesting for us to see like that they understood it not as a…
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| Severine 1:07:42
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| …a new licence, but as a sort of complementary.
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| Femke 1:07:47
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| Exactly, and that the conversation to this gesture was part of the work of CC4r. We brought you an excerpt from a report from a publisher that has considered using CC4r for their publications. And then in the end, decides not to use the licence in my reading for two reasons: One is that they hoped to find a possibility for a more collective statement or a collective positioning in that licence and realised that it was still held to an individual position. And the second trouble they have with the proposition of CC4r is that it would maybe not be enforceable. And this is what makes them decide then finally, to go for a more conventional Open Access licence, which is Creative Commons…
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| Eva 1:08:54
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| …which as an open access licence gives more protection. Basically, they were afraid that the books get pirated, and they would lose revenue. It's about protecting the enforceability of that protection.
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| Femke 1:09:17
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| The question to you is that as we are sort of preparing our next step in this adventure. We are now work towards picking up this this proposal again in a few months, with a group of people. How to think about this at the one hand, that the CC4R is still thinking through the responsibility of the individual, And on the other hand, that fact that it's not enforceable. You have talked about that a bit already, but maybe now directly in relation to this experiment…
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| Severine 1:10:08
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| The question of enforceability was asked at the beginning of Creative Commons licence. For many years, a lot of people said, it will not be enforceable. And then you had here and there decisions that said, yes, it's enforceable. But this was not even the question. It's enforceable if it is recognised. If it has a legal document that people agree on, it will be enforceable. And in any case, again, you know, copyright sometimes is not enforceable. Yes, it is a property right, it is enforceable but in practice, and particularly small cases with not a lot of money, they will have a lot of difficulty in finding the pirates, and finding the person who has made the copy and who has disappeared or has done it anonymously. It's not only about the type of rights that you put in the licence or whether you just apply the exclusive copyright. If you don't give any licence, of course, any copy without an authorization is a pirate copy. But at the same time, it doesn't allow for more enforcement, because the enforcement is also something of practical reality that you'll have to find a person who is the pirate. Saying that this document will be less enforceable than others, I don't think that is the point. But what I found completely fascinating with CC4r and I think that was a genius licence, that it's really because the Creative Commons is only applied once the ‘product’ is done (and the choice for the term ‘product is not innocent here), once the work is done, only then the licence decides what you can do with it. And CC4r takes a step before, as it first talks about how we do this work together. And then we'll decide what can be done. It's more inclusive in the sense that it will look at the collaborative conditions, the collaboration that will happen between people, and for that it’s interesting. So, maybe yes, if you are a publisher, you are more interested in what should I do with your product, the book. The publisher is probably not as involved in the process of producing that book. I don't know, maybe the interest is more in the outcome, mainly for that the Creative Commons seems a most obvious choice.
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| But I think that again, you know, those are experiments, legal experiments that are interesting, and that will not solve all the issues. Contract has never solved all the issues. For instance, the music industry has fought for years against pirates, and peer to peer diffusion of music, and they didn't always have successes. They have all the money in the world, and they have the exclusive copyright, and they couldn't really wipe out all the pirates’ websites. For me, that's constant fight between the copyright and the pirates. Of course, you will never catch all the pirates in the world. And okay, so this is a risk. The law is not something that happens automatically and will self-enforce itself. Enforcement is a process that costs money, that needs courts, that needs defendants who are identifiable, who are reasonable defendants.
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| I can see why people are less convinced by those licences because they have not been experimented enough. But then they will have a life of their own. And then at some point, people will agree to that. No? It's a completely new form of licence, it’s not a traditional, typical licence. But I think what is important is that at least it binds people who agree to it, and so it gives some frame to a community of people. And of course, it's left outside to possible pirates, but those persons will always be outside of the legal force of the law, of the legal force of Creative Commons.
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| This is the ultimate frontier that you will never reach. We've seen this with Eva’s workshop on the Piracy Project at LaCambre in Brussels, the case of a publisher who made a business out of printing Wikipedia articles and make them look like scientific books and selling them for a lot of money. Those persons even - legally speaking - comply with the Creative Commons licence that governs Wikipedia pages, but it is a completely unethical thing. And yes, those persons will never be reachable, or will never be accountable before courts. Maybe I'm a defeatist here, but I say what's the point? Is it not better to just try to reinvent the practice by saying these are the rules that will govern a practice rather than just constantly think of the risk of someone stealing your work.
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| Eva 1:15:45
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| It's, it's really beautiful, and it should be probably the end. But still, when you say, that the licence is governing the practices of the people who agreed to it, strictly, this is not what a licence does. It would be then a different genre. It would be something like a protocol because the protocol is set at the beginning of a process whereas the licence is sort of stamped on the process results at the very end when they go out, when it leaves the community. This is where it becomes messy, because of course, how can we have such conversations with people we don't even know. This is why a licence seems so limited – but also necessary. It's this conundrum and I think this is also the point which is made in the statement by the publisher, who asks ‘what do we do when the future author is convinced that what they're doing is perfectly acceptable and does not contribute to oppressive arrangements of power and privilege and different even though for a lot of others, it does.’
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| Severine 1:17:08
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| Let’s come back to your ecology metaphor. When you try, for instance, to have a garden that is more ecological, you let things grow. And you'll never know what will grow out of it. So, you practice your garden. Yes, there will be some weeds that might be invasive... and it's part of the job that something could go wrong if you apply an ecological gardening system, but then you address that at some point. And if you want an ecology, you don't want a perfect system. It could be something that you have not expected, that is not what you want, that you can have some pirated copies, with, ‘pirated’ in the brackets. For me, to look at an open access licence or a new copyleft licence as a perfect system is as wrong as to think that copyright will be the perfect system to avoid piracy or, unwanted copies. I think there should be some leaks at some point. You cannot do without that. And if you want to do it as a practice and not as a system of authorising and prohibiting. And you are right, when you authorise, then you think that everything that you have not authorised, even if your relation was very broad, will be prohibited. But if you take a licence as a practice, then you will see along the way that it's not about prohibition or authorization, it's about how do we do that together? And of course, maybe the problem will come from people who don't agree to be part of this together, but how will you force them to be in that together? We'll never do that. And no legal instruments will never be able to do that. We shouldn't be naive in thinking that there is the ideal system of licence of open access licence out there, that it's still to be discovered. We'll never be able to find it. So maybe Creative Commons has served its purpose for many projects and now other licences will serve other purposes. But we'll never have a perfect system because there is no legal perfect system, no contract perfect system, no governance that are perfect. And I think it's a good thing that we don't look for perfection. Things should be messy – a bit!
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| Femke 1:19:56
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| Or messier. Yeah.
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| Severine 1:19:59
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| It's good that practices are just experimented with. And practices of creating things together are experimented with. Sometimes it can go wrong. And you will have, of course, people who will never comply with the licence, whatever it is.
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| Femke 1:20:21
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| Good. Anything else we need to add to our radio show?
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| Severine 1:20:29
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| A lot. It opened a lot of things.
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| Eva
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| Okay, we do a series of podcasts!
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| Femke 1:20:39
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| The no-way that this can be controlled, for me it's easy to dismiss. And we're clear, we're not trying to make a solution. But what I find hard is how to like, how to shift to this… How can I say that? How to speak from the belonging, speak and think from the belonging really? The CC4r starts to circulate, people are picking it up, usually, I think out of frustration with what copyleft offers them. And it's one of the rare licences that brings up colonial issues, that speaks about, like very explicitly about power structures around authorship. I think that already is really important, as a reminder of the ecosystem around authoring. But how to shift the point that speaks from? I don't know how to say it. But when we tried to think about like, centring the object of the work. Does that mean then that the licence comes from the…?
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| Severine 1:22:40
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| Yeah, I see your point. It's just a figure. It seems very figurative speech to say, let's move from the artist to the object. It will not get rid of the power structure around authorship, of course.
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| I think what is interesting – and this is exactly what you do with this CC4r licence - is that you consider the object of the creation as a process. You embark in the process of creation, the discussion around its legal condition. It's about making it always evolutive and dynamic. That is interesting for me, even if it might not be satisfactory, because at some point, we need to decide, or we need to have some fixation of what we agree on. I don't say it's easy. I don't know. I don't say it is it is the solution. I think it is interesting to explore the ways we could not get rid of the power dynamics around authorship, but at least to recognise that they exist and to try to put them also in the discussion and to see who is entitled to speak. What I like a lot at the beginning of the CC4r licence, in the preamble, when it says, that this is not “your” work to begin with.
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| This is completely the reverse of Creative Commons that says that the authority of this licence comes from the fact that I am the author, and due to copyright law, I'm the one who can decide. I decide to authorise the use of my work, but still, I decide. It's still a position of power. And you say in the CC4R, that our decision here is not based on our copyright. Which is also the weakest point of the licence in terms of enforceability, because if you don't speak as a copyright owner, how does the legal system recognise your authority? This is the point about enforceability that I avoided earlier, and maybe I shouldn't, because, of course, this is the weak point of the licence. At the same time, I think that we should try at least, and I liked the fact that from the very beginning, you just confront the power of authorship itself by saying that we might be creators, but we don't, agree with that position of authority as authors that copyright gave us. This is not from the position of the authoritative author that we grant you the licence, it’s that we have decided together as a practice. I'm just thinking out loud. So maybe it doesn't make sense because I find your question very interesting. It's the key point: How do you get rid of this authorship system that is a power system while keeping the copyright, which is a protection still of your work, of your subjectivity, etc. This is the biggest conundrum, I think. And this is the difficulty because when we are against this system of authorship, we are mostly accused of being against creators and others. And it's very difficult to convince people that this challenge of authorship might be beneficial for the artists. It's difficult to convince people of that. These are also a lot of questions I have, so what I say here are really not certainties in any way, because I really don't know.
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| Eva 1:27:09
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| In the text I sent you, Katherine McKittrick, makes a really beautiful statement about that. It's important to make the works our own but not to own them.
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| Severine
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| This is a nice point. Yeah, this is really great.
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| Femke 1:27:43
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| I think this is a nice way to end, but I guess there will be more…
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| == Resources == | | == Resources == |
