P-Prompt: Collective agreements

This prompt takes on Gary Hall's blogpost Experimenting with Copyright Licences in which he ponders which would be the right licence for an experimental and collectively written book he is involved in. Comparing the Open Content licence Creative Commons (CC) with Collective Conditions for Reuse (CC4r), he argues that both propositions might put too much agency with sovereign individual (human) users, and therefore contribute to individuating processes rather than advocating for collective agreements and foster reuse as a relational practice.

Analysing Creative Commons licences, usually associated with Open Access publishing, he states that these are not “actually concerned with producing a common stock of non-proprietary spaces and resources, along with the collective social processes that are necessary for commoners to produce, manage and maintain them and themselves as a community”. The decision-making, Hall wonders, might happen "too much at the level of the specific actors concerned – be they individuals or collectives (in CC4r’s case) – and on what they are persuaded is the right thing to do?"

What kind of collective conditions could nurture reuse as relational practice, rather than counting entirely on individual responsibility? How could they contribute to collective social processes that produce, manage and maintain a community?

Expanded Prompt for PARSE and Revisiting CC4r

Creative Commons (CC) is a North American non-profit organisation that provides an array of relatively simple licences from which individual human creators (or their community stand-ins) can choose if they wish to grant permission for others to share and re-use their work under copyright law. These licences can then be applied to creative goods such as books, which are understood as being ontologically distinct from humans. CC licences range from the most restrictive Attribution-NonCommercial-NoDerivatives licence (or ‘BY-NC-ND’) to the least restrictive Attribution licence (or ‘CC BY).

It is estimated that there are now over 1 billion CC-licensed works. Yet for all this apparent success, there remains a fundamental problem with Creative Commons and its idea of commons: namely that, despite its name, CC is not actually concerned with establishing commons at all, creative or otherwise.

That CC is not in fact concerned with establishing commons is apparent from the way it prioritises safeguarding the rights of copyright holders over their creative work, as opposed to assigning rights to it to prospective users. Included in this is the right of holders to choose from CC’s six different types of licences according to what they consider to be most appropriate for them, plus its CC0 public domain dedication by which they can decide to relinquish their copyright. ‘Only the copyright holder or someone with express permission from the copyright holder can apply a CC licence or CC0 to a copyrighted work’. The requirement that a licence can only be applied by the copyright holder or their representative means Creative Commons is ill-suited to work that, as in the case of some Indigenous communities, is collectively produced in the first place, and for which there may not be an original, identifiable, copyright holder.

The underlying liberalism and individualism on display here is another feature of Creative Commons that makes plain its lack of interest in creating commons. Rather than championing a collective understanding or philosophy of creativity and copyright, CC merely offers a range of ‘simple, standardised’, some-rights-reserved licences that sovereign human creators can freely select from, again ‘on conditions of [their] choice’, according to what best suits their needs.

Consequently, Creative Commons is not actually taken up with establishing a shared pool of non-proprietary spaces and resources that everyone can access and make use of on equal terms, even though that is the most common interpretation of commons. An emphasis on the normative frameworks and principles of governance that best enable the management and maintenance of such shared spaces and resources is what underpins liberal attitudes to commons, for instance, such as those of Elinor Ostrom and Yochai Benkler. The neoliberal equivalent sees free marketeers regarding commons as an alternative to state regulation and centralised bureaucracy.

Nor is Creative Commons concerned with prioritising the collective social relations that are necessary for commoners to jointly produce, manage and sustain these resources and themselves as a community. It is such a focus on collective social relations that is central to more radical approaches, such as those of Michael Hardt and Antonio Negri, or Fred Moten and Stefano Harney, which emphasise constructing commons on the basis of shared political principles and practices, including those of the ‘undercommons’. From this perspective, commons offer a progressive alternative to capitalism’s privatisation, commodification and corporate trade.

Instead, Creative Commons has its basis in the idea that, legally, any original work created by a singular human author belongs to them in the first instance as their intellectual property. To be clear, this is not an accident: it is very much by design. To recast the words of open-source architecture advocate Carlo Ratti, it ensures that, while a certain ‘flexibility, evolution and adaptation’ are possible, the ‘powerful impetus of human motivation remains intact: acknowledgment of authorship’.

Gary Hall, July 8, 2024

→ Read original blogpost 'Experimenting with Copyright Licences' (April 20, 2023)