Journal of Information, Law and Technology
Between Commodification and ‘Openness’: The
Information Society and the Ownership of Knowledge
Christopher May
Professor of Political Economy, Department of Politics and
International Relations, Lancaster University
c.may@lancaster.ac.uk
This is a refereed article published on: 30 January 2006.
Citation: May, ' Between Commodification and ‘Openness’: The Information Society
and the Ownership of Knowledge’, 2005 (2) The Journal of Information, Law and
Technology (JILT).< http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2005_2/may/>
Abstract
In this paper I explore how commodification in the newly emerged information
society undermined what was once a popular claim that ‘information wants to be
free’. However, in the last couple of years the (re)exploration of ‘openness’ as a
model for information and knowledge exchange, building on the example of work in
the software sector, helps us recognise a countervailing dynamic to commodification
that has emerged within the ‘information society’. While it is unlikely that all
information will ever be free, it is now also clear that it is equally unlikely that the
commodification of knowledge and information can ever become complete, nor even
continue as it has in the last decade. As so often in the history of intellectual property
the key is balance; a balance between commodification and openness.
Keywords: Commodification, intellectual property rights, openness.
1. Introduction
For at least four decades the information revolution has been heralded as imminent.
Since Fritz Machlup, in his groundbreaking study The Production and Distribution of
Knowledge in the United States (published in 1962), first suggested that knowledge
and information were the resources that would underpin the next stage of societal
development, there has been no shortage of analysts arguing that we are emerging into
a bright new ‘information society’ (1). Here I briefly explore how commodification in
this (so-called) information society undermines claims that ‘information wants to be
free’, popular in the 1990s. Conversely, in the last couple of years the (re)exploration
of ‘openness’ as a model for information and knowledge exchange, building on the
example of work in the software sector, suggests that there may be a countervailing
dynamic to commodification that has emerged within the ‘information society’.
To explore this question, in the first section I briefly explore the key functions of
intellectual property rights (IPRs) and suggest that this commodification establishes
intellectual property as the legal form of the information society. In this information
society, information and knowledge are organised in forms that are amenable to
market relations, distorting previous societal engagement with knowledge and/or
information. In the second section I set out the emerging alternative of ‘openness’,
before examining the relationship between these two dynamics, by relating this to the
political economic history of intellectual property. Finally, this leads me to examine
the pressures on, and supports for, the public domain of knowledge and information
dissemination, use and (re)deployment. While it is unlikely that all information will
ever be free, it is equally unlikely that the commodification of knowledge and
information organised along capitalist lines can ever become complete. As so often in
the history of intellectual property the key is balance.
2. Intellectual Property and the Information Society
Since 1995 intellectual property rights have been subject to the Trade Related Aspects
of the Intellectual Property Rights (TRIPs) agreement which is overseen by the World
Trade Organisation (WTO). This agreement does not determine national legislation,
but for members of the WTO to be TRIPs-compliant their domestic intellectual
property law must support the protections and rights that are laid out in TRIPs’ 73
articles. As well as including general provisions and basic principles, TRIPs also
represents an undertaking to uphold certain standards of protection for IPRs and to
provide legal mechanisms for their enforcement; for the first time a multilateral trade
agreement has required the amendment and revision of states’ domestic legislation.
Additionally, the WTO’s robust dispute settlement mechanism encompasses
international disputes about IPRs. Prior to 1995, although there were long standing
multilateral treaties in place regarding the international recognition and protection of
IPRs, overseen by the World Intellectual Property Organisation (WIPO), these were
widely regarded as toothless in the face of ‘piracy’ and the frequent disregard for the
protection of non-nationals’ intellectual property outside the most developed countries
(and even sometimes between them) (2). Here, however, I will focus more generally
on the processes and practices that compliance with TRIPs makes potentially
universal, although currently the global harmonisation of IPR-law is uneven and
incomplete.
The most important role that IPRs play generally, and specifically of importance in an
‘information society’, is the formal construction of scarcity (related to knowledge and
information use) where none necessarily exists. Unlike material things, knowledge
and information are not necessarily rivalous, co-incident usage does not detract from
utility; with certain exceptions (such as the use of trademarks to identify makers of
goods) the deployment of knowledge and information resources by multiple users
does not detract from is usefulness, nor diminish the quality or quantity of such
resources. In this sense, usually knowledge (before it is made property) does not
exhibit the characteristics of material things before they are made (legal) property:
knowledge is not naturally scarce in the same way materially existing things are.
Where there are information asymmetries then advantage may be gained by keeping
information ‘scarce’ (i.e. reducing its circulation), but this seldom serves the wider
social good. Thus, as it is difficult to extract a price for the use of non-rival
(knowledge) goods, a legal form of scarcity (IPRs) is introduced to ensure a price can
be obtained for use.
Although predicated on the notion of individual creators’ and innovators’ rights, most
IPRs are owned and exploited not by innovating individuals but rather by commercial
enterprises. Individual innovators either find they are unable to exploit their
innovations due to the ‘work-for-hire’ provisions of their employment contract that
ensures their work is owned by their employer; or if independent, they find that in a
modern and complex economic system, their only hope to exploit their invention or
creation for monetary gain is to transfer the rights over its reproduction (or
manufacture) to a corporation with extensive financial and organisation resources. In
both cases corporate actors gain control of these IPRs. Furthermore, a significant
element of IPRs is not the freedom for an individual rights holder to do something or
not to have something done to them, but rather is the owner’s ‘right’ to halt certain
rights’ infringing behaviour by others, beyond the traditional property right against
physical trespass. Thus, IPRs establish owners’ right to halt others’ actions at a
distance, even when such actions produce no loss to social utility for owners
(although such infringements clearly have a commercial impact). Although these
limitations on use have always been circumscribed by the assertion of public benefits
in most IPR-legislation, these (commercial) rights still have a significant effect on the
rights of others. For example, due to the costs of medicines, there is a clear tension
between the rights of AIDS-patients to receive life-extending drug treatments and the
rights of multinational pharmaceutical companies to receive financial rewards for the
utilisation of their patents.
It is important to remember that even material property in a legal sense can only be
what the law says it is, it does not exist waiting to be recognised as such, but rather is
the codification of particular social relations, those between owner and non-owner,
reproduced as (property) rights. Many years ago Walter Hamilton remarked that it has
always been ‘incorrect to say that the judiciary protected property; rather they called
that property to which they accorded protection’ (quoted in Cribbet 1986, p.4). But,
whereas material property rights merely codify the existing materiality of things (and
their relations of possession), IPRs transform the existence of that which they
encompass. There is an important difference between property in knowledge and
information, and material property. As Arnold Plant put it, unlike ‘real’ property
rights, patents (and other IPRs)
are not a consequence of scarcity. They are the deliberate creation of
statute law; and, whereas in general the institution of private property
makes for the preservation of scarce goods, tending (as we might
somewhat loosely say) to lead us ‘to make the most of them’, property
rights in patents and copyright make possible the creation of scarcity of
the products appropriated which could not otherwise be maintained.
Whereas we might expect the public action concerning private property
would normally be directed at the prevention of the raising of prices, in
these cases the object of the legislation is to confer the power of raising
prices by enabling the creation of scarcity (Plant 1934, p.31).
This protection of rights for the express purpose of raising prices is, of course, central
to the ‘problem’ of commodification in the information society, and most specifically
the relationship between the realm of the ‘knowledge commons’ and the market
exchange of knowledge-related resources.
As part of the early history of capitalism, the feudal notion of commonly held land,
utilised and enjoyed jointly rather than parcelled out through ownership, was
progressively destroyed. By ‘enclosing’ lands previously held in common, landowners claimed such land as their property, and by so doing denied the more diffused
social claims linked to the previous (often traditional rather than formal) common
tenure. This was a process that took place over a number of centuries (in Britain
between the Fifteenth and Eighteenth centuries), and was a violent and often
contested social transformation (Wood 1999, p.83-84). In the realm of knowledge it
has been a little different; the collective (free) commons of knowledge are not
amenable to comprehensive commodification. Both the social, and technical, limits to
commodifying language, for instance, are insurmountable; to make language property
would be to effectively halt free thought, and thus destroy humanity. The knowledge
commons therefore, distinct from knowledge or information that intellectual property
has rendered as scarce property, have been recognised (implicitly) in law since early
forms of IPRs were initially codified in Renaissance Venice. Indeed, limits on the
period of protection, making intellectual property temporary, are used to put socially
useful knowledge into these commons once a suitable reward to an innovator has been
achieved.
This limitation on the duration of IPRs recognises that much ‘new’ knowledge draws
extensively from the extant pool of information and knowledge represented by these
commons, and thus it should (indeed, must) contribute to the renewal of such
common (informational) resources if the development of the human stock of
knowledge is to continue. Although such commodification was originally (and into
the Seventeenth and Eighteenth centuries) regarded as a privilege accorded only in
certain specified circumstances, and included various duties/responsibilities of
dissemination, the subsequent history of intellectual property has seen these privileges
eventually gain the status of rights (May and Sell 2005). These rights construct a
scarcity of legitimate use that is far from natural, or self-evidently beneficial to all.
This is not to say that the recognition of a public regarding interest in the limitation of
commodification is absent from national legislation, or from the multilateral
agreements (such as the TRIPs agreement or European directives) that increasingly
shape and inform national legislative structures; often there is a formal recognition of
the need to maintain a public domain of knowledge and information. However, as
Phillipe Cullet has argued ‘the interests of society at large figure more as an addition
to - or even as an exclusion from - the rights provided’ than as a central organising
issue for these undertakings (Cullet 2003, p.152). Indeed, I would go further: the
public good is now often only recognised as a residual after all other possible
(private) rights have been exercised. Any public regarding aspect of IPRs is subsumed
beneath the privileged role of commodification and market exchange.
Given the role that information and knowledge is now regarded as playing within the
new social and economic practices that underpin the emergence of the ‘information
society’ these questions of commodification and the control of informational
resources have become increasingly important. The importance of controlling and
exploiting information and knowledge resources for profit, mean that the key social
relations in the information society, between those who own the key resources and
those who only own their (intellectual) labour to work on these resources, as
throughout contemporary capitalism, are expressed through the form of property
relations. The key resource in the information society is controlled and accumulated
through the operation of IPRs and thus, IPRs are the legal form through which the
economic structures of the information society are established.
However, not only does this legal form establish the parameters of social relations in
the information society (between those holding and controlling important resources,
and those wishing to access these resources to work and live), information and
knowledge themselves are distorted by commodification. The mobilisation of a
property logic renders information and knowledge as separable modules that can be
bought and sold, rather than as part of a complex and multifaceted resource. Indeed,
by rendering knowledge and information as property their organic socially-embedded
character is denied and each ‘property’ is rendered as a technical resource that can
either be deployed or not (depending on whether a price has been paid). This can have
a severe wealth effects (as has been demonstrated by the issue of access to patentprotected AIDS medicines in developing countries), and as such often may place the
rights of ‘owners’ to receive payment above the human rights of those who may need
informational or knowledge-related products but do not have the wealth to pay for
them. Social disembedded knowledge becomes subject to the power to withhold
access (a key property right) and thus forms an integral element of political economic
power in an information society. Knowledge that is compartmentalised into units can
be controlled separately, and thus power over users can be expanded by limiting
contracted uses, as is clearly already happening with the deployment of Digital Rights
Management software in the content and software sectors (May 2003). Thus, the
social disembedding of knowledge and information often leads to under-use as flows
are constrained by market transactions (they are no longer free – both in monetary
terms and in the sense of being unrestricted).
Here the controls put upon software are emblematic. Users of software that is
protected by IPRs are forbidden from amending the software for their own purposes; a
complex informational tool is rendered as a black box that must be passively
consumed, and similar limitations on use are evident throughout the information
society. Although consumers are usually seen as passive actors, merely consuming
intellectual products, consumers are often (if not always) active in their practices and
use of knowledge and information resources. Consumers frequently want to use
products in complex ways: they may use them to communicate ideas or messages to
others (perhaps by circulating items they found interesting, or by critically amending
texts to clarify an argument); they may want to rework these products for their own
circumstances (related to their own usage patterns); indeed they may want to add
various products together as part of a process of self expression, or to build new
solutions to particular problems they encounter (3). However, many ‘owners’ see
active consumers as a threat to the sanctity of their rights of control over the
intellectual artefacts concerned.
Famously as the Internet spread from the universities into wider society, many
commentators, of which John Perry Barlow is perhaps the best known, asserted that in
this new age ‘information wanted to be free’. However, as the domain of
communication represented by the Internet became more and more commercialised,
the demand for the recognition of IPRs became (and continues to be) a major concern
for corporations seeking to exploit this new medium for profit. Far from information
wanting to be free, the key players want to ensure it is owned (by them). Although the
practices of free exchange of information and knowledge had a long pedigree in the
university and software communities, commercialisation, and specifically the rise of
e-commerce, compromised this initial idealism. Nevertheless, the idea that
information flows should be unencumbered by the restrictions of property rights was
not defeated, nor forgotten. Indeed it is the problem of control and ownership of
information and knowledge that has prompted an interesting social reaction, based in
part on a return to the principles and practices of the technology that more than any
other can be seen as foundational to this most recent technological revolution (4).
3. The Value of ‘Openness’
In software development, for some time a conflict has been shaping up between two
approaches regarding how new technologies or tools are developed and marketed. At
its simplest this is an argument between a proprietary model (based on the ownership
of intellectual property) and an open source model (that denies the utility or
legitimacy of owning) (5). The key issue for open source advocates is the liberty to
access the source code of software (its underlying architecture), with the connected
freedoms to copy, modify, distribute and/or share software with others, without the
limitations that constrain such activities under proprietary software licenses.
Supporters of open source argue that the treatment of software’s source code as
property obstructs co-operative working between developers and constrains, or even
halts, subsequent improvements (de-bugging). Indeed, much of the interest in open
source practice is a reaction to the inability of software developers and technicians to
legally take apart (reverse engineer) proprietary software to fix problems that emerge
through use. In contrast open source software allows a continuing process of
improvement, as well as free use.
Supporters of open source are not necessarily anti-capitalist, rather they advocate
something that is differently capitalist; the role of money and ownership is acceptable
and even desirable outside the core realm of the software code, but not within it (6).
As Maura Lendon notes: ‘The profit proposition for LINUX business is primarily in
the associated products and services’ (Lendon 2001, p.194) (7). For open source
advocates software business models should have more in common with language
schools or dictionary publishers, providing services based on a freely available central
resource (language), rather than seeking to control the basic resource itself. Guides
and manuals are usually covered by normal copyright provisions, company logos and
other marketing devices may be trademarks, but the underlying software itself
remains free; open source and free software advocates resist the ownership of the
basic tools that enable ICTs to work. As Mathias Klang puts it; ‘To lose control of
software and to become dependent on the private property of others is tantamount to
the loss of water rights, becoming dependent on the goodwill of others’ (Klang 2005).
The control of software is not merely the control of a specific product through IPRs,
but rather is the rendering of a vital social resource into private property.
Perhaps more cynically, Johan Söderberg (2002) suggests the desire to reduce costs
(specifically, by accessing the free labour of the open source community) places open
source business activity squarely within the traditional practices of capitalism (again
differently-, rather than anti-capitalist). Capitalists have always, understandably,
sought to reduce the costs of their inputs and thus utilising open source software may
be one way of doing this (where specific companies calculate that the saving
outweighs the advantages of the monopoly controls that intellectual property
protection offers). Free and open source software vendors, having lower software
input costs than their proprietary competitors, are able to profit from the normal users
lack of developed software skills and knowledge, serving an extended market for
support materials and manuals. The uptake of LINUX by some major industry players
(IBM, Hewlett-Packard, Sun) underlines that there is nothing inherently destructive of
capitalism in the character of open source-related products or services.
Furthermore, although these non-proprietary approaches do not suppose that
individuals must be incentivised by rewards based on formal ownership, the logic of
open source does not discount reward itself, nor the question of incentives. Open
source programmers have earned money through selling enhanced services alongside
their basic software, although they have also often depended on the ‘kindness of
strangers’ to voluntarily contribute financial support. More generally, rather than
focussing on financial returns, open source stresses its significant reputational
benefits: because many programmers also work in the proprietary sector, esteem
earned through non-proprietary work, can often help them advance their careers in the
proprietary sector (de Joode et al 2003, p.40-41). Thus, there is a growing symbiotic
relationship between the proprietary and non-proprietary software sectors with
frequent migration between the two, or even simultaneous working on both sides of
the supposed divide. Capitalising on their reputation in the open source realm,
developers may get better jobs in the mainstream sphere, but equally many large
companies allow their developers to work on open-source and free software (and not
merely in the public or not-for-profit sector), letting these companies access up-todate open innovations.
The non-proprietary model of software development is not a recent occurrence: in the
early years of computer development source code was shared and work was
collaborative and essentially unowned. However, after the US Department of Justice
prosecuted IBM for anti-trust violations in the 1970s, the use of software and
hardware was separated, allowing a distinct software industry to develop which
sought to ‘own’ software’s code, so as to profit from it. This prompted Richard
Stallman and others to establish the Free Software Foundation to attempt to keep
software free from ownership. With some legal advice, Stallman produced what he
regards as his ‘greatest hack’; the General Public License (GPL) sometimes referred
to as ‘copyleft’ (Moody, 2001, p.26-27; de Joode et al 2003, p.8-9). The GPL permits
the user to run, copy or modify software programmes’ source code, and if they so
wish, to distribute versions of a programme. However, this does not allow them to add
restrictions of their own and hence firmly places these programmes in the public
realm, ensuring that they cannot be subsequently commodified or rendered as private
intellectual properties (8). Open source replaces a property right to exclude with one
that is a right to distribute (Weber 2004, p.228). It is this right to distribute, which
when utilised serially by different actors produces an increasingly widely available
resource from any specific original innovation.
The advantages of openness are not only related to the development and utilisation of
software tools; as many of the Internet’s early celebrants fervently hoped the value of
‘openness’ is also now being (re)asserted as regards the availability of scientific and
other information (Mulgan, Steinberg and Salem 2005). In the realm of biomedical
research, the shift to open access publishing of results has been perhaps most
pronounced, partly because the already high costs of research are compounded by the
high costs of journal subscriptions. This reflects access concerns that are central to the
politics of information in the information society. The crucial argument mobilised by
the supporters of open academic publication, such as the Wellcome Trust and many
Universities, has been that as most published research is funded by taxpayers (in
various ways) there seems little justice in having to pay again to have such
information disseminated to the public-sector community served by most specialised
scientific journals (May 2005).
Already, many academics, writers and commentators circulate work in progress over
the Internet, and much work that will subsequently appear in normally published
outlets appears either as working papers or as pre-print versions of articles. Although
there are few if any mechanisms that allow the quality of work to be independently
judged, increasingly the notion of open comments and rankings appearing alongside
the original publication are gaining ground as an open quality control device (Mulgan,
Steinberg and Salam 2005, chapter five). This reputational system has been
popularised by E-Bay and Amazon as a way of assessing both suppliers and products,
and has potential to act as a way of establishing reputational value for open
knowledge resources (Naughton 2005). Much academic work already circulates freely
around the Internet and URLs are used to draw attention of colleagues to particularly
useful or valuable ‘publications’. The spread of the weblog as a form of publication is
merely the most publicly visible trend outside the academy of a process that has
already seen in the last decade a shift to more and more information available on-line.
However, some authors have started to worry that the circulation of work over the
Internet might allow unscrupulous users to incorporate this freely accessible work into
commercial products and profit from this reproduction; there remains the ever-present
possibility of commodification.
The development of the ‘creative commons’ licence, is one response to this concern,
where producers of information and/or knowledge want to secure widened access, but
want to retain some control over their work. ‘Creative commons’ licences, similar to
the GPL, allow distributed usage of content, but also, importantly, do not allow its
subsequent commodification (or ‘enclosure’) when used in other contexts (9). The
licence is formulated as a menu of options as regards the extent of open access that an
author might wish to allow: it allows a selection from a series of increasingly greater
‘freedoms’ to use, modify and distribute. Championed by Lawrence Lessig, this
model for content distribution is being actively promoted by a number of groups
interested in the public domain and is a key element of the Open Society Institute’s
information programme in Eastern Europe. By the first quarter of 2004 (less than a
year after its launch) nearly half a million pages on the Internet had utilised this
licence to allow various levels of open access and use (Lessig 2004, p.11), and in the
subsequent year the number of pages available has exponentially expanded. For those
who wish to add to the global stock of internet-accessible information and/or
knowledge this model is likely to be increasingly important.
This expansion of the idea of ‘openness’ is partly a manifestation of the continuing
development of ICTs and specifically the growing reach of the Internet and its
associated technologies. However, these technical developments while clearly
facilitative of the countervailing move against IPRs cannot be seen as its direct cause.
Rather, and this is explicit in the software community where many of the ideas about
openness have been reinvigorated, the appeal of openness is a direct response to the
shift to more trenchant protection of IPRs in the post-TRIPs decade. The desire by
‘owners’ to protect their rights through technical means utilising Digital Rights
Management (10), and through the courts (with, for instance, record companies suing
music downloaders) has prompted a reaction against such expansive expressions of
owners’ rights. Those who seek access to knowledge and information have responded
to this expanding commodification by seeking ways (both technical and social) to
undermine the rendering of knowledge as a passive and marketable resource (or
product).
Openness enables those engaging with information and knowledge to amend and
redeploy such resources as they see fit, and indeed this is how knowledge has been
used throughout human history. The commodification of specific aspects of this
resource to enhance its commercial exploitation has always fulfilled some key social
goods (not least of all the support for commercialising ideas/creations and thereby
allowing their wider distribution). However, historically these rights have also been
balanced by the political realisation of the need to maintain an open realm (the public
domain) of knowledge. The attempts by owners to consolidate and expand the scope
of their private privileges has served to emphasises the value of openness; a value
which until it was severely threatened had been less obvious than it might have been.
4. Conclusion: Between Commodification and ‘Openness’
Certainly the call to ‘openness’ builds on the desire to maintain a public good,
alongside the more selfish reputational motivation that can often be discerned in those
contributing to open resources, but despite the rhetoric of both its supporters and
critics the practice does little to challenge the overall capitalist model of social
organisation. The declaration of ‘openness’ as regards knowledge and information is a
direct response to one specific form of commodfication, but can also be mobilised
against the expansion of the scope of intellectual property into new realms (of which
genetic information is probably the most obvious case in recent years). Over its five
hundred year history a series of debates have continued regarding the balance within
intellectual property between the public realm and the private rights of the ‘owners’ of
knowledge and information (11). The public realm of information (now often called
the ‘knowledge commons’) has always been fed by knowledge and information that is
no longer protected by time-limited IPRs; both patents and copyrights are rights with
legally limited duration. And once they have become part of the public domain they
are not available for fresh appropriation, but rather are permanently lodged in these
(knowledge) commons. In this sense, the call for ‘openness’ is the most recent
development in an ongoing political history, but this is in no sense to under-value or
down-play the importance of this countervailing trend.
Over the course of the five hundred years of formal legislative history, the duration
and scope of IPRs accorded to ‘owners’ have been the main arenas for the political
negotiation of a balance between private rights and public benefits. From the very
limited range of conditional privileges carved out from a more general limitation on
monopoly at the beginning of this period, this history has included repeated attempts
by owners to establish perpetual rights, but at other times has seen the severe
limitation of the forms of knowledge and information that could be commodified at
all (a narrowing of IPR’s scope). Most recently, the last decade has seen the
consolidation at the level of global governance of a specific and owner-privileging
legal settlement, one that has shifted these debates (once again) in a direction that has
enhanced and expanded the protections available to owners of IPRs (May and Sell
2005, chapter seven). However, this much criticised global settlement has not
completely destroyed nor fatally compromised the notion, nor the actuality, of the
public realm of free knowledge and information.
At the same time, it seems unlikely that the whole of contemporary society could be
patterned by the logic of ‘openness’, not least as the profound upheavals required to
restructure society’s generalised political, economic and legal structures in this way
would be essentially revolutionary. Indeed, it is also necessary to recognise that in
many (but by no means all) circumstances, IPRs reward commercial activities that
facilitate and support the widened circulation (and use) of creativity and innovation.
This should not be regarded as the testimony of despair; the political programme of
‘openness’ can as easily be a reformist programme, a struggle of tactics rather than a
grand strategic push to rid society of (intellectual) property, or prompt the downfall of
capitalism. This is to say, there is much to be gained by incremental challenges to
specific modes of ‘enclosure’ that are worthwhile on their own, however they might
fit with a wider (more general) reformation of information capitalism; the open
publishing of scholarly work (perhaps using creative commons licences) or the
adoption of open source software at home (using Firefox perhaps) can both contribute
to wider changes, for instance.
In this sense, rather than an either/or proposition, we can see a more fluid set of
possibilities, reflecting pragmatic choices within the socio-economic relations of the
growing (increasingly global) information society. ‘Openness’ can act as a
‘countervailing force’ in information society, balancing the more outlandish and
excessive claims to property rights. The key to the successful development of
something that resembles the early positive ideas of the information society, and thus
something that reigns in the more pernicious aspects of a rampant information
capitalism, may be the conjunction of ownership and ‘openness’ in an ongoing
dialectical relationship, each modifying and depending on the other. Indeed, de Joode
et al (2003, p.113-115) see this as the key role that government can play in this realm;
ensuring that there is a suitable and publicly beneficial balance between the
proprietary model and the open model. Although, the focus of de Joode et al’s study
was on software there is no reason why such a balancing role might not be more
general within the realm of knowledge and information (12).
Certainly this may be a reformist agenda, but it recognises both the continuing
strength of the dominant regime of IPRs, as well as understanding the limited
(although still important) challenge represented by ‘openness’; the dialectic between
these two poles may be volatile and subject to political challenge and contest, but this
in itself may be its main appeal: a process of continual balancing, seen as a process,
not as an end, allows shifts in social needs and interests to be articulated and
mediated. This is preferable to the domination of the ‘one-size-fits-all’ logic of IPRs,
and also importantly reflects the historical development of the limitations to the rights
accorded intellectual property owners. However, the social forces that support the
currently dominant justifications for the protection of IPRs cannot be discounted, and
nor are they ignoring the challenge. The WIPO, alongside a number of other agencies,
has deployed extensive resources in capacity building and technical assistance to
support and further the global governance of IPRs (May 2004). Furthermore,
corporations in the software and pharmaceutical industries (to name but two) have
been instrumental in shaping the political positions adopted by governments on
intellectual property. While this political power can certainly be contested by other
groups, the wealth and influence of industries that will benefit from the continued
expansion of intellectual property far outstrips those who oppose this position with
demands for ‘openness’.
Although earlier commentary on the Internet and its possibilities tended to assume
that there was some sort of technological inevitability that would free information
from the shackles of property, the last decade has demonstrated that the protection and
expansion of the information commons is a political project requiring extensive
agency. Indeed, as Yochai Benkler has warned:
There is no benevolent historical force, however, that will inexorably lead
the technical-economic moment to develop towards an open, diverse,
liberal equilibrium. If the transformation [into an open economy of
information] occurs, it will lead to substantial redistribution of power and
money from the twentieth-century producers of information, culture and
communications – like Hollywood, the recording industry and the
telecommunications giants – to a widely diffuse population around the
globe. None of the industrial giants of yore are going to take this
redistribution lying down (Benkler 2003, p.1249).
In other words, the supporters of a knowledge commons are going to have a fight on
their hands. The notion of sharing rather than owning, of open access rather than
gatekeeping has nonetheless begun to establish a social presence that suggests at the
very least it will offer a clear alternative to the modes of relatively comprehensive
commodification that continue to dominate the markets for new and innovative
knowledge and creation.
As de Joode et al (2003, p.86-91) note, there are a number of direct strategies that can
be used to protect and nurture the public domain (and again these can be generalised
from their immediate focus on software). Firstly, there is the simple boycott of
proprietary ‘products’ that has already been gathering pace in software procurement,
but we might also recognise in the widened visibility of ‘blogging’, indymedia and
other forms of open access dissemination. This reflects the continuing development of
alternative models that are inspired by the ‘logic’ of openness.
This first strategy is perhaps best represented outside the realm of software by the
Wikipedia [13]. The Wikipedia in one sense reinvents the notion of mutualism;
supported by a foundation that invites donations from users, it seeks to develop an
open resource. However, like LINUX, it is far from anarchic or ungoverned; it is not
the happy outcome of spontaneous unorganised activity that some utopians might
hope for. Rather, the openness of the Wikipedia has clear limits: not only do a small
team of editors monitor the pages, there has also been at least one case of an
imposition of control to halt the site’s own flame-war. The George W.Bush page in
2004/2005 became the site of an extensive and protracted serious of successive
(political) reorientations – from critical to supportive and back again. Nevertheless,
the Wikipedia does suggest that open resources can be built where there is both the
political will, and the available resource (here a business fortune invested in a
foundation) that can support open access without the need to develop a user-funded
model.
Secondly, there is also some advantage outside the realm of software in following the
strategy adopted by the Free Software Foundation; looking to convince companies
that adopting the open model may actually be a viable future business strategy (and
indeed this might be related to the give-away-the-razors-charge-for-the-blades model
often deployed in other markets). Finally, and perhaps most obviously is the need for
authors and other information or knowledge developers to take advantage of the free
and open access avenues available to publish their work outside a proprietary
network; this is already happening in the academy and in other realms of knowledge
production (May 2005).
Finally, it as well to stress that although openness is a valuable corrective to the overarching rhetoric of ownership rights, it is not a replacement for the IPR system. Rather
it works best as a reminder that within a globalised capitalist (information) society,
there needs to be a carefully wrought balance between the rights of private owners
and the benefits and access that can be legitimately demanded by a wider public. In
this sense, we must place the call for openness in a longer historical context than the
recent (so called) information revolution. This is useful firstly because it allows the
call for openness to be seen as a legitimate and constructive part of an on-going
political-legal history of negotiation of the realm of IPRs. And secondly, and flowing
from this point, it enables us to recognise the self-interested arguments of the
‘owners’ as also part of an historical crusade towards the widest rights possible. This
recent emphasis on private rights unfortunately sometimes forgets that IPRs have
always been a legislative mechanism to utilise private rewards (to support creativity
and innovation) for a greater public good. As has always been the case, the key is
balance, and openness is the contemporary manifestation of an historical tendency for
resistance to emerge when the privileges and rights claimed by owners inflict onerous
and unacceptable costs (and duties) on non-owners.
Notes and References
(1) This literature is discussed at some length in May (2002).
(2) Space precludes a detailed account of TRIPs numerous sections; Keith Maskus
(2000, chapter two) offers a good concise summary of the agreement, as does
Matthews (2002, chapter three) but also see the discussion in May and Sell (2005:
chapter seven).
(3) For an extensive discussion of the issue of active consumerism and its frequent
denial by IPR-owners see Liu (2003).
(4) In parallel to the debates around the enclosure of the ‘knowledge commons’,
especially in the USA, there has been a significant recent movement examining and
criticising the commodification of other commons (ranging from Federal drug
research to Public Natural Resources), see Bollier (2003) for an overview of these
wider concerns.
(5) In the account in this chapter I have for rhetorical purposes conflated the
considerable philosophical differences between the free software, and the open source
movements, as they both share an antipathy towards IPRs, however although their
approaches to the problem draw on similar initial arguments they have developed in
quite different ways, see for instance Klang (2005). It is clear that some elements of
the Free Software movement do conceive themselves as offering an anti-capitalist,
non-property alternative that should be applicable throughout society. However, this
is a minority position that is most often drowned out by the more common reformism
described in the main text of this chapter.
(6) Here I differ from a relatively famous earlier analysis of free software that
celebrated its anarchist credentials, see Moglen (1999).
(7) The LINUX operating system is perhaps the most famous of all open source
programmes.
(8) See St.Laurent (2004) for an excellent guide to the practical issues around the
deployment of the GPL and other open source and free software licences.
(9) see http://www.creativecommons.org for the licence.
(10) I have discussed DRMs at length elsewhere, see May (2003).
(11) This history is related at some length in May and Sell (2005).
(12) See Mulgan, Steinberg and Salam (2005, chapter five, and annex three) for a
number of examples of areas where experiments with ‘openness’ can be found.
(13) see http://en.wikipedia.org/wiki/Main_Page
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