Philippe Aigrain, the French world known champion of the digital commons died
two weeks ago in a mountain accident. He was 71:
https://www.liberation.fr/societe/philippe-aigrain-le-sens-du-commun-20210712_WSLMCXM33BFAVFHZVGUTAT6LAE/
(not paywalled, for once, and afaik)
I learn about his death from Geert Lovink who send me this article from Le
Monde Diplo:
Original to:
https://mondediplo.com/2005/11/13commons
The internet and common goods
Own or share?
by Philippe Aigrain
Enforcing intellectual property law in the digital age means fighting ever more
effective and powerful new modes of creation made possible in part by
collaborative development through the internet.
Is there any limit to property? Current developments might suggest not, as
property rights are steadily extended. Property rights, in the form of patents,
copyright and, to a lesser extent, brands, apply to ever wider fields and are
protected by ever stronger laws, police powers and technological tools.
Resistance to the patenting of medicines, software, plant varieties and cell
strains has been active and determined. But it is up against a concerted
offensive by multinational companies, patent offices, specialised legal
consultants, the United States government and the European Union, all working
together to reinforce and extend property rights.
New technologies are helping to make copyright law more strictly enforceable,
preventing the use of copyright material even for legitimate ends (1). When it
comes to violating intellectual property rights, everyone is guilty until
proven innocent, from users of peer-to-peer file-sharing networks to farmers
whose crops have accidentally become mixed with genetically modified varieties
for which they do not hold licences (2).
Jean-René Fourtou, the CEO of Vivendi Universal and chairman of the
International Chamber of Commerce, addressed directors representing
pharmaceutical, media and software multinationals at the United Nations in
October 2004. He announced a global war on intellectual property piracy,
calling on business leaders to unite and form a massive lobby working to
influence governments (3). This will be a pre-emptive war that lumps
independent producers and users in with industrial counterfeiters and organised
crime, imagining a single enemy that will be defeated via tightly and
ingeniously enforced property mechanisms.
There has been resistance to this offensive. Campaigns for access to medicines
in developing countries have had some success, as have those against the
patenting of software or living organisms. Increasingly, patent applications
for GM crops or biotechnology products are rejected. But resistance is
fragmented; campaigns only rarely succeed in pulling together as parts of a
single cause.
On the technological side, there is a strong pull away from ownership of
published works or recorded media. New forms of collaborative innovation,
whereby ideas and expertise are freely shared, are proving more productive than
traditional ways of working. Once dismissed as the work of an eccentric fringe
of naive scientists who didn’t understand the harsh reality of economics, these
cooperative approaches are now being taken more seriously. They have the
particular advantage of orienting innovation towards the general interest and
the preservation of cultural diversity, rather than being tied to profit
incentives.
Academic research has convincingly established the superiority of what Yochai
Benkler calls “commons-based peer production” (4) in a wide range of
information technology development. In this model, every stage in the
development of a product is freely accessible to all, and anyone who wants to
use or modify it may do so as they see fit. The product is in this sense a
common good, and is often protected against patenting by any individual or
group.
The development of diametrically opposed visions vying for pre-eminence will
have profound implications for the future not only of technology, but also of
the world’s economies and social systems. Two scenarios are proposed. One
vision’s most fervent supporters are a small group of large multinationals,
represented by Fourtou’s UN audience. Their position was summed up by Bill
Gates, who dismissed those wishing to restrict intellectual property rights as
“modern-day communists” (5). More moderately, the defence of intellectual
property is based on a conviction that it is the oil, “black gold”, of the 21st
century. Critics such as Jeremy Rifkin (6) regard that defensive vision as a
plausible nightmare which is to be avoided. And the defensive vision has flaws
that cannot be ignored. IT networks do not lend themselves to requisitioning or
to restrictions on access and usage; such restrictions are a hindrance to their
development.
A number of important projects (see Open sources, below) have shown how
powerful the alternative vision of cooperative development can be when freed of
the constraints imposed by property and contracts. But there are difficulties:
attempts to expand free cooperation models and apply them to new areas meet
internal obstacles. One problem is the complexity and perceived impenetrability
of technology, whose future we have been too willing to abandon to specialists.
Another is fear about what reappropriation by the public might mean. Society’s
inventiveness is gradually finding ways around these problems.
The preservationists, with their artificial engineering of scarcity to maintain
monopoly prices, are encountering serious difficulties: information capitalism
is proving as fragile as it is powerful. A serious illustration of this
fragility is the total divorce between pharmaceutical companies’ profits and
share values, and their strategies’ real effects on public health. Financial
concerns lead them to prioritise research objectives that are not those which
society needs (7). Coalitions are now emerging to challenge the arrogance of
big pharma proposing an alternative that will re-establish the common good
alongside the principle of property, complementing the more general effort to
rein in the financial sphere’s unrestrained power over the economy and society.
Is this hoped-for coalition of the common good possible? Or is the fight
against restrictions on the circulation of information goods (including data,
software, expertise, genetic information and the organisms that contain it) a
utopian dream? The movement has had a few successes: resistance to software
patents in Europe; the emergence, at the World Intellectual Property
Organisation; and at Unesco, of coalitions that bring diverse NGOs together
with developing countries’ governments. Officially, documents such as the 2004
EU directive “on the enforcement of intellectual property rights” (8) are
intended to fight organised crime and its links with industrial counterfeiting.
In practice, they facilitate attacks on generic medicines, freeware and
voluntary sharing of products.
Do charities and campaign groups working with impoverished countries, plus a
few lawyers and political figures, have a chance against highly organised
business lobbies defending IP with armies of lawyers and connections at the
highest level in governments and political parties? There are reasons for
optimism. Though the international legal system seems biased towards the
interests of multinational companies, it does not know how information is
exchanged and innovation achieved in reality. Despite redoubled efforts,
tighter rules and harsher enforcement practices, stopping free information
exchange is about as easy as pushing water uphill.
The popularity of freeware is helping to establish the principles on which it
is based. Goods developed through free exchange and cooperative innovation
present such advantages, in independence from suppliers, that they are finding
their way into more homes and offices, including those of major administrations
and companies.
This kind of creeping, underground spread among users is not enough. It keeps
commons-based peer production at a distance from the mainstream economy,
instead of developing new forms of integration. It cannot provide funding to
enable all citizens to participate in the development of common goods and of a
large, vibrant sphere of activity. If it is to be credible, any coalition in
defence of common goods must articulate its proposals around the general aim of
bringing capitalism back under control.
To do that, we need to reject the defeatist mentality that treats technological
change as an external factor independent of human choices and actions.
Translated by Gulliver Cragg
------
Notes:
Philippe Aigrain was a campaigner for common goods and author of Cause Commune
(Fayard, Paris, 2005, www.causecommune.org) Also: Sharing. Culture and the
Economy in the Internet Age, Amsterdam University Press, 2012.
(1) EU Directive 2001/09 frees the providers of “protection” technology from
any obligation to allow for legitimate uses of the material they protect, even
where the law recognises these legitimate uses. If the protection is bypassed,
it is so hard to prove that this was for a legitimate end that in practice the
technology makes the law instead of the judge.
(2) See the case of Canadian farmer Percy Schmeiser’s battle with the chemical
giant Monsanto. Schmeiser was found guilty of violating its patent even though
the Monsanto patented crops he was accused of “exploiting” had grown on his
land because of natural accidents. See www.percyschmeiser.com
(3) Financial Times, London, 12 October 2004.
(4) Yochai Benkler, “Coase’s Penguin, or Linux and the Nature of the Firm” in
Yale Law Journal, New Haven, 4 June 2002.
(5) Michael Kanellos, “Gates, ‘Restricting IP is Tantamount to Communism’”,
CNET News.com.
(6) Jeremy Rifkin, The Age of Access, Putnam Publishing Group, Itasca, 2000.
(7) See Frederic M Scherer, “Global welfare and pharmaceutical patenting”, The
World Economy, Oxford, July 2004.
(8) Directive 2004/48/CE, 29 April 2004.
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