Negotiating Culture: Heritage, Ownership, and Intellectual Property

7. Digital Commons: The Rise of New Models of Collaborative Ownership

170 7 Digital Commons The Rise of New Models of Collaborative Ownership R David Bollier Our understandings of ownership—the value associated with private-property rights—are changing profoundly in the emerging networked environment. Although markets remain a powerful force for creating certain types of wealth, a new social institution that combines productive activity with self-governance and new forms of property rights is starting to emerge: the commons. In many respects,there is nothing new about the commons; it has been a paradigm for managing resources communities from time immemorial. But now that the commons is becoming a robust model for production and governance in Internet contexts, it is attracting attention as a form of social order and management beyond market and state. As this chapter explains, the drama now under way in virtual spaces is how the new forms of bottom-up cooperation and social organization will transform our ideas about property rights, the organization of production, and the functioning of markets. We are accustomed to speaking about “intellectual property” as if the value of a song or an image were essentially fixed and physical. Copyright holders often liken their ownership to the possession of a car or a tract of land. But if there is anything that the Internet has demonstrated since the birth of the World Wide Web in the early 1990s, it is that the singular private possession of “intellectual property” can limit the creation of value. z 171 Digital Commons This is because the existing owners of “intellectual property”have sought to extend the rights associated with their copyrights,trademarks,and patents, at the expense of the social,cultural,and civic interests and rights traditionally enjoyed by the public and future creators.1 These interests include the right to excerpt portions of copyrighted works for educational,cultural,and political purposes and to make new creative works (“fair use” or “fair dealing ”), the right to resell a purchased copyright work without authorization by or payment to the copyright holder (the first-sale doctrine), and the expectation of a robust public domain as a reservoir of material for future creativity, free expression, and democratic culture. Copyright and its kindred bodies of law seek to convert knowledge and culture into artifacts of property (songs, texts, images, videos) so that they can be owned and sold. But there is a built-in tension to this act of propertizing culture, because the very existence and meaning of these works depend in great measure on their unrestricted social circulation. Works are meaningful only because they are part of a shared cultural context. Bottling up a work as a proprietary commodity can help convert that work into money (by enabling its ownership and sale), but it can also—especially in the Internet age—diminish the value of a work (by making it less known and less accessible to society). Or as the copyright scholar Siva Vaidhyanathan succinctly puts it, with apologies to Oscar Wilde, “The only thing worse than being sampled on the Internet is not being sampled on the Internet.”2 In other words,value is not necessarily intrinsic to a cultural artifact,but rather arises from its social circulation, uses, and ascribed meanings. The actor Jack Nicholson put it nicely: “Only that audience out there makes a star. It’s up to them. You can’t do anything about it. . . . Stars would be Louis B. Mayer’s cousins if you could make ’em up.”3 The strange, counterintuitive truth is that exclusive possession of a song, film, visual image, or text in an Internet context may actually diminish its market value.This is a key lesson of new genres such as open source software, Wikipedia and other wikis, remix music, collaborative archives, open access scholarly journals, and social networking, among many others. The common denominator of these forms is that each is generating enormous reservoirs of intangible value by eschewing strict private-property controls and instead inviting mass participation and shared access and collaboration.As the conventional boundaries of property law blur in online contexts, the 172 å David Bollier terms of participation, access, and collaboration are wide open to negotiation and innovative hybrid structures that blend sharing and control. “What we are seeing now,” writes Yochai Benkler in his landmark book, The Wealth of Networks, “is the emergence of more effective collective action practices that are decentralized but do not rely on either the price system or...