“The philosophy of one century is the common sense of the next.” Henry Ward Beecher

In ancient Rome, lawyers and politicians, separate from these offices, were often prominent philosophers – Cicero may serve as a good example in this respect - and even today, jurists can obtain their legal doctorate in philosophy (Ph.D.). However, I have to admit that as a modern-day and rather result-driven lawyer, I approached today’s discussion about ‘the philosophy of the commons’ not only with curiosity but with a great deal of scepticism regarding the practical value of such an event. Yet, with Henry Ward Beecher’s encouraging words on my mind, I entered the venue and experienced a truly inspiring discussion.

Of course, no immediate practical results were produced within the 90 minute panel discussion, but expecting otherwise would be misunderstanding the nature of philosophical discussions since philosophy is not so much about producing such practical results but about raising the right question in order to engage in an instructive yet mainly abstract argument. Having said this, philosophy is not per se without practical applications provided that sufficiently concrete questions are raised. And due to today’s panellists Tom Chance, David Berry and Mako Hill the discussion centred around the very concrete (and often asked) question “What do we mean by ‘free culture’?”. (For all readers less familiar with the terminology, Wikipedia’s description of the ‘Free Culture Movement’ “as a social movement that promotes the freedom to distribute and modify creative works” provides a good but shallow starting point for today’s discussion. The ‘Free Culture Movement’ is commonly associated with Creative Commons, based on CC founder Lawrence Lessig’s book “Free Culture”.)

Tom Chance, who had organised the session, prudently connected this initial question regarding the meaning of “free culture” in his pre-summit paper to the following set of valid sub-questions: “Is it just a reaction against copyright, or a broader positive movement for the arts? Should we take our inspiration from the free software movement, and if not, what philosophical and tactical differences should we account for?” Based on his extensive research on this topic, Tom contended that his main aim is to sound a note of caution for those working on definitions. He pointed out that any property system requires an organising principle and that copyright is currently organised around the principle of ownership - just like any other private property. However, the traditional legal justifications for the protection of property would for various reasons just not fit intellectual “property” and, moreover, copyright in its current state is too complex a system for people to understand or agree with it. In his paper, Tom had presented different ways of escapism and suggested “attribution” as an alternative and better suited organising principle for copyright. In today’s session, Tom focussed on the question of what we mean with “free” and criticised that we tend to see culture merely through the lens of CC and Free Culture. He asked what the things are we are trying to achieve, what kind of world we are trying to create and what we are trying to do as a movement then. In conclusion, Tom stated that empowering people is at the core of free culture and that the main aim should be to create more creative freedom. David M. Berry views took us to yet another level of philosophical thinking. I am just not too sure whether or not I really want to follow him on this very theoretic journey. David’s reasoning is far more philosophical and as such more abstract and less practical. He founded today’s presentation on his paper “On Byways and Backlanes: The Philosophy of Free Culture”, which can be downloaded on the Internet. It goes beyond the scope of this article to deal with David’s arguments in detail. In essence, he sees Free Culture as “an alternative to Technopoly or a one-dimensional society.” He distinguishes between the status quo life-world (“ontic”) and a fictive desirable ontological world and, consequently, raises the question whether free culture is merely concerned with the life-world question of intellectual property rights or rather with the deeper question of the nature of culture, sharing and being-in-the-world at a more fundamental level. From his point of view, free culture, as a philosophy, lies somewhat between the two worlds and can therefore enable us to look beyond our current life-world. Against this backdrop, David is highly critical of Creative Commons and called it today a resource for capitalism due the fact that it reduces the idea of free culture to a plain life-world legal or economic (instead of ethical and political) issue with miserable, cramped views of culture. In one of his papers and again today, David described Creative Commons as a “simulacra of a commons, a database that is construed to reflect the bias of an economic system geared towards the maximisation of efficiency and productivity but promoted through a rhetorical veneer of community, friendship and social exchange.” From David’s point of view, Creative Common’s success is to a large extent based on the fact that it shouts louder and has more money than other similar movements. When Mako Hill expressed his views on the philosophy of the commons today, it was unsurprising that his understanding of free culture was strongly influenced by the free and open software movement with its four essential freedoms. Mako described the free software idea as a vision how a free world could look like without demanding that it actually must look like that. At the very minimum, however, Free Culture should be free in some way. It was enjoyable to see how realistic Mako approached the issue without trying to convince people of a certain concept. On the contrary, he said that everybody should come up with ideas and visions so that eventually the best concept would prevail – just like Richard Stallman’s concept prevailed in the Free Software context. Moreover, Mako openly admitted that the Free Software approach of absolute freedom might not work for such a diverse community like the CC community and he commended CC’s license scheme as easy to understand and to apply. Yet, Mako is, of course, not uncritical of CC. In the past, he has referred to CC’s license scheme as a missed opportunity since it would provide neither real freedom nor a firm ethical position like the free software movement does. For that reason, CC’s underlying philosophy would fall foul of what the free and open software movement tried to achieve. Today, Mako pointed out to the fact that the slogans of both movements do already reveal the fundamental difference: While under a CC license some rights remain reserved, the free software movement declares certain essential rights as simply un-reservable. One of Mako’s main concerns was that users of CC licenses have so far not been challenged enough to offer their work more freely.

I have already said that I really enjoyed today’s session, especially because of the subsequent vibrant discussion. Lawrence Lessig, for instance, once again and especially with regard to Mako’s presentation pointed out to the fact that the Creative Commons community is extremely diverse and that the idea behind CC is to bring all the people together for a common goal. This inevitably comes at the cost of compromises and, to some extent, vagueness. Andrew Rens from South Africa reminded the participants of the session not to forget that free culture can have quite a different meaning in a developing country context and he pointed out to the fact that he has created a node on the web for further discussion on the topic of the philosophy of the commons. Another participant noted (quite rightly from my point of view) that we should actually split the term “free culture” in its two components in order to search for independent definitions of both terms.

Personally, I had my problems with David Berry’s presentation. Firstly, he repeatedly referred to Martin Heidegger’s writings, of whose moral integrity I am not entirely convinced due to his entanglement with the Nazi regime. Secondly, David previously expressed odd and extremely negative views on (copyright?) law in general and those employed within its sphere – it is this view that contributes significantly to his findings. Naturally, I have to oppose such an overly negative approach to law. I am really not a ‘law and order’ person – on the contrary. But do we really want to live without laws? Rather not: Law is not so much a juridico-legal grid placed on social life but a set of rules necessary to (at best) facilitate a peaceful co-existence. Thirdly, David also admits that despite all the theoretical and rather strenuous exercise, it is impossible to suggest what a free culture might look like.

In conclusion, I briefly want to add my own view to the discussion: For me, a pure free culture is a culture where all creative works are in the public domain and where all these works can be accessed by anybody from everywhere. This pure form of free culture is as desirable as it is utopian, especially because a significant number of the very creators of culture is against such a notion of culture. We could ignore these creators and change our laws and treaties in order to place all works immediately and automatically into the public domain. But then, of course, our free culture would also be a pretty dreary culture due to the fact that not all but yet too many creators would simply stop creating. Without a doubt, our current copyright laws are paternalistic by way of being over protective, but a certain amount of protection is simply unavoidable. We should therefore start to fight for the shortest copyright term possible so that works can enter the pool of real free culture, the public domain, much sooner. We should also extent copyright limitations and exceptions for the time a work actually is protected by the law and we should think about the introduction of a registration requirement for copyright protection to reduce unwanted protection. Moreover, we should start to accept that CC as a license scheme is a very useful tool to facilitate access to protected works – not more! Or, put more simply: Let’s be more realistic and re-phrase our goal into: “Freer culture!”

tags: Dubrovnik Croatia policy-law philosophy-of-the-commons free-culture summit07

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