Digital content, pretty much by definition, is very easy to share and remix. It’s all based on ones and zeros, which can be copied and rearranged without limit.
That makes the digital realm a natural home to the digital commons, or rather, many digital commons. And indeed, there are many. Free software is one, Wikipedia and many sites inspired by it are others, sites where photos and music can be exchanged are still more. (Google, YouTube, and Facebook are not commons.)
But, like the physical commons, the digital commons are vulnerable to enclosure. I don’t have a conclusive and foolproof plan to prevent that, but I do have some starting points.
As David Bollier and others point out on a regular basis, the commons isn’t the resource. Rather, it’s the collaborative management of the resource that is the commons. The commons isn’t something we have, it’s something we do. And as we do, we build abundance: physical goods are still finite, but because we share them, they are no longer scarce. It’s the very recognition of the fact that they are finite that makes them as close to infinite as we could ever get.
However, digital content is infinite (and inherently abundant), for all practical purposes. Scarcity has to be imposed from outside the digital realm, by law. Creative Commons is a “legal hack” to roll back the artificial scarcity in copyright law, to varying extents from one license to another, by waiving certain restrictions. The only way to avoid copyright altogether is to waive all restrictions, and dedicate your work to the public domain.
Other than certain researchers and certain government officials, however, very few content creators do that. If they give up all control, there’s no enforcement mechanism to make sure they are paid for their work, and worse still, to prevent others from getting paid for reusing it—possibly much more than the original creator (as in the case of the many movies Disney made based on stories in the public domain). That’s what enclosure of information looks like.
In the physical commons, it’s possible—indeed, it’s required—to exclude people from a given commons. The commoners are a defined set of people: the people who have agreed to abide by the rules of the commons, which they themselves write. There are incremental sanctions for violating the rules, up to and including being barred from the commons altogether.
This is not the case in digital commons. Digital commoners potentially include anyone with access to the Internet. The more open the license on content, the more people will be able and willing to make use of it beyond simply “consuming” it (reading, watching, listening). Creative Commons is a popular way to do that, but I suspect many people misunderstand the CC licenses, and fewer still understand how they inter-operate (or don’t). Precise numbers are not available, because it’s hard to track people not doing something, but given the complexity of the licenses and how that complexity has only increased over time, it’s safe to say that many would-be re-users don’t bother to read them closely. Instead, they treat them like the public domain, or else give up on re-use. And it’s very difficult to do much about non-compliance. First, you have to notice it, and then you have to ask the re-user to comply. If they don’t, you can sue. Maybe you’ll win, maybe you won’t. In practice, compliance is pretty much opt-in.
Creative Commons was designed with all the right reasons in mind, but I think it gets in its own way. I think we need to focus actively on promoting commercial reuse among commoners, and the licensing process needs to be a single step. Anything else isn’t really building the commons at all, it’s seeking information “consumers.” I don’t hold that against people, especially on the Internet, where attention is real currency, but it isn’t participatory. That means it’s not much of an improvement over traditional copyright. A real commons blurs the line between producer and consumer. Information wants to be recycled.
That’s the direction we need to look in to protect against enclosure. Legal protections would be great, but if that’s our sole strategy, we’re in danger. After all, the enclosure of the physical commons took place (and continues to take place) under the auspices of the law. We need to design self-protection into our practice. I know that’s not a very specific solution, but it’s a big problem, and it will take more than one blog post to solve it.