Open and Shut?: October 2010

Monday, October 18, 2010

Interview with Jordan Hatcher

Over the past twenty years or so we have seen a rising tide of alternative copyright licences emerge — for software, music and most types of content. These include the Berkeley Software Distribution (BSD) licence, the General Public Licence (GPL), and the range of licences devised by Creative Commons (CC). More recently a number of open licences and “dedications” have also been developed to assist people make data more freely available.

The various new licences have given rise to terms like “copyleft” and “libre” licensing, and to a growing social and political movement whose ultimate end-point remains to be established.

Why have these licences been developed? How do they differ from traditional copyright licences? And can we expect them to help or hinder reform of the traditional copyright system — which many now believe has got out of control? I discussed these and other questions in a recent email interview with Jordan Hatcher.

A UK-based Texas lawyer specialising in IT and intellectual property law, Jordan Hatcher is co-founder of OpenDataCommons.org, a board member of the Open Knowledge Foundation (OKF), and blogs under the name opencontentlawyer.

Jordan Hatcher

Big question

RP: Can you begin by saying something about yourself and your experience in the IP/copyright field?

JH: I’m a Texas lawyer living in the UK and focusing on IP and IT law. I concentrate on practical solutions and legal issues centred on the intersection of law and technology. While I like the entire field of IP, international IP and copyright are my most favourite areas.

As to more formal qualifications, I have a BA in Radio/TV/Film, a JD in Law, and an LLM in Innovation, Technology and the Law. I’ve been on the team that helped bring Creative Commons licences to Scotland and have led, or been a team member on, a number of studies looking at open content licences and their use within universities and the cultural heritage sector.

I was formerly a researcher at the University of Edinburgh in IP/IT, and for the past 2.5 years have been providing IP strategy and IP due diligence services with a leading IP strategy consultancy in London.

I’m also the co-founder and principal legal drafter behind Open Data Commons, a project to provide legal tools for open data, and the Chair of the Advisory Council for the Open Definition. I sit on the board for the Open Knowledge Foundation.

More detail than you can ask for is available on my web site here , and on my LinkedIn page here.

RP: It might also help if you reminded us what role copyright is supposed to play in society, how that role has changed over time (assuming that you feel it has) and whether you think it plays the role that society assigned to it successfully today.

JH: Wow that’s a big question and one that has changed quite a bit since the origin of copyright. As with most law, I take a utilitarian / legal realist view that the law is there to encourage a set of behaviours.

Copyright law is often described as being created to encourage more production and dissemination of works, and like any law, its imperfect in its execution.

I think what’s most interesting about copyright history is the technology side (without trying to sound like a technological determinist!). As new and potentially disruptive technologies have come along and changed the balance — from the printing press all the way to digital technology — the way we have reacted has been fairly consistent: some try to hang on to the old model as others eagerly adopt the new model.

For those interested in learning more about copyright’s history, I highly recommend the work of Ronan Deazley, and suggest people look at the first sections in Patry on Copyright. They could also usefully read Patry’s Moral Panics and the Copyright Wars. Additionally, there are many historical materials on copyright available at the homepage for a specific research project on the topic here.

Three tranches

RP: In the past twenty years or so we have seen a number of alternative approaches to licensing content develop — most notably through the General Public Licence and the set of licences developed by the Creative Commons. Why do you think these licences have emerged, and what are the implications of their emergence in your view?

JH: I see free and open licence development as happening within three tranches, all related to a specific area of use.

1. FOSS for software. Alongside the GPL, there have been a number of licences developed since the birth of the movement (and continuing to today), all aimed at software. These licences work best for software and tend to fall over when applied to other areas.

2. Open licences and Public licences for content. These are aimed at content, such as video, images, music, and so on. Creative Commons is certainly the most popular, but definitely not the first. The birth of CC does however represent a watershed moment in thinking about open licensing for content.

I distinguish open licences from public licences here, mostly because Creative Commons is so popular. Open has so many meanings to people (as do “free”) that it is critical to define from a legal perspective what is meant when one says “open”. The Open Knowledge Definition does this, and states that “open” means users have the right to use, reuse, and redistribute the content with very few restrictions — only attribution and share-alike are allowed restrictions, and commercial use must specifically be allowed.

The Open Definition means that only two out of the main six CC licences are open content licences — CC-BY and CC-BY-SA. The other four involve the No Derivatives (ND) restriction (thus prohibiting reuse) or have Non Commercial (NC) restrictions. The other four are what I refer to as “public licences”; in other words they are licences provided for use by the general public.

Of course CC’s public domain tools, such as CC0, all meet the Open Definition as well because they have no restrictions on use, reuse, and redistribution.

I wrote about this in a bit more detail recently on my blog.

3. Open Data Licences. Databases are different from content and software — they are a little like both in what users want to do with them and how licensors want to protect them, but are different from software and content in both the legal rights that apply and how database creators want to use open data licences.

As a result, there’s a need for specific open data licences, which is why we founded Open Data Commons. Today we have three tools available. It’s a new area of open licensing and we’re all still trying to work out all the questions and implications.

Open data

RP: As you say, data needs to be treated differently from other types of content, and for this reason a number of specific licences have been developed — including the Public Domain Dedication Licence (PDDL), the Public Doman Dedication Certificate (PDDC) and Creative Commons Zero. Can you explain how these licences approach the issue of licensing data in an open way?

JH: The three you’ve mentioned are all aimed at placing work into the public domain. The public domain has a very specific meaning in a legal context: It means that there are no copyright or other IP rights over the work. This is the most open/free approach as the aim is to eliminate any restrictions from an IP perspective.

There are some rights that can be hard to eliminate, and so of course patents may still be an issue depending on the context, (but perhaps that’s conversation for another time).

In addition to these tools, we’ve created two additional specific tools for openly licensing databases — the ODbL and the ODC-Attribution licences.

RP: Can you say something about these tools, and what they bring to the party?

JH: All three are tools to help increase the public domain and make it more known and accessible.

There’s some really exciting stuff going on with the public domain right now, including with PD calculators — tools to automatically determine whether a work is in the public domain. The great thing about work in the public domain is that it is completely legally interoperable, as it eliminates copyright restrictions.

RP: Are there now open, free or public licences for every type of content?

JH: There’s at least something out there for everything that I know of, though there are edge cases in openly licensing trademarks or in some patent communities. Who knows though what we’ll be talking about in 10 years?!

RP: You said that non-commercial restrictions do not conform to the Open Knowledge Definition of open. In fact, many people argue that NC makes no sense at all, not least because it is practically impossible to define what non-commercial means. What are your thoughts on this?

JH: The arguments against Non Commercial restrictions tend to centre on the fact that it breaks compatibility with other, open, licences (as “open” means allowing commercial use). While NC restrictions aren’t open, that doesn’t mean that they aren’t useful. Many successful publishers and authors in fact incorporate NC restrictions as part of their online strategy.

Creative Commons did a study to try to understand more about what people mean with NC, and found that many licensors and licensees generally agree on the broad activities covered by the non-commercial restriction. While there are challenges with defining some of the edge cases around non-commercial use, there’s a definite norm built into using it as a licensing term.

Distributed production

RP: How important do you think the rise of digital media and the Internet have been in the emergence of free and open licensing (and the free and open source software movements that have accompanied them)?

JH: Digital technology and the internet have been absolutely critical in the emergence and role of free and open licensing. Free and open licensing is a tool to harness and encourage distributed production — lots of people working at different times and in different places. That’s the great thing about open source — giving access to the human readable code allows the “many eyes” method of production that Eric S. Raymond talks about.

One of my favourite examples of the power of distributed production (though not open licensing) is anime fansubs. An anime show can go on the air in Japan and in less than 24 hours be translated into English, subtitles inserted, format shifted, and then distributed out on the web via a worldwide network of unpaid people. Now of course whether that activity is legal is a whole different question, which I’ve written about a bit here.

RP: Most people seem to think that open and free licences provide a new type of copyright. That is not strictly accurate is it? Do they not rather simply separate out all the different rights that come with copyright today, and allow rights owners to assert those rights they wish to assert, and waive the others — and in a standardised way?

JH: You’re right — open licensing is not a new type of copyright — it’s the exact same copyright bundle of rights that the RIAA or the MPAA uses to enforce their rights. Open licensing just structures the relationship differently by giving broad permissions up front for the work with few restrictions, while the typical licensing approach is often to have broad restrictions and limited permissions.

Using public licences helps standardise and form a community around the various open licences, which ups their adoption and lowers the barrier of using openly licensed material by making it easier to figure out your obligations once (by understanding a single licence) across a broad range of works.

One has to be careful when using the term “waiver” however — waiver means giving up your rights, i.e. you no longer have the right. A licence means that you still have the right, but give permission for certain types of use.

Open licences don’t normally waive other rights — they licence them. By contrast, public domain dedications (PDDL or CC0 for example) are primarily waivers — because they try to help people totally give up their rights in copyright (and database rights).

Licence proliferation

RP: We mentioned the GPL and the CC licences, but there are also open source licences like the BSD, the Artistic Licence, the Apache Licence, the Mozilla Public Licence, and the Microsoft Public and Microsoft Reciprocal Licences? Some argue that there are now simply too many alternative licences. What are the issues associated with licence proliferation and what is the solution (is there one)?

JH: The main issue with licence proliferation is one of interoperability. Some open licences aren’t legally interoperable with others, and so what can happen is that various licence silos can be created.

There’s not an easy solution to this, though using a licence that plays well with lots of others (such as the BSD family of licences, CC-BY, ODC-Attribution, and of course public domain tools) can help ensure lots of interoperability.

RP: How can people find their way through the jungle of alternative licences now available? How can they know what licence is appropriate for them?

JH: There are lots of resources available online for people to find out about the various free and open licences available out there. When considering a licence for something new, the best place to start is not with a licence but with asking yourself, or asking the business: What is the goal you are trying to accomplish?

Building from those answers and the type of material (data, software, content) you can then pick the open licence that most fits those goals.

RP: If one was trying to sketch out a rough guide explaining the key characteristics of the different types of alternative licences how would you go about it — for instance, people use terms like free, open, gratis vs. libre; and they talk about “share alike”? Is this not overly confusing?

JH: I see very little difference from a legal perspective when people talk about free vs. open vs. libre. They all use copyright to accomplish broadly the same goals (attribution, copyleft/share alike) and so it’s more a social/political aspect rather than a straight legal distinction. The incorporation of libre into the debate of course produces a great acronym to discuss it all — FLOSS licensing!

RP: The GPL is often referred to as being “viral”. What does that mean in practice?

JH: “Viral” is such a poor word to describe it, as it implies that like a real virus you have no choice about being “infected” with it. “Viral” is used to describe what’s been variously described as copyleft; share alike; or reciprocal licensing.

It’s a pretty simple concept really — if you build on someone else’s work you have to use the same licence they used for their stuff for your contributions. It’s kind of like the golden rule, but for software licensing.

RP: So people opt to embrace copyleft; it is not something foisted on them involuntarily?

JH: Right. And it is voluntary because there is nothing that forces you to use the work of other people — it’s a choice. Just like if I choose to use software from a proprietary software vendor they will typically have all sorts of restrictions on what I can and can’t do with the code; and if I don’t like it I can use an alternative, or not use it at all.

I think the key problem for people who describe copyleft as “viral” is simply one of control — compared with other IT contracting they (often) don’t have the option to negotiate different terms to the licence and so see it as forcing them to do something that they’d prefer not to do.

Social and political issues

RP: As you said, there are also social and political issues at work here. As a result, there have been a number of ideological disputes about the new-style licences. Free software advocates, for instance, have criticised some of the Creative Commons licences, and indeed some have criticised the entire political logic of CC. Can you explain the background to this, and whether the issue has been settled?

JH: I don’t want to put words into anyone’s mouth, and trying to sum up the number of disputes out there quickly wouldn’t do them justice. Like anything, CC has its flaws and its benefits, and in any free (as in libre) society — and especially as part of an overall open movement — these should be discussed.

RP: Some argue that the problem with Creative Commons is that it seeks to work around the copyright system rather than reform it, and so could end up bolstering an IP system that many feel has got out of control. Is this a valid criticism? Could it perhaps also be said of free software licences like the GPL?

JH: To some CC is an escape valve letting off just enough steam to prevent the copyright boiler from exploding, when they would rather the whole thing exploded, and so make it necessary to rewrite copyright law.

In this view, CC prevents some critical legal reform by giving solutions to people who otherwise would be doing all the things necessary to get legislators moving faster. It’s certainly a valid criticism but I think it’s safe to say they’ve lost that fight. We have CC licences; they’ve been ported worldwide; and so they are in use globally in a wide variety of contexts.

I think that CC might actually work in the opposite direction of this argument — by making copyright law more accessible to people, and so helping them understanding the sometimes negative impact that copyright can have on their daily lives, maybe more people will become politically active in this area. Who knows? It could be an interesting research topic, and either way I’m sure we’ll find out in the next couple of years who was right.

RP: I wonder if perhaps one of the biggest problems posed by the copyright system today is the so-called orphan works phenomenon — which flows from the fact that in most, if not all, jurisdictions copyright now comes into effect the moment a work is created or expressed. Is this a serious problem? If so, what is the solution?

JH: I see the main cause of the orphan works problem to be that automatic copyright (the default baked into international treaties) lasts so long, not so much that it is automatic in the first place. Many jurisdictions have terms of life + 70 years, and the real orphan works problem starts way down the line when no one remembers, or has any records of, who the actual author or rights holder is. So while we may know roughly when a work was created, and so whether or not it is in copyright, we just don’t know who holds the rights.

Orphan works are a serious problem mainly because they represent such an unknown risk: If you don’t know who the rights holder is there is no chance of acquiring a licence (because the rights holder is unknown). Moreover, the seemingly ever increasing penalties for copyright infringement constantly raise the stakes. This poses a really serious risk for cultural heritage institutions — our collective memory — who have lots of interesting material that they’re not sure what to do with due to it having this unknown copyright status.

As to a solution, there are many options being discussed, from more radical suggestions like having a very short copyright term, to proposals that would work within the current framework such as compulsory licensing. Who knows where we’ll end up, but I think it’s becoming clearer to legislators throughout the world that something must be done.

Still very much up for debate

RP: One problem that surely won’t go away any time soon for individuals creating copyrighted works is that if someone infringes their copyright there is little they can do about it unless they have access to a lot of money — because access to the law is usually very expensive. Would you agree?

JH: I don’t think I’d agree with that at all. Of course a lot depends on the specific facts and jurisdiction. But just sending an email to people and asking for them to comply can often get results, which is free! And in many jurisdictions, legal counsel may take a copyright case on contingency if it needs to proceed further.

Access to justice is an issue across many areas in the law of course, and not an issue exclusive to copyright law.

RP: Critics argue that that some courts may not recognise licences like the GPL and the CC licences. There have now been a number of cases involving these licences. What do we learn from these so far as enforceability is concerned?

JH: While there are a few cases now, I think the focus for enforcement of FOSS licences is and always has been on the community of practice built up around the licences by both the FOSS community and business users.

Eben Moglen and Richard Stallman often describe the GPL as the constitution of the free software movement. I think that’s a very apt description, as like a constitution and a society, there’s lots of enforcement through social norms and norms of interpretation.

The same is true for the CC licences — just by having such a large community of users, including businesses, help enforcement. Simply naming and shaming people that don’t meet these norms gets lots of people to come into compliance.

RP: You said earlier that when technology changes some people try to hold on to the old model, and others embrace the new model. Since IP law has become deeply embroiled in the often-heated discussions about appropriate models, and since — like any law — it determines what people can and cannot do, and so what models are possible, some believe that it has become part of a much larger struggle between open and closed models. If that is right, then presumably one of those models will eventually win. Do you agree? If so, how will the struggle end? And what model do you think will win?

JH: I don’t see open and closed models as a (huge) battle that one side will win or lose. Open licensing is a legal tool that is also associated to various degrees with various social and political movements. Open licensing models, and approaches like, open innovation, are one option out of many approaches, and I think it will stay that way for a long time.

Copyright law will likely change, and technology will change and impact the need and rationale both for copyright law specifically and many other areas of law generally. In the end, however, I fundamentally believe in a role for copyright and IP law in society. What that role is and how it’s played is still very much up for debate.

Monday, October 04, 2010

Silke Helfrich on the commons and the upcoming International Commons Conference

As more and more of the world’s population has gained access to the Internet so a growing number of free and open movements have appeared — including the free and open source software movements, free culture, creative commons, open access and open data.

Once these movements became widely visible — and successful — people were keen to understand their significance, and establish what, if anything, they have in common. Today many observers maintain that they share very similar goals and aspirations, and that they represent a renaissance of “the commons”.

There is also an emerging consensus that, contrary to what was initially assumed, this renaissance is not confined to the Internet, and digital phenomena, but can also be observed in the way that some physical products are now manufactured (e.g. by advocates of the open source hardware movement) and in the way that many are now recommending the natural world be managed.

For instance, argue self-styled “commoners”, when local farmers establish seed banks in order to preserve regional plant diversity, and to prevent large biotechnology companies from foisting patent-protected GMO crops on them, their objectives are essentially the same as those of free software developers when they release their software under the General Public Licence: Both are attempting to prevent things that rightfully belong in common ownership from being privatised — usually by multinational companies who, in their restless pursuit of profits, are happy to appropriate for their own ends resources that rightfully belong to everyone.

Once understood in this broader context, commoners add, it becomes evident that the free and open movements have the potential to catalyse radical social, cultural and political change; change that, in the light of the now evident failures of state capitalism (demonstrated, for instance, by the global financial crisis) are urgently required.

Larger movement

In order to facilitate this change, however, commoners argue that the free and open movements have to be viewed as component parts of the larger commons movement. In addition, it is necessary to embrace and encompass the other major political and civil society groups focused on challenging the dominance of what could loosely be termed the post-Cold War settlement — including environmentalism, Green politics, and the many organisations and initiatives trying to address both developing world issues and climate change

But to create this larger movement, says Jena-based commons activist Silke Helfrich, it will first be necessary to convince advocates of the different movements that they share mutual objectives. As they are currently fragmented, their common goals are not immediately obvious, and so it will be necessary to make this transparent. Achieving this is important, adds Helfrich, since only by co-operating can the different movements hope to become politically effective.

To this end Helfrich is currently organising an International Commons Conference that will bring together over 170 practitioners and observers of the commons from 34 different countries.

To be held at the beginning of November, the conference will be hosted by the Heinrich Böll Foundation in Berlin.

The aim of the conference, says Helfrich, is to spark “a breakthrough in the international political debate on the commons, and the convergence of the scholars studying the commons and the commoners defending them in the field.” Helfrich hopes this will lead to agreement on a “commons-based policy platform”.

What is the end game? Nothing less, it would appear, than a new social and political order. That is, a world “beyond market and state” — where communities are able to wrest back control of their lives, from faceless, distant government, and from rootless, heartless corporations.

As Helfrich puts it, “the essential ideals of state capitalism — top-down government enforcement and the so called ‘invisible hand’ of the market — have to be marginalised by co-governance principles and self-organised co-production of the commons by people in localities across the world.”

Well qualified

Helfrich is well qualified to organise such a conference. She has already run three conferences on the commons, and she has a deep understanding of development politics. Between 1999 and 2007 she was in charge of the regional office of the Heinrich Böll Foundation for Central America, Mexico and the Caribbean — where she focused on globalisation, gender issues, and human rights.

Since her return to Germany in 2007, Helfrich has developed an international reputation for commons advocacy through her German-language CommonsBlog, and she moderates an interdisciplinary political salon called “Time for the Commons” at the Heinrich Böll Foundation.

She has also written many articles and reports on the commons for civil society organisations, and recently edited an anthology of essays on the commons called To Whom Does the World Belong? The Rediscovery of the Commons.

Helfrich explains the background and purpose to the International Commons Conference in more detail below.

The interview begins …

Silke Helfrich

RP Why did you become interested in the commons?

SH: I was born in East Germany, and when the wall came down in 1989 I was 22 and had just finished my studies. Then I lived for more than eight years in El Salvador and Mexico, both of which are extremely polarised countries so far as the distribution of wealth is concerned.

So I've experienced two very different types of society: one in which the state is the arbiter of social conditions, and the way in which citizens can participate in their society and, after 1989, one in which access to money determines one's ability to participate in society.

It has also always been my belief that democracy should involve much more than simply having free elections and then delegating all responsibility to professional politicians. We need to radically democratise the political, social and economic sphere — and we need a framework for doing so which is beyond both the market and the state. That, in my view, is precisely what the commons is all about.

RP: Can you expand on your definition of the commons, and the potential?

SH: The commons is not a thing or a resource. It’s not just land or water, a forest or the atmosphere. For me, the commons is first and foremost constant social innovation. It implies a self-determined decision making process (within a great variety of contexts, rules and legal settings) that allows all of us to use and reproduce our collective resources.

The commons approach assumes that the right way to use water, forests, knowledge, code, seeds, information, and much more, is to ensure that my use of those resources does not harm anybody else’s use of them, or deplete the resources themselves. And that implies fair-use of everything that does not belong to only one person.

It's about respect for the principle "one person — one share", especially when we talk about the global commons. To achieve this we need to build trust, and strengthen social relationships, within communities.

Our premise is that we are not simply "homo economicus" pursuing only our own selfish interests. The core belief underlying the commons movement is: I need the others and the others need me.

There is no alternative today.

Convergence

RP: Would it be accurate to say that the commons encompasses components of a number of different movements that have emerged in recent years, including free and open source software (FOSS), Creative Commons, Green politics, and all the initiatives focused on helping the developing world etc.?

SH: That's right.

RP: Has it been a natural process of convergence?

SH: From a commoner’s perspective it is a natural process, but it is not immediately obvious that the different movements and their concerns have a lot in common.

RP: How do you mean?

SH: Let me give you an example: When we started to work on the commons in Latin America about six years ago we were working mainly with the eco- and social movements, who were critical of the impact that globalisation and the free trade paradigm were having. A colleague suggested that we should invite people from the free software movement to take part in our discussions.

While we did invite them, our first thought was: What does proprietary software have in common with genetically modified organisms (GMOs)? Or, to put it the other way round, what does the free software movement stand for, and what could it possibly have in common with organisations fighting for GMO free regions? Likewise, what could it have in common with community supported agriculture (CSA), and with movements devoted to defending access to water and social control over their biotic resources?

But we quickly realised that they are all doing the same thing: defending their commons! So since then we have become committed to (and advocate for) the "convergence of movements".

RP: For those who have been following the development of the Internet much of the debate about the commons has emerged from the way in which people — particularly large multinational companies — have sought to enforce intellectual property rights in the digital environment. In parallel there has been a huge debate about the impact of patents on the developing world — patents on life-saving drugs, for instance, and patents on food crops. But seen from a historical perspective these debates are far from new — they have been repeated throughout history, and the commons as a concept goes back even before the infamous enclosures that took place in England in the 15^th and 16^th Centuries.

SH: That’s right. So to some extent we are talking about the renaissance of the commons.

And the reason why free software developers are engaged in the same struggle as, say, small farmers, is simple: when people defend the free use of digital code, as the free software movement does, they are defending our entitlement to control our communication tools. (Which is essential when you are talking about democracy).

And when people organise local seed-banks to preserve and share the enormous seed variety in their region, they too are simply defending their entitlement to use and reproduce the commons.

In doing so, by the way, they are making use of a cornucopia — because in the commons there is abundance.

RP: Nowadays we are usually told to think of the natural world in terms of scarcity rather abundance.

SH: Well, even natural resources are not scarce in themselves. They are finite, but that is not the same thing as scarce. The point is that if we are not able to use natural collective resources (our common pool resources) sustainably, then they are made scarce. By us!

The commons, I insist, is above all a rich and diverse resource pool that has been developed collectively. What is important is the community, or the people’s control of that resource pool, rather than top-down control. Herein lies the future!

That is precisely what awarding the Nobel Prize in Economics to Elinor Ostrom in 2009 was all about [On awarding the Prize, The Royal Swedish Academy of Sciences commented: “Elinor Ostrom has challenged the conventional wisdom that common property is poorly managed and should be either regulated by central authorities or privatised”].

It is also what the Right Livelihood Award [the so-called Alternative Nobel Prize] — is all about.

Make transparent

RP: Ok, so we are saying that a lot of different movements have emerged with similar goals, but those similarities are not immediately obvious?

SH: Correct. So it is important to make them transparent. The global movement of commoners today is eclectic and growing, but fragmented.

For instance, we can see a number of flourishing transnational commons movements (e.g. free software, Wikipedia, open access to scholarly journals etc.) — all of whom are from the cultural and digital realm, and all of whom are based on community collaboration and sharing.

Many other commons projects, however, are modest in size, locally based, and focused on natural resources. There are thousands of them, and they provide solutions that confirm the point ETC’s Pat Mooney frequently makes: “the solution comes from the edges”.

Right now these different groups barely know each other, but what they all have in common is that they are struggling to take control of their own lives.

Taken together all these movements are actually part of a big civic movement that is about to discover its own identity, just as the environmental movement did some 30 or 40 years ago.
Co-operation is the best way for them to grow and become politically relevant. So the goal should be to persuade the various advocates that they have much to gain from working together.

RP: Would you agree that the Internet has played an important role in the emergence of these movements?

SH: I would. The Internet has been key in the development of global commons projects like free software and Wikipedia, and it greatly facilitates the sharing of ideas — which is key for becoming politically effective.

So the Internet allows us to cooperate beyond the traditional boundaries; and it allows us to take one of the most productive resources of our age — "knowledge and information management" — into our own hands.

Look at the AVAAZ – campaigns for instance. The number of people they are able to connect to and mobilise is amazing. [In 3 years, Avaaz has grown to 5.5 million members from every country on earth, becoming the largest global web movement in history].

One problem, however, is that many communities who are heavily reliant on web-based technologies are not really attuned to the fact that the more we access these kinds of technologies the more we tend to overuse our natural common pool resources. So I think we need to understand that "openness" in the digital realm and "sustainability" in the natural realm need to be addressed together.

RP: Can you expand on that?

SH: We need more than just free software and free hardware. We need free software and free hardware designed to make us independent of the need to acquire a constant stream of ever more resource-devouring gadgets.

So instead of going out every three years to buy a new laptop packed with software that requires paying large license fees to corporations, who then have control over our communication, we should aim to have just one open-hardware-modular-recyclable-computer that runs community-based free software and can last a lifetime.

This is quite a challenge, and it is one of the many challenges we will be discussing at the International Commons Conference. One of the key questions here is this: Is the idea of openness really compatible with the boundaries of (natural) common-pool resources?

Overall objective

RP: What is the overall objective of the International Commons Conference?

SH: To put it modestly (SMILE), the aim is to achieve a breakthrough in the international political debate on the commons, and a convergence of the scholars who are studying the commons and the commoners who are defending them in the field.

We believe that the conference will foster the planning and development of commons-based organisations and policy, as well as their networking capacity. And we hope that by the end of the conference a set of principles and long-term goals will have emerged.

The whole endeavour (or should I say adventure? SMILE) will surely contribute to what my colleague Michel Bauwens — co-organiser of the conference — calls “A Grand Coalition of the Commons”.

RP: I note that there is no dedicated web site or pre-publicity for the conference. And it is by invitation only. Is that because there is not yet a fully articulated consensus on the commons and its potential?

SH: No, we have a much better reason: There has been no need for pre-publicity for the conference. On the contrary, as I frequently find myself having to explain to people, the response to our first "save-the-date-call" for the conference was so overwhelmingly positive that we quickly realised we would be fully booked without any publicity. And in fact we are now more than fully booked.

The conference is by invitation only because we designed the conference programme for those who are already very familiar with the commons, be it through analysing the commons or through producing the commons. Consequently all our participants are specialists. Indeed each one of them would be qualified to address a keynote to the conference.

In other words, what we have designed is a networking conference for commoners from all over the world — and over 170 people from 34 countries have registered. That is quite an achievement, and has only been limited by the availability of space and resources.

I hope, however, that we’ll have a real World Commons Forum within a year or so (SMILE).

Window of opportunity

RP: Do you think the current global financial crisis has opened a window of opportunity for "commoners", as they refer to themselves?

SH: I think so. The current crisis (which is not just a financial crisis, by the way, but multiple crises) graphically demonstrates that we cannot leave policy issues to the politicians, money-related issues to the bankers, or our commons to the market or the state. It's ours!

It also showed quite clearly that the game is over. What is required is not simply a few new rules to allow a further round of the same old game, but a totally new framework; one that forges a new relationship between commons, state and market.

RP: What would this new relationship look like? Is the commons in competition with the state and the market, or do you see it working alongside these two key power brokers?

SH: For me the phrase "a commons beyond market and state" does not necessarily mean without market and state: Commons conceived of as complex systems of resources, communities and rules need very different governance structures. Indeed, some of them will be so complex that a certain governmental institutional structure will be needed — what one might call a Partner State.
One thing, however, is key: the people who depend on these commons for their livelihood and well-being have to have the major stake in all decisions taken about their commons.

Clearly, corporations, companies and co-ops will always meddle with the commons. And whatever they produce they will need our common pool resources as raw material. So the question we need to ask is: what do these players give back to the commons? We cannot allow them to just draw from the commons. The basic principle should be: Whoever takes from the commons has to add to them as well.

In other words, these external agents must not be able to do whatever they want with collective resources. Exclusive, exclusionary private property rights in the commons cannot exist — as outlined in the Commons Manifesto published on the Heinrich Böll Foundation web site.

RP: Would it be accurate to say that the commons is not just a new political and social movement, but a new intellectual framework for understanding the world, and perhaps a catalyst for a new post-industrial social order?

SH: We are not necessarily talking about a post-industrial order, but it is my conviction that a commons paradigm has to be based on the vision of a post-fossil fuel order.

Nor is it even new — as we agreed earlier. I would say it is an old intellectual framework, but one that has to be constantly re-appropriated from below and “modernised”.

But yes, it’s a framework for understanding the world. And it opens minds for finding creative, collective, practical, and institutional solutions to two pressing problems at the same time. That is, the environmental challenge we face and the social problems we face.

RP: There is a school of thought that says the environmental challenge can be solved by the market.

SH: Yes, but I don’t agree. For example, we cannot simply resolve the ecological crisis by charging more and more for energy (i.e. introducing a market-based incentive in order to lower consumption) — because that is not a solution for the poor.
This reminds us that the essential ideals of state capitalism — top-down government enforcement and the so called "invisible hand" of the market — have to be marginalised by co-governance principles and self-organised co-production of the commons by people in localities across the world.