Information as Common Good or as Property

* Book: Cause Commune. L'information entre bien commun et propriété. Par Philippe Aigrain. Fayard,

URL =https://www.fayard.fr/documents-temoignages/cause-commune-9782213623054 ; http://www.publie.net/fr/ebook/9782814506596/cause-commune (e-version)

Summary

From the reading notes of Michel Bauwens, 2005:

A foreword by Joel de Rosnay and Jacques Robin describes the current crises, the inability of. analytical thinking to understand a complex world, and call for a plural economy.

Chapter 1

The book starts with the examples of Wikipedia and the war against filesharing as representative of two worlds. One which creates cooperative value and new commons; another creating heavily protected IP products for consumption.

Chapter 2

Chapter 2 is a history of the information revolution and the computer.

P.A. stresses 2 milestones:

   - 1) the invention of the computer as universal machine (no longer just a 'particular' machine)
   - 2) the invention of a protocol for universal communication, i.e. the Interne (not just a 'particular' network). 

Aigrain stresses the egalitarian conception of the TCP/IP protocol which was designed for cooperation from the edges. All the transmitted data were to be considered equal, the intelligence was to be located with the users, etc.

The conception of the internet played society against hierarchy, and against informational capitalism. Informational capitalism in the context of marginal reproduction costs is very fragile. It depends on IP rights, and on the absence of public competition. He then discusses the 'paradox of Solow', who found that, despite computerization, that productivity gains remain invisible. This is because informational exchange can so difficultly be captured through monetary measures.

• In Table 1, Agrain gives some examples of informational cooperation.

   - Free Software: GNU-Linux
   - Cooperative Media: Slashdot / Indymedia blogs
   - Open scientific publications: the Public Library of Science
   - Collaborative Art: Remix, free music, free art
   - Cooperative annotation of genome: Projet Ensemble

• In Table 2, of private appropriation.

   - Extension of patents: Biopiracy, exclusion of life-saving drugs
   - Extension of copyright destruction of cultural commons (audiovisual especially)
   - DRM: loss of cultural and technological autonomy
   - Corporate media concentration: control over democratic debate / loss of pluralism

Chapter 3

ACT I

The conflict between the Commons and its appropriation started with the birth of the first computer ENIAC with Von Neumann refusing the patenting of it against the attempts of his colleagues. But since computers blur the distinction between a 'machine process' and a mathematical algorithm, the 50s saw a rise in the patenting of such formulas. But until the 80s, most programming was done in the public domain, through scientific publications. The same openness charactized genomic research after the invention of DNA in 1953.

ACT II: the start of frenetic appropriation

There are 2 aspects:

   - the emergence of a new economic form, informational capitalism, and a
   - ideological shift.

Formerly, even with patents, the price of products was related to the cost of production, but this link has been broken: the new info-based industries, software, content, agrifood, and pharmaceuticals charge prices that have no relation to the cost of reproduction. They are only the consequence of monopolies.

Informational capitalism changes the classic industrial cycle

   - from conception to production to distribution to consumption, to:
   - => conception  to informational reproduction to production to distribution to consumption

Production becomes outsourcable, or almost disappears in case of software. This applies for the seed industry and pharmaceuticals. The seed industry has succeeded in destroying the independence of the farmers while the pharmaceutical industry has all but abandoned research for 'southern diseases (only representing 1% of researched molecules in 2001, according to MSF).

This is so because informational goods have increasing returns depending on volume, compared to the decreasing value of normal goods. An essential asset for these companies is to control distribution through copyright. For example, since 1926, hybrid seeds lost their self-reproducing capacities after one generation. Researcher JP Berlay says that prices of such seeds have doubled in price compared to their common seed predecessors.

Similarly, pharmaceuticals spend as much on marketing than on R&D, often with detrimental health effects - amongst these effects are a doubling of the cost of medicine in social security (France), and the non-existence of prevention efforts.

The second aspect of this 'ACT II', i.e the frenetic appropriation process, is an ideological revolution. Here P.A. profiles Hardin's Tragedy of the Commons, as the milestone text, which was used to undo the analysis of Karl Polanyi about the destructive effects of pure markets.

Hardin showed that unlimited use of a common resource destroys it, and that the 'injustice' of property at least protects the self-interest of the owner's resource. He therefore advocates market solutions since he does not believe in the public administration of common goods (because regulatory agencies and up being subverted by the same 'appropriation' forces). Hardin's conclusions would become the focal point of a 30-year effort to increase property rights everywhere, even where it does clearly not apply, such as with non-rival informational goods!

(P.A. mentions 'direct social control' as an alternative to dysfunctional administrative control)

There was a 30-year long 'frenesy of appropriation', which took 3 forms:

   - 1) extension of the domain and scope of copyright
   - 2) tightening of the rule of usage
   - 3) strengthening the repressive apparatus

Aigrain traces the history of increased patenting (justified by the initial investment). It was first refused by society, then accepted with limited effects when it was confined to developed countries. Then it became increasingly dominant with only the first stirrings of opposition in the early nineties, which then also acquired a political dimension. The patenting of software is a point of no-return, since any information can be realized as software. The TRIPS agreement was used to globalize this regime.

• TABLE: 30 YEARS OF APPROPRIATION

   - Domains of appropriation: molecules, vegetable and animal varieties, gene sequences, software, algorithms, data structures, images, databases, audiovisual content
   - Duration of rights: repeated extensions of copyright to 30, 50, 70 years after the death of the last contributing author,  technical protection measures such as drm,  
restrictive interpretation of usage rights and fair use, property seen as absolute instead of as a social compromise
   - Procedures and sanctions: stronger penalties, responsibility of distributors, restrictive licenses interpreted against user rights

ACT III: Common goods become self-conscious

A movement is born when users are driven to resistance, then start to think about their problem in positive terms.

Amongst such movements are those:

   - fighting for free software
   - scientists for free access
   - farmer coops regarding seeds and animal/vegetable varieties

PA traces the emergence and evolution of the free software movement

   - It took 8 years to have a usable operating system ready
   - one million contributions were needed at least
   - 60-70% of the free software users use the GPL license
   - 80% of the projects are based on a single individual
   - many of the remaining projects are quite hierarchical

Aigrain insists that such projects are freely chosen, that secession rights exist, and that the motivations are generally not profit-driven.

Aigrain describes the 3 challenges of the movement:

   - 1) it has the characteristics of close technical communities, difficulties of access to outsiders (only 2% are female)
   - 2) our relation to technical objects as black boxes, needs to be redefined, and FS is still very opaque
   - 3) our relationship between technical work and the physical world needs to be redefined and FS still has a number of pathologies

ACT IV: "La Grande Collision"

Here, PA details the most recent proprietary offensives, but which are now facing opposition.

Chapter 4: Reconstructing Rights

('Retour aux source: reconstruire les droits)'

According to Aigrain, it is normal that it took time to resist against appropriation.

   - First the negative long-term social consequences had to become clear; 
   - Second, a better alternative and its potential had to emerge.

The first generation of thinkers of the new public domain were all Americans. The foundation of the new thinking had been set by Polanyi and his narrative of the first enclosures movement, concerning agricultural land and concrete custom-based rights. But the new Commons had to be invented from scratch.

   - By Rebecca Eisenberg against genomic appropriation
   - The definition of the common agriculture native knowledge (Vandana Shiva ?)

Because the concept had to be re-invented again and again, the contribution of James Boyle and David Bollier, about a multidimensional Commons created by human cooperation and exchange, has been crucial. Describing the folly of the current regime, Aigrain concludes that defensive battles are not enough, but that a positive reconstruction of the law must be attempted. Aigrain distinguishes restrictive exclusionary forms of law, such as IP, from positive rights which empower actions.

He calls for law that

1) inverses the priority of property over common goods and

2) specifies concrete bundles of rights.

• Table on Positive Law (p. 146-148)

   - The right to create new intellectual entities, including the re-use of pre-existing ones
   - The right to make one's creation public
   - The right to be recognized as creator of the entity, in part or in full
   - The right to be economically or non-economically rewarded, in relation to the attention given to it
   - The right to access to any entity that has been rendered public
   - The right to quote and excerpt
   - The right to redress errors, such as diffamation
   - The right to link and reference

Aigrain proposes a fourfold approach to realize this rights through a 'transition regime':

   - a principled affirmation that common goods are the default regime
   - clearly defining what is subject to restrictive dispositions
   - a gradual adaptation of existing laws to these new principles
   - taking into account the diversity of media, instead of blanket recognition if IP properties

Chapter 5: What kind of informational planet ?

The author concludes the previous chapter by stating that a well-regulated information commons is a precondition for a meaningful autonomous life, but not by itself sufficient. The general conditions of the infrastructures of the global political economy and planetary democracy, are equally important. Aigrain starts with a short historical overview of the governance of IP rights, first under WIPO, then their increasing place in the commercial globalization infrastructure, the so-called TRIPS (in French: APDIC) accords of 1994. From that moment the focus is on 'harmonization', ie. the extension of IP Rights across the world. Unfortunately,the LDC's accepted these demands in exchange for an often illusory access to Western markets.

The deleterious effects would appear only slow in the form of a triple crisis:

   - 1) biopiracy
   - 2) agricultural domination through GMO's
   - 3) a crisis of public health systems due to the costs of technological medicine.

There are two main issues involved:

   - 1) who owns the resource
   - 2) how are conflicts between commons and property decided

Concerning biopiracy for example, WTO rulings encourage the South to pillage their own common resources. Copyleft solutions are being tried, but are difficult to maintain in the current regime, where small add-ons can still be patented. So what is at stake is challenging the very notion of property of life (the case of the RiceTec patent on jasmine and other rice is cited in a table). The problems of GMO as a health risk are well known, but the real problem is their use to create dependencies, and it is this entanglement with commerce, which makes current risk studies untrustworthy. A financial crisis could lead to the inability of farmers to plant any seeds. Finally, what AIDS reveals about the planetary health crisis is the inadequacy of a public health model solely centered on medication. In the est we can expect genetic 'orphan medicines', targeted to small solvent groups, a solution that is unworkable for the South.

Historically the great health advances were linked to social and hygienic policies, similarly, in the current epoch, it will be linked to reducing inequality and solving environmental issues.

Aigrain then argues that for the South, using free software is a unique opportunity to promote autonomous developments At the same time, the success of the informational commons leads to a renewed interest in physical common goods, and that they share the same enemies: private appropriation, monopolies, etc ..

What can be the role of the state in this context ?

Informational goods can be governed by distributed networks (decentralized social management). The role of the state is to recognize this principle and to create the right conditions for its flowering (positive rights, link with education, ..). But the physical commons need stronger regulation, especially concerning the technical networks: the state can be a trustee (p. 180)

Chapter 6

Chapter 6 aims to trace the relationship between the informational commons and the economy. Aigrain starts this chapter with a description of his personal life and that of his friends, noting how a large part of it operates outside the economic sphere.

Braudel, whose book he calls 'still the best introduction to capitalism', distinguished 3 economic layers:

   - 1) the level of daily life
   - 2) the level of local market exchange
   - 3) the level of capitalism

Today, thanks to the informational revolution, a fourth level is emerging. He distinguishes 4 domain where changes are happening:

   - 1) the exchange of material goods
   - 2) the exchange of services
   - 3) financial activities divorced from material exchange
   - 4) informational exchange

The tools and services related to info exchange (media, software, etc ..), represent 10% of GDP, the sale of information only 3%. In the developed world, people work only 2 hours per day over their lifetime. In France, work in the material economy (including transport), represents only 40% of salaried work (thus, only 48 minutes of these 2 hours).

When the economy was material, it was still possible to calculate one's contribution to production, but this is no longer the case!

How can the value of public services such as health and education, be calculated ? (especially since the core of health and education is now outside the institutions).

P2P is a new mode of exchange, in which production and value creation occurs. Yet it overturns the very definition of economics, for example the one according to Samuelson, who defined the economy as the allocation of scarce resources.

Peer production does not involve scarce resources but human intelligence, and the results are non-rival goods. Benkler has shown, following the terms of Coase's transaction costs theory, that where there is abundance and the distributed resource is difficult to localize, peer production is more efficient.

Aigrain confirms a critique that I had formulated myself: the need to explain cooperation by rational-individual interest to obtain returns that can eventually be monetized in a market (like a programmer's reputation), is insufficient.

So Aigrain proposes that we have to change our language, and recognize the autonomous sphere of informational exchange, as a proper ecosystem. But what is its relationship with the monetary sphere ? Aigrain warns that reducing the information sharing ecology to mere rational interest, is not an innocent undertaking, as it creates a logic of policy preferences. It is true that today, rational calculations may be involved, since participants need to make a living, but tomorrow, if a social wage would exist, it is within the ecosystem that participants would make choices. Aigrain insists that 'potential profit' is a very bad measure for judging the utility of common info projects. But if global support would exist, the most useful projects would more easily be chosen. The situation is a bit different for cultural creation, where the distribution channels are tightly controlled. But this crisis covering musical and filmic production is only temporary.

There are two resource problems that need to be resolved:

   - 1) how to finance the dynamic of the new system ?
   - 2) how to distribute the resources amongst such projects ?

The second question is more easily answerable if we divide it in:

   - 1) those projects requiring substantive initial capital outlay
   - 2) those who only require participants time and energy

For the second, a social wage is a sufficient condition (this could also work for public social goods such as education). For the first, the endemic fiscal crises have to be resolved.

Chapter 7

This is a final chapter with concrete propositions, which he would like to see articulated by a worldwide movement for common public goods.

It should combine concern for:

   - 1) informational goods
   - 2) environmental goods
   - 3) common social goods

The proposals of chapter 7 are:

   - 1) recognition of the legitimacy of informational common goods, and their protection against private appropriation

   - 2) identifying legal hurdles that weaken them 

   - 3) power to rectify the most egregious negative effects of appropriation
       - f.e. a strong interpretation of article 30 of TRIPS would allow obligatory free usage in case of negative consequences of IP Rights

   - 4) a pragmatic and progressive approach to tackle the other negative aspects of appropriation (a pragmatic defense of weak actors facing remaining patents, f.e.)

   - 5) reconstructing the power of politics in the specialized governance organizations

A big question is where will the money come from for these transitions ?

New industries will be formed based on generic seed and medicine. In many areas, after a few years, they will be beneficial to governments in terms of cost reduction, justifying investment. Taxation for informational goods should be considered, for example, i.e. taxing IP both as a stock and a flow.

For the autonomisation of the 'info eco-system, Aigrain prefers the 'social mutualisation', i.e. general funding by the public coupled by the autonomous management of the sector (art, science, ...). A citizen wage would liberate human time for such endeavours.

For the developping world, Aigrain proposes a 3-pronged strategy:

   - 1) support for food autonomy
   - 2) support for public common goods such as education, health, habitat
   - 3) global action in support of informational common goods

Aigrain devotes a full section on what he considers a high priority concerted effort to diminish the social time spent on television. Television will have to mutate from a flow medium to a stock medium.

Commons, State, and Market

The commons is against the private appropriation of IP, but needs the market and vice-versa. Aigrain adds that this area has been well-studied. But the relationship of the commons with the state receives less attention. Yet it is vital to develop alliances with th state at all levels, and it is to be expected that the state will be thoroughly renewed in the process:

   - the commons needs the state for its legitimacy
   - as organizer and promoter of the conditions of their existence
   - the state can benefit from the many positive public consequences of the commons

In any case, we cannot abandon the state to its takeover by hostile private interests. But we have to think about the questions of scale. Commons vs market issues are best dealt with at the regional level (Europe). Their existence itself need global recognition and attention to global institutions. For financing, national levels are still important."