Contested Commons / Trespassing Publics

by Armin Medosch

Report from a Conference on Inequalities, Conflicts and Intellectual Property, 6th - 8th January 2005 in New Delhi


Over the last 20 years the notion of the digital commons has steadily been gaining support. The hackers of the free software movement have acted as an avantgarde who created a shared space of programme code, and a practice based on ‘hacker ethics’ and a collaborative way of working. After the success of the operating system Linux and the rebranding of Free Software as Open Source Software this way of working became ever more popular. Software protected by the ‘copyleft’ licence GPL and similar licences spread rapidly and formed the - - sometimes hidden - - core of the internet revolution of the second half of the nineteen nineties. Soon attempts were made to adopt this model and transfer it to other areas of work such as digital content creation in music, images, text and video.

The most well known endeavour in this direction so far is the Creative Commons project in the USA which has developed a range of licences for digital content. Creative Commons licences are now being ‘translated’ into versions which suit the legal systems of other countries. Throughout the same period of time the ‘battle about intellectual property’ has been hotting up. Industries whose business model is based on aggregating intellectual properties and who feel threatened by the internet and new ways of disseminating content such as peer-to-peer file-sharing are urging governments to tighten legislation against what they call ‘piracy’. They have also sought ways of protecting content technologically through copy protection schemes — socalled digital rights managements. New legislation was introduced, first in the USA, that criminalizes the breaking of such copy protection schemes and governments have been lobbied to rigorously enforce this and other legislation. This whole discussion can by now be assumed to be well known and I only summarize it in order to point out the specific approach that Sarai have explored with their conference.

The Conference

The conference hosts, Sarai and Alternative Law Forum (ALF), write in the introduction brief for the ‘Contested Commons’ conference: “The past three years have seen conflicts over the regulation of information, knowledge and cultural materials increase in intensity and scope. … It is important to recognize that the nature of the conflict gets configured differently as we move from the United States and Europe to social landscapes marked by sharp inequalities in Asia, Latin America and Africa. … we would like to push comparative discussions between earlier and contemporary moments of dispossession and criminalisation, between the open source movement and discussions on traditional knowledge and biodiversity.” The structure of the conference, the composition of invited speakers and topics and the discussions and debates underlined the important differentiations that Sarai/ALF have made. As Jebeesh Bagchi, Lawrence Liang and Ravi Sundaram pointed out in their introduction for the final discussion panel, the commons debate has reached a certain level now that makes it necessary to challenge some of the assumptions, to go further and deeper in this debate. They asked, “can we have a commons debate version 2.0?”

The figure of the pirate played an important part in this debate about the commons 2.0. Traditionally only those people were considered to be intellectual property pirates who produced large quantities of illegitimate copies of cultural commodities such as software, film or music. But the copyright industries have managed to shift the goal posts. Everybody who downloads a music track from the internet without paying is called a pirate, as is the owner of a small video rental shop in Delhi who rents out pirated DVDs or VCDs. The public does not seem to have any issue with this form of ‘piracy’ and happily integrates it into its behaviour of leisurely consumption. Lawrence Liang questioned if the Creative Commons model could accommodate this reality of piracy. According to his citations of Lawrence Lessig’s latest book Free Culture, Lessig draws a demarcation line of il/legality between the file sharer on the internet and the video shop pirate. The file sharer is adding value through her/his way of consumption whereas the video shop pirate is not (or at least that is how Liang reads Lessig and how I portray this critique now in a somewhat simplified way). By the introduction of this demarcation line Lessig/CC postulates a ‘safe’ zone of user based activities of appropriation, remixing and annotation (like the making of playlists) legally protected by CC licences from which the purely ‘commercial’ pirate is excluded in terms of the discourse that CC leads.

But the matter of the fact is that this ‘commercial’ piracy remains big in Asia, not just in India but also in China, Taiwan, Thailand and many other countries. American attempts of curbing piracy in various ways, for example by threatening trade sanctions by applying Section 301 have so far failed to make a real impact. So, can this ‘commercial’ piracy be accommodated in the commons debate or does it transgress the boundaries of the categories in which this debate is being held? This was just one of the questions that Bagchi/Liang/Sundaram raised at the beginning of this panel which was probably the late highlight of this conference. Generally they sought to bring in some other not so easily fitting stories into the CC led narrative of progress, commons, property and creativity.

The panel on ‘Media Empires and the figure of the Pirate’ gave some more flesh to this discussion. Jane Gaines showed that the early days of cinema were a heydey of copying, this to such an extent that it becomes questionable if there ever was such a thing as an ‘original’. Shujen Wang set out in her lecture to throw some light on the ‘complex and conflicting realities of piracy that are not solely reducable to the realm of the economic, the legal, the political, the cultural or the technological’. It was a common theme at this conference to discuss IP in ways that go beyond legal concepts. What is the cultural ‘meaning’ of those acts that are denounced as ‘piracy’ by the copyright industries? What are the links between piracy and creativity? Laikwan Pang presented some very funny examples that showed how pirated copies of Kill Bill grossly changed the meaning of key scenes of the movie by mistranslations in sub-titles.

The conference went well beyond the usual discussion about intellectual property which tends to focus on the internet, open source and the copying of cultural mass market goods. The impact of IP and the struggles surrounding it on the real world and the life and health of people took a major role in the presentations. This other major thread of the conference was opened by John Frow’s lecture on ‘New World Order and the Public Domain’. His key statement was that the ‘system of unequally distributed immaterial property rights has all the hall marks of an imperialist order.’ Some of his shockingly revealing factual research showed how IP is used in areas such as agriculture and medicine to give multinational companies ever more rights, higher profit margins and at the same time the ability to stiffle critcism. He reminded that the public domain was constitutive for the introduction of copyright in the first place but has fallen from view in recent years. Frow made the TRIPS agreemenet reached at the Uruquay round of world trade negotiations and subsequent trade agreements responsible for this development. As a result, according to him the public domain is now only a residue, an entity that can only be negatively defined. But an emerging discourse about monopolies offers a chance to apply ‘well rehearsed and existent mechanisms of critique and struggle’. By such means a new discourse about rights and the public interest could maybe lifted to public awareness.

Cori Hayden presented a more optimistic outlook. The 1992 UN Convention on Biological Diversity recognizes a right of indigenous people for recompensation if, for example, traditional herbal medicines are getting commercially exploited. Hayden asks if the social struggle surrounding benefit-sharing can contribute to the establishment of ‘publics’. She thinks that public-ness is under active construction in some of those contested areas. Rosemary Coombe did not share this optimism. According to her the very same UN convention gives the pretext for neo-liberal policies. Well meaning efforts by NGOs who try to help indigenuous people lead to a ‘culturalization’ of landscapes, it creates ‘records of knowledge open for commercial exploitation’. The struggle for the recognition of traditional knowledge ‘exposes the limits of modernity’s categories for imagining social justice’. At some points during the conference a debate emerged about the use of ‘public domain’, ‘public’ and ‘commons’ as near synonymous. It is certainly worthwhile to think about such distinctions but the debate did not come to any conclusions.

Some of the talks focused on the philosophical meta-level. Nick Dyer-Witheford referred to Marx’s notion of species-being, a notion that Marx brought up in 1844 but later never went back to. It describes humanity’s capacity to cooperatively change the conditions of its collective existence. Exercising an ‘archeological futurism’ Dyer-Witheford sees some potential in the counter-globalisation and anti-war movements for advancing a new type of species-being that drives 21st century politics towards a new form of ‘commonism’ or a ‘commonwealth of species-being’. McKenzie Wark presented the core thesis of his new book, A Hacker’s Manifesto. He extends the meaning of the word ‘hacker’ to everyone whose work is concerned with processing information in the broadest sense, from the personal assistant to the philosopher. With the West heavily focussing on immaterial property rights and outsourcing production to poorer countries ‘the question is how to form a transnational, cross-class alliance of hackers, workers and farmers with an interest in the restoration or expansion of an information commons, to free information from its chains’.

It would be impossible to represent here the diversity of presentations which enriched the discussions, by highlighting specific notions of IP, the public domain, the figure of the pirate, the discussion of authorship or, just to give a very specific example, the potential role of artists in subverting the territorializations that arise from the rapid growth of mega-cities. The variety of contributions helped to broaden and deepen the terms of the discussion but made it sometimes also plain that it is very difficult to have a conversation across the boundaries of various academic terminologies. The conference ended with a very lively debate which could have gone on for much longer. If there was any conclusion reached it might have been that it is worthwhile to look more closely into the ways in which ingredients of social organisation combine to form different commons regimes. As one participant put it, maybe the cornucopia of commons has the capacity to displace some of the disruptions that neo-liberalism creates. Having had this conference in India certainly helped to have a much more global viewpoint. It is not yet sure if we can really see a commons 2.0 rise from the ashes of the Western centric discussion about IP in the digital domain. What we got was a big and detailed picture that gave us many useful starting points for further investigations which probably need to find focus with another conference of a similar type. If there could be any criticism then it would be that the role of artists, activists and other practitioners was under-represented and too much weight given to academic papers. Maybe this could be corrected with any future event.

Conference URL: audio recordings of the presentations and discussions are available at