© Philippe Aigrain, 2001 –
Transcript by the organisers of the CODE conference (Arts Council
England). I have restored the original title of my talk. –
This work is licensed under a Creative Commons License.
Good afternoon. I should also thank the organiser for inviting me,
but I should start by a disclaimer to the disclaimer. Of course what
I am going to say is not the official position of the European
Commission, but it's not the case that I am here as a personal
tourist. I mean I'm here as part of my official work. And what I'm
going to say faithfully represents what I feed in the input to policy
decisions, but the output might be different and then I, as a good
civil servant, I faithfully implement the output.
Now I'm also going to criticise the title, the chair was angry at me because in my abstract I've said I would talk of, let's say, from free and open source software to open information and contents. And he was afraid that we would lose knowledge in the path. And so I'm still going to make him unhappy, but I will at least explain why. Is that okay?
Of course we can take a narrow sense of knowledge, knowledge as produced in the scientific world, in the academic communities, in the artistic world represented by artistic centres. And if we take this sense of knowledge, I must say I have nothing to add to what was wonderfully said in the two first sessions this morning. But I would like to make a claim that it is unsafe to take this narrow sense. Because if we isolate these very valuable forms of knowledge from a larger, wider continuum of access and manipulation and exchange and assessment and critique of information and contents, we put them at risk and I'm going to explain why and how we can avoid that.
For me there are three conditions and there are at the same time examples on how we can learn from the experience of free and open source software.
The first condition for is that we need to rethink intellectual right frameworks. Because they had a very beautiful and valuable origin, but they have turned to have an existence of their own under the name of intellectual properties and its various flavours. And we must now go back to the source and rethink it over. We are here in the university in which Amartya Sen is teaching and in a book, which is called Development As Freedom, he has introduced a very important notion of connecting rights with capacities, what people can actually do when they have these rights and they exert them. And I think the use of freedom in the title is not an [identical] relation with the subject of this conference, it is very deep. We must consider intellectual rights in relation with the capacity they are supposed to give to people and also moral entities. And that means that we must develop intellectual right frameworks in which the public domain is not an exception, in which it has a true right to exist per se. If we don't do it, will we have a modern form of tragedy of enclosures. I do that as a para phrase to the expression, 'Tragedy of the commons', that was used to justify ownership. But I think in the digital world we are much more at risk of a tragedy of enclosures, than of a tragedy of a commons.
So of course we must do that in a differentiated manner. Because entities and activities are not all alike and I say that as a critic to one question, 'Why do you do a special art license?’ said one person this morning in a discussion. But I do believe that it is not the same, to create a musical performance that someone listens to in real time. To do a piece of software that will be increment to the manipulator a million times. It is not the same to have to do a feature film movie that people for their pleasure need to look at as it was produced. It's sort of a finished project and to do something like an information forum, in which you are looking to the next comment.
So we will need adaptation to this various type of entities of the intellectual rights framework. There are domains in which intellectual property is a necessary component and that in this domain public domain entities can only arise either from extinction of rights or from voluntary contribution, people donating voluntary things based on their ownership to the public domain.
This intellectual rights framework, I'm afraid it's going to take a time to elaborate it and to convince people that it is the right way to consider intellectual property issues overall. But we cannot afford not to do it, because let me give you an example of emails I receive every day. Someone sends me.
'Well, we are patenting information entities in mathematical IDs.'
Another person says to me.
'Well, in the fight against site pornography the European Parliament has voted an amendment that bans anonymous email.'
Then another person sends me an email saying.
'Oh, the copyright in the information society directive unduly restricts legitimate rights to private copy and values.'
Then a fourth person will tell me.
'Well, the licensing deals in e-commerce, the directive deprives people, forces on people abusive licenses that will result in making them powerless in front of suppliers.'
Of course on each of these issues I try to feed valuable input to make better detail handling of these problems. But it's a losing game, because you cannot do it one 100 or 500 times if you do not have the support of a more global way of thinking that convinces people. Because this is going to take time we cannot afford to wait for it to be finished before we do other things that are more pleasurable. And among these other things one very needed aspect is tools for personal and small group production exchange, critical assessment, critique comments, annotation, quotation of information contents and knowledge. And because we are in a situation in the digital world overall, similar to what would have happened if reading and writing had remained a specialised activity for which you pay scribes to write down or even read for you. Presently we have whole areas of relation with intellectual entities where there is a true infirmity in literacy, in the practical exercise of literacy. I have advocated for 20 years that the right for quotation for your visual material would become a true capacity and no progress of any kind is made. The simple fact of recording the news, TV shows and editing it to criticise presentation of information and post the result of that on the website as part of their use for the presentation of information or critique, which is recognised legally as a right at least in this country, try to do it and you would see what happens.
So we definitely need these tools and in association with these tools we need a critical mass of contents on which they can legitimately [be used], without having to negotiate with legitimate rights' owners. The exercise, that is, we need the public domain entities that go with them. I said without negotiating, because I have done that for quite a few years, so I think when the legitimate rights' owners will be so afraid that too much time is spent on other entities from the public domain and that removes attraction from them. Then they will I think donate some of their contents to make it possible to exercise critique on it, at least some of them will.
Now in this process we must keep the values right and among those values is the voluntary contribution. Of course I agree with what the last speaker said, when Robin explained that the rules that nobody follows are leading to fatalistic ignorance of the rules. But in the process we have lost something, we have lost the standing of law, we have lost the respect for the social contract and that's a bad thing when we are forced to do that. So it's much better if we can exercise those rights by working on entities that have been truly contributed to the public domain.
Another value we must keep right, is there is a true uncertainty in how much open information contents and knowledge can lead to revenue strains in the monetary based economy. I mean we truly do not know. I can be challenged on that, but I think we have been an active participant to the debate on these issues for a few years and I think it's clear that if for software we clearly know that there are indirect revenue streams that are working. For other type of entities we do not know, there is value creation, there is value destruction, what is with some of it we don't know. But that shouldn't stop us. It should not stop us first of all because the overall information content and knowledge industry represents sort of 3% of GDP. So it is a manageable uncertainty. And because what we need truly in this domain is active experimentation. So we can see from which activities there can arise positive coupling with the economy and from which others have to be supported simply indirectly, for example by being publicly funded.