Digital commons versus public domain

This posting compares two emerging ideas which are seen as an answer to Intellectual Property Rights – ‘Digital Commons Domain’ and ‘Public Domain’. We explore what these emerging alternatives have to offer and why Public Domain may be the answer

The understanding of digital commons versus public domain is quite different from that of the ‘commons’ concept that might be applied to common property resources. The concept of ‘commons’ property or ‘private property’ was something which was applied to tangible goods… in various stages of propritisation. However ideas/information/knowledge were never commoditised, it existed for everyone to use and benefit from. However there did exist certain exceptions specifically in the sphere of creative works, in the case of artists or poets or authors… it was felt that this class of people required to be protected from plagiarism and therefore there were specific IP laws which protected their creations from infringements, albeit to a reasonable extent.
Ideas or information was never commodotised…. With the arrival of the information society, we had a situation where ideas or information itself was so powerful that they began to be commoditised. One saw and continue to see the emergence of a new class of IPRs which allows for a zero tolerance policy towards IPR ‘infringement’. A reaction to this saw the rise of people like Richard Stallman who felt that knowledge should be free, ‘free as in freedom’ and should not be commodotised. He believed that the pool of knowledge and its derivates created should remain in the ‘commons’ domain which would allow for others to take from it and give back to this pool, however this stream of thought did not encourage knowledge to be commercialised. So in essence, we had 2 positions – one which believed that all information and knowledge should come with maximum IPR protection, the end result of which was treating ideas as a commodity which could be traded/monetised, and the other which believed that ideas, information and knowledge and its derivates should remain in the commons domain and should not be used for monetary gain.
However the recent past has seen the emergence of a new class of digital commons license, the likes of Creative Commons, which aim to strike a balance between issues of fair use while protecting the rights of the creator. It allows for people to use ideas or knowledge for non-commercial purposes, wherein attribution has to original creator/s is a must. However for commercial use of any knowledge or its derivate, separate talks with the creator/s of that knowledge has to be entered into. At this stage, 2 very important points need to be mentioned:

1. Granted that a license like Creative Commons allows for a balance between creators and those who want to use it for ‘fair use’ or non commercial purposes, but by allowing ideas/knowledge to come into the realm of licensing, are we not subscribing to the mainstream idea that knowledge is a commodity and can be monetised. Is it not a case of a supposed tactical win going on to become something else which will aid the cause of the IPR regime itself?
2. The second equally important point comes from the many clauses of the license itself. These licenses unequivocally point out that any part of any knowledge which has been used in creating derivates need to be attributed. The question which comes to one’s mind is to what extent this logic can be applied. As more and more knowledge is created, to what extent can one keep track of the previous creators and to what extent can one keep on attributing creatorship. Beyond a point it will become absurd and self-defeating. In the same vein, if one does want to make commercial use of that knowledge, whom will s/he approach for permission, the immediate previous creator of that knowledge or all those people who have built on that knowledge? It is a slippery slope.

The Public Domain approach

Before the information society era, as was pointed out earlier, information or ideas or knowledge was rarely commoditised. People used to freely pick up ideas that existed, build on it and used it for different purposes of which some people made money too. But the bottom line was that any person could access ideas from this space and use it without the fear of licences or attribution or anything of that sort. It also meant that any person could take ideas, build on it and use it for commercial purposes with IPR protection for that incremental knowledge.
It is exactly this issue where proponents of a ‘commons domain’ point out that their approach which requires any derivate to be brought back into the pool allowing for that knowledge to be used by all, is far better approach than a model with its emphasis on IPR as the norm, and which restricts use of knowledge.
However if one investigates what IPRs were originally meant to be, and what has become of them, it becomes fairly evident that that the entire angle of ‘sharing of knowledge’ had been completely taken away from present IPR legislation.
What is required is for broad based restructuring of IPR laws which would allow for unhindered pubic access to knowledge being put at the forefront while granting IPRs. Thus while information and knowledge will continue to exist in the public domain, any derivate which can be taken up for commercial use will continue to have safeguards surrounding public use and accessibility.