Universally imposing intellectual property rights such as the ACTA treaty tend to harm peoples’ liberties and to be undemocratic, inefficient and counter-productive. Instead, information and knowledge should be regarded as commons, which fits into the concept of a collaborative economy and opposes traditional principles of scarcity and rivalry. This new approach to intellectual goods and the economy will in the end strongly stimulate innovation, creativity, participation and social cohesion.
Can we really stop the water flowing? This is the question that comes up when reflecting upon the successive dams that are built up by the fervent defenders of intellectual property rights, who exert themselves to prove that one can impose boundaries and exclusive rights to knowledge. For more than 50 years, a collective tale has been spread around. A tale that says that information and knowledge are the “new gold” of the 21st century. A tale that claims that only intellectual property rights can stimulate innovation and creativity, while at the same time generating profits. This is a collective narrative which pretends that “works of the mind” are like other goods that only property rights and free markets can prevent from damages.
To that fairy tale we present history and economy. History shows that, at all times and all over the world, alternative modes of management and of diffusion of knowledge have existed. It has always existed in culture, in design and of course in the field of agriculture and medicine, while seeds and drugs have been transmitted over generations and incrementally improved over time. Economy teaches us that digitised knowledge has peculiar characteristics: it can be reproduced at a zero marginal cost, and does not deprive its primary owner of its holding when it is shared (non-rival good). In that sense it considerably undermines the core principles of rivalry and scarcity on which our whole mainstream economic theory is based since Adam Smith and Ricardo.
Two contradictory trends are emerging. One the one hand, individuals – in the North and the South – are more and more equipped, especially with mobile phones with many applications that enable to both at the same time get, create, and diffuse information. Together with social networks, these new devices encourage new practices of sharing, as well as “horizontal co-creation”. These new practices do not come from the sudden emergence of altruism, but are explained by different motivations such as: the pleasure to be part of a collective project; the gratitude received in return; the answer to a need that market economy cannot fulfil; or the need to invest free time in a meaningful project. To collaborate in designing a software; to correct a post on Wikipedia; to design an open-source electronics platform; to recommend a movie to a friend; to lend an ebook; or to collectively invent from a distance an energy-efficient car; all these actions, from the tiniest to the most ambitious ones, draw on the collaborative economy concept, which is exempt from the traditional principle of scarcity.
Reacting to these new practices that destabilise “old industries” (especially cultural industry and software industry) and public authorities, there is a backlash towards the “old” concept of scarcity. To do so, industries and public authorities are armed with three weapons: guilt (sharing is steeling!), technical measures (e.g. Digital Rights Management which lock CDs and DVDs after sale), and last but not least the law. Legal rules are expanding and tend to become universal, including in countries where there is no traditional culture of intellectual property rights such as India. Among the widespread measures adopted have been copyright extension; narrowing of the public domain; international harmonisation of intellectual property rights so that each and every country is concerned, even the least developed ones; adoption of national and supranational restrictive measures against sharing practices – IPRED –, and the secret negotiation of a treaty – ACTA.
These defensive approaches seem both inefficient (new technical devices are quickly cracked), anachronistic (they stand against the new radical approach of the digital economy), liberty killer (for the sake of intellectual property, surveillance measures are put in place), and above all counter-productive from a strictly economic point of view. Instead of collectively inventing new business models that could fit the sharing economy, fanatics of intellectual property desperately try to limit the flow of creativity and knowledge.
Yet, Functional and Conceptual Tools Exist…
Some economic sectors, such as the freeware sector, have successively invented legal tools adapted to their special needs (e.g. the General Public License), and managed to demonstrate their economic robustness. Others try to invent sustainable alternatives, with for instance the concept of universal licensing or of the creative contribution for music and cinematographic sectors.
Broadly speaking, the school of thoughts brought by the commons, as it has been built up notably by Karl Polanyi and then further developed by Nobel Prize winner Elinor Ostrom – who recently passed away –, offers the necessary framework to give coherence and strength to these alternatives, which are both necessary to incorporate the commons in our cultural and political model.
This theory draws its strength from two characteristics. Firstly, the commons are not contradicting the concepts of market economy and public authority. At the same time though, the commons shed light on the excesses of these two concepts (e.g. the commons were put forward at the Rio+20 Peoples’ Summit to stand against a mercantile vision of the way out of the ecological crisis that wants to impose capitalist values and principles to natural resources and environment). The commons also add to their insufficiencies (e.g. the inability of the mainstream approach, already mentioned, to invent an alternative business model for culture), as well as highlighting their blind spots (e.g. the risks for culture to become impoverished by the narrowing of the public domain). But in any case the commons do not aim at replacing these two concepts of market economy and public authority. Thinking in terms of commons is the contrary of any “totalitarian” theory; it entails a diversity of approaches, and would diffuse through society only if it is progressively conveyed by a multitude of actors. This progressive diffusion in the society does not exempt the commons theory from being thoroughly contested, as it has been the case at the EU level with regards to the patentability of computer programs, or as it is currently the case with the numerous protests against ACTA.
What also makes the commons theory powerful is the fact that it is highly demanding. Thinking in terms of commons means all together to care about a resource and the way it is shared and provided, but also to invent management systems to ensure this resource is protected against all kinds of threats – corruption, free-rider practices, etc. – and to imagine business models to ensure the durability and the development of this resource.
All different forms of knowledge and information are potentially concerned by the framework of the commons, from the article published in a scientific review, to the music database, via the teaching aid material, the genetic code of a plant, the molecular description of a medicine, the design of a technical device, the micro-invention of a farmer, or the data collectively gathered by a crowd of people.
It just has to be feasible and desired. Commons are feasible thanks to a set of rules that will ensure protection against the third parties that are not involved in the sharing community. These rules of management are currently being built up. Licenses are one well-known solution: together with freewares, open-source hardware, or open-source databases (e.g. licenses of the Open Knowledge Foundation) new licenses are imagined to protect creative works while providing them a large diffusion (e.g. Creative Commons). But these rules can be imagined and set up within a much more restrained community, with less codification, as within a village or a rural community.
Commons are also feasible thanks to a business model that allows the taking into account the use value more than the exchange value. Freewares have been based both on the fact that it brought reputation and services. Firms that developed freewares are making profits not on the access to the freeware but on the services that it entails: training, adaptation to the specific needs of the client, distribution, etc. The “software as a service” business model tends to spread around in other economic sectors, including the tangible economy (e.g. sharing a washing machine in exchange of a modest price to be paid). Membership, donation or voluntary contribution practices are key concepts for the commons. But the commons are also based on mixed approaches, such as public or private subventions to complement other sources of funding already presented (e.g. Google is one of the donators of Wikipedia).
Yet is it always likely to make a resource shared collectively? To answer this particular question, one must think through three other issues. Firstly, what is the model that would better enable this resource to be durable in the long term, to be protected, but also to regenerate itself? The answer is not always straightforward. Considering the size of the community, or the importance of the necessary investments to develop the resource concerned, public authorities – the state, local authorities – or the market may seem more suitable in some cases. Secondly, what is the model that would promote the most contribution, participation, social cohesion, innovation, thereby leading to societies that would be more creative and rich in human relationships? Last but not least, who, among the commons, the state and the market, would be the most suitable to ensure the greatest distribution of the resource, in line with social justice objectives?
When the approach in terms of commons gives a positive answer to these three questions, there is no doubt anymore about the utility and richness of this concept. Yet our common political and economic imaginary still has to be mobilised, because one cannot “order” commons to exist. They have to be built through a permanent and collective innovative approach.
 Think about Picasso’s « Las Meninas », reinterpreting Diego Velázquez.
 Thomas Chippendale wrote a entire manual to describe how to design and build the furnitures he designed himself, to inspire new personal creations and interpretations of his pieces: http://www.internetactu.net/2009/06/24/les-enjeux-de-la-fabrication-personnelle/
 Sharing, Philippe Aigrain, 2012, http://paigrain.debatpublic.net/?page_id=2356&lang=en, http://paigrain.debatpublic.net/?p=2155&lang=en and http://paigrain.debatpublic.net/?p=4451
 The Great Transformation, Karl Polanyi, Beacon Press, 1944
 Elinor Ostrom ou la réinvention des biens communs, hommage d’Hervé Le Cronsier, http://blog.mondediplo.net/2012-06-15-Elinor-Ostrom-ou-la-reinvention-des-biens-communs
 Comme de déclencher l’arrosage de son champs avec un téléphone mobile
 Comme la cartographie collaborative d’open street map http://openstreetmap.fr/
 Le contributeur bénévole tire parti de cet apport aux biens communs par la réputation qu’il se construit et qu’il pourra valoriser professionnellement.