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Kindling the Commons

History Reminds Us Why Sharing Our Creativity Matters

Summary: A brief look at the history of the “commons” helps explain the power of sharing creative output, and points towards how new technologies like blockchain can further “light up” this communal resource.

Why do we create?

Why did humans, millennia ago, begin forming sounds into alphabets and words, or decide to pick up chalk to draw pictures on rock walls?

Certainly, one reason was to communicate information to each other. A drawing might indicate food is here, danger is there, delivering crucial information in compact form, potentially to many people all at once.

As time passed, words became stories and song and performance. Stories became novels, performance became dramatic theater, songs became symphonies. We began to conceive of concepts such as “art” and somewhere along the line, humans began to think of the things we create from our intellect as having value. Some stories bore repeating. People who told better stories drew crowds, developed reputations, even fame.

But back to that question of why we create. If you ask a dozen people this question, you may get a dozen answers. For my fans, a musician might say. Or: to get more followers. To make money. For posterity. To change the world. For my children. Because I must. For the sake of art. To see my work spread far and wide. For the common good.

Notice that “making money” is only one answer among many. This post — in conjunction with a companion post hosted at the Mediachain Blog discussing the possibility of a new, Creative Commons-style “Gratitude” license — explores the history of the cultural commons, and what we might do to enhance it.

Creative Works as Property

Even with a multitude of reasons for creation, modern content industries have primarily been built around the proposition of judging the value of creative work by its revenue-generating capacity . That is, its value as property — a value that is unlocked when we allow someone else access to it. In other words, the value of such works has for the most part been treated as a product of their scarcity.

Yet the concept of scarce property rights for the products of human intellect — “intellectual property” — is a relatively new one in human history. Just three centuries ago, the Statute of Anne was passed in England — the world’s first public copyright law. The astounding aspect of that early statute is that in service of the idea of fostering knowledge, it provided for a 14-year copyright term to the creator of a work, after which the work passed into the public domain. In short, the law recognized a limited-in-time monopoly as vesting in the author of a creative work in order to serve the public interest.

That same concept is enshrined in the Copyright Clause of the U.S. Constitution:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

This common interest is served in several ways: By encouraging creators to immediately bring their works to the public and not rigidly control physical access, and also by increasing the public domain by guaranteeing that works will become free to use by the public within a limited time span.

To put it differently, the Constitution’s Copyright Clause (and previous laws) codified scarcity as a legal matter, by giving the creator an enforceable right to exclude others from using the work.

Missed Opportunities?

The copyright ownership ecosystem has proven to be a remarkable one. Literally billions of dollars in trade can be traced to creative works, worldwide.

Given the stakes, it is hardly surprising that the great copyright legal struggles over the past few centuries, and in recent years, typically can be traced to a push-pull between creators (or those who have purchased the right to use their works, often large corporations), and those who want to more freely use such creative works (often represented by large platforms that aggregate massive quantities of individual works). On the one hand, efforts to strengthen legal protections for owners, and on the other, efforts to treat creative works as part of the human “commons.” These issues often emerge in fights over “fair use.” The financial stakes, of course, can be enormous.

Too often lost in this titanic seesaw battle are the wishes of individual creators themselves, who may have an interest in sharing their work freely, as well as individual members of the public who want to use content, often for personal, local, or other small-scale purposes, and especially for social media and blogging.

Also overlooked is the fact that today, we are all creators. We create when we publish a status update, compose a tweet, share a photo or upload a video. Not everything we create is interesting, let alone profound, but we are all continuously involved in the act of creating and almost all of us opt to share our creativity openly on social media without any financial incentive whatsoever — and never before in history has it been so easy for an individual to reach a wide audience on the internet.

Often the interests of creators and consumers sync up, and that’s why licenses like those promulgated by Creative Commons, which permit open re-use of creative works, have been so successful in fostering open sharing of content. Giving creators new tools for sharing has proven incredibly empowering.

Blockchain and related technologies offer another robust set of tools for sharing, and for “lighting up the commons.” As mentioned, a companion post on the Mediachain Blog explores a proposed “Gratitude” license, which is inspired by the possibilities this technology might afford. These new tools — at least for now — can live alongside the existing copyright pay-for-access regime.

And it all goes back to the original notion of why we create: We create for myriad reasons, and our legal structure should recognize and enable all of those reasons.




Musings on Distributed Applications for the Arts and Beyond

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Lance Koonce

Lance Koonce

Father, Tech/IP Lawyer, Dis(Mis?)placed Carolinian. Tweets about #IP #blockchain #bitcoin #AI #VR #privacy #NYCtech

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