Culture For The Many?
Intellectual Property and Financing ‘Our’ Cultural Commons
- Versions Of Culture
Nothing, beyond the natural world happens ‘outside of culture’ and even our basic elements of existence — atoms, cells, time, chemistry, etc can be fundamentally manipulated and altered by it. For that reason, defining what we mean by ‘cultural’ always needs classification, like Cultural Commons (everything we do, make and say and, crucially, share ), Cultural Democracy (how we hold the power we have to make, say, do, share/not share) and Cultural Industry (how we give service to each other, by association) are equally all encompassing.
“Art and culture make life better, help to build diverse communities and improve our quality of life. Great art and culture can inspire our education system, boost our economy and give our nation international standing.” says the Arts Council’s website, before they offer a hashtag to explain why #culturematters…
There are differing representations of culture from sociology to ‘the arts’ to online versions, to a ‘commodified’ sense of ‘cultural heritage’, which has been generated to ‘drive growth’, we are told…
But it’s clear that culture IS our economy; it IS our education system and our ‘international standing’. In no way is ‘culture’ distinct from ‘the economy’. Equally clearly if it actually IS these things, it has to be more than just an instrument through which they are ‘improved’. At the root of our usage of the word ‘culture’ is a reference to how we grow stuff; in other words, how we produce versions of culture; businesses, buildings, stories, institutions, whole areas of ‘science’ and ‘art’; how, in fact, we reproduce ourselves in every way bar the absolutely fundamentally biological one (and culture has much to say about that too!).
‘Art’ may ‘make life better’ or even ‘help build communities and quality of life’ and we might even want to agree that some art is ‘great’ — or not. Saying the same of culture is a very different proposition. Culture isn’t a ‘means’, or an incentive, or an ‘inspiration’ or a ‘driver’. Nor is any artefact ‘culture’ in any way that any other artefact is not ‘culture’. You can’t ‘have culture’ — or not. It is all culture. I hope we can establish that as broadly agreeable. If it’s not animal, vegetable or mineral or any other naturally occurring phenomena — it’s culture. OK…?
If that’s established — ? — , I’d like to move on to one of the other few things of almost equal ubiquity and central to all cultural production: Creativity. Without this, culture is static. If Culture is the arena in which we recreate ourselves, creativity is, at some level, the means by which we do it.
Creativity then, is also a primary ‘commodity’ in a market economy for the exchange of cultural goods and services. It is therefore noticeable that the means by which we have, culturally and economically speaking, come to generate value from creativity, is largely ignored in many debates about ‘culture’ — and most surprisingly in debates about how we finance the arts, where creativity is so central…
2. Financing Creativity
So, how do we finance creativity itself and how do we turn creativity into financial value? Let’s take the second question first:
After Jeremy Bentham’s Utility Theory, Intellectual Property (IP) has become the means through which creativity is turned into economic or monetary wealth. Curiously, it is a means which is ignored in the state funded arts ‘sector’ by all bar a few. Accordingly, those engaged often talk about risks and reputations, but rarely rights and responsibilities. All are natural by products to the act of creation, but discussing ‘IP’ seems to make ‘us’ uncomfortable.
It’s not surprising: Handling IP for ‘The Cultural Commons’ is a complex subject with multiple stacks of issues which overlap incessantly. Likewise, it is a subject also often ignored in left leaning debates about funding structures and cultural policy. To some IP is a necessary evil, while to others it is simply an evil and should be resisted. Either way, it is ignored. The reality though, is that given most laws in most jurisdictions, it is, as Mark Getty termed it ‘the oil of the 21st Century’ and isn’t going away.
UK investment in intangible assets protected by IPRs has risen from £47 billion in 2000 to £70 billion in 2014. Likewise, “copyright-intensive industries contributed an estimated 8.4% (€168 billion) of UK GDP and 6.3% (1.9 million) of UK employment per year during the period 2011–13.7”.. The figure is rising exponentially and is forcing us to ask questions about when temporary and long term monopolies are necessary to create incentives to ‘create’ and, most importantly — ‘who for’? This is where the notion of ‘commons’ enters the fray…
For pragmatisms sake, it might help to identify the £92 Billion ‘worth’ of UK Creative Industries and the £1.6 Billion of lottery, government and philanthropically funded ‘arts and culture’ as the ball park (sculpture park?) in which we will try to carve out ‘our cultural commons’. Under the working title of CultureBanking® I’ve been doing just this and examining the financial ecologies operating across both sectors and seeking ways to re-connect, or ‘re-common’ both the tangible and intangible assets that feed them. The production and redistribution of wealth via lottery ticket consumption is also held in question as a method which is disinterested in it’s production of wealth and fails to enable the wealth producers to have any role in the management of the resources they contribute to.
3. ‘Cultural’ Assets
In relation to our material commons, it might be argued that there is a paucity of any sense of ‘us’ or ‘we’ in our ownership of Cultural Assets. There is now less that ‘we’ as a nation clearly own together than at any time since, at least, shortly after the second world war. Even social enterprise and many co-ops still produce private assets. It would be disingenuous to suggest that the growing hoards of CIC’s, Trusts, Foundations and Charities in this ‘sector’ do not compete with one another for all available ‘philanthropic’, ‘strategic’ ‘project’ or ‘revenue’ capital, whilst also competing with a myriad of private enterprises for earned income.
Monopolies also apply in our charities and would be cultural commons as they do in our private sector. The masses of intellectual property assets created and stewarded under the banner of state or lottery funded arts programmes and the activities which create them, are often effectively privately owned, but generally excluded from benefitting either their creators or their commissioners under not for profit rules (and lack of expertise). The same is true of so called ‘public assets’ such as public museum collections. On the rare occasions assets of this ilk interact directly with ‘the open market’, they will usually benefit the organisation which owns them, which is fine, but limits this kind of resource growth from cultural capital to all but the very few ‘nationals’. They do not share wealth accrued from their IP or “cultural capital’.
Even the very ‘assets’ in the collections are highly undemocratic in their selection and management: In a meeting recently, 6 Museum Development Officers were asked if they had heard of the Cultural Gifts And Acquisitions in Lieu Scheme. All bar one said ‘no’. The scheme is a 2013 invention of the conservative government allowing individuals and corporations to give and museums to receive cultural items of ‘pre-eminence’ in return for large tax allowances ‘on behalf’ of the nation. Apparently we need a panel of experts to tell ‘us’ what ‘we’ value. In this model of, literally, cultural protectionism and acquisition, not only is there no public ‘us’, not even regional museums consider themselves involved. The results are rising initial and ongoing costs to the tax payer for preservation and display etc. This is FAR from cultural democracy. There is no operating system for managing the assets at all other than expecting tax payers to pay without at least having some involvement in selecting the artefacts they pay for! Culturebanking proposes to democratise the production of this cultural wealth and ‘sweat’ these assets in order to create future common wealth. But, above all, why should the production of the ‘national cultural wealth’ not be open to all?
“Under the (gifts and acquisitions) scheme, 70 to 80 per cent of an object’s value is a charitable gift to the nation” says Peter Bazalgette, in his preface to the CGS and AIL Report of 2016. In fact it is an exchange between an individual or corporation and a variety of charities, none of which are actually producing commons or sharing wealth, even though a condition of being ‘open to the public’ for 100 days exists. Other questions about what constitutes ‘eligible institutions’ are equally un-answered. Surely, if it is a gift to ‘us’ then ‘we’ should have use and ‘possession’ — and be able to benefit from our tax gifts? CultureBanks would have it that ‘gifts to the nation’ can pass from the many to the many, without need for experts or ‘pre-eminence’ and would create a net gain for tax payers rather than a loss.
So, what happens if we imagine this to be the case and full use of such public goods includes all rights and income generating (including tax allowances) potential?
By creating local banks of common wealth in the cultural sector and by modernising the ‘banks’ (eg, museums and archives for holding IP assets, credit unions for holding shared wealth and community foundations for distributing it) we already have, we can do all of these things.
We have spun-out a largely pseudo-public sector, which is actually not acting in any democratically agreed ‘common cause’ or being held accountable to the public. Despite organisations having articles, associations and governing documents which act ‘in trust’ and for ‘public benefit’, the reality is that the first responsibility of each is to its own survival. Our commons and public sector are ill-served and neglected.
Our legal forms down to the level of individual companies and organisations are centralised, slow to change and non accountable. Real shared (cultural) value is not possible without legal forms to support it. The cooperative sector offers some hope in this direction but not an answer of itself. Even our coops are still producing privately held wealth. To simply pretend that we can create a material cultural commons, which actually feeds people, out of words or even politics alone is nonsense. Some fundamental change is necessary in marketplaces as well the public and legal spheres. The limited resources of middle income people tied down by responsibility and rootedness also do not create a climate for popular political change and ‘wealth sharing’…
4. A Note On ‘Policy’ and ‘Strategy’
We can and we must re-democratise culture and we can and must re-democratise the distribution of resources that drive it (and those ‘it’ drives). What we seem less insistent on doing is democratising how ‘cultural’ wealth is made and held. This is our Cultural Commons. Distributed Autonomous forms of ‘Organisation’ are slowly beginning to ally as ‘creators’, bonded, not just by purpose or production but as creators of cultural capital — and assets. If that capital is held privately, capitalism continues unabated. But if we can begin to hold that wealth in common, we start to democratise the production of cultural wealth. We incentivise people’s creativity without diminishing it to exchange value alone (ref - the art market). What this means at the local level is that art in communities can be financed against that community’s production of cultural wealth. A practical example of the imbalance in financing creative assets with creative wealth might be the relative incomes distributed to Ed Sheeran as the (part) composer and performer of a song, to the skilled work of a community choirmaster who uses the song to increase wellbeing for a community choir. There is every reason to believe that such a vocal artist may also write a song for Sheeran as well. It’s clear the cultural common wealth produced needs better re-distribution to reflect efforts and contributions, especially over ‘copyright life’ of, say 70 years…
As empowered ‘creative communities’, those involved in the actual coal face production of ‘cultural’ wealth (artists, musicians, writers, designers etc) can be better rewarded materially and better represented in ‘cultural forums’ like CIF, LEPS, Local Arts Boards and Funding Boards etc . A quick scan of my own Cultural Board of the East Anglia LEP reveals not a single artist! Sensible calls for ring fencing current lottery funds for local authorities community arts programmes and re-democratising the financing of our Arts NPO’s are overdue: ‘Culture’ can no longer be ‘administered’ by self elected, primarily business oriented bodies, to drive ‘growth’ alone. But equally, the ability of these bodies members to profit directly and monopolise ‘culture’ will be curtailed by placing the ‘big units’ under some democratic scrutiny. The bath water we need not throw out though, is much of the wealth already produced. Enabling common ownership of wealth within the market can help to solve this quandary by taking that ownership out of (as much as is possible) competing political interests. That sounds simple, but is actually unheard of. What Culturebanking is proposing is to create cultural public (or common) goods circulating in the market for public (or common) causes. The innovations required are in re-education, capacity to ‘hold’ wealth (in credit unions, CDFI’s etc) and distributed forms of creative alliance which can co-operate under sympathetic legal structures of a partner state; citizen assemblies may dovetail well with such a system. It is a new task for policy and strategy to either catch up with this agenda — or just get out of the way, since people can simply do it themselves if unhindered by bureaucracy. (Something IP owners have been relatively free from when it comes to wealth production!). As well as holding ‘wealth’, holding the ‘assets’ or rights is a capacity which also needs development. The expense of working with, let’s say, a Museums Service to develop new skills of rights based trading for social purpose amongst staff would be prohibitive without technologies which can be used by all simply and with lower training and running costs.
In addressing ‘new types of investment’ and the ‘place-making agenda’. The new Civil Society Strategy still treats ‘Culture’ as something outside of industry rather than an integral part of it: ‘Culture drives growth’ rather than ‘Culture IS growth’. This is evidenced, as mentioned, in the cultural gift scheme but also in how a very limited version of ‘Culture’ is invoked to recreate itself via cultural policy. We are told that The Cultural Development Fund: “will support place-shaping by investing in culture, heritage, and the creative industries to make places attractive to live in, work, and visit.” But, unlike investment in business ( which quite explicitly seeks to OWN the wealth it creates) there is no operating system proposed for the investment we make in ‘culture’. (or in the often ‘usual suspects’ who rely on ongoing grants). ‘Culture’ is treated as a commodity, arbitrarily ‘attached to the arts’. You never hear about ‘health and culture’, or ‘manufacturing and culture’, or even, those other major lottery recipients. Heritage and sport — ‘and culture’. They all have an equal right to claim ‘culture’ as ‘theirs’. ‘The Arts’, however, have always been used to reflect highest values and achievements — a nonsense in itself — and so, quietly we are all capitulating to a most damaging and degrading version of ‘the arts and culture’. The emperors clothes remind us if we look, that ‘business’ is also a sub-set of ‘culture’ rather than the opposite fallacy we have been growing accustomed to. A genuinely asset based system of financing the arts and cultural activities, which stems from the wealth actually created (social, material, financial etc) will not speak of ‘leveraging investment’ but of banking the surpluses of wealth already created — for re-investment. That wealth is out there but either restricted by the way it is owned or simply not ‘audited’, which means that what we call ‘culture’ is effectively rented or loaned out to us via disposable, un-secured financial resources which are entirely removed from the point of value creation — by, effectively, undemocratically licensed and selected organisations. To prevent distributed ownership taking hold, financial resources also arrive in large caches of short term, ‘spend ’til it’s gone’, needs based project funds and are usually now administered by un-elected and un-accountable ‘bodies’. There’s rarely a sustaining ‘operating system’. In short, we don’t ‘bank’ that cultural value, since it is not the assets or the skills held which generate revenue, but rather, the ‘social capital’ or status attached to them (eg, ‘case-making’ for projects based on top down assessments of ‘need’ or ‘cultural value’). Social capital, in this case, is usually a future promise rather than an existing artefact, product or service. The enormous expense and capacity needed to ‘evidence’ (through exorbitant hiring of consultants etc) that this social capital is being wisely used just makes the model both self fulfilling and, often, useless — ironically. ‘Cultural’ or ‘Social’ Capital is not our Cultural Commons. This is important to distinguish as a principle when we are seriously contemplating how we finance (‘cultural’) production. The aim should be that wealth is both retained at the point of its creation and targeted to that point rather than used as an instrument for leveraging future ‘investment’ (in the same restricted version of future promises and centralised, ‘independently expert’ administered wealth).
5. IP, Creativity, Funding and Wealth Creation
Creative Industries and (would be) Cultural Commons rely on the generative effects of creativity and it’s ensuing IP rights and legacies for their sustenance. Since IP is active somewhere in all systems for incentivising and monetising creativity and since Galleries, Libraries, and Museums (GLAM) as well as individual artists and our NPO’s are all engaged in the management and creation of artistic assets (and rights), it’s absence or lack of prominence in funding discussions is a huge ‘elephant in the room’. Our public cultural sector tends to rely on good old taxation of ‘the private’ to fund ‘the public’. For many reasons which others have expanded already, the boundaries between the two grow less and less clear. I’ve also argued elsewhere that the gross debt of the UK creative sector to it’s cultural commons might be much higher than at present, based on corporation tax rates, but this would be far better ‘collected’ by creating incentives for collaboration than by punitive ‘tax and spend’ policies. From road tax, to the BBC, licensing as direct taxation is not new and ‘peer to peer’ licensing of public goods in the marketplace is an under explored but potentially powerful means of creating ‘common cause’ as well as revenue to finance it. It is, essentially, at the heart of what CultureBanking® proposes. Monetising creativity is necessary to fund the commons at least in the short, transitional term.
To democratise our production of and access to ‘culture’ though, our use of IP needs ‘re-booting’ from the ground up.
6. IP and The Commons
IP exists for individuals and organisations and can be held under as many various legal terms as it and the governance structures of a nation state or confederation, allow. IP itself consists of 4 basic forms: Trademarks, Copyrights, Patents and Trade Secrets and Designs, although in some jurisdictions a fifth; ‘Right Of Publicity’, is included. This 5th element is described as a ‘right to control how your name, likeness and persona are used by others”. Clearly names and trademarks cross over with ‘rights of publicity’ and to an extent, data. The cross over between IP and Data is an important subject in itself, but is not specifically dealt with here.
Advocates for the commons reasonably resist trade secrets and usually patents in favour of open value creation, but these should not be confused with copyright, which has been re-engineered through ‘copyleft’ movements and the ‘Copyfair’. It seems fair to say that the broad goal for commons based initiatives has been to create knowledge commons — such as wikis and open knowledge where possible. There have been proposals, such as Harberger’s Tax, to re-design the tax system as a whole to incentivise material commons with taxes on ‘holding wealth privately’ rather than just taxing wealth as it becomes productive and “use the funds to create a publicly governed digital commonwealth. This could ensure that all revenue generated by proprietary usage of HCL (or ‘culturebanked®’ ) licensed software would be used to further grow the commons”. This task of creating material commons has been addressed to a much lesser extent and is still seen as a ‘radical’ arena. The task of CultureBanking® has been to design an asset based method of raising funds for culturally common interests as opposed to the more centralised needs based, ‘cap in hand’, sponsorship, tax moneys and philanthropic methods already mentioned as well as the usual tax, lottery and philanthropic financing. Rather than seek to overhaul the whole tax system, the notion of ‘tax under license’ is a way of allocating a ‘tax rating’ to individual goods.
Harberger’s tax was, in part, a response to the non fungibility of goods under IP regimes. Self assessment of your assets’ financial value might have been a way of dealing with endlessly variable goods, but it was invented at a time when no technology existed which could have ‘automated’ such a process. Blockchains, DLT etc are a potential change to all of this…
In bringing cultural (tangible and intangible) assets into use for all, some material will still be eligible for commercial use (as now). But this use may not need a ‘constant category of ownership’ rating — as in the Harberger version. The social use of an Ed Sheeran song can now be assessed transactionally, by the day, week, year, or by apportionment. All of this can be done by automation: What cannot be done, yet, is the social accounting necessary to complement it.
The principle of using ‘IP’ as ‘securities’, is that it makes more sense to agree to share wealth from assets we know we will own jointly and separately (ie our own creativity) and therefore can share, rather than wealth we will produce within already complex relationships and often under private proprietary ‘agreements’ and ‘expert relationships’ — and are therefore unlikely to be able to own and share. Having a common category of ownership — or stewardship — is a pre-requisite to re-commoning. Creative Commons have established networks of knowledge commons, but will not and cannot establish material commons (note the SmugMug takeover of Flickr which recently sidestepped the largest ever centralised database of Creative Commons material in order to monetise their newly enclosed — ie, NOT — Commons). Once money needs to change hands, commons go out of the window…
Similarly, initiatives to harness un-used, un-claimed and ‘orphan rights’ are being proposed to create community wealth. The tendency towards centralisation of resources which do not reach grass roots communities still applies though, unless we change the nature of HOW wealth is created, we face further corporatisation — and privatisation — of Cultural Wealth. Once established on these (neo-liberal?) grounds, assets are likely to be administered by ‘the few’ for ‘the many’.
CultureBanking® aims to harness IP rights to create shared assets, which in turn, will generate future common capital. It also seeks to create transitional incentives for cultural products and services to be placed into the common ownership, whilst maintaining possibilities for private wealth creation. Thirdly, it invites a ‘partner state’ to follow on by creating endorsements and ‘easements’ for this kind of production in recognition of social use values: ‘Cultural Commissioning’ is an example of this happening, without the hypothecation of taxes from, specifically, the cultural sector.
Social accounting requires new approaches as well: Since capital, in traditional accounting is not an asset like IP, but ‘shareholder equity’, by placing IP into common ownership, the portion of common capital which is created ceases to be ‘equity’ since its liquidity cannot be accounted for against ‘profits’ or ‘losses’ of individual agents. It represents the future securitisation of common needs in capital form, but will never ‘pay out’ in terms of a dividend or ‘profit’ share. Common capital is then, in non-traditional accounting terms, a common asset or resource. A distributed ledger of shared IP is an asset register against which liquidity for common capital needs can be secured — in much the same way the private sector practices asset management. Perhaps we are talking about tax payers acting as Non-Practicing Entities or Patent Trolls ( ie extractors of wealth!) — only this time, in the public or common interest. In this way, CultureBanks® would represent a foundation of Public IP Commons Trusts (PICTs) and a new model for Cultural Democracy and Citizens Cultural Wealth. It’s not a new idea, some refer to the ‘Digital Commonwealth’, but it has become achievable!
So, how might that work?
7. CultureBanking: Register, Bank Rights, Bank Incomes, Re-distribute:
It’s worth noting that a ‘cultural sector’ outside of the ‘free software movement’, does have slightly divergent interests and requirements for private property. It would be very difficult to convince a sculptor, who has spent 10 years digging clay (an admittedly common good) to produce one sculpture that he should now donate it to the commons, or pay taxes to keep on owning it privately. Even if convinced, this system still seems to accentuate huge value differences in financial worth which have little root in social worth. Art’s ‘uselessness’ is a feature of it’s high financial (exchange) value. There also exist artists, like the Meyer-Harrisons who extol a high use value and therefore work in a common interest and yet they are almost an exception which proves a rule. As a % of arts financial value these artists, working exclusively ‘for the community’ are broadly invisible. They also produce private goods to fund their practice — so the common is actually non-existent even where we might wish it into existence.
Going beyond wishful thinking and immaterial commons requires creation of legal forms of common ownership for goods and services. Having created this common public asset class and registered rights, the next objectives will be to harvest income from ‘banked’ IP. This may be done technologically using blockchains, payment gateways, escrows and other methods already in commercial use, but could also be done more simply, at the point of transactions. Most IP is sold, auctioned or licensed (see The Eady Levy as an early example) as non rights based levies on box office takings or sales. People are also now using all kinds of ‘open’ IP repositories (eg, instructables.com) and it seems entirely reasonable to enable a more easy transition from ‘amateur’ or ‘prosuming’ markets in to commercial ones, whilst extracting something for public needs in the process. Markets are changing beyond just open knowledge though. Open knowledge is essential, but if firms add value and use resources, they need to pay themselves and the common pot. Doing both under licence is the paradigm shift which I am proposing with CultureBanking.
Some criticisms have followed predictable lines about all new tax measures being likely to be resented but if the margins for generating private wealth are broadly similar and we are opening up new markets for income generation and public finance, objections should wane. This may also encourage more open knowledge platforms and more common ownership. To some extent the platform coop movement is addressing all of the above, but is still ‘prey’ to enclosures of its output. The Peer Production License made free licensing to other cooperative platforms a condition of use — a condition which is absent from the far more widely used Creative Commons licenses. Consequently the so called ‘commons’ are entirely unprotected: The Earlier mentioned SmugMug takeover of Flickr exhibits the failure of ‘commons’ to provide a ‘business model’ for platform owners — or for rights holders and has prompted Pando Network to, alongside culturebanking, begin writing new licenses. Beyond license proliferation though, the real answer is to enable fuller control for people over the assets they create.
Those in the p2p and commons communities often reject ‘license proliferation’ but the reality is that every license is an agreement between individual parties and therefore intrinsically unique by nature. So, perhaps, licensing alone is not the way to address the production of commons — especially in a transitional stage. Equally, it is hard to see how broad sections of Creative Industries can function without IP. A print-maker, film-maker or author can hardly be accused of creating ‘false scarcity’ or expect to make a living by selling their products once — unless they licence them to a publisher, who pays them whilst extracting a contribution for the commons — as well as to meet their own needs of course. Those functions all take place under tax laws currently, but using levies, gifts and ‘tax by licence’ — ie, ‘upfront’ transaction taxes or ‘levies’ changes the possibilities in the cultural landscape immeasurably. To succeed, cultural democracy therefore relies on the cooperation of a partner state. Preparations and ‘designs’ for such a possible future are underway, though may be over ambitious at times in scope in the absence of such a willing state. But there is reason to hope this may soon change….
This ongoing work outlines the development of licenses as an instrument of governance for distributed autonomous organisations — such as CultureBanks®.. As Harold Demetz stated in 1973 (it’s taken longer than it should have to begin to act on this):
“It is not the resource itself which is owned; it is a bundle, or a portion of rights to use a resource that is owned”.
This was a sage precursor to online living: We have a mandate to share and now we have a technology to do it. Capitalism, at least as far as it’s over weening use of IP as a tool for privatisation of assets, is coming to an end. There are other developments which suggest we are moving towards an entirely new ‘regime’ or practice in terms of how we manage our ‘Intellectual Property’..
8. Design For The Cultural Commons
The first UK MA in Cultural Commons from the CASS Business School promises: “You will create and develop a live project (anything from a novel to a supermarket) for your new operating organisation. The organisation will be formed, it’s governance designed, its financial structure set out and all policies written using Commoning as a model”. Whilst welcome, of course (enormous credit goes to Torange Khonsari for pioneering this first step in UK academia to re-commoning) establishing new ventures with ‘commoning models’ will not enable the growth of commons if the markets and laws within which they operate are still enclosing the wealth from which these organisations must seek funding and restricting the development of self-funding. For cultural commons to grow, a more enlightened ecology of social accounting needs to replace the cash focussed one we are stuck in now.
All be it a start, ‘wishing’ and ‘naming’ commons into action is not enough: For example, deep in the bowels of universities are ‘Research and Innovation’ departments employing multiple ‘contracts managers’ whose roles are to write contracts for the ‘commercialisation of research’. Nearly all of that future Intellectual Property is bound for private, rather than common, ownership. As our universities plead bankruptcy or creak under the weight of their over weening capital ‘vapour-trails’ including massive pension debts, the idea of tax under licence from the masses of ‘Cultural IP Assets’ created — looks far from Utopian, but somewhat overdue! Whether or not those assets ‘productive lives’ will compensate the public money and effort which went into their creation is left either to chance, accountancy, or future ‘executives’ (read ‘wealth extractors’)…. a little like our cultural experts and selection committees… and definitely not ‘ours’ at all. Where the ‘ours’ disappears is where we most urgently need change.
I look forward to talking to Torange more about this situation more as we discuss the growth of ‘design for commons’ in UK universities and colleges.We need fundamental changes in our approach to IP at a granular (and legal) level across all cultural institutions…
Using CultureBanking itself as an example; moving beyond traditional IP practices requires some strength of vision, much learning, time, material innovation and some innovation around executing and drafting licenses. In developing the project, I found that the necessary cultural or creative production required was obviously subject to all of the IP laws, incentives and dis-incentives around which it sought to innovate. Theory became practice — quickly.
The standard advice of IP lawyers has been that ’Culturebanking® ‘has sufficient novelty to file for protections’ so long as no public utterance has been made about the license-able IP beforehand (‘prior art’). The idea of sharing, or creating open value is annulled in our traditional business models before it can begin.. Clearly open value is never going to become established as long as this is the standard operating system for new business development.
An immediate quandary presents itself: Can ‘CultureBanking® be ‘CultureBanked®? (even successful open source projects like MakerBot have had no useful protection against enclosures). Any IP created can be made available to all — even using a Creative Commons license — but still, what is lacking is a business model or ‘operating system’ for the production of commons and enabling people to earn a living. This operating system will require payment gateways and fund clearing methods. There are plenty of options, but what is ‘new’ about the process, is the idea of ‘peer to peer’ rights trading. Anyone, who is a creator or rights holder, has the right to attach conditions of payment to the re-use of their work. This doesn’t mean ‘protecting’ it, it simply means enabling payment and requiring that condition be met before permissions are granted. The other key to ‘doing different’ is simply understanding that an asset can be both ‘public’ and ‘private’ and ‘common’ — and even ‘club’ either at the same time, by apportioning rights, or at different times in it’s lifecycle. This is a new possibility rendered by blockchains and distributed ledger systems.
Since Creative Commons does not yet fulfil this function and since nations are at a loss to find ways of taxing multi national internet based companies, this ‘taxation under license’ seems one worth examining. CultureBanking® proposes its own methods for doing this and obviously governments might decide to commission others. What is clear however, is that if we are to move towards such a system, the power for change lies in the hands of individual organisations and all who make and hold rights. For this reason CultureBanking® is also seeking resources to educate marketplaces and key players about new ways of handling Intellectual Property. The old ways of ‘protection for protections sake’ are no good. We need open knowledge and open products and we need to be able to collaborate whilst recognising working contributions and creativity fairly. Due to the prevalence of private property though, it seems that the best aspiration at this stage, is to try to create common capital from private property. This also accepts that scarcity is very real in the arts as are single authors and groups with needs to protect their main income sources.
Jon Phillips has called for public patents — http://wiki.p2pfoundation.net/Public_Patents, there are several projects already in place to set up public data handling trusts (not something this author is endorsing) and CultureBanking® repeats this call in the area of of copyright (which is more executable as it ‘exists as of right’.) and possibly some other areas of IP on case by case bases.
Management of IP as a ‘public’ or ‘common’ good has not had the same level of discussion as ‘data’. The current ‘model’ for IP as public goods amounts to all of the post copyrighted material which does, in fact, enter into our Cultural Commons once the life of the IP is over. Rights generally revert to rights creators. In fact, even this type of material — old wall paper designs, images, songs etc can endlessly be recycled by the IP system to reproduce private wealth for private companies, who then, arguably, contribute to the public good through taxation. Same old song…
What CultureBanking® proposes is to use the IP system to license this old — and new — IP to the commons. Allowing for necessary private incomes, either a proportion of future incomes or incomes from a set date can be recouped for the public interest or commons under license — rather than by the much more clumsy method of avoidable taxation. One crucial change is the idea that goods can be more than one thing: Traditional economics categorises goods as either ‘club’, ‘private’, ‘common’ or ‘public’. What technology offers is the ability to make these divisions into a continuum, focussed on decisions and definitions(much like the current approaches to sexuality and gender) made by ‘us’ rather than ‘authorities’.
The technologies for this kind of sharing and managing individual and community rights at a peer to peer level are being developed on several fronts: Here is our collaborator, Daniel Harris, talking about the Kendraio initiative’s work in developing user centred rights management tools for digital assets: https://youtu.be/UNl70Fd_LIc
These very possible and workable changes can also have the effect of creating ‘common goods and services’, which could cut out the need for monetisation in many cases by delivering their value directly in the public interest. At the same time, where companies and individuals choose to nominate a proportion of their future wealth via public goods from IP under license (up to 100%), they might also expect ( with just cause and under public scrutiny) some form of tax credit in return. The advantage to the public being that value is captured at the point of its making or monetising rather than far down the value added chain where many built in losses from legalised tax avoidance can be incurred.
There are many instances of similar ‘hypothecations’ in tax relationships with firms already operating: One example is social investment tax relief and tax credits for providing apprenticeships is another. It is also a direct route towards Universal Basic Assets through a vehicle which the public can own and therefore share direct common ownership.
Several things need to change in order to move towards a system of ‘tax by service’ or ‘tax under license’ ( if it were seen as desirable): Broadly a partner state approach and changes in the way public and private bodies engage in accounting for value creation would be needed. For an example see resource Event Agent Accounting:
Holding funds (and rights options) in the public interest in order to finance public and 3rd sector arts and culture out of the creative industries directly (an IP Levy’!?) has many advantages: In the case of reserving, or hypothecating finances from future or ongoing rights incomes under license (‘tax under license’) several current problems are overcome. Consider the following illustrative case:
One example of the inefficiencies in tax breaks for film production has been evidenced in the ‘sale and leasebacks’ fiasco which saw UK accountants showing all kinds of spurious costs and investments on films which were never made in order to re-claim £10Bn from HMRC in dubious taxes. There have been some arrests. By CultureBanking® even ‘microrights’ (small levies on rights values) from films like Avatar, it will be possible to see specific investments out of one ‘value chain’ and into another, with clear audit trails. The eventual goal in commons oriented development would be to see those value chains merged. This is a first step in that direction. For example, in the culturebanking of the distribution rights for Avatar, we might have seen an agreement to fund, let’s say, 27 regional ‘Music In Schools’ initiatives. This social investment would have come from takings, unlike tax, which comes from profits. The tax deductibility is effectively audited from those takings and is far more difficult to tamper with. It also arrives sooner and it is no longer so ‘viable’ for investors to invest in films which either failed or never actually got made…
9. About CultureBanking®:
To become a real option to extant funding methods, Culturebanking® needs to collaborate with software and app developers, legal IP and accounting professionals, mutual and cooperative banking organisations, project managers, users and partner organisations. In order to begin this work in earnest, we also need to produce a demo of how the process will work. The first need then, is to create awareness and debate and encourage at first, the creative and cultural communities and then the wider public’s receptiveness.
The ongoing project is to develop an operating system for banking cultural assets and redistributing value accordingly, alongside the wider goals of campaigning for open IP and new funding structures for cultural democracy. This will undoubtedly also involve working with policy developers and development of legal and accounting infrastructures alongside, it is hoped, a new ‘partner state’.
Finally, whilst future proofing projects like Pando may help create the conditions for CultureBanks® to thrive, not all communities are distributed or want to be — by geography at least — as David Goodheart reminds us. My ‘design brief’ for the project came from my experience in Great Yarmouth. In a place where the ‘Cognitive Elites’ are smaller and probably don’t want to be elite, the real problem is in incentivising creativity and action by demonstrating immediate value (feeding people). Whilst people can come together (and do) their collective access to wealth and resources is limited by the local monopolies of a few trusts, charities and organisations who ‘do for’ rather than ‘with’. One arts organisation alone claims to have leveraged £158 Million into a small town of 26,000 over 15 years — more than the whole budget for that period of the Borough Council itself! Compounding this centralisation of resources is the fact that, not for profit rules usually prevent local initiatives from creating surpluses — and more basically, wages. This was my reason for proposing the idea of a ‘content collective’, ie, a ‘culture-bank’. As Pando point out, organising around ‘creative law’ is far simpler and less cost heavy than around ‘corporate law’.
Although dependence on place is viewed as a disincentive to forming distributed interests:
“DAOs will not be constituted in the form of classical entity like “company” but will just drive network effects around a content — such as video-game, music, book or software” -
Some interests need to be localised. Essentially, communities want to exist in places. The definition of the common as it was thought by Elinor Ostrom i.e ‘a good or resource held collectively by a community that sets the governance rules for it’, risks, arguably, being entirely consistent with the production of private goods if those communities are not ‘open’ (this is what IP was designed to do and what blockchain could facilitate en masse if not regulated). What CultureBanking® seeks to do is use the Content DAO (content collective?) to produce common wealth from the proceeds of making shared goods available to the wider market. Where CultureBanking® diverges from what is possible with licenses derived from PPL is in this derivation:
“ Like the free software movement this licence does not allow special rights for an original author, but insists on the right for all to use and reuse a common good.”
This suggests that derivative open licenses will always be needed. For people who produce rivalrous goods such as original artworks and rely on their sale for their livelihoods, their ‘special rights as individual authors’ are actually crucial to living! The as yet un-tapped power of new technology and license developments, is to merge these rights with the rights of any DAO or collective they might be a part of and allow individual rewards as well as collective rewards. Doing this does not sure up the production of private property over commons, but simply facilitates contributions, under license — to the whole. For example, a visual artist might create a painting which takes her a year to complete. The ‘special right’ of being paid for that years work is clearly separate from the rights which might be conferred to her from being part of a content-DAO which is able to share copies of her work for some future generative purpose. There is also no reason why a proportion, like a ‘DAO tax’, of her sales of original works might not go back to the content collectives’ shared purse as it is quite possible that ‘originals’ will not find a home in the market until many copies have been sold… Importantly though, unlike a software developer, her contribution can be valued and sold as a distinct ‘thing’ — and this is how she will be paid for her labour in creating it. Under the terms of her license, some of that payment may return to the DAO or it’s stated purpose, but not all — and her ongoing ‘recompense’ should not be entirely dependent on some collective ‘use value’ — since her very individual work has already been done.
Essentially the goal for CultureBanking is to enable communities and those ‘sharing common causes’ to share their creative assets in order to produce both private and shared wealth .
Further Enquiries/ Calls to Action:
For donors, collaborators and supporters, there is an open collective account: CultureBanking® https://opencollective.com/culturebanks1?referral=12610#
Please also feel free to contribute stills and video ‘assets’ at https://www.instagram.com/culturebanking/: under the common identifying hashtag #culturebanked
The Coalition for Cultural Commons is also very keen to work with people and organisations who want to reconsider their cultural rights and commons…
For a mission statement see also: http://wiki.p2pfoundation.net/Coalition_for_the_Cultural_Commons
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Liam Murphy is a Civic Entrepreneur and Commons advocate who has worked variously as a Parent, Tree Surgeon, Bookseller, Administrator, Picture Framer, Teacher, Artist, Lecturer and Writer while raising his two (now adult) children in Norwich, England.
He is currently continuing to develop CultureBanking® as a process for creating shared wealth and writing a book entitled ‘Share?’ of which this article forms one chapter.