On the face of it, the Creative Commons project appears to be a success. It has generated interest in the issue of intellectual property and the erosion of the “public domain”, and it has contributed to re-thinking the role of the “commons” in the “information age”. It has provided institutional, practical and legal support for individuals and groups wishing to experiment and communicate with culture more freely. A growing number of intellectual and artistic workers are now enrolling in the Creative Commons network and exercising the agency and freedom it has made available. Yet despite these efforts, questions remain about the Creative Commons project’s aims and intentions and the vision of free culture that it offers. These questions become all the more significant as the Creative Commons develops into a more influential and voluble “representative” and public face for libre culture.

Questions remain about the Creative Commons project’s overall aims and intentions and the vision of free culture that it offers

We recognise the constructive nature of the work done by the Creative Commons and, in particular, its chief protagonist, Lawrence Lessig. Together they have generated interest in important issues that we hold dear. But here we wish to stand back for a while and subject some of the ideas of the Creative Commons project to interrogation and critique. We don’t do this because we think that we have a better understanding of the actions of and motivations of individuals and groups involved in libre culture. In fact, without a great deal of symbolic violence, we think it would be impossible to faithfully represent libre culture in all of its diversity. So rather than attempting to represent what libre culture is, an ill-fated and thankless task, we work on the basis of what it could become. This isn’t a question of mimesis, of Archimedean points, of hermeneutics. It’s a question of thinking about libre culture in a more experimental and political way.

Art by Trine Bjørkmann Andreassen

We argue that the Creative Commons project on the whole fails to confront and look beyond the logic and power asymmetries of the present. It tends to conflate how the world is with what it could be, with what we might want it to be. It’s too of this time—it is too timely. We find an organisation with an ideology and worldview that agrees too readily with that of the global “creative” and media industries. We find an organisation quick to accept the specious claims of neo-classical economics, with its myopic “incentive” models of creativity and an instrumental view of culture as a resource. Lawrence Lessig is always very keen to disassociate himself and the Creative Commons from the (diabolical) insinuation that he is (God forbid!) anti-market, anti-capitalist, or communist. Where we might benefit from critique and distance, the Creative Commons is too wary to advocate anything that might be negatively construed by the “creative” industry. Where we would benefit from making space available for the political, the Creative Common’s ideological stance has the effect of narrowing and obscuring political contestation, imagination and possibility.

A commons without commonalty

Like others before him, Lawrence Lessig bemoans the loss of a realm of freely shared culture. He writes about the colonisation of the public domain brought about by extensions in intellectual property law and the closing down of the technical architecture of the internet. He rightly identifies the way in which global media corporations have lobbied to extend the terms of copyright law so that they can continue to profit from their ownership of creative works. He also identifies the way in which private interests are simultaneously encoding and enrolling digital technologies in order to support their control of artistic and intellectual creativity. Whereas others who problematise these trends turn to the political, the legal professor’s penchant is to turn to the field of law and lawyers. What follows is a technical attempt to (re-)introduce a commons by instituting a farrago of new legal licences in the existing system of exploitative copyright restrictions. This is the constructive moment of the so-called “Creative” Commons.

We’ll return to this shortly. But first, before getting ahead of ourselves, we should recognise that the action that the Creative Commons project takes is already anticipated in how they represent social reality and define the “problem” in hand. The way in which we construct a problem is also to always render certain beliefs and actions (and not others) obligatory and justified. And so, if anywhere, this is where we must look first.

For us, Lessig’s particular understanding of the world, and his desire to strike a balanced bargain between the public and private that follows from this, appear naïve and outmoded in the age of late capitalism. Listen to the political economists. Capital is continually rendering culture and communication private, subject to property rights and the horror of commercial exploitation and beautification. When immaterial labour is hegemonic, the relationship codified in intellectual property between the “public” and “private”, between labour and capital, becomes a crucial locus of power and profit. And it is quite natural that private interests would want to protect and extend this profit base at all costs. Their existence depends on it. If libre culture or the Creative Commons threatens this profit base in any way, wars of manoeuvre and position will ensue, where corporations and the state will set out either to crush or co-opt.

Capital is continually rendering culture and communication private, subject to property rights and the horror of commercial exploitation and beautification… And it is quite natural that private interests would want to protect and extend this profit base at all costs

The paramount claim of Lessig’s prognosis about the fate of culture is that we will be unable to create new culture when the resources of that culture are owned and controlled by a limited number of private corporations and individuals. As far as it goes, this argument has appeal. But it also comes packaged with a miserable, cramped view of culture. Culture is here viewed as a resource or, in Heidegger’s terms, “ standing reserve ”. Culture is valued only in terms of its worth for building something new. The significance, enchantment and meaning provided by context are all irrelevant to a productivist ontology that sees old culture merely as a resource for the “original” and the “new”. Lessig’s recent move to the catchphrase “Remix Culture” seems to confirm this outlook. Where culture is only standing reserve it can be owned and controlled without ethical question. The view of culture presented here is entirely consistent with the creative industry’s continual transformation of the flow of culture, communication and meaning into decontextualised information and property.

This understanding of culture frames the Creative Common’s overall approach to introducing a commons in the information age. As a result, the Creative Commons network provides only a simulacrum of a commons. It is a commons without commonalty. Under the name of the commons, we actually have a privatised, individuated and dispersed collection of objects and resources that subsist in a technical-legal space of confusing and differential legal restrictions, ownership rights and permissions. The Creative Commons network might enable sharing of culture goods and resources amongst possessive individuals and groups. But these goods are neither really shared in common, nor owned in common, nor accountable to the common itself. It is left to the whims of private individuals and groups to permit reuse. They pick and choose to draw on the commons and the freedoms and agency it confers when and where they like.