Perm do both—state engagement is compatible with the compeerist framework—peer-property licensing solves their co-optation arguments

Hannes, Professor of Geography at the University of West Georgia. “The Digital Commons’ Elusive Potential.” From Capital to Commons: Exploring the Promise of a World Beyond Capitalism. University of Bristol. Pp 48-52. /LJS

While the state, in its current form, is not in a strong position to spearhead a publicly funded expansion of the digital commons, state engagement is by no means a lost cause. Even if certain seismic shifts in governance seem distant today, it is important to keep in mind that over time, conditions and realities do change. In the meantime, there are several important concessions and interventions that could still be squeezed from variously scaled tiers of government, especially in those windows of opportunity when a commons friendly administration is in power. Regarding the digital realm, in particular, compeerist political engagement would most directly translate into demands to establish and expand government involvement in the production and dissemination of commons based digital value, including in the GLAM and public broadcasting realms. Similarly, pressure could be exerted to increase support for publicly funded research institutions, with calls for the explicit commitment to greater openness and collaboration in the research process and an insistence that all academic work be released to the digital commons. Additionally, appeals could be made for the delivery of grants, tax breaks, and other financial assistance to external actors engaged in commons-based digital production, ranging from transnational initiatives such as the Open Source Drug Discovery (OSDD) project to smaller local cooperatives focused on various forms of place-specific, commons-based digital value production. Lastly, compeerists could home in on the significant role the state plays in the determination and execution of intellectual property laws. In response to this power, there is a long established and growing movement of both copyright reform and outright copyright abolition as the intellectual property regime is viewed by an increasing number of people as leading to an unjust ‘intellectual monopoly’ (Lindsey and Teles, 2017, np). While getting the state to abandon copyright protections altogether is undoubtedly unrealistic in the near term, clear demands relating to intellectual property are mounting, for instance from the likes of the Access to Knowledge movement and anti-copyright Pirate Parties (Timmermann, 2014; Cammaerts, 2015). These demands include the suspension of intellectual property on goods linked to humanity’s inalienable rights, shortening the expiration dates of standard patents and copyrights, and establishing greater transparency and contributor rights in the assignment of patents. Additionally, given that the state also plays a critical role in overseeing and enforcing copyleft alternatives, compeerists will naturally insist that the relevant state institutions enforcing and adjudicating these cases apply the same type of rigour and commitment as they do when dealing with copyright infringements. Following compeerist thinking, however, while concerted, state-based initiatives are an important way to support the digital commons, in the end, they are insufficient on their own. This is because, for the general intellect to truly become liberated – and hence reach its full counter-capitalist promise – requires the populace itself (the true source of the general intellect) to be the driving force behind the commoning of information/knowledge. In other words, it is up to commoners to foster and expand the digital commons into a vibrant, enabling space by and for the people, unrestrained or corrupted by the extractive tendencies of capital. At the same time, as we have seen, this is a tall order considering the broader context where the apparatus of capture significantly limits people’s ability to engage in commons-based work. Massimo De Angelis has written at length about the importance of leveraging synergistic relations between commons-oriented entities themselves, to create a more concerted impetus for commoning from the bottom up. More specifically, he refers to a commons ecosystem that can be strengthened and expanded through what he terms, ‘boundary commoning’. According to De Angelis (2017b, p 287), boundary commoning ‘activates and sustains relations among commons thus giving shape to commons at larger scales, pervading social spaces and intensifying the presence of commons within them’. In this sense we are dealing with a meso-level form of economic/political organization that aims to cohere local, prefigurative commons-based initiatives into a more unified force in the face of macro-level assemblages/apparatuses undergirding the capital-state nexus. There are, ultimately, numerous ways that such boundary commoning can express itself, from variously formal arrangements facilitating the pooling, management, and sharing of resources to establishing commons-oriented guild-like organizations that work to enhance both the economic and political power of their members (Arvidsson, 2020; De Moor, 2008; Kostakis and Bauwens, 2019). In terms of the aim of expanding the digital commons, then, an important boundary-commoning initiative that comes to the fore is that of establishing a more proactive and solidaristic form of commons-based digital property governance, that is, peer property. The emerging concept of peer property denotes an alternative to both top-down state ownership and fully individualized property rights (Bauwens, 2009; Kleiner, 2010). Instead, peer property is ‘commons property’, understood in the vein of Ostrom (2015) as being produced, maintained, and governed by a particular community and made available, as any well-functioning commons, according to particular rules, norms, and restrictions. In this sense property must also be grasped, as commons advocates David Bollier and Silke Helfrich (2019) insist, as relational, not something to possess but rather something to negotiate. In the digital realm, GPL and CC are the two major alternatives to proprietary property laws, with each approaching copyright’s deficiencies in different ways: while GPL emphasizes the expansion of the commons, CC focuses on the empowerment of creative/cognitive workers. What is needed, however, is a licensing arrangement that can do both more effectively, that is, one that can further the commons while also supporting the right of the digital value producer to not only control their work, but to be remunerated for it. This goal can ultimately be achieved by making free access to commons-sourced value conditional. Bauwens et al (2017, p 38) present the matter quite plainly by stating that ‘while knowledge sharing should always be maintained, we should also demand reciprocity for the commercial exploitation of the commons’. In essence, then, peer-property licensing reverse engineers existing copyright and patent laws to form a contingency component to the license, where use rights change depending on how or by whom the peer-property asset is used. In this way, if you are in the commons in-group, you may use the peer licensed asset freely, including commercially. If you are in the capital outgroup, any use is either prohibited or comes with the mandate to pay some form of compensation. Enforcement would here be based on commons based actors using the legal status of peer-property in litigation suits against offenders, just as capital pursues the enforcement of copyright. Hence, by demanding that capital pay something for its use of commons-sourced digital value, a transference of much-needed resources into the commons is created. Such an arrangement would then open the opportunity to actually pay commons workers and cover other operational costs, thus offering a partial reprieve from the dependency on capital and facilitating the production and dissemination of commons-based digital value. Yet, a key question here is how the in- and out-groups and their subsequent rights are to be determined. One approach, termed ‘coopyright’, has sought to build a reciprocity-like license using already existing CC licensing as a foundation (P2PF Wiki, 2019b). Being grounded in the globally recognized and fully open-sourced Creative Commons regime, the terms of the license can be easily modified to include a dual mechanism in which a restrictive, non-commercial use license is primary (including unaltered use within other commodities), while a more open license becomes operational if certain commons-contribution criteria are met. In this sense, while similar to a reciprocity demand, the key issue is not so much one of share-alike, but rather share-with-whom. What ultimately counts as an adequate commons-contribution would be left to the issuer of the license. While one option would be to institute some form of tit-for-tat condition, which would require quantifying what is taken and what is returned to the commons, a simpler alternative would be to make the commons contribution criteria linked to some form of membership. This is the approach taken by FairShares, self-described as the ‘association for multi-stakeholder cooperation in member-owned social enterprises’ (FairShares, 2017). FairShares has thus embraced coopyright in a way where the digital resources produced by FairShares are available for a wide array of uses, including commercial ones, to active, contributing members of the association while non-members must pay fees, regardless of whether their interest in the resource is commercial or not. Establishing clear in-group privileges in this way helps not only to overcome questions of how to determine reciprocity, but it minimizes the difficult task of needing to oversee and enforce commercial use conditionalities, a recurring burden within CC licensing. Taking the idea of membership beyond a relatively confined in-group, Copyfarleft, developed by Dmitry Kleiner, stipulates a peer property regime in which the digital asset under its license is open and free of intellectual property protections, unless it is used with the primary intent to achieve profit, in which case some form of payment is required (Kleiner, 2010). This approach has since been adopted by the P2P Foundation as Copyfair licensing, where the in-group is now defined to include all intentional, worker-empowered enterprises, hence again dealing with the issue of difficult-to-adjudicate profit intentionality. Some, however, have argued Copyfair’s operationalization is too strict, preferring an expansion to include the commons-aligned ‘social and solidarity economy’ (SSE) (P2PF Wiki, 2019b, np). Indeed, if the aim is to create a large enough commons sphere to where peer-property can offer a significant benefit, it would make sense to also include non-profits and intentional member cooperatives. Importantly, each of these also maintain recognized legal status, thus creating clear and indisputable distinctions in determining in- and out-group designations. Regardless of its eventual form, a peer-property licensing regime that could reach adequate scale holds the potential of creating a massive collection of open-source code, design, know-how, and other digital content that would be guarded from capitalist extraction. While some critics on the left argue that the bounding of resources in this way is contrary to commoning and ultimately reflects capitalist, market-oriented thinking, it is an argument that compeerism firmly rejects (Rigi, 2014). As we have seen, compeerism regards successful market engagements as a necessity if economic and political power are ever to be transferred from capital to the commons, and peer property is a valuable tool to achieve this aim. Furthermore, as the upcoming chapters make clear, the way true compeerists, in the digital realm and beyond, interact with markets is rooted in fundamentally non-capitalist values and modes of operation. Indeed, it is due to the embrace of these values that significant market disadvantages arise, which is precisely why establishing an expansive and robust peer-property regime is so important.