BY DAVID M. BERRY & GILES MOSS
A constellation of interests is now seeking to increase its ownership and control of creativity. They tell us that they require new laws and rights that will allow them to control concepts and ideas and protect them from exploitation. They say that this will enrich our lives, create new products and safeguard the possibility of future prosperity. But this is a disaster for creativity, whose health depends on an ongoing, free and open conversation between ideas from the past and the present.
In response, we wish to defend the idea of a creative field of concepts and ideas that are free from ownership.
I Profit has a new object of affection. Indeed, profiteers now shamelessly proclaim to be the true friend of creativity and the creative. Everywhere, they declare, »We support and protect concepts and ideas. Creativity is our business and it is safe in our hands. We are the true friends of creativity!«
II Not content with declarations of friendship, the profiteers are eager to put into practice their fondness for creativity as well. »Actions speak louder than words« in capitalist culture. To display their affection, profiteers use legal mechanisms, namely intellectual property law, to watch over concepts and ideas and to protect them from those who seek to misuse them. While we are dead to the world at night, they are busily stockpiling intellectual property at an astonishing rate. More and more, the creative sphere is being brought under their exclusive control.
III The fact that the profiteers are now so protective of creativity, and jealously seek to control concepts and ideas, ought to rouse suspicion. While they may claim to be the true friends of creativity, we know that friendship is not the same as dependency. It is very different to say, »I’m your true friend because I need you«, than to say, »I need you because I’m your true friend«. But how are we to settle this issue? How do we distinguish the true friend from the false one? In any relationship between friends we should ask, »Are both partners mutually benefiting?«
IV The profiteers’ insatiable thirst for profit clearly benefits from their new friendship with the creative. Through their use of intellectual property law – in the form of copyright, patents and trademarks – concepts and ideas can be transformed into commodities that are controlled and owned. An artificial scarcity can then be established. But, unlike physical objects, concepts and ideas can be shared, copied and reused without diminishment. No matter how many people use and interpret a particular concept, the creators’ use of that concept is not surrendered or reduced. But, much money is to be made when creative flows of knowledge and ideas become scarce products to be traded in the market place. Thus increasingly, intellectual property law is providing profiteers with vast accumulations of wealth. Indeed, immaterial labour (based on information, knowledge and communication) has now replaced industrial manufacture as the main producer of wealth in the age of technological capitalism. As such, the relationship codified in intellectual property law between creativity and profit can be seen as a core element of this wider structural transformation of the productive processes.
V For many of us, the thought of intellectual property law still evokes romantic apparitions of a solitary artist or writer seeking to safeguard his or her creative work. It is therefore unsurprising that we tend to view intellectual property law as something that defends the rights and interests of the creative. Perhaps, in some removed and distant time, there was a modest respect in this specious notion. But this romantic vision of the creative is certainly ill at ease with capitalist ‘reality’. Creators have become employees and each concept and idea they produce is appropriated and owned by the employer. Profiteers are using intellectual property law to amass the creative output of their employees and others. What is more, they continually lobby to extend the control of intellectual property law for greater and greater lengths of time.
VI The creative multitude is becoming legally excluded from using and reinterpreting the concepts and ideas that they produce. In addition, this legal exclusion is now being supported by technological means. Profiteers use technology to enforce copyright and patent law through the technical code that configures information, communications, networks and machines. The use of digital rights management software, for example, locks creative works, preventing any copying, modification and reuse. In the current era of technological capitalism, public pathways for the free flow of concepts and ideas and the movement of the creative are being steadily eroded — the freedom to use and re-interpret creative work is being restricted through legally based but technologically enforced enclosures.
VII This development is an absolute disaster for creativity, whose health depends on an ongoing conversation and confrontation between concepts and ideas from the past and present. It is shameful that the creative multitude is being excluded from using concepts and ideas. Creativity is never solely the product of a single creator or individuated genius. It always owes debts to the inspiration and previous work of others, whether these are thinkers, artists, scientists, teachers, paramours or friends. Creativity, as a fusion point of these singularities, cannot subsist in a social nothingness. Concepts and ideas depend upon their social life, and it could not be otherwise.
VIII An analogy can be drawn with everyday language, that is, the system of signs, symbols, gestures and meanings used in communicative understanding. Spoken language is shared. A meaningful utterance is only made possible by drawing on the words that freely circulate within a linguistic community of speakers and listeners. Language, then, is necessarily non-owned and free. But imagine a devastating situation where this were no longer the case. George Orwell’s 1984 dystopia — and the violence done to freethinking through ‘newspeak’ — helps to illustrate this. In a similar way, the control and ownership of concepts and ideas is a threat to creative imagination and thought, and so also a grave danger to what we affectionately call our freedom and self-expression.
IX Previously, the creative multitude could decide either to conform or rebel. In conforming they became creatively inert, unable to create new synergies and ideas, mere consumers of the standardised commodities that increasingly saturate cultural life. In rebelling, they continued to use concepts and ideas in spite of intellectual property law. But then they are labelled »pirates«, »property thieves« and even »terrorists«, answerable as criminals to the courts of global state power. In other words, profiteers declare a permanent state of exception, a political emergency, which is then used to justify the coercive use of state power and repression against a newly criminalised culture of creativity. As we will soon discuss, a growing number of the creative are also moving beyond rebellion, through an active resistance to the present and the creation of an alternative creative field for flows of concepts and ideas.
X There will be immediate objections to all we have said. The profiteers will turn proselytizers and say, »If there is no private ownership of creativity there will be no incentive to produce!« The idea that the ownership of knowledge and ideas promotes creativity is a shameful one, however plausible it may seem from the myopic perspective of the profiteers. To say that creativity can thrive whilst lacking the freedom to reuse concepts and ideas is clearly upside-down. After giggling a little at this absurdity, we should now turn this thinking the right way up.
XI According to this »incentive« claim, there cannot have been any creativity (i.e., art, music, literature, design and technology) before the profiteer’s owned and controlled our concepts and ideas. This seems like pure fantasy. Historians frequently profess to us that creativity was alive and well in pre-capitalist times, before the advent of intellectual property laws. But, even so, we might concede that history is now enough of a fiction to raise some doubt about the previous incarnations of creativity and the creative. Perhaps more bizarrely, it also implies that there cannot be any creativity currently operating outside of the intellectual property regime, thus contradicting our current experiences as historical actors and witnesses. We can now be sure of something that we have always already known — creativity is not reducible to the exploitation of intellectual property.
XII A new global movement of networked groups that operate across a variety of creative media — e.g., music, art, design and software — is now emerging. These groups produce a gathering of concepts, ideas and art that exist outside the current intellectual property regime. Hence, the creative works of the Free/Libre and Open Source communities, for instance, can all be examined, challenged and modified. Here, knowledge and ideas are shared, contested and reinterpreted among the creative as a community of friends. Their concepts and ideas, like the symbols and signs of language, are public and non-owned. Against the machinations of profit, these groups are in the process of constituting a real alternative — of constructing a model of creative life that reflects the force and desire of the creative multitude.
XIII Through the principles of attribution and share-alike, existing works and ideas are given recognition in these communities. This means that although a work may be copied, modified and synthesised into new works, previous creative work is valued and recognised for its contribution to creativity as a whole. Attribution and share-alike are constitutive principles of the Free/Libre and Open Source movements, and chromosomes of the new mode of creative life that their social practice intimates.
XIV These movements adopt an ingenious viral device, implemented through public licences, known as copyleft. This ensures that concepts and ideas are non-owned, while guaranteeing that future synergies based on these concepts and ideas are equally open for others to use. Whereas copyright acts through law to prevent the modification and re-use of concepts and ideas, copyleft ensures that they remain openly available and not capable of being commodified. In this way, copyright (‘all rights reserved’), is stood back on its feet by copyleft (‘all rights reversed’). It now stands the right way up for creativity and can once again look it in the eyes.
XV We believe that the creative multitude should embrace and defend the ideas and practices of these groups and the untimely model of creative life that they intimate. Indeed, we, who are already quite a crowd, must defend these ideas and practices. For it is only the creative multitude that will determine whether this possible transformation of our times is realised.
XVI Just as the violence of the Profiteers’ intellectual property regime is seeking to intensify, a real countervailing force is now beginning to confront it. Indeed, the vision and practice of these rhizomatic groups is defiantly growing in strength, both deepening and widening through a variety of forms of media. They offer a glimpse of a creative field in formation that supports flows of concepts and ideas that are shared freely among friends. They are acting in a way that is ‘counter to our time and, let us hope, for the benefit of a possible time to come’ — Creativity is creating resistance to the present.
(cc) 2003 The LibreSociety.org Manifesto is made available under the Attribution Share-alike Creative Commons License 1.0.
