COMMUNIA FINAL REPORT | Public Domain and Opportunities of Being Digital

Subtitle: 
Digitization as a multiplier of value

Digitization and the Internet revolution are an unprecedented opportunity for fostering progress, culture, and knowledge. For the purpose of the COMMUNIA project, digitization and the Internet revolution are an extraordinary opportunity to multiply the value of the public domain and exploit humanities’ riches as never before.

Several authors have described the Internet revolution as a monumental shift that we are undergoing. David Bollier, speaker at the 5th COMMUNIA Workshop and the 3rd COMMUNIA Conference, notes:

I believe we are moving into a new kind of cultural if not economic reality. We are moving away from a world organized around centralized control, strict intellectual property rights and hierarchies of credentialed experts, to a radically different order. The new order is predicated upon open access, decentralized participation, and cheap and easy sharing.[137]

The Internet and digitization have produced a great value shift that is reversing what was termed by the economist Karl Polanyi as the “Great Transformation” – the 19th century rise of the Market Society when market activity took a life of its own and overpowered the other social institutions.[138] 

In online interaction there is a growing recognition that value can be created by social practices that cannot be explained by standard market economic focus on quantification. The uncompensated users’ contributions in developing free software, or updating Wikipedia, Facebook and YouTube are reversing the logics of the market society. Gift economy is emerging as a new practice of value exchange. Consumer or user gift systems are emerging next to traditional market systems in many sectors of cultural production and creativity exchange.[139] The ring is not right;

Digital networks fuel new forms of user-based creative sharing and collaboration. This mass collaboration may stifle social and economic enrichment to a far greater extent than in the past. The high generative capacity of online commons has been described as the wealth of networks.[140] The wealth of networks lies in social and networked peer production that is highly generative, because it is modular, granular, and inexpensive to integrate the results.[141] As Professor Yochai Benkler puts it, the

networked environment makes possible a new modality of organizing production: radically decentralized, collaborative, and nonproprietary; based on sharing resources and outputs among widely distributed, loosely connected individuals who cooperate with each other without relying on either market signals or managerial commands. This is what I call ‘commons-based peer production.’[142]

Technology has made possible large scale cooperative behaviour and gift exchange that was before limited to rarified groups.[143] Initially, the large scale cooperative behaviour emerged and evolved in software communities[144] and the academia.[145] At the 1st COMMUNIA Workshop, Rishab Aiyer Ghosh explored the need to protect and foster an open standard in the research community worldwide to best embrace the collaborative networked projects. Ghosh noted that “our technology future will be based on collaborative, open projects of such large scale that global policies and regulations will become more flexible to meet the needs of every stakeholder involved.”[146]

A great deal of attention has been paid by COMMUNIA to sharing and networked peer collaboration in education and research, especially at the 2nd COMMUNIA Conference, Global Science and the Economics of Knowledge Sharing Institutions, in Turin and the 8th COMMUNIA Workshop, Education of the Public Domain: The Emergence of a Shared Educational Commons, in Istanbul. In particular, at the 2nd COMMUNIA Conference in Turin, Professor Jerome H. Reichman, a distinguished member of the COMMUNIA advisory Committee, discussed the introduction of a contractually reconstructed commons via the ex ante acceptance of liability rules to promote the exchange of materials in a globally distributed and digitally integrated research commons.[147] At the same COMMUNIA Conference, Professor Paul Uhlir proposed a model of open knowledge environments (OKEs) for digitally networked scientific communication.[148] OKEs would “bring the scholarly communication function back into the universities” through “the development of interactive portals focused on knowledge production and on collaborative research and educational opportunities in specific thematic areas.”

However, the revolution is far more massive and distributed than collaboration in education and research. Technological change has brought about cultural change, because the audience has become an active participant in its own culture. Open networks and networked peer collaboration have transformed markets by enabling amateurs to innovate. User-generated creativity plays a central role in the digital cultural environment.[149] Individual experimentation, sub-cultures, and a community of social trust have created Linux, Wikipedia, Facebook, YouTube, and major political websites. Flexibility, decentralization, cooperative creation, and customization out-performed corporate bureaucracies unwilling to experiment, because it was too risky and costly. David Bollier have described this process as a “viral spiral” by which Internet users come together to build digital tools and share content on self-created online commons.[150] 

Moreover, new models of decentralized and cooperative creation incessantly out-perform theirself, as it is the case for open alternatives to Facebook. Faced with Facebook’s centralized nature and untrammeled desire to control online identities by trampling on privacy norms, the online community has been responding with the emergence of many projects and experiments to redress the deficiencies of the Facebook model. In particular, a group of four New York University students has launched an open, distributed social networking system called Diaspora.[151] The specificity of the Diaspora project resides also in crowdsourced founding that was largely raised out of the dissatisfaction for the centralized social networking models. Crowdsourcing is an increasingly popular tool to raise money online. On Kickstarter and the like platforms,[152] people can pledge for an economic goal set up in advance by the project developer. The quite amazing result of the Diaspora project is that, as a response to a campaign for collecting $10,000, the backers pledged over $200,000![153]

The MusOpen project provides an additional good example of the potential of public domain works when exploited within an open and peer based project. Musopen is a charity that aims to produce and distribute recordings and sheet music of public domain music.  The project allows users to suggest pieces that they would like to have recorded and to pledge funds to pay for the recording. Recently, after being fairly dormant for a few years, the project crowdfunded $70,000 through a KickStarter campaign. Aided by KickStarter, Musopen reached an audience passionate about freeing culture and public domain works.

The interactive nature of the web 2.0 has propelled user-generated creativity and defined a peculiar form of digital culture that has been termed as “free culture.”[154] Remix and mash up are now keywords of the cultural process taking place in the digital environment.[155] Remix culture has emphasized the potential for reuse of public domain material. Open networks, user-generated creativity, and remix culture have made the public domain highly generative. The public domain, once regarded as a “virtual wasteland of undeserving detritus,”[156] has become “a fertile paradise . . . a commons.”[157] 

The revolution brought by the web 2.0 and the fertile paradise that the public domain has become call for a copyright 2.0, as noted by Professor Ricolfi at the 1st COMMUNIA Conference.[158] This call is urged, as Professor Ricolfi puts it, by the fact that technology has radically transformed creation by attaching to it a new social emphasis. The long route that took works from the creators to the public by passing through a large number of intermediaries has been gradually replaced by a short route. This short route empowers a direct and unrestraint discourse between the authors and the public. [159] 

Copyright 2.0 stands for a relaxed and more flexible set of rules that may adapt to the new mechanics of creative production in the digital age. In particular, copyright 2.0 should serve and pave the way for the “short route” that enhances an unrestrained discourse between authors and the public. The notion and the features of copyright 2.0, as described by Professor Ricolfi, are endorsed by COMMUNIA as one its main policy recommendations.

Together with the cultural revolution of networked peer production, the nature of digital information and digitization may also extraordinarily enrich the public domain. Digital information are cheap and easy to collect, store, and make available via digital networks. The nature of digital information has propelled the creation of databases of legislative, jurisprudential and governmentally produced material; digital libraries, such as Europeana,[160] Project Gutenberg, Google Books, the Online Books Page,[161] the Hathi Trust Digital Library;[162] digital repositories; scientific libraries of reusable code; databases of scientific and technical information; vast non-profit digital archive of the Internet, such as the Internet Archive;  electronic journals; and MP3 files of music posted by bands wanting to attract a new audience.

Again, digital tools are changing research in science and scholarship in history, literature and the arts.[163] Our understanding of science and the liberal arts is changing by using high performance computers and vast stores of digitized materials. The human genome project is an example of how computational analysis of digitized data has changed scientific research. The emerging field of digital humanities encompasses a wide range of activities, including online preservation, digital mapping, data mining and the use of geographic information systems.

Digital humanities can reveal unexplored patterns and trends by analyzing unprecedented amounts of data. Few months ago, Google has made a gigantic database from nearly 5.2 million digitized books available to the public for free downloads and online searches.[164] A simple online tools will allow anybody to browse cultural trends throughout history of digitized literature by inserting a string of up to five words and see a graph that charts the phrase’s use over time. A recent study has already investigated the vast array of research opportunities now open to literature, history and other liberal arts by the Google project. The research team drafting the study have termed the new field of study as “culturomics” which should extend “the boundaries of rigorous quantitative inquiry to a wide array of new phenomena spanning the social sciences and the humanities.”[165] We may take a peek at the new opportunities of enhanced understanding brought by “culturomics” by looking at a graph generated by the Google Ngram Viewer reporting the use of the phrases “copyright” and “public domain” in the last two centuries. Enlightening, isn’t it?

Fig. 1

The Google database is the most relevant example of many other research projects set to demonstrate how vast digital databases can transform our understanding of language, culture and the flow of ideas. Researches at Stanford and Oxford Universities are charting the flow of ideas during the Enlightenment by using a geographic information system to trace the letters’ journeys.[166] Other projects are digitally mapping battlefields to see the role that topography played in victory, researching through a large libraries of books and text to see how ideas first appeared and spread. Again, researchers are digitally combining charts, documents and other information on travels of historical figures to come up with reveling patterns, using databases of thousands of jam sessions to track how musical collaborations influenced jazz, or digitizing the depiction of the Battle of Hastings in the Bayeux Tapestry, a 68 meter long embroidery, to propel artistic and historical research. Several projects attempt to push digital humanities in a more co-ordinated direction. In Europe, the Digital Research Infrastructure for the Arts and Humanities (DARIAH) aims to enhance and support digitally-enabled research across the humanities and arts.[167] Institutions in Britain, United States and Canada teamed up to create the create the Digging Into Data Challenge, a grant program designed to push research in the field of digital humanities.[168] 

The digital environment has the potential to make knowledge a truly global public good. As Charles Nesson reminded us, the “challenge is how to use this environment to create knowledge.”[169] Human inventiveness has provided us with a ground-breaking solution to underdevelopment, isolation, and cultural and social divide. The open question is whether we, as a society, are up to the task of re-inventing and challenging our notions of democracy, education, economy, and social interaction. This is a daunting enterprise. It is daunting because

. . .our intelligence tends to produce technological and social change at a rate faster than our institutions and emotions can cope with . . . we therefore find ourselves continually trying to accommodate new realities within inappropriate existing institutions, and trying to think about those new realities in traditional but sometimes dangerously irrelevant terms . . . .[170]

However, if we manage to extract full public value from the public domain with the help of technological advancement, our culture and society may flourish as never before. COMMUNIA maintains that Europe should not be afraid of changing and flourishing. COMMUNIA believes that policy strategies implementing openness in information management are the key to any change that may fully exploit technological advancement. Any actions toward the enclosure of the public domain should be reversed. Outmoded intellectual property models should be re-invented. Professor Ricolfi reminded us at the 1st COMMUNIA Conference that the time to take up this challenge has come, regardless of how daunting the task be.

Of course, to go this way, one would have to change hundreds of laws and a few international conventions. I do not know that this is an impossibility. I am among those who, at the beginning of the digital age, insisted that it was too early to legislate. In my opinion, however, the time has now come. It is for you to decide whether this is an impossibility, a dream or, may be, a vision. What I know is that the present time – and the present place – are the best to discuss this.[171] 

The interaction between a cultural production and distribution mode based, on one side, on market decisions and, on the other side, on decentralized non-market decisions of social sharing calls for a recalibration of the policy agenda for the digital environment.

First, the agenda should incorporate rules which are appropriate not only for the long route but also for the short route. Second, it should allow for the “peaceful coexistence” of the two sets of rules, making them interoperable, in such a way that the continued existence and specific contribution of the two sectors is maximized. Third, obstacles inherited by the past which unduly inhibit the emergence of the short route should be gradually phased out in ways which should minimize the disruption of the workings of the old route.[172]

This vision is shared by many worldwide. At the WIPO Global Meeting on Emerging Copyright Licensing Modalities – Facilitating Access to Culture in the Digital Age, scholars have called overhaul of the copyright system which will "never work on the internet." In proposing a roadmap for copyright reform, Professor Lessig urged WIPO to form a “blue sky commission […] that has the freedom to think about what architecture for copyright makes sense.” This architecture must be simple and targeted – regulation makes sense in some areas, such as protecting professionals, but not in others, such as in amateur remixing.[173] Professor Lessig’s call for change has not gone unheard. Recently, Francis Gurry, Director General of the World Intellectual Property Organization, has powerfully reinforced the very same idea by noting that there is “no other choice – either the copyright system adapts to [digitization] or it will perish.”[174] As Francis Gurry additionally opined, that adaptation should not be “determined by a Darwinian process of the survival of the fittest business model,” but it “should, rather, be established through a conscious policy response.”

This solicited change is sought to address the many challenges and tensions that the present intellectual property system is presenting to the public domain. The remaining part of this portion of the Report will introduce and discuss the most relevant of those challenges and tensions. Later on, Annex III of this Report will lay down the principles that COMMUNIA understands should inspire policy strategies to overcome the challenges, redress the present tensions, and promote the digital public domain.


[137] Bollier, The Commons as New Sector of Value Creation, supra note 128.

[138] See Karl Polanyi, The Great Transformation (1944)

[139] See Markus Giesler, Consumer Gift System: Netnographic Insights from Napster, J. Consumer Res. 283 (2006), available at www.markus-giesler.de/publications.htm.

[140] See Benkler, The Wealth of Networks, supra note 95.

[141] Id., at 101; see also Jerome H. Reichman, Of Green Tulips and Legal Kudzu: Repackaging Rights in Subpatentable Innovation, 53. Vand. L. Rev. 1743 (2000).

[142] Benkler, The Wealth of Networks, supra note 95, at 60.

[143] See Lewis Hyde, The Gift: Creativity And The Artist In The Modern World (Vintage Books 2007) (1979) (describing creativity exchange among artists); Robert K. Merton, The Sociology Of Science: Theoretical And Empirical Investigations 273-275, 339 (Norman W. Storer ed., University of Chicago Press 1973) (exploring norms of sharing among scientists).

[144] See Yochai Benkler, Coase’s Penguin, or, Linux and The Nature of the Firm, 112 Yale L. J. 369, 374 (2002); Benkler Yochai & Helen Nissenbaum, Commons-Based Peer Production and Virtue, 14 J. Pol. Phil. 394 (2006); see also Hetcher Steven A., Hume's Penguin, or, Yochai Benkler & the Nature of Peer Production, 11 Vand. J. Ent. & Tech. L. 963 (2009);

[145] See Michael J. Madison, Brett M. Frischmann & Katherine J. Strandburg, The University as Constructed Cultural Commons, 30 Wash. U. J. L. & Pol’y 365 (2009).

[146] Rishab Aiyer Ghosh, Technology, Law, Policy and the Public Domain, speech delivered at the 1st XXX Workshop (January 18, 2008).

[147] See Jerome H. Reichman, Formalizing the Informal Microbial Commons: Using Liability Rules to Promote the Exchange of Materials, speech delivered at the 2nd COMMUNIA Conference (June 30, 2009); see also Jerome H. Reichman, Tom Dedeurwaerdere, and Paul F. Uhlir, Designing the Microbial Research Commons: Strategies for Accessing, Managing, and Using Essential Public Knowledge Assets (Yale U. Press, forthcoming 2011).

[148] See Paul F. Uhlir, Revolution and Evolution in Scientific Communication: Moving from Restricted Dissemination of Publicly-Funded Knowledge to Open Knowledge Environments, paper presented at the 2nd COMMUNIA Conference (June 28, 2010); see also Paul F. Uhlir, The Emerging Role of Open Repositories for Scientific Literature as a Fundamental Component of the Public Research Infrastructure, in Open Access: Open Problems (G Sica ed., Polimetrica 2006).

[149] See Mashing-Up Culture: The Rise Of User-Generated Content (Eva Hemmunngs-Wirtén & Maria Ryman eds., proceedings from the COUNTER workshop Mashing-up Culture, Uppsala University, Sweden, May 13-14, 2009), available at http://counter2010.org/wp-content/uploads/2009/10/counter_proceedings_09.pdf.

[150] See Bollier, Viral Spiral, supra note 130.

[151] See Diaspora, https://joindiaspora.com.

[152] See Kickstarter, www.kickstarter.com.

[153] See Kickstarter, Decentralize the Web with Diaspora, project by Daniel G. Maxwell S. Raphael S. Ilya Z., available at http://www.kickstarter.com/projects/196017994/diaspora-the-personally-controlled-do-it-all-distr.

[154] See Lawrence Lessig, Free Culture: The Nature And Future Of Creativity (Bloomsbury Academic 2005).

[155] See Lawrence Lessig, Remix: Making Art And Commerce Thrive In The Hybrid Economy (Bloomsbury 2008).

[156] Samuelson, Mapping the Digital Public Domain, supra note 63, at 147.

[157] Bollier, The Commons as New Sector of Value Creation, supra note 128.

[158] Marco Ricolfi, Copyright Policies for Digital Libraries in the Context of the i2010 Strategy, paper presented at the 1st COMMUNIA Conference (July 1, 2008) [hereinafter Ricolfi, Copyright Policies]

[159] Id., at 12.

[160] See Europeana, supra note 140.

[161] See The Online Books Page, http://onlinebooks.library.upenn.edu;

[162] See The Hathi Trust Digital Library, http://www.hathitrust.org/about.

[163] See Patricia Cohen, Digital Keys for Unlocking the Humanities’ Riches, The New York Times, November 16, 2010, http://www.nytimes.com/2010/11/17/arts/17digital.html?_r=1.

[164] See Google labs, Books Ngram Viewer, http://ngrams.googlelabs.com; see also Patricia Cohen, In 500 Billion Words, New Window on Culture, The New York Times, December 16, 2010, http://www.nytimes.com/2010/12/17/books/ 17words.html?_r=2.

[165] See Jean-Baptiste Michel et al, Quantitative Analysis of Culture Using Millions of Digitized Books, Science, December 16, 2010 (published online), http://www.sciencemag.org/content/early/2010/12/15/science.1199644.abstract; see also John Bohannon, Google Opens Books to New Cultural Studies, 330 Science 1600 (2010).

[166] See Mapping the Republic of Letters, http://stanford.edu/group/toolingup/rplviz.

[167] See DARIAH, Digital Research Infrastructure for the Arts and Humanities, http://www.dariah.eu.

[168] See Digging into Data Challenge, http://www.diggingintodata.org.

[169] Charles Nesson, speech delivered at the 3rd COMMUNIA Conference, University and Cyberspace: Reshaping Knowledge Institutions for the Networked Age, Turin, June 28-30, 2010.

[170] Gwynne Dyer, War: The Lethal Custom 253 (Crown 1985).

[171] Ricolfi, Copyright Policies, supra note 220, at 15.

[172] Id., at 14.

[173] See Larry Lessig, speech at the WIPO Global Meeting on Emerging Copyright Licensing Modalities – Facilitating Access to Culture in the Digital Age, Geneva, Switzerland (November 4, 2010), available at http://www.freedom todiffer.com/freedom_to_differ/2010/11/larry-lessig-calls-for-wipo-to-lead-radical-overhaul-of-copyright-law.html.