[Free transcription of my intervention at the S&D Group debate: 'Copyright: what is broken, how to mend it?' on Thursday 18 October, 2012 at the European Parliament, Brussels. A link is available below for downloading this article in pdf format. Update: Spanish translation in <http://derecho-internet.org/node/582>]
Thank you for your invitation as a speaker in this open debate on the copyright reform.
We have been listening for two hours about authors, works, copyright infringements and it surprises me that nobody has mentioned yet the wealthiest work built under intellectual property.
In 1986 a group of authors continued with the composition of a documentation set that was licensed under an intellectual property permissive model: copying of the documents not only was allowed but was promoted. The group of technically skilled authors incorporated what was known as the IETF, Internet Engineering Task Force. The document set consists of the so called RFCs, Request For Comments, and it has happened to be a successful adventure which has transformed radically, amongst others, the way we communicate, the economy, the kind of society we live in and the way we make politics. I refer to Internet foundings and the task of this documentation licensed under a permissive model is enable computers to talk to each other.
Even though Internet is the most important and the wealthiest intellectual property work built in the last times, it seems to be invisible. Although free works (free as in freedom, not as in gratuit) are the core of our society, the study of the effects they suffer when legal regulations are modified is not in the public discourse. But before arriving to the point of intellectual property, please let me speak about the context where the copyright reform will operate so we can analyse properly its implications.
The four domains of the commons
Elinor Ostrom was awarded in 2009 with the Economic Sciences Nobel Prize for her analysis of economic governance, especially the commons and her writings can illuminate us when researching on this field. Ostrom and Hess (2001) were the first to propose the treatment of information as a common pool resource. The commons are resources collectively owned by communities. As such a commons, information suffered the same perils as the rest of goods in this category:
The records of scholarly communication, the foundations of an informed, democratic society, are at risk. Recent legal literature heightens our awareness of "the enclosure of the intellectual public domain" through new patent and copyright laws. There are a number of issues concerning the conflicts and contradictions between new laws and new technologies. Information that used to be "free" is now increasingly being privatized, monitored, encrypted, and restricted.
Antonio Lafuente taught us in a most clarifying paper that the commons develop their existence in four domains. These domains are body, nature, city and digital. Examples of commons in each domain can be: the DNA in the body domain, clean air, fisheries, woods, sea in the nature domain; the cities sewer systems and activities born within urban life like dancing waltz, playing football or painting graffiti would exemplify the city domain, whilst the best example of the digital domain is free (as in freedom) software. Amongst many others, perils to these commons are the cases of patents on biological organisms, the possibility of reaching agreements on greenhouse gas emissions under Kyoto Protocol, enclosures to public spaces where to practice sports or the appropriation of traditional knowledge.
Lafuente's categories serve us as a great conceptual tool to approach the commons we are most interested when dealing with intellectual property: the commons in the digital domain. To specify further, Harvard Professor Yochai Benkler distinguishes three layers in the digital domain: The infrastructure, the logical and the content one. Infrastructure layer components are designed to match requirements of the RFCs open standards, the logical layer is composed by software that handles domain system, web and email servers, web browsers, email clients or operating systems like GNU/ Linux. On the content layer we find works like Wikipedia, OpenStreetMaps, the semantic web or Tim Berners-Lee work opening governments. I should add that this morning I checked the web server of this parliamentary group and it is a free software Apache-Coyote server. This means this parliamentary group is profiting from the digital commons for free.