From Creative Commons to Creating Commons

The traditional order of culture – with clear positions for artists/authors, works and audiences, mediated by producers, publishers, gallery owners, and so on – has finally come into crisis as a result of digitization. The new order, however, is still unclear and highly controversial. The first round of the dispute focused on the field of copyright law and thus on the control of circulation. In the current round, everything revolves around central platforms and their structures of order, access and value creation. As producers of culture, artists are at the heart of these upheavals. While many are busy supporting the content industries in enforcing stricter laws – supposedly in their own best interests – a few others see themselves as engineers of a new order and experiment with the development of their own forms of social production and circulation.

Creative Commons and the Utopia of the Free License

On June 1,1999, U.S. student Shawn Fanning released the Napster software, which allowed users to connect with others to share music. The network was mediated by a central server, which provided an up-to-date directory for searching the offered files and finding a certain piece anywhere in the network. Barely six months later, the Recording Industry Association of America (RIAA) launched a lawsuit for copyright infringement that further increased the publicity of the service. Within 18 months, the number of users grew to over 25 million, an overwhelmingly large number at the time. Shortly afterwards, the service was closed, but the knowledge of how easily the digital genie could escape from the bottle of property had entered mainstream.

Of course, Napster wasn’t the only leak in that bottle. At the turn of the millennium, a complex digital culture had emerged. It relied heavily on the appropriation, modification and dissemination of existing works in both amateur and professional fields – a development against which the established cultural industries proceeded with increasingly aggressive technical (digital rights management) and legal means (cease-and-desist letters and lawsuits).

Against this backdrop, a group of liberal copyright specialists, mainly from US universities, assembled to found Creative Commons. In its core, CC is a set of licenses that make it easier for artists to make their works available to users in a way that allows actions that are part of digital everyday life. Its aim was to modernize copyright practice and adapt it to the new conditions of easy copying and distribution. Accordingly, non-commercial distribution has always been permitted for CC licensed works, and every author is free to allow commercial use and modification of her work. The hope was that through the use of the licenses a pool of freely available resources would emerge – a commons, which would form the basis for new creative works.

However, the success of this initiative calls for a differentiated consideration. Creative Commons licenses have undoubtedly become the global standard in the field of free licensing of cultural works. Not only are they used by default by major projects such as Wikipedia and other Web 2.0 platforms; they also form the basis of Open Access in the academic sector. At the same time, the project can be considered a failure because it has done little to change the basis on which the free licenses are building, namely copyright law. All newly created works are still automatically protected by copyright, which usually applies until 70 years after the author’s death. The long period of validity is one of the main points of criticisms, because many works for which there is no longer a commercial interest after a few years, can still not be made accessible and instead end up in archives, where they often disappear for reasons of unresolvable legal issues. For artists, however, the more relevant critique concerns the restrictions regarding reworking. Every artist still runs the risk of coming into conflict with the law if she collages, remixes or samples protected material. The reasons for the cumbersome nature of copyright reform are not least the great perseverance of those who bind their existence to the dwindling copyright market. On the one hand, these are the big cultural-industrial content providers, such as the film and music industry, but also representatives of the artists themselves, such as the collecting societies. They have been engaged in many countries in fierce, backward-looking battles for a long time such as the empty media levy that positions artists against users.

But mistakes were also made on the supposedly progressive side, as can be seen in retrospect. Artists who have understood that control over use is increasingly becoming a control over their production, demanded exceptions for artistic practice. If, for example, they are dependent on protected material as “raw material” that is to be processed by collage and remix techniques, there is always a potential copyright conflict present. One of the preferred defence strategies, artists’ claim for freedom of art, however, does little to accomodate new forms of networked creativity and digital authorship; instead, it conjures up precisely that exceptional autonomous subject from which many artists were trying to turn away. And all those creators who have not reached the threshold of “professional art” – which is true for most producers of digitally processed content – are not helped in any way by the invocation of artistic freedom.

Meanwhile, the structures of the digital cultural economy have shifted radically. With Web 2.0, the social mass media, powerful players have emerged whose economy is no longer based on restricting access to content by means of copyright, but on creating access to an immense pool of cultural products. In doing so, they design the conditions of access in such a way that their own profit interests are at the centre of attention, in which, for example, extensive collection and evaluation of data is central. The American political scientist Shoshana Zuboff speaks with regards to these developments of a new “surveillance capitalism.” Copyright disputes which may arise from this practice are resolved through years of litigation and the court rulings have subtly changed copyright pracitce (e. g. in the dispute between Authors Guild, Inc. v. Google, Inc. (2005-2015) on the question of whether Google is allowed to scan books and then make them accessible in extracts), or the rights holders are bought off with relatively modest sums of money (e. g. on Youtube or Spotify). In these all-dominant conflicts between the old and the new cultural industries, many artists are threatened to perish.

Creating Commons and the Utopia of Free Society

What is becoming ever more clear from the increasingly popular discussion of commons is that Creative Commons as a project has been based on a too narrow idea of what commons are. Creative Commons has equated commons with a pool of freely available resources. What has been overlooked, however, is that commons are primarily social institutions formed around such a pool of resources. Collective action is an essential characteristic of commons and contributes to a reorganisation of the social. Creative Commons, on the other hand, considers commons – in a typically neo-liberal way – exclusively as aggregated individual actions.

In a network of file sharing technologies and shadow libraries that has developed over a long period of time, a gigantic pool of works has emerged parallel to the events on the surface that has completely escaped the control of the rights owners and commercial platform providers. Some groundbreaking artistic projects are based on this, such as UbuWeb, the avant-garde archive, aaarg, a collection of texts on the subject of architecture, art, philosophy and media theory, or 0xdb, an experimental film database – to name just three.

What all these projects have in common is that they make cultural works freely available to specific interest groups on specially designed technical infrastructures. They vary in scale in terms of users and content provided and are self-managed projects of often networked small operator groups. These projects are based on a number of common assumptions. Firstly, that the low-threshold availability of cultural works is a basic condition for an emancipatory, artistically productive cultural order under the conditions of digitality. Secondly, that the excess of available material erodes the established contexts that create meaning (which can be seen as positive or negative) and that it is therefore necessary to create new contexts in which not only quantitative, but also qualitative meaning can emerge. Thirdly, control is nowadays exercised over the flexible modalities of access, and less over the fixed limits of ownership – very much in resonance of what Gilles Deleuze suggested with the concept of the control society back in 1990. Theses various new forms of control is exactly what the introdiced projects are trying to elude.

UbuWeb, aaarg and 0xdb each designs different models of what artistic practice and cultural institutions could look like under post-copyright conditions. UbuWeb offers a fully accessible web archive that provides direct access to digitized artistic works. The collection contains thousands of works of art from the fields of fine arts, dance, performance, sound, concrete poetry, film and video. Ubu contextualizes them within curated sections and also contains accompanying academic essays. Although the project is run without any budget, it has become one of the most important reference points for 20th century avant-garde art; it is famous for being able to find everything that you won’t find anywhere else on Ubu. The face of the project is New York writer and artist Kenneth Goldsmith, who is also a key figure in determining the content. He does not feel obliged to any art historical categories, but combines personal preferences with pure pragmatism. In an interview he explains his artistic concept, which consists of applying archival activities as they form the basis of the collection, to his literary activities. Consequently,”Uncreative Writing” is the title of his book, in which he explains that intelligent re-contextualization is more relevant than the creation of what is supposedly new. has a distinctly different orientation. The collection of largely theoretical and academic texts on the clearly defined subject areas of architecture, art, philosophy and media theory has evolved from a self-organised school, the Public School. The first collections consisted of the working materials of the various working groups and reading groups, and it was only gradually that the database, accessible only to invited users, developed a dynamic beyond the immediate educational environment. Nevertheless, important aspects of aaarg have emerged from its early use. It is the users themselves who compile and upload the content. They comment and discuss the texts and create personal collections. The aspect of interaction and community-building has always been a key feature of the project. The project is publicly represented by American artist Sean Dockray. Coming from a background in architecture, he is interested in experimenting with developing technical platforms on which people can meet, discuss texts and theories, and relevant content can be sensibly organized.

While UbuWeb and aaarg are based on relatively simple but well thought-out technological platforms, the 0xdb is a technologically much more demanding project. Based on the question of how to deal with large amounts of film material, Sebastian Luetgert and Jan Gerber have developed a complex platform to combine texts (subtitles, annotations) and film and to use an automatically generated timeline and visual fingerprints to enable a different approaches to film as material.

All three projects create complex installations of artistic vision, technological infrastructure and collective cultural practices, which can be described as new forms of cultural commons. They not only give an idea of what could be possible if we circumvent both the old and the new cultural industries, but also provide practical examples of what the potential of artistic practice under current material conditions could be. Here, a practice is designed in which artistic practice can be seen as a laboratory for a future society in which the categories of the classical cultural order no longer play a central role.

Cornelia Sollfrank and Felix Stalder, November 2017

German version published in: Blickpunkt. Zeitschrift der IG Bildende Kunst, Wien, Herbst 2017, Nr. 44, S.22-25