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# Fundamentalists and Pragmatists, Public-ists vs. Commoners
- URL: https://www.opendemocracy.net/en/19277/
- Published: 2006-06-24T22:06:00.000Z
- Updated: 2019-02-14T22:35:00.000Z
- Author: openDemocracy Supporters
- Tags: #en, #Migrated, #Import 2026-04-09 18:23

The fascinating fight that is unfolding for me at the summit is the one  
between the pragmatists---call the Commoners---and the fundamentalists---I'll  
call them, for now, the Public-ists. (and maybe pronounce it \`\`Publik-ists").  
  
Here is the essence of the fight: the Public-ists think that Creative Commons  
licenses as we have them are destroying the public space in which, in practice, much production falls today and could. They also believe that with some activism this space could have a legal reality too. In many cases, offering CC licenses to creators makes them aware of  
copyright where there once was, in practice, only community-based mores for  
appropriate behaviour. Some of the CC licenses are really quite  
restrictive---for example Non-Commercial, No Derivative, Attribution is very  
explicit in limiting the ability of other users to make derivatives or make  
money from a work. The very existence of the CC license, claims the  
Public-ists, changes our attitude towards creations; they emphasise the role  
of the individual as creator, they undermine the necessity of reciprocity and  
dependency in creation. Even while releasing some copyrights, the licenses  
reinforce a product-based, hit-oriented conception of cultural production. The  
Public-ists would like to see reform of Copyright rather than work within its  
confines and gradually make The Commons an adventure playground for lawyers  
with as many licenses as joy-rides.  
  
Mensheviks vs. Bolsheviks, Jacobins vs. Girondins, Commoners vs.Public-ists?  
The inevitable pragmatist/fundamentalist tussle that marks a healthy reform  
movement? Yes, but the divisions do seem like a waste of energy: there is only  
a pragmatic way forward. As Lessig pointed out when confronted this morning by  
the Public-ist [Niva Elkin Koren](http://law.haifa.ac.il/faculty/faculty%5Findex.asp?ftype=personal%5Fpage&lang=eng&lec%5Fid=4&show=4&ref=opendemocracy.net),  
the \`\`No Derivative" restriction can come about through utterly legitimate  
reasoning: when [Davis Guggenheim](http://www.pbs.org/firstyear/?ref=opendemocracy.net), a  
documentary film maker who filmed LA public school children, he chose \`\`No  
derivative" because he had a moral contract with his subjects to take a  
specific perspective. A \`\`remix" of the film to other political ends would  
have violated that moral engagement. So Lessig's gauntlet to the Public-ist:  
\`\`whose legitimate concerns are you going to refuse to cater for, and why?"  
  
From here, [Tom Chance](http://tom.acrewoods.net/about?ref=opendemocracy.net) took the discussion in a  
great direction with a question about \`\`communities of use": it is in the  
detail of how different communities create and use creations not only that a  
mix of freedoms (and therefore rights and duties) should be sought, but  
one should also not over-legalise communities. The science community, for  
example, is self-policed in all sorts of ways when it comes to priority over  
data, to the re-use of pre-publication working-paper material, etc. There is a  
technology requirement to this: make the online communities, and they will  
find para-legal policing mechanisms. The subtlety of this point was missed by  
self-styled punk rocker [Jenny Toomey](http://www.futureofmusic.org/index.cfm?ref=opendemocracy.net)\---but then it is intrinsic to  
that community to avoid these subtleties, no?  
  
So, do we over-legalise by pushing for CC everywhere? well, we legalise areas  
which were previously de facto anarchic; something is destroyed. Would it be  
better to push for only Public Domain licensing? Much would never then be  
produced at all. Would it be better to do nothing and let de facto anarchy  
expand? That would not just be fundamentalist, but would allow huge scope for  
copyright-based business models to populate that space.