Fundamentalists and Pragmatists, Public-ists vs. Commoners

 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,
the ``No Derivative" restriction can come about through utterly legitimate
reasoning: when Davis Guggenheim, 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 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---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.