Digital Commons - Knowledge, copyright and patents.
Contributors: Dimitris Kouloukakis, Dimitar Dimitrov, David Hammerstein, Joren de Wachter, Natalia Avlona, Lasse Gullvag Saetree, Sophie Bloemen
The way we manage knowledge, has a determining effect on social and economic wellbeing. Knowledge differs from most other resources, as one person’s use of knowledge does not subtract from another persons capacity to use it. Hence, sharing leads to abundance not scarcity. Our books, our songs, our movies and stories constitute the mosaic of our culture and constitute our cultural commons. Sharing and re-use has been an important part of economic activity, its also a basis for collaborative creation and online peer to peer production.
Unfortunately over-restrictive copyright laws have led to limiting access to culture and knowledge which are common goods. There has been a rapid global expansion of copyright protections, but no corresponding developments of the rights of users. This criminalizes users, especially in the global south, and constrains the flow of scientific knowledge and innovation.
In addition, applying copyright to domains where it does not belong (including, e.g. information technology by applying copyright to software code), acts as an important brake on co-operation, derivative work, and innovation. Since the essence of innovation is both co-operative and derivative, copyright's default prohibition position causes innovation to slow down or become impossible without breaking the law.
The multiplication of fields into which copyright applies, in combination with the creation of ever more neighbouring or derivative rights, leads to an incomprehensible and very complex patchwork of exclusive rights. This has the tendency to strengthen the position of those at the distribution/marketing side of the value chain - which is probably the worst place to allow monopoly-hoarding.
Copyright should not be used to lock away or privatize cultural, academic or scientific knowledge, nor should enforcement measures be used to promote private policing of the web by internet servers and companies. .
Cultural Heritage Commons
The reproduction of cultural works, specifically their digitisation, will in the coming years be the most powerful tool not only for the preservation the commons but also for providing access to it to researchers, students, and the general public. If such digitisations [that are faithful reproductions of the works they depict and do not constitute a creative transformative use of the works] were themselves copyrighted, the access to the commons will be jeopardized.
The EU must therefore safeguard the commons by clarifying that once a work is in the public domain, any digitisation of the work which does not constitute a new, transformative work, stays in the public domain;
Broad exceptions and limitations to copyright should be established to assure the right to non-commercial sharing, copies for cultural preservation, the right to re-mix, text and data mining in the public interest, access to culture of people with disabilities and freedom of panorama photography.
The current EU copyright reform will be key in determining how knowledge is managed, how cultural and scientific productions, online collaborative production develops in Europe and beyond.
[The EU´s copyright framework must protect the right to link webs, limit the term and scope of copyright protections of publishers and music companies, eliminate intermediary liability of internet companies and establish a fair use mechanism for sharing culture on line. ‘
In information technology, Open Source should be the default position applicable to any software code or data. Deviations (private enclosures) of the commons should be made conditional upon the application of open standards and open licenses, against fees when appropriate.
The use of open data formats. For example the majority of people are "forced" to use MS office because institutions, organisations and companies do so and this makes the transition to open/free software solutions such as LibreOffice more difficult just because companies such as MS lock their users on their products.
In Biotech, DNA and other genetical information should be declared as Public Domain or Open Source; not capable of appropriation by copyright.
In addition, it should be considered that any enforceability of the exclusive reproduction/distribution monopoly right attached to copyright should be linked to two conditions:
- one of registration, to ensure that it is clear who "owns" what, to be combined with compulsory open licensing, against fees when appropriate
- one of payment of appropriate compensation/taxation; a private enclosure of the commons of knowledge should never be free. Such payment should increase significantly over time (e.g., starting from a low base, double in amount every year).
Finally, the dead hand of monopoly copyright after the death of the author should be abolished.
A case for Open Patents (comment: perhaps it can be integrated to the above text, or should be as another section, I am not sure what would be best)
Patents destroy innovation
We hear about patents everywhere. Everyone is including them in indexes for progress, innovation, rating research institutions, universities, companies etc. The proponents of the patent system believe that patents are helping to stimulate innovation by making the knowledge publicly available and granting the inventor the right for exclusive commercial usage.
Unfortunately the patent system currently is doing the opposite. As we have patent “trolls”, companies who buy or file patents just to stop competitors from innovating, lawyers writing patents just to make them obscure and not understandable and hundreds of court cases, or patent “wars” as they are known where companies fight with their legal departments trying to undermine innovation to each other. Another less known problem is the cost to acquire a patent, in terms of money and time. The cost for a European patent is around 30.000€ (https://effi.org/system/files?file=cost_anaylsis_2005_study_en.pdf) making it almost impossible for start ups or even SMEs to apply with such a high cost for just obtaining the patent. Thus leaving knowledge and innovation buried in drawers.
A couple of simple ways to apply for a patent and mark it as open similar to the Creative Commons licences.
OP - BY
OP - BY - SA
(I think the NC and ND do not make sense in the patents... what do you think?)
Following the example of business man and Tesla CEO, Elon Musk, who publicly declared that anyone can use Tesla's patents since they believe at Tesla "other companies making electric cars, and the world would all benefit from a common, rapidly-evolving technology platform" (https://www.teslamotors.com/blog/all-our-patent-are-belong-you)
So we propose that for any patent application done that will be marked as Open patent to be done for free or with a very low fee < 500€. Thus enabling inventors, SMEs, social innovators and even students to apply for patents, releasing the knowledge to public but also acquiring the recognition they deserve and the corresponding points to the indexes that use patents. Also this can help Europe’s policy making around open source and social innovation by suggesting that in the future all publicly funded innovation should be filed as open patents. For example it strikes us very odd how is it possible for private research institutes or even Universities who do research with European taxpayers money to acquire patents on the results of that research and claiming them as their own, thus us citizens paying licensing rights on the products that come out of the research that we had funded in the first place.
1. What are the existing experiences of the commons movement in this field, and initiatives of commoning related to this issue?
- There are creative commons licenses that protect the cultural Commons
- sharing knowledge on lines & collaborative production
‘Just in the past 3 months our social co-op applied in a competition and was thinking to apply for a EU development fund, both had in their point system a patent filing. The problem is that although we know that our product could acquire a patent, first we do not have the capital to file for one and most importantly we do not want since we are an open source company. But the current institutions and organisation across the world do not understand yet the benefits of open source innovation. So to follow on the example of the GPL and Creative Commons licences who hacked the copyright law, we propose to hack the patent system, although personally I’d prefer for them to be abolished.’ (Commons lab Greece)
2. Why is this proposal pertinent to be discussed at the European scale, with the EU institution, in the EU Agenda? It could also be because it is an urgent matter to introduce at this scale of policy.
- Intellectual Property Protection is regulated mostly on a European level.
3. What are the main ideas the commoners are reclaiming or struggling for in this field ?
-Limited IP rights, more balanced system, broad exceptions, what’s in the public domain stays in public domain, open patents (access to medicines, access to education, remix re-use, cultural heritage preservations)
4. What are the already experimented measures in this field and where (in a particular country? part of Europe? Elsewhere?
- Creative commons licenses
- Fair Use (US)
- Compulsory license
- voluntary license
5. Who are the actors involved in these struggles ?
- large publishers and pharma companies
6. How could these commons or commoning action be reinforced, scaled up, or replicated?
- legislative protection
- compulsory liceces
- open patents
7. What are the resources needed?
8. Who could do what to move forward?
- Raise awareness on collaborative creation and benefits of knowledge sharing.
- Create pressure on EU policy process.
9. What is needed from the EU institutions?
- Intellectual property rights regulation reform in the public interest