The Globalisation of “Open”Heather Ford, DRAFT for WikiWars readerDecember, 2009

The world has become a colouring book again. Nowhere more apparently in the open source and free content community, where we like to colour in world maps with places we’ve conquered. Whether it’s Lawrence Lessig talking about areas of the world that have been ‘liberated’ by Creative Commons1, or Wikipedia ‘buil(ding) an international network of associated chapters’2, ‘free culture’ is definitely going global.

Country chapters and projects from Creative Commons and Wikipedia grew organically from the original American nodes, relying on volunteers in a country taking the initiative to build a local community of people to fly the free culture flag. This has worked well for the past few years. But the rapid growth of these projects seems to hit a wall when it comes to the continent of Africa. People don’t seem to want to be involved – and when they do, it’s in such small numbers that they don’t get the kind of traction necessary to create an organic community.

South Africa is the only country in Africa to have ‘ported’ the Creative Commons license to the national jurisdiction3. This was in 2005. That’s one country in seven years – with only Jordon and Nigeria on the horizon for future launches. Wikipedia isn’t in much better shape when it comes to Africa. There isn’t a single Wikimedia chapter on the continent and the work of Mark Graham has shown that, although the numbers of Wikipedia volunteers are dwindling, there are still ‘whole continents that remain a virtual “terra incognita”4’.

Says Graham: ‘Almost all of Africa is poorly represented in Wikipedia. Remarkably there are more Wikipedia articles written about Antarctica than all but one of the fifty-three countries in Africa (or perhaps even more amazingly, there are more Wikipedia articles written about the fictional places of Middle Earth and Discworld than about many countries in Africa, the Americas and Asia).’

Graham believes that ‘the next explosive growth in the online encyclopedia will come from places that have not previously been represented’. He points to the arrival of more broadband to many parts of Africa as a way that ‘people there will start discovering Wikipedia, and that the site will see a second explosion of new editors and articles about places that have so far been ignored’.

He adds that ‘it is equally conceivable that as peer-produced projects such as Wikipedia become our primary sources of knowledge, we could begin to see permanent information inequalities between different parts of the world.’

There are obviously many reasons for Africans not joining the global free culture movement. My goal with this paper is to try to explain one of those reasons. It is to attempt to make transparent the particular politics at play in the design of Creative Commons licenses, to show how CC is a political artefact and how, as a political artefact representative of the values and principles of its architects, it continues to mirror global

1 Here http://lessig.org/blog/2005/06/the_spreadofcc.html and 2 Here http://wikimediafoundation.org/wiki/Local_chapters 3 I was involved in this effort with my colleague, Andrew Rens4 Mark Graham ‘Wikipedia’s known unknowns’ on the Guardian, 2 December, 2009 http://www.guardian.co.uk/technology/2009/dec/02/wikipedia-known-unknowns-geotagging-knowledge. Graham writes here http://zerogeography.blogspot.com/

inequalities that exist in the real world. It is my belief that, if organisations like Creative Commons and Wikipedia do not design for global solidarity, they will never achieve it.

As someone who has passionately argued and fought for the principles of free culture, this paper is a labour of love. It is an attempt to understand where we went wrong, where we continue to go wrong, in the hope that perhaps we might break out of the patterns that the world has dictated and go back to those days when we imagined that the Internet held new possibilities.

Wikipedia and Creative Commons

On the 21st of May this year, the Wikimedia Foundation Board passed a resolution to move from the GNU Free Documentation License (GFDL) to the Creative Commons Attribution/Share-Alike License (CC-BY-SA) as their primary content license.

‘The Wikimedia Foundation Board of Trustees passed a resolution that will bring about significant changes to the way the content of the Wikimedia Foundation projects, including Wikipedia, will be licensed. This resolution follows a vote among the international Wikimedia community. More than 17,000 votes were cast, with strongest participation in English, German, French, Russian, Spanish, Polish, Italian, and Chinese. 88% of all voters who expressed an opinion supported the change.5’

For many, the change had been a long time coming. I was at a party in San Francisco a year and a half before this when Creative Commons Founder, Lawrence Lessig and Wikipedia Founder, Jimmy Wales announced the beginning of discussion with the Free Software Foundation to enable interoperability with Creative Commons.

At the party, Wales announced6 that the Wikimedia Foundation board voted to approve a deal between the FSF and CC and Wikimedia. Said Wales, ‘We’re going to change the GFDL in such a way that Wikipedia will be able to become licensed under the Creative Commons Attribution-ShareAlike license.’

This was a major victory for Creative Commons. The organisation knew that, as the most legitimate global open content resource available today, Wikipedia was a critical piece in its strategy to become the default license for open content projects.

Wikipedia is important in the free culture universe not only because it is so widely used (the sixth biggest website in the world according to Alexa7 means that its not just geeks and free culture fans who use it). It is important because it is the best (and possibly the only) example of peer production on a scale similar to what has been achieved by the free and open source software movement. No other single open content project has been able to achieve the level of volunteer support, quality and distribution that Wikipedia has.

5 ‘Wikimedia Foundation announces important licensing change for Wikipedia and its sister projects’ Press release from the Wikimedia Foundation, 21 May 2009 http://wikimediafoundation.org/wiki/Press_releases/Dual_license_vote_May_2009 6 Video and transcript at http://blog.jamendo.com/2007/12/01/breaking-news-wikipedia-switches-to-creative-commons/ 7 http://www.alexa.com/topsites

Licensing is really important for projects like Wikipedia. The ownership and distribution of Wikipedia is governed by its copyright license. The license determines who gets to participate in Wikipedia, how it is shared and who, ultimately, is able to access it.

An illustration of the importance of licensing can be seen in the origin of photographs that exist on Wikipedia. Wikipedia requires that photographs be licensed under the same terms as its own license – the Creative Commons license that enables free copying and sharing around the world as long as the same terms are used for derivative works. On Nelson Mandela’s Wikipedia page8, for example, the only (relatively) current photograph is one taken in 1993 by the White House Photograph Office. This is the same photograph being used in both the Xhosa and Afrikaans Wikipedia pages9.

Wikipedia is the 6th most visited site in South Africa, but awareness and acceptance of Creative Commons in the country is limited. More work needs to be done to assess the relevance of local participation figures, but it is safe to say that if there is no widespread understanding about Creative Commons in a particular community, then it is more difficult for Wikipedians in that community to participate. Every photograph needs the consent of the photographer to release it freely under the terms of the license, and without a freely-licensed pool of local photographs (such as those available on Flickr), the inclusion of every photograph requires negotiation with individual rights-holders.

Code is law

‘Code… will present the greatest threat to both liberal and libertarian ideals, as well as their greatest promise. We can build, or architect, or code cyberspace to protect values that we believe are fundamental. Or we can build, or architect, or code cyberspace to allow those values to disappear… A code of cyberspace, defining the freedoms and controls of cyberspace, will be built. About that there can be no debate. But by whom, and with what values? That is the only choice we have left to make10.’

Lawrence Lessig published these words in 1999 in his first book about the changing nature of regulation in the digital age.

The book, called ‘Code and Other Laws of Cyberspace’ describes a world in which ‘the instructions embedded in the software or hardware that makes cyberspace what it is’ is the ‘latest, and most dire, threat to liberty that we have ever seen’.

The idea that ‘code’ should have politics isn’t a new idea. It extends the writings of others throughout history who have analysed the particular politics embedded or architected into man-made structures. In 1986, Langdon Winner wrote about the need to investigate, not just the effects of technology, but the ways in which they can ‘embody specific forms of power and authority11’. Winner believed that the choices that we make about how to design technology reflects important social and political consequences.

‘The things we call “technologies” are ways of building order in our world. Many technical devices and systems important in everyday life contain possibilities for many different ways of ordering human activity. Consciously or not, deliberately

8 http://en.wikipedia.org/wiki/Nelson_mandela 9 This is both on the English, Afrikaans (http://af.wikipedia.org/wiki/Nelson_Mandela) and Xhosa (http://xh.wikipedia.org/wiki/Iphepha_Elingundoqo) Wikipedia page for Nelson Mandela 10 ‘Code and Other Laws of Cyberspace’ Lawrence Lessig 199911 Do Artifacts Have Politics? Langdon Winner 1980

or inadvertently, societies choose structures for technologies that influence how people are going to work, communicate, travel, consume, and so forth over a very long time.’

Winner said that it is important to look at the initial design of a particular technology – since it is at this point that the most important decisions are made – decisions that will have the greatest impact on the technology in years to come.

According to Winner, ‘In the processes by which structuring decisions are made, different people are differently situated and possess unequal degrees of power as well as unequal levels of awareness. By far the greatest latitude of choice exists the very first time a particular instrument, system, or technique is introduced. Because choices tend to become strongly fixed in material equipment, economic investment, and social habit, the original flexibility vanishes for all practical purposes once the initial commitments are made.’

Let’s look, then at the initial founding of Creative Commons to see how the initial design reflects a particular political structure.

The politics of CC code

Launched a month before the result of the Eldred vs. Ashcroft12 case, CC was designed as a solution to the problem that there was no simple way for people to give up some of the rights that they received automatically under copyright law. The case challenged the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act that extended the duration of copyright in the United States from fifty to seventy years. Lawrence Lessig was lead counsel for the plaintiff, Eric Eldred, an Internet publisher who at the time was republishing works that were in the public domain. The law affected both new and existing works (making it both a prospective extension as well as a retroactive one) forcing Eldred’s publishing of some works to be illegal.

The initial idea for Creative Commons came from Eldred and MIT professor, Hal Abelson. It was an idea formed mostly by lawyers and technologists. As Lessig wrote in his first blog post about CC, ‘After many hours with lawyers, and many productive hours with tech-types, and lots of imagination by many, an idea first suggested by Hal Abelson and Eric Eldred will come to life on Monday, December 16: Creative Commons’13.

The original board was almost exclusive male and almost exclusively lawyers. It is thus natural that Creative Commons was designed as a legal (rather than, for example, political) solution – working within the current legal structures rather than outside of them.

David Berry and Giles Moss write14 that this is Creative Commons’ biggest failing.

‘Like others before him, Lawrence Lessig bemoans the loss of a realm of freely shared culture. He writes about the colonisation of the public domain brought about by extensions in intellectual property law and the closing down of the technical architecture of the internet. He rightly identifies the way in which

12 http://www.law.cornell.edu/supct/html/01-618.ZS.html 13 http://lessig.org/blog/creative_commons/ 14 ‘On the “Creative Commons”: a critique of the commons without commonality’ David Berry and Giles Moss, 2005 http://www.freesoftwaremagazine.com/articles/commons_without_commonality/

global media corporations have lobbied to extend the terms of copyright law so that they can continue to profit from their ownership of creative works. He also identifies the way in which private interests are simultaneously encoding and enrolling digital technologies in order to support their control of artistic and intellectual creativity. Whereas others who problematise these trends turn to the political, the legal professor’s penchant is to turn to the field of law and lawyers. What follows is a technical attempt to (re-)introduce a commons by instituting a farrago of new legal licences in the existing system of exploitative copyright restrictions. This is the constructive moment of the so-called “Creative” Commons.’

Giles and Moss declare that Creative Commons was designed as a ‘technical’ solution – one that relies on law and lawyers to regulate – and does not cut to the heart of the political problem that is inherent in current copyright structures. By developing a solution that is in keeping with copyright law, they argue, Creative Commons is not solving the most important problem inherent in the way that global media corporations have commoditised culture.

As I’m writing this, Creative Commons is celebrating its seventh birthday. The organisation’s licenses have been ‘ported’ to over 50 jurisdictions around the world. Its use has been extended to offline works, it has been applied to software projects in addition to creative works and works of scholarship and science. As Creative Commons works to port the core Creative Commons licenses to different copyright legislations around the world, and as volunteers from countries around the world contribute to discussions on new license versions, it has come under increasing pressure to diversify its leadership. And yet, seven years on, the organisation is still led predominantly led by a homogenous group of American technologists.

As Winner says, this is not to suggest that there is any conspiracy, but only that those making design decisions reflect a particular power hierarchy. If the solution was being designed by and for the current audience (consisting of different levels of internet adoption, legal literacy etc) it is certain that the solution’s design would be very different. Because the major decisions about the design are now fixed and the latitude of choice has decreased, it becomes more difficult to introduce changes to reflect the needs of new stakeholders.

Design for choice… but whose choice?

In developing the license suite, Creative Commons picked up from the Free Software Foundation’s original idea to use copyright to carve out certain uses that would be automatically allowed. CC differed from the FSF with one important feature that would drive a rift between the two organisations. Unlike the FSF, Creative Commons enabled users to choose the conditions under which their works could be re-published. Instead of defining freedom upfront, CC employed a licensing engine that would enable user to choose the conditions under which they would make their works available.

David Clark et al in ‘Tussle in cyberspace: defining tomorrow's internet15’ might suggest that the modularity of CC licenses, their open architecture and their allowance for choice reflects a favourable design in keeping with the ‘end to end’ nature of the Internet. ‘Tussle in cyberspace’ presents the idea that the architecture of the Internet is based on a number of principles, and that the best way to design for a favourable outcome in the

15 ‘Proceedings of the 2002 conference on Applications, technologies, architectures, and protocols for computer communications’ http://portal.acm.org/citation.cfm?id=633059

evolving design of the Internet is to accommodate the tussle between different stakeholders.

But there is still a set of important questions that remain unanswered by Clark et al, and it is at a more granular level that the cracks begin to appear. Just because there are choices, for example, doesn’t mean that those choices don’t reflect a particular bias in deciding which choices to offer. What level of modularity works best? And what kinds of outcomes are being designed to ensure here?

Some of the critiques of the Creative Commons that focus on user choice and modularity emphasise these questions. Richard Stallman, founder of the Free Software Foundation, for example, suggested that providing users with choices as to which license they wanted to use was wrong because some of these licenses could not be called ‘free’. For the free software movement, there is only one (at least in terms of the Creative Commons license choices) version of a “free” license, and offering users a choice only allowed more powerful forces easy membership to a political movement that the FSF didn’t believe should be diluted by those who weren’t prepared to give up very much.

In response to such debates, Lawrence Lessig and other Creative Commons supporters suggested that CC was merely enabling each sector to decide for themselves what the best license was for their purposes. In the words of the ‘Tussle’ paper, CC was designing the perfect ‘playing field’ rather than the perfect outcome.

The particular design of the playing field, however, cannot be said to be objective, and certainly reflects to a large extent who is invited to play the game and on the basis of which rules. If future users (for example, those from Africa, and other developing countries) are left out of the ‘tussle’, then the resultant design will never reflect their needs. The fact that CC was designed by a particular community to solve a particular problem indicates how far its influence will reach in the current incarnation. Unless it involves others in designing future solutions then it will remain a distinctly American solution that is being translated (or to use the CC term ‘ported’) to solve problems that may be different but that are similar enough in many countries to have some effect.

Designing a solution?

Flanagan, Howe and Nissenbaum in ‘Embodying Values in Technology: Theory and Practice’ have a possible solution to the problem of a technology that is increasingly unrepresentative of its growing user base. Conducting empirical investigations of values in relation to individuals and their societies who are both using and not using the licenses may be just what is needed to ensure that CC’s design evolves as it grows to be seen (and to see itself) as a truly global solution. Developing technologies for such global use, as Flanagan et al suggest, requires ‘reasonable tradeoffs’ in order to discover ‘a middle ground’. This isn’t easy, but finding out what is important to the global creative class is essential in ascertaining ‘whether a particular design embodies intended values’. CC would do well to conduct such studies and transparently deliver results of both intended and unintended consequences in order to refine the solution as it progresses.

In conclusion, as Winner suggests, it is not enough to declare a technological solution to be either inherently good or bad. What matters, and what influences the effects of a technology is in ‘the specific configurations of both hardware and the social institutions created to bring that (solution) to us’. In the case of Creative Commons, it is essential that as its user base grows, that the design of Creative Commons solutions develop in a way that aligns to its new global role. Closely analysing individuals using and not using the technology in a variety of contexts, taking note of intended and unintended

consequences, and critically assessing the power relations in the current leadership are all essential to establishing CC as a global player that reflects the diversity of its users.

In doing so, CC will have to accomplish the difficult task of recognising the important role of diverse contexts in the design of future solutions. This is important because, to quote Winner: ‘(Saying that) we ought to attend more closely to technical objects themselves is not to say that we can ignore the contexts in which those objects are situated.’