The Digital Commons: Using Licenses to Promote Creativity

Mathias Klang


Arising from the success of the Free Software/Open Source movements and reacting against developments in intellectual property the Creative Commons ( was formed to provide the means for establishing a digital creative commons. Its purpose was to create a useable web application that would enable creators of copyrightable material to dedicate these to the public domain or to release them under certain conditions. The Creative Commons licenses are not designed for software, even though they take their original inspiration from Free Software Licenses, but are intended to be used for diverse intellectual products such as: websites, scholarship, music, film, photography, literature, courseware, etc. The goal of the Creative Commons is to make more material accessible online and to make all material cheaper and easier to use.

We have at best a vague understanding of the term commons. When applied to the mainstream western understanding of property the term is associated with wasteful and damaging behaviour (cf Hardin 1968). Most of our distrust of the concept of commons stems from our understanding that property. To us property is most efficiently used if it is maintained as a private property, as opposed to property which is either owned collectively or claimed by no-one. There is, however, a growing acceptance of alternative views on property which do not condemn the commons (cf Shiva 2002).

Property today implies exclusive privilege of the thing in question. Despite the difficulties in attributing property rights to intangible objects the legal institutes of copyright and patents have been created to create exclusive property-like relationships and grant property rights on certain symbols and images. A main characteristic of the core European legal systems is the predominance of private ownership. In fact the Western legal systems regard individual ownership as the norm, derogations from which must be explained. The western view of property has led to an increase in the privatisation of commodities which traditionally were held to be a commons.

One of the frequently cited criticisms of the commons is the “tragedy” of the commons (Hardin, 1968). The main disappearance of the European commons occurred during the 17th century with the enclosure movements. These movements were legitimised by philosophers such as Locke (1998), whose view that idle nature was wasteful and the adding of labour to land was enough to create property. Property occurred since “?every man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his.”

With this the stage was set for the commodisation of nature. Nature was seen as a neutral element and the mixing of this neutral element with property, naturally became the property of the owner of the labour. “Whatsoever then he removes out of the State of Nature hath provided, and left it in, he has mixed his Labour with, and joined to it something that is his own, and thereby makes it his Property.” Locke has since then been used to legitimise the creation of new property rights in tangibles and intangibles.

The loss of the commons is today seen as a positive step. The commons as Hardin (1968) pictures them are a pasture, free for all to use, where cattle graze freely. Under economic theory the individual cattle owners will all strive to maximise their own stock and this will lead to the destruction of the pasture due to overuse. Hardin sees the open-access system as a place without rules (legal or social) were all actors strive to maximise their own economic wealth. However, for Hardin’s tragedy to occur several erroneous assumptions about the commons must be made (Shiva, 2002). Hardin assumes that all human interaction is based upon competition and not cooperation, that property held in commons is unregulated, that communities dependent upon the commons do not have social regulations and that group ownership is per definition an inferior solution. Hardin views the creation of private property as the most efficient way to avoid the tragedy, considering all the environmental disasters we have experienced only those who are particularly blind can still cling to this view.

The purpose of this paper is to discuss the purpose and need for institutions such as the Creative Commons and attempt to ascertain its international impact. To be able to do so, this paper begins by studying the concepts, roles and interaction of private property, the public domain and the commons. Discussing how and why the critique of the commons, as applied to digital products, is flawed. The paper then discusses the role of the commons in the creation and spread of intellectual property online.