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Experimenting with Copyright Licences

As part of the documentation for the first book coming out of the Combinatorial Books Pilot Project, we are discussing our rationale for chosing a CC-BY licence for this project as well as the limitations and potentials of this licence regarding more collaborative scholarship

Published onApr 20, 2023
Experimenting with Copyright Licences

This is the sixth blogpost in a series documenting the COPIM/OHP Pilot Project Combinatorial Books: Gathering Flowers. You can find the previous blogposts here, here, here, here, and here.

When it comes to publishing a book, many authors and presses show a surprising lack of concern about whether the copyright licence used is consistent with what’s actually being said in the content of the work. Now it’s not our intention to single anyone out for particular criticism: our reservation is about a system more than individuals. But perhaps we can start with a brief analysis of Michael Hardt and Antonio Negri’s 2017 book Assembly, just to explain what we mean and illustrate why the choice of license matters far more than most people seem to think.  

We are taking Hardt and Negri as our example because, as the authors of volumes such as Empire (2001), Multitude (2005) and Commonwealth (2009), they are among the most politically radical of theorists at work today. But we’re also focusing on them because, like us, they are interested in the generation of new forms of human and nonhuman collaboration. What’s so intriguing about Hardt and Negri in this context is that, in terms of their relationship to the decentralised, self-organising mobilisations they take inspiration from in Assembly – the Occupy movement, the Indignados movement in Spain, etcetera – these two autonomous Marxists can be seen to repeat much the same behaviour they criticise platform capitalist companies for engaging in with regard to the social relations of their users.1

Like these companies, Hardt and Negri extract intelligence from the common. In their case, they extract it from the horizontalist social movements that have risen up in recent decades, and the potential of these movements “to take power differently” and “crucially, to produce new subjectivities” (2017, xiii-xiv). Like platform capitalist companies they, too, accumulate this intelligence that is “constructed in social cooperation,” transform it into private property, and control access to it (xviii). Hardt and Negri do so by publishing Assembly with the not-for-profit Oxford University Press using an highly restrictive all rights reserved copyright license (OUP is the largest and wealthiest university press in the world. Its profits go to the University of Oxford, which for August 2018 to July 2019, the year following the 2017 publication of Assembly, had a total income of £2.45 billion). Oxford University Press then make it available, but only at a cost. It is a cost that renders the book and the knowledges it contains inaccessible to many of the “rebels and protestors” involved in such “inspiring social movements,” especially in the Global South, thus further marginalising them from debates about how to “create a new, more democratic and just society,” and impeding Assembly from assisting with the construction of the common (xvii, xiii).

The paradoxical – or, perhaps better, contradictory, even hypocritical – situation arises whereby Hardt and Negri make their argument for a radical politics capable of bringing about “a lasting social transformation” and of organising the production of subjectivity necessary for doing so, in a highly conservative, commodified and capitalist fashion (xiii). When it comes to their own ways of being and doing, their political imaginations appear to have been taken over by global neoliberalism and its epistemic colonialism. After all, as we’ll see below, there are plenty of open, commons-oriented alternatives to publishing all rights reserved with the likes of OUP, and thus “reappropriate the common from capital,” that are available to them (xx).

Chosing a Licence for Ecological Rewriting

Faced with the issue of having to decide on a copyright licence for Ecological Rewriting: Situated Engagements With The Chernobyl Herbarium, we obviously want to avoid getting ourselves into this kind of contradictory situation as much as possible. What does it say about our society’s dominant ideas of authorship and creativity, then, that there is not a licence currently available to us that is consistent with the collaborative, radically relational approach adopted by those involved in generating Ecological Rewriting?

Different Options: CC4r and Creative Commons Licences

Of the options that are available, “Collective Conditions for Re-Use” (CC4r) – already used by Open Humanities Press to publish Volumetric Regimes: Material Cultures Of Quantified Presence edited by Jara Rocha and Femke Snelting – undoubtedly comes closer than most. Developed by Constant, the association for arts and media in Brussels, CC4r is motivated by the values of Free Culture. As such, it is concerned with articulating “conditions for re-using authored materials”. At the same time, with CC4r Constant is endeavouring to move Free Culture in a direction where authorship and creativity are understood as being always-already collective, collaborative and situated, and as involving “human-machine collaborations and other-than-human contributions” – rather than being “derived from individual genius” as they are for conventional copyright.

Yet  even CC4r has to acknowledge that it is “reluctantly formulated within the framework of both the Belgian law and the Berne Convention for the Protection of Literary and Artistic Works”; and that “work licensed under the CC4r is reluctantly subject to copyright law” (Constant, 2023). Nevertheless, CC4r would appear to be an appropriate choice for releasing Ecological Rewriting. It is certainly more suitable than the Creative Commons (CC) licenses usually associated with open access publishing.

As we have shown elsewhere (Hall, 2016:4), Creative Commons is a non-profit organisation that provides an array of licenses from which individual human creators are free to choose if, unlike Hardt and Negri, they do wish to grant permission for others to share and re-use their work. These licences can then be applied to goods such as books which are understood as being ontologically distinct from humans. Ironically enough, however, there is a fundamental difficulty with Creative Commons’ idea of the commons, in that it is not very commons-oriented at all. This is partly due to the fact that Creative Commons prioritizes protecting the rights of copyright owners over bestowing rights on users. But Creative Commons is also extremely individualistic and liberal, providing a range of licenses for sovereign human authors to freely select from, as we say, rather than advocating for a collective agreement or philosophy. This means that Creative Commons is not actually concerned with producing a common stock of non-proprietary spaces and resources, along with the collective social processes that are necessary for commoners to produce, manage and maintain them and themselves as a community – no matter that this is how the commons is usually understood (including by Hardt and Negri). Instead, Creative Commons assumes that everything created by a human authorial subject is owned by them as their property.

Yet does CC4r not itself have a drawback similar in nature to one of those we have just identified in Creative Commons? Is the decision making with CC4r also happening too much at the level of the specific actors concerned – be they individuals or collectives in CC4r’s case – and on what they are persuaded is the right thing to do? Does CC4r not rely rather heavily on the good faith of these actors? Take the section of the CC4r document on Conditions (it acknowledges it may be too conditional to be considered an actual license). This runs that: “The invitation to (re-)use the work licenced under CC4r applies as long as the FUTURE AUTHOR is convinced that this does not contribute to “oppressive arrangements of power, privilege and difference” (Constant, 2023). But what if – as in the case of certain outfits, who have been producing poor quality reprints of books from Open Humanities Press and other open access publishers and selling them as theirs, often at inflated prices – such a future author is convinced that what they are doing is perfectly acceptable, and does not contribute to oppressive arrangements of power, privilege and difference, even though for a lot of others it does? 

Why we settled on a Creative Commons Licence

That said, if we have opted to make Ecological Rewriting available under a Creative Commons license, it is not because we have a particular problem with “Collective Conditions for Re-Use”; nor indeed with any of the other licenses that are identified in Constant’s Authors Of The Future: Re-Imagining Copyleft booklet as addressing some of the lacunas and limitations of open access and Free Culture, especially the emphasis on “openness and freedom as universal principles” (the licenses identified by Constant include the Decolonial Free Media License 0.1 by the Free Culture Foundation, the Non-White Heterosexual Male License, the Climate Strike Software License and the Feminist Peer Production Licence based on an adaption of the better known Peer Production Licence).

If we are publishing Ecological Rewriting under a Creative Commons licence it is because the Combinatorial Books series has been designed to show that the adoption of a collective, ontologically relational, co-constitutive approach is not entirely dependent on the use of an equally radical form of (anti)copyright (we’d have to wait a long time before making Ecological Rewriting available if it were). The Combinatorial Books series has rather been designed to demonstrate what can be done even on the basis of those licenses that the majority of open access books are already published under. This is important, as it means the lack of a licence that is fully consistent with a radically relational approach cannot be used as an excuse for continuing to publish all rights reserved. It is for this reason that we initially asked the collective responsible for creating Ecological Rewriting to engage with a text from OHP’s back catalogue that had originally been published Creative Commons. They chose The Chernobyl Herbarium: Fragments of an Exploded Consciousness by Michael Marder and Anaïs Tondeur, which is available CC-BY-SA. And it is for this reason that Ecological Rewriting is being released under the very same Creative Commons license.

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