Global commons, public space and contemporary IPR

 
 
 
Recent debates about intellectual property rights have been marked by a spurt of critiques aimed at the very normative basis of intellectual property. These debates are marked by their dissatisfaction with the traditional theories of justification, and have instead attempted to locate the historical and material basis of the emergence of intellectual property rights, and the role that they play in the politics of information and knowledge production in contemporary societies.1 Perhaps the best known instance of such a challenge is the ongoing case of Eldred v. Reno2 being argued by Lawrence Lessig in the Supreme Court of the United States. Eldred is challenging the constitutional validity of Sonny Bono Act which seeks to extend the term of protection for copyright in the US.
 
   This critical approach to intellectual property has also gained from other movements and attempts at rearticulating ideas of creativity and property, like the free software movement. The free software/open source movement has inspired a whole generation of ‘open’ initiatives including open content, open publishing, open art etc. At the heart of the varied open initiatives is the belief that there is a need to rearticulate the public domain to include a strong element of the idea of the commons.3 The idea of the commons of course is not a new one and traces its historical roots back to Roman times. The most common usage of the ‘commons’ however is derived from England, when land was held as communal property and was not owned by any person or institution. In recent times it has found articulation in legal developments in international law recognizing the common heritage of humankind. An attempt is therefore being made by these various scholars to understand cyberspace or the world wide web as the new global commons, which is under threat by the operation of intellectual property laws.
 
   This article seeks to understand these critical developments around the ideas of the ‘global commons’, the new ‘public domain’ and how these terms get translated in contemporary practices in India and whether they offer an alternative conceptualisation of spatial politics within the imaginary of the public domain in India. My argument is that these terms cannot be taken as stable reference points without understanding the micro developments at the national/local level and that in fact a more nuanced understanding would be required to take into account the tensions produced by the mapping of the global upon the national/local.
 
 
 
The global commons and the IPR debate
 
Before we proceed to examine the manner in which the global gets mapped out onto the local, it is imperative for us to understand the current critical debates around intellectual property and also a brief historical overview of the very idea of the commons itself. The critical movement in its varied forms has largely emerged in the context of legal scholars and practitioners from the US examining the ways in which intellectual property have come to dominate almost every aspect of life.
 
   To summarise very briefly, the arguments run like this:
 
 
 
1.   Every aspect of what we call the public domain is now proliferated by images, signs, inventions and products which are protected by one form of intellectual property or another. In addition there is an increasing tendency in which domains that were earlier outside the scope of intellectual property protection are also being brought under the rubric of intellectual property right.
2.    
3.   This expansion of IPR into public life has resulted in a privatisation of the public domain itself, where increasingly almost every cultural resource is the subject of protection. There is an argument that there is therefore a shrinkage of the public domain.
4.    
5.   Scholars like Rosemary Coombe, have consistently argued that the very practice of a political public domain has relied on the ability of various people (consumers) to engage in critical dialogic practices and these practices do not merely take existing signs for what they are but through processes of appropriation, recodification and transformation determine what meaning itself is.
6.    
7.   If all signs are, therefore, the subject of IPR and entitled to protection, there is a danger that dialogic practices themselves are under threat as the owner of the sign will have the ability to determine the scope of the use of such signs, and that the owners of these signs will have the ability to freeze the meanings of these signs and hence curtail the very possibility of critical dialogue.
8.    
9.   Through an analysis of various case studies it is then argued that over the years there has been a strong trend towards curtailing any kind of critical practice and that this is a violation of First Amendment rights or the right of freedom of speech and expression.
 10.  
 
 
   It is in this context that opposition to the current practice of intellectual property law has emerged. It would of course be a misnomer to characterize the movement as a homogenous one with a single voice, as clearly even within the critical tradition there are very different positions ranging from an abolitionist stand to a lesser or softer protection stand. And the movement has certainly developed over the years to accommodate various positions. At a narrow level the crucial claim that has been argued consistently and currently being tested before the US Supreme Court has its basis in the fact that the US law of copyright is grounded in the constitution of the US. At a wider level it raises the larger issue of the relation relationship between information and property and the forms and the implications that the internet and cyberspace have for the classical understanding of information and property. The invocation of a historically rich metaphor of the commons in relation to cyberspace as the ‘last frontier’ of the commons universalises the debate beyond the concerns of the US alone.
 
   These debates in the US have also resulted in a ripple effect creating similar critiques of intellectual property in different countries. In India the critique of intellectual property has classically worked within the high nationalist framework of protection of national resources and national interest, and has been generally confined to the debate around patents. However, there are now attempts at understanding the cultural politics of copyright as well as various moves towards articulating an alternative conceptualisation, and it is in this context that the debate on the global commons has emerged in India.
 
   Clearly the idea of the commons has a very rich history and it is imperative for us to understand the trajectory which this concept has taken before arriving at its present avatar in its dominant correlation to cyberspace. The earliest use of the idea of the commons arises from Roman times where a particular concept of the public domain as res publicae or ‘inherently public property’ existed, whereby all land not privately owned - unoccupied land as well as land used specifically for public works - was thought not only to be vested in the state but to be ‘inalienable’; it could not be bought and sold; it would remain forever public and vested in the sovereign. The metaphor however bears a closer resemblance to the commons as envisaged in the nature of property relations in early England, where lands were held by villagers in common; cattle were grazed and grains were reaped in common; natural resources such as wood, peat, minerals, fish and game were exploited in common. The familiar argument goes that the absence of any incentive in the preservation of the as a result of the absence of private property resulted in the tragedy of the commons4 and it was the responsibility of private property to rescue the commons.
 
   The most violent and most ‘universal’ history of the commons is articulated in the 17th century legal doctrine of terra nullius, or land that belonged to no civilized state and could be claimed by the first sovereign who happened to stumble upon it. In this commons the ‘aboriginal, itinerant peoples of America, Africa and Australia were to learn each in their turn, being the inhabitant of such a public domain was a distinct liability’.5 Despite the absolute onslaught of colonialism, there have been brave attempts as evidenced by the indigenous peoples movement, to claim the possibility of such a public domain existing even within the time space of late modernity.
 
   The next move is a move in the direction of political philosophy where the commons is articulated in the 18th and 19th century liberal thought as the sphere of public activity. Of course this public was not a sphere where everyone could participate and to be a part of the public sphere meant that you had to be worthy of public participation, and needless to say that the vast majority of the population like the landless, non Europeans etc were not deemed worthy to be a part of this public.
 
   In the mid-20th century the commons is converted into a post nationalist vision of the greater common good or where the public domain gets converted into a normative sphere of governance for the public good. The national state is rendered as the only trust worthy custodian of the commons. In countries the national public is also marked by its destiny being linked integrally to the national ideal of a particular form of modernity. From the 1980s and more critically now in the era of globalisation, the commons has emerged as the new global marketplace for products and services (phrases like ‘global village’, ‘common culture’ now have an almost nostalgic ring to them). A market whose rules of engagement and terms of operation have been substantially altered by the prominence that it gives to intellectual property. The idea of the commons and the public domain has also shifted from being a property right in its origin to being about a use right in its present usage.
 
   It is in light of the crisis caused by the totalising discourse of intellectual property, particularly in the US that the critical movement against intellectual property has emerged. The new global commons is particularly identified with the realms of high technology in the form of cyberspace and the various open movements in software itself. A number of these debates about the idea of the global commons and the emergence of a critical community of practitioners and academics critiquing the scale and scope of intellectual property has also caught on in India and there is indeed a community of practitioners in India who could be counted as being a part of this larger critical community.
 
   One of the reasons for outlining the history of the common concept is to understand the tension that it has always been ridden with, namely that it is a historical specific movement on the one hand and yet based on a particular notion of universality. I would however like to clarify that this is not a critique of the ‘open’ movements and I think they have radically alerted the terms of the IPR discourse in a very positive manner. It is however to caution against accepting an uncritical version of the idea of the global commons without taking into account the complex web through which such a discourse is even made possible. In the rest of the article I shall attempt to understand the tensions that arise when this global commons is mapped out onto the national and local, and how a more nuanced understanding of the process of globalisation is needed to enrich the debate in India.
 
 
 
The global mapped onto the various publics In India
 
Ravi Sundaram in his insightful analysis6 argues that the usage of the term public in India, even within the realm of cyberspace and new media, is a complex one and the term includes a number of publics, whose entry point into modernity is markedly different. He says that if one were to adopt a certain diffusionary model of the spread of cyberpractices in India, we would have to consider the following:
 
   a) The simple fact of India being a peripheral society in the capitalist world-economy: with one of the lowest saturation rate of telephones in the world; only a small minority of the population has electricity.
 
   b) India has no tradition of cyberpunk, in fact there is no indigenous science fiction tradition. Most existing cultural communities have remained ambivalent about technology. Historically, representations of science and technology have been state-sponsored and social-realist in form. Despite this, a significant number of people are linked to electronic networks in India and the number is fast growing. For a Third World country with inequalities like India this is quite remarkable… What is significant is that ‘cyberspace’ has emerged as a significant term in public discourse in India, becoming the focal point of much coverage and speculation in the media. Behind all of this is the growing community of users. To date anonymous, and lacking the ‘heroic’ qualities of the old nationalist scientist, the contemporary user lacks any visible representation of his or her agency. There are various publics at play in the use of the idea of the public.7
 
   He identifies three movements in the formation of the public in India, the first is the most ambitious task of nation building which utilizes the category of the ‘national public’, a category upon whom is played the ultimate fantasy of the great pan national panoptican. From the 50s to the 60s this public is formed through various discursive practices of the state and by the 80s, when the first media revolution is set in place by the establishment of the grid. it is almost ready for the entry of the ultimate panoptican, the NIC (National Infomatics Centre).
 
   The NIC was set up in the mid 1970s to promote computerisation in administration, but it really took off in the 1980s with the inauguration of a satellite linked network: It emerges as the largest network in the country which links up all district, state and national centres, runs large databases on social science, medicine and law and works with all state research institutes in the country. Apart from putting all these centres on the NICNET e-mail network, NIC provides users with web and Internet access. Internally, large research projects on artificial intelligence and CAD are being undertaken. Today NICNET has easily eclipsed India’s other state network ERNET (Educational and Research Communication Network) to become a visible public presence’.
 
   Sundaram argues that the NICNET was however not only about more computers in administration and education and that it intended to change the very deployment of power. It had an aggressive ‘public’ profile and sought to mould a new state cyberpublic from the late 1980s onwards, through regular, well-publicised demonstrations on networking, e-mail and international connectivity. It was unusual for a state organisation in India to adopt such an aggressive public profile. This brought NICNET into conflict with other institutions of the state which argued for the older, more centralised bureaucratic forms of control. NICNET was run by people who understood the need for a new panoptics of state power - the older methods of surveillance would just not work. The NICNET experiment attempted to rework the old modernist grid of Nehruvianism which was based on representational realism, a production of identity based on Westphalia-style national borders and a model of development which privileged the ‘economy’ as a site of national renewal and subsequent transition to modernity.
 
   The second public that Sundaram identifies are what he called the cyber elites, the beneficiaries of the infrastructure that the state has put into place in the 80s. By 1995, both state and private networks had spread to connect around 120,000 users in India and while this number may seem small in comparison with the West, it represents one of the largest figures for a Third World country. This number has of course now increased immensely. These users are of course technologically savvy and find themselves represented in media as the new face of India. The fable that is spun is that ‘India’s access to western modernity (and progress) would occur through a vast virtual universe, programmed and developed by ‘Indians’. The model: to develop techno-cities existing in virtual time with US corporations, where Indian programmers would provide low-cost solutions to the new global techno-space’.8 Within the space of this cultural elite are also the voices that emerge in solidarity with the various movements against intellectual property and a considerable number of these ‘techies’ are a part of the larger free software movement across the world. They are also often the ones most familiar with the language of cyberspace as the final frontier and the last global commons.
 
 
 
Global and local tensions
 
Relying on the arguments made by Ravi Sundaram, I would like to highlight some of the tensions that arise from any attempt at mapping out the space of the global within that of the national or the local, without an attempt to critically locate the various publics within the sphere of the local itself. I will examine two apparently unrelated phenomena, the first is the impact that the globalisation of intellectual property has on the practices of the marginal electronic culture that Ravi Sundaram speaks of and the second is the debates raised by the recent claim made by Rajnikant to protecting the sign that he uses in his latest blockbuster Baba (2002).
 
   Implicit in our current understanding of globalisation is the fact that information and communication technology, especially the internet, plays a great role in constituting the very process that we now understand as globalisation. There have been various levels of descriptive frameworks used to understand the ongoing process. In the institutional description of globalisation for instance, one often hears about the role played by transnational organizations such as the World Bank and the emergence of the World Trade Organization in the process of globalisation. The chief aim of the WTO is the establishment of standard rules and regulations for trade, and ensuring that legal systems across the world comply with the established global standard for the protection of intellectual property rights. There has for instance been much fanfare about the entry of China into the WTO, as it signalled not only the entry of arguably one of the world’s emerging economic superpowers but also the symbolic victory of the western legal model of intellectual property rights over the non-western legal systems which were marked by a more ambivalent attitude about intellectual property, leaning more on the side of tolerance.
 
   In countries like India for instance while there has been a copyright law in place from 1957, it has only in the post-liberalisation years from 1992 that there has been an active demand to enforce IPR more stringently.9 The need for enforcement has translated into a public-private partnership between the info entertainment industry and the state. It is therefore acceptable to say that all the debates that take place in the world currently on intellectual property are preceded by the socio economic forces of globalisation, and that these forces are what even makes the debate possible.
 
   In 2002, the biggest star of the South Indian film industry Rajnikant launched his mega film Baba amid much fanfare which included an announcement that Rajnikant has decided to protect a particular sign that he uses in the film. It was unclear as to how he could protect this sign and under what law but from our point of view what was interesting was the fact that he had decided that it was important for him to have this sign protected. For many years Rajnikant has cultivated a certain image which has included a number of antics like the way he lights his cigarettes or the manner in which he wears his sun glasses etc to the extent that one would always in popular usage refer to them as Rajnikant’s trademark style. So what then was the motivation in 2002 for him to want official protection for these signs? There are a number of attributed reasons, one of them being the fact that given his popularity within days or weeks of the release of his film, elements of the film are incorporated into other films or his actions are emulated by other artists across Tamil Nadu. Rajnikant felt that he needed to protect himself against such appropriation and the best way for him to do this would be through claiming intellectual property rights over his image.
 
   Taking this particular instance I would like to push Ravi Sundaram’s argument that there are a number of cyberpublics in India to state that there are also a number of global publics in India and that very often their entry point into the global economy may have very different trajectories, many of which may conflict with each other. I would like to make an analogy of the developments in the entertainment and film industry with the developments in the open source movements etc to illustrate what some of these conflicts are. So what are some of these various global publics in India?
 
   1. Rajnikant and the nationalist entrepreneur. In the past few years the film industry in India has found a new audience in the US and the UK. This is particularly so of some of the blockbusters from Bollywood which have found a new audience in the diasporic Indian audience living in the west. In exceptional instances a star like Rajnikant has also attained somewhat of a cult status in a country like Japan. The importance of the ‘overseas’ market has of course resulted in a few changes in the very structure of the film industry in India, where the imagined overseas audience has become central to the imagination of the narrative content of the film itself. This shift in the value of the star as a national or local commodity to being a global commodity also signals the entry point of the star into the language of the global entertainment industry. This language uses the dialect of intellectual property, i.e. the star is a valuable commodity which has been created and authored through various procedures of investment, and these investments need to be protected from unauthorized appropriations.
 
   The story seems to sound distinctly like the story of the nationalist grid narrated earlier and the entry that India makes into the global economy. What gets transformed in this story is the conversion from a popular and informal use of the language of intellectual property ‘Rajnikant’s trademark style’ into a formalized language with no other option, Rajnikant actually trademarking his style. This is the first part of the story of the global mapping itself onto the national and the local. It is the story of the global commons as the marketplace where Indian techno artists may deal on equal terms with global contemporaries.
 
   2. The Mimic artist, the fan and the electronic marginal. What is invisible to Rajnikant in his act of self recognition, is the fact that his star value has not been framed and crafted in a manner which is independent of the investment made by his fans and the mimic artists. And that the Rajnikant persona is itself a result of various acts of appropriation and transformation. Thus when he seeks to protect his image from these fans and the mimic artists, it sounds deceptively like the story of the emergence of intellectual property enforcement in India with the state being asked by its new found global alliance to crack down on infringement. The story of India’s emergence as an IT superpower cannot be a story told only within the framework of the nationalist framework of software engineers from the various IITs but also about the countless vendors of software and hardware who have provided the infrastructure backbone of the IT industry. A backbone used by both the cyber elite and the many experimental users living on the marginality of the electronic industry experiencing their version of ‘new media’ to transform their contemporary realities.
 
   Therefore, if Rajnikant did not previously have a problem with the mimic artists, the state did not either understand nor could it control the ‘grey economy’ and in that version of the story, this economy existed in the marginal spaces of legality and illegality. With the mapping of the global upon the local, various domains of relationships and transactions gain a visibility which they previously did not have, transforming them into acts clearly illegal and volatile of the very structures that would make their entry point into the global possible.
 
   3. The cyberelite who does not watch Indian films. Within this large complex scenario are also the many cyber elites who do not watch films or rather do not have the need to. These users could be metaphorically equated to the various users in India having great access to the global debate on intellectual property and contributing and shaping the new reality of software ownership and production. They have the greatest access to the terms of the debate on the global commons in cyberspace and in code, but because of the time that that they have spent in cyberspace have had little time to see the changes that have taken place in the landscape outside their doors. And yet their practices (free operating systems for instance) could also facilitate the conditions of the mimic artists’ re entry into electronic culture after their existing market places have been shut by the global offices of Microsoft et al.
 
   The idea of the commons has great value as a symbolic fiction attempting to critique the politics of intellectual property laws, and yet in a country like India it can be a vacuous term devoid of significant content if it is not mapped onto the various publics and practices within India itself. n
 
 
 
Notes
 
1. See generally the works of Rosemary Coombe, Peter Jaszi, James Boyle, Yochai Benkler, Lawrence Lessig.
 
2. See http://eon.law.harvard.edu/openlaw/ for details on the progress of the case.
 
3. See Harry Arthurs, Reconstituting the Public Domain, available at http://www.robarts.yorku.ca/pdf/apd_arthursf.pdf. for an overview of the legal history of the commons
 
4. See, Garrett Hardin, The Tragedy of the Commons, Science, 162(1968):1243-1248
 
5. Harry Arthurs, op.cit.
 
6. See, Ravi Sundaram, Recycling modernity: Pirate electronic cultures in India, Sarai Reader 01: The Public Domain, pp.93-99., Ravi Sundaram, Beyond the Nationalist Panopticon: the Experience of Cyberpublics in India, available at http://amsterdam.nettime.org/Lists-Archives/nettime-l-9611/msg00018.html, Ravi Sundaram, Electronic Marginality
 
Or, Alternative Cyberfutures in the Third World, http://www.ljudmila.org/nettime/zkp4/08.htm
 
7. Ravi Sundaram, The nationalist Panoptican op.cit. n.6
 
8. Ravi Sundaram, Recycling Modernity op.cit. n.6
 
9. See The Report on Copyright Piracy produced by the Ministry of Human Resources and development.