First Monday

The politics of the libre commons by David M. Berry and Giles Moss

The project of ‘free culture’ is committed to the creation of a cultural space, rather like the ‘public domain’, seeking to complement/replace that of proprietary cultural commodities and privatized meaning. This has been given a new impetus with the birth of the Creative Commons. This organization has sought to introduce cultural producers across the world to the possibilities of sharing, co–operation and commons–based peer–production by creating a set of interwoven licenses for creators to append to their artwork, music and text. In this paper, we chart the connections between this movement and the early Free Software and Open Source movements and question whether underlying assumptions that are ignored or de–politicized are a threat to the very free culture that the project purports to save. We then move to suggest a new discursive project linked to notions of radical democracy.


Section One: The Creative Commons
Section Two: The Free Commons
Section Three: The Libre Commons
Section Four: Coda



Interest and support for all things ‘libre’, ‘free’, ‘remixed’ or ‘open–source’ continues to grow and deepen. Contestation over the direction and goals of libre culture has followed in the wake. Some people may not welcome this development, believing that things are best off left as they are. They fear that internal critique and contestation is a perilous force that might just fragment libre culture into so many lonely (if not war–like) factions. Be this as it may, we argue that contestation and the politicization of libre culture is a positive development, a healthy by–product of a growing and maturing movement. Along with risks, we suggest, come possibilities.

We will propose here a way to consolidate the power and realize the promise of libre culture through the creation of a radical democratic project (Laclau and Mouffe, 2001). Such a project is premised on the political as much as anything else, where the political is understood in its specificity, as a field of agonistic contestation and circuitous re–articulation. Radical democracy offers a positive vision for libre culture, and a constructive response to the question of how libre culture can deepen and extend itself. It is about a multiplicity of singular networks of struggle operating on the terrain of civil society who may seek strategic alliances and articulate as an active political subject under a ‘common’ radical democratic (counter–hegemonic) project. This stretches libre culture out in myriad directions, to form multiple points of passage with other singularities that are now struggling against various power asymmetries and injustices.

In this paper, then, we want to introduce libre culture to radical democracy [1]. We hope that a meeting between the two will lead to a mutually beneficial engagement. This hope and vision goes under the name of the libre commons to differentiate it from other groups and proposals (e.g. Creative Commons, Free Culture). Libre culture is presently being reduced to economic, moral, technological or legal logics, all of which (albeit in different ways) claim to circumvent the political and move us along effortlessly in straight, non–political lines (Berry, 2004). In contrast, libre commons makes room for plurality, dissensus and curvature — the very basis of the political.

Libre culture’s democratic effects could be far–reaching. But we question the now prevalent idea that democracy is an essential part of libre culture and something that will automatically flow from it. Libre culture can be understood in myriad ways and move in various directions. Not all of these directions are particularly democratic.

In our view, thinking about libre culture with radical democracy is long overdue. True, Micheal Hardt and Antonio Negri have recently penned: ‘Our approach to understanding the democracy of the multitude … is an open–source society, that is, a society whose source code is revealed so that we can all work collaboratively to solve its bugs and create new, better social programmes’ (Hardt and Negri, 2004). We concur, needless to say, with the sentiment. Libre culture’s democratic effects could be far–reaching. But we question the now prevalent idea that democracy is an essential part of libre culture and something that will automatically flow from it. Libre culture can be understood in myriad ways and move in various directions. Not all of these directions are particularly democratic. Insofar as libre culture eschews the political, we argue, it is not likely to be very democratic in its effects at all. In the light of this, it is unclear to us what Hardt and Negri actually mean when they invoke the term “open–source”. For one thing, their delphic usage ignores a number of significant internal differences in libre culture between, say, Free Software, Open Source and the Creative Commons. And it is for this reason that we here wish to defend an alternative radical democratic position. This, in short, is the idea of the libre commons.

We will differentiate between different parts of libre culture, beginning by discussing some pre–dominant discourses that now shape the movement: Creative Commons/Open–source movement (Section One) Free Software movement (and by proxy the Free Culture groups) (Section Two). We will then advocate our own position (Section Three), and outline what we call the ‘the libre commons license’ (Section Four).



Section One: The Creative Commons

By all accounts, the Creative Commons project has been a great success. It has generated interest in the issue of intellectual property and the erosion of the ‘public domain’, and it has contributed to re–thinking the role of the ‘commons’ in the ‘information age’ (Lessig, 2005). It has provided institutional, practical and legal support for individuals and groups wishing to experiment and communicate with culture more freely, and a growing number of intellectual and artistic workers are now enrolling in the Creative Commons network and exercising the agency and freedom it has made available.

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 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. But 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. In the creation of the Creative Commons there 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.

For us, Lessig’s particular understanding of the world, and his desire to strike a balanced bargain between the public and private that follows from this, appear naïve and outmoded in the age of late capitalism.

For us, Lessig’s particular understanding of the world, and his desire to strike a balanced bargain between the public and private that follows from this, appear naïve and outmoded in the age of late capitalism. We follow the political economists instead, and trace the associations they draw. Capital is continually rendering culture and communication private, subject to property rights and the horror of commercial exploitation and beautification. When immaterial labour is hegemonic, the relationship codified in intellectual property between the ‘public’ and ‘private’, between labour and capital, becomes a crucial locus of power and profit. And it is quite natural that private interests would want to protect and extend this profit base at all costs. Their existence depends on it. If libre culture or the Creative Commons threatens this profit base in any way, wars of manoeuvre and position will ensue, where corporations and the state will set out either to crush or co–opt.

It has been argued that having no consitution–based limit, or clear set of values to guide the organisation, Creative Commons is able to expand and extend the definition of ‘free culture’ beyond any reasonable criteria. This leads to an unchecked bureaucratic rationality that seeks to maximise its licensing schemes to all parts of creative endeavour, form partnerships with corporations without regard to their stance (e.g., Microsoft’s recent US$25,000 donation to CC) and to happily manufacture new licences that increasingly look anachronistic to the free culture project (e.g. non–commercial clauses, sampling licenses and the balkanisation of the tricontinental countries in a ‘developing nation’ license).

The paramount claim of Lessig’s prognosis about the fate of culture is that we will unable to create new culture when the resources of that culture are owned and controlled by a limited number of private corporations and individuals. As far as it goes, this argument has appeal. But it also comes packaged with a miserable, cramped view of culture. Culture is here viewed as a resource or, in Heidegger’s terms, ‘standing reserve’. Culture is valued only in terms of its worth for building something new. Lessig’s recent move to the catchphrase ‘Remix Culture’ seems to confirm this outlook. Where culture is only standing reserve it can be owned and controlled and ethical questions over ownership can be sidelined by claims to leaving things to the ‘invisible hand of the market’. The view of culture presented here is entirely consistent with the creative industry’s continual transformation of the flow of culture, communication and meaning into decontextualised information and property.

As a result, the Creative Commons network provides only a simulacrum of a commons. It is a commons without commonalty.

As a result, the Creative Commons network provides only a simulacrum of a commons. It is a commons without commonalty. Under the name of the commons, we actually have a privatised, individuated and dispersed collection of objects and resources that subsist in a technical–legal space of confusing and differential legal restrictions, ownership rights and permissions. The Creative Commons network might enable sharing of culture goods and resources amongst possessive individuals and groups. But these goods are neither really shared in common, nor owned in common, nor accountable to the common itself. It is left to the whims of private individuals and groups to permit reuse. They pick and choose to draw on the commons and the freedoms and agency it confers when and where they like.

We might say, following Gilles Deleuze, that the Creative Commons licensing model acts as a ‘plan(e) of organisation’. It places a grid over culture, communication and creativity, cutting it into discrete pieces, each of which have their own distinct licence, rights and permissions defined by the copyright holder who ‘owns’ the work. The complexity of licences and combinations of licences in works has therefore expanded exponentially. This plane of organisation ensure that legal licences and lawyers remain key nodal and obligatory passage points within the Creative Commons network, and thereby constitute blockages in the flow of creativity. But what is happening is that the ethical practice of sharing communication and culture is now being conflated with a legal regime that seeks bureaucratically to enforce the same result through comprehensively drafted and dense legalese.

Through copyright the Creative Commons attempts to construct a commons within the realm of private ownership. The result is not, dare we say it, a commons at all. The commons are formed through commonalty and common rights, resistant to any mechanisms of privatisation, whether those of the Creative Commons or not. Without commonalty, without the common substrate through which singularities act, live and relate, there could be no commons at all.



Section Two: The Free Commons

At least Richard Stallman and his ingenious GNU General Public License (GPL) is honest in claiming to be an ethical rather than purely legal force. The GNU GPL has tenacity not due to its legal form alone. The GPL is based on a network of ethical practices that continually (re–)produce its meaning and form. The commons is always more than a formal legal construct; the commons is based on commonalty.

Most of us share, despite our other differences, a hope that the project of libre culture will deepen and extend. But the salient question is how, by which machinery, and in which direction. In our view, the creative commons has widened itself out in such a way that it now bears little resemblance to the underlying arguments that should be made for libre culture. By opening itself up to a broad membership, especially by courting private industry and property, it is following an economic market logic that compromises libre culture and encourages multinational corporations to take centre stage. It has taken the same path as ‘open–source’. (Eric Raymond, of course, distinguished the term ‘open source’ from that of ‘free software’ because the latter term was unappealing to private industry.) This results in inevitable dilemmas for libre culture in terms of co–option and compromise.

By what other means can libre culture deepen and extend itself? Well, we were interested to read the intervention by Hill (2005). Thankfully, this paper moved away from the narrow economic logic of the creative commons and open source. Hill has another agenda, but one that is no less familiar to those versed in debates over libre culture. For him, the creative commons had lost touch with a moral set of principles that allowed us to distinguish between (what he termed) ‘right’ and ‘wrong’. Some of Hill’s criticisms of the Creative Commons tally with our previous remarks. But we are nonetheless skeptical of his proposed alternative. What he does, in effect, is displace the problem with the creative commons to a different level. Rather than turn to law or economics, he turns to the order of morality. By an over–hasty fetishisation of technology, and the naïve acceptance of human rights in a metaphysical sense, there is a lack of grounding in real concrete political action. His arguments are again anti–political. They attempt to close down the space for contestation, too, but this time in the name of an ultimate and invariable ‘good’ or ‘right’.

This indicates a more general problem with many of the arguments of the Free Software Movement: they are overwhelmingly made within a moral register.

This indicates a more general problem with many of the arguments of the Free Software Movement: they are overwhelmingly made within a moral register. Claims to authority are made by reference to a priori human rights divorced from the political realm. Decisions are made between “right” and “wrong” (note the quite deliberate scare quotes) on the basis of a supposedly shared morality. There is then no ground for further discussion, as the terms of the decision have already been set a priori. This has dangerous consequences. It closes down possibilities; it prevents alternative articulations. They are all variously labeled dangerous, evil or wrong. Counter–arguments can be neatly ignored and an ostensible moral consensus within the free culture ‘community’ maintained. We have assertions made to a ‘right to…’, not political claims to struggle to bring into effect these rights and liberties. The discourse of rights, used in such a way, does not encourage political thinking. Instead, it tends to close down debate to a simplistic friend/enemy binary.



Section Three: The Libre Commons

The alternative we want to suggest to broadening and extending libre culture is the radical democratic project of the libre commons. We believe that a political approach should be sought that channels dissent within the movement of libre culture towards a vibrant political space of agonistic debate, rather than an antagonistic friend/enemy relation. Our position is that no movement can remain legitimate without a political component; that is, without realizing the importance of the struggle of groups asserting and contesting their agonistic positions through a political process to reach a decision. This is not a decision to be taken by consensus. Moral consensus merely invalidates the political as it does not allow for opinions to fall outside of its boundaries (Mouffe, 2005). When they do, and they will do, they are illegitimate or ignored as ‘foe’. We argue that the very rights that libre culture movements are calling for should be substantiated through political democratic means and agonistic debate.

This offers a different way for libre culture to broaden itself out and deepen. But this approach is no less productive and constructive than any other. Indeed, we believe it to be more so. It is about a multiplicity of singular networks of struggle operating on the terrain of civil society. These networks can seek alliance and articulate as an active political subject under a ‘common’ and counter–hegemonic radical democratic project. The common that they articulate under is an ‘empty place of power’ and is therefore truly democratic. It is something to be articulated and re–articulated, made and re–made, by political means. It is not reduced to (possessive individualist) economic or (consensus–based) moral assumptions. It is vision where libre culture connects and finds points of passage with other singularities (machines of struggle) who are coming up against various other power asymmetries.

Strategic alliances can here be drawn through political means against the unremitting exploitation of the ‘common’ pool of immaterial labour. Which is to say, it is about time that libre culture meaningfully engaged with various other struggles against the commodification of knowledge, as they are expressed, for example, in terms of the pirating of native knowledge, environmentalism, GM foods, welfare rights, drug patenting, and worker’s rights and struggle more generally. This will require an articulation of the dangers and threats from commodification from knowledge expressed in terms that can be valued and understood by a broader constituency. As libre culture becomes more inclusive, acquiring new members, allies and connections, it grows more political. It clarifies, with ever–greater sophistication, the various causes of the complaint, and what is needed to remedy it. It is no longer good enough to limit the demands to a technical concern for computer programming or the freedom to make music. Rather, these issues flow out across a number of different planes. There is a need to build alliances across these different struggles. This may well involve the uncomfortable truth that a cozy moral consensus is not reached. But political alliances can be drawn and partial closures fixed under the common, as a counter–hegemonic project (Laclau and Mouffe, 2001).

Fragmentation and contestation, rather than being seen as a weakness, is a positive political moment.

Fragmentation and contestation, rather than being seen as a weakness, is a positive political moment. Through agonistic debate there is the possibility for the development of a multi–perspectival approach to instantiating a new form of commons for the twenty–first century. Debate is never closed absolutely, for there is never a full reconciliation. There is only a temporary hegemonic closure which can continue to be countered or rearticulated. One condition of this is through the development of ‘the common’ as the empty signifier and place of power around which numerous diverse groups can democratically mobilize. The common is to be articulated through the creation of alliances between individuals and groups (i.e., singular machines of struggle) formed through political dialogue and action.

Libre Commons ‘Licences’

Up to this point we have been oddly silent on law. Somehow or other we have got a fair way through an paper on libre culture without really mentioning law directly. Throughout this paper, we have argued along with radical democracy for a turn away from the anti–political language of economics, technology and morality. This means that legal rights understood as a priori human rights would fall foul, too, since they presuppose the (all too Western and imperialistic) idea of a universal moral consensus. We reject the ideas of a universal human nature, of a universal canon of rationality, as well as possibilities of a universal condition of truth. But rejecting the notion of human rights as given or universal does not mean that do not value rights per se. Quite the contrary. They can be extremely useful strategic devices in the political field.

We would also support other measures that pertain to legal rights. “Why not have a new legislative agenda for a ‘global commons’/ Let’s also prevent the world–wide drift to unitary (i.e., U.S.) intellectual property rights”. Like you, we want all this and more from the law. But even so, we do not forget that it is only through political struggle that rights are constructed, invested with meaning and given any force. Yes, being political can be arduous and frustrating; politics often moves circuitously, rather than in a straight line. Be this as it may, rights are constructed not given, they are the result of political struggle, not assertions of moral orders. There is no way to bypass politics. There is no such thing as a priori human rights, just legal promises that we must continually ensure our fulfilled for ourselves and for our friends also. We need, in sum, to always re–articulate rights as democratic and political rights, rather than viewing them as given, universal or reducing them to an individualist framework.

These are the grounds on which we have introduced the Libre Commons licences into the ether, including the Res Communes and the Res Divini Juris licences. Let’s be clear: these “licences” are politic–democratic devices. We do not claim that they have legal authority. Indeed, our non–legal usage of the term licence has upset some lawyers and the like. They have lectured to us that our use of the term “licence” is ‘wrong’, ‘incorrect’ and ‘contradictory’. It is not surprising that those, who retain power and status by claiming to speak ‘correctly’ and with ‘rectitude’ on other’s behalf, would fear polysemy and flat–out deny our capacity to think or speak otherwise. It is not surprising that those who move in anti–political worlds of straight lines would want to deny our political capacity to contest and multiply meanings.

We want, in contrast, to here be a little more licentious with the word licence than the lawyers allow. For those wonks and purists of etymology, with an Oxford English Dictionary at the ready, let us say that for the purposes of the libre commons we are drawing on other connotations of the term. We don’t take licence to mean legal permission. Closer to our meaning of ‘licence’ would be ‘to license’ as in ‘poetic license’, as in a poetics of knowledge and politics. The meanings proliferate further: ‘liberty of action’, ‘abuse of freedom’, ‘licentiousness’, ‘disregard of proprietary’, ‘irregularity’, ‘deviation from the norm’ and so on. In any case, let us turn to consider the poetic license of the libre commons more directly.

Libre Commons Res Communes Licence

The commons is that which is shared in common with others and the Libre Commons Res Communes Licence seeks to underline that definition. A commons can be a resource, such as land or water, that members of a “community” own and share. The commons has traditionally been limited to a local community right and to a physical resource such as a forest. But it has also been used to refer to the space of intellectual thought —an ‘ideas commons’, an ‘innovation commons’, an ‘intellectual commons’, a ‘digital commons’, ‘immaterial commons’ and inevitably an ‘e–commons’, ‘the public domain’ or ‘Intellectual Space’. The Libre Commons Res Communes Licence commits work that is inscribed with it to a shared common that all can draw from and reuse.

We are, to be clear, using the concept of the commons in an inclusive and positive sense. The commons is shared in common between us (i.e., positive in being ‘owned’ by us all) and inclusive in that we are all included in being able to use the commons (i.e., inclusive in as much as it includes the human race as a whole). This differs from negative conceptions of ‘community’ relating to the commons, where the commons is an unowned space, ripe for appropriation and privatization by anyone (i.e., the justification used by corporations for the appropriation of common land).

Res Communes Licence

The Res Communes license is designed to reject a state–centred legal construct of a commons (or commons without commonalty) in order to concentrate on creating a common which is shared between us in collective practices (a commons with commonalty). The ‘Commune’ or the ‘Commonalty’ originally meant ‘the people of the whole realm’ or ‘all the King’s subjects’ as opposed to the King, the Nobles or the ‘Commons’ in Parliament. We here refer to the commonalty to refer to the global multitude, the people of the whole world.

  1. This work is outside of all legal jurisdictions and takes its force and action from the constituent radical democratic practices of the global multitude against the logic of capital.
  2. All work that is so inscribed should bear the text ‘(L) <year> Libre Commons Res Communes License’.
  3. As a user of this license the work is available to be shared and used as part of a common creative substrate that is shared between us.

Libre Commons Res Divini Juris Licence

In this case, the Res Divini Juris commons is one that lies beyond a notion of human ‘ownership’. Instead, due to its sacredness, there should be no attempt to commodify or privatize. We can think here of the sanctity of human life, the human genome or the great knowledge and literature passed onto us from previous thinkers. Of course, we are aware that Res Divini Juris might insinuate a theological justification for this position, however although inspired from Roman Law definitions of theological artifacts, we would like to link the concept to a radical democratic definition of positive community rights. That is, that at root is a humanist notion of a shared human capacity for love, such that although we might exploit what we own, we will defend what we love. Through a constant politicization, we would hope that this ‘licence’ would never become ‘fixed’, instead it is always open to political contestation and debate. Indeed that is the very terms of its definition and through constitutive action it remains a strictly political space.

Res Divini Juris Licence

The Res Divini Juris license is intended to raise awareness of the condition of possibility for sacred spaces, and equally highlights the importance of contestation and debate where matters of public importance (i.e. the common things) are discussed as a political project. What is endangered under advanced capitalism is a source of resistance. Treating everything as resources makes possible endless disaggregation, redistribution, and re–aggregation for its own sake. This can be seen as a period of de–industrialisation and growth in the communicational and semiotic as generators of surplus value.

  1. By using this license you are agreeing to allow your work to be shared as a step on the path of revealing. Within the realm of the gods, the work will contribute to a shared new world of collective practices and networks of singularities operating within a non–instrumental and communal life.
  2. All work that is so inscribed should bear the text ‘(L) <year> Libre Commons Res Divini Juris License’.
  3. This license operates under a permanent state of exception. It is a result of radical democratic practices beyond the state.
  4. Users of the license are committed to political action and social struggle.



Section Four: Coda

As we’ve already suggested, the commons is an ethical and not just a legal matter. We underscore the point. The commons rests on commonalty, on ethical practices that emerge rhizomatically through the actions, experiences and relations of decentralised individuals and groups, such as the free/libre and open–source movement. For this reason, libre culture is far more than just a protest movement. It is not only reactive; it is productive. It creates new forms of life through its practices. It creates new possibilities. Yet, in our view, there has to be a political dimension to libre culture as well. This expresses itself through political imagining, action and a broader struggle for true democracy. And, as such, it is important to recognise the damage that could be done to libre culture by those spokespeople who seek to depoliticise it. In the world in which we find ourselves, political awareness, resistance and struggle are essential in order to defend the idea and practice of a creative field of concepts and ideas that are free from ownership — to stand up, that is, for the commons and commonalty. It is to the political struggle of libre culture and the commons that we finally turn.

We began by saying that we hoped a meeting between libre culture and radical democracy would lead to a mutually beneficial engagement. The struggle for the libre commons can, as we have argued throughout, form the basis for a ‘common’ radical democratic project. But to achieve this, radical democracy needs to engage with libre culture as much as the other way around. So what does thinking about radical democracy along with libre culture mean? Well, this is another topic, another intervention, for another time. A lot could be said, and needs to be said, but let us conclude with one thing that libre culture might say to radical democracy.

As we have argued above, radical democracy underlines the centrality and specificity of the political: that is, agonistic debate and contestation. Relentlessly, radical democracy keeps saying to libre culture: “Don’t forget the political by reducing everything to straight lines/ the only way to protect our rights and liberties is by acting politically”. But then Libre culture might say, “Fair enough, I accept that I have to act politically and that democratic rights are important/ But where does all this political contestation that you talk of take place?/ Many of the old ‘public places’ have been privatized, have fallen into disrepair or were just plain miserable/ You’re just not being practical!/ How are we to construct public–political spaces adequate to our time, or much better, how are we to construct untimely spaces, adequate for a possible time to come?”

With radical democracy, we stress the need for plural passage points, for multiplying the forms and modes of democratic agency and subjectivity available in the present. We favor heterogeneity — multiple assemblages of humans and non–humans. We question, to be sure, the liberal idea of a single, homogenous public. This is for the same reason that we have questioned an overly singular and concrete sense of libre culture, and the idea that it can move in straight lines. Meanwhile, however, thinking about radical democracy along with libre culture, gives us reason to look at this through a different optic. This is an optic whose focus has been sharpened through the struggle against the intellectual property regime. Postmodern capitalism, whose chief expressions are the market and the commodification of immaterial labour through intellectual property, brings an endless spinning off and proliferation of the seductively ‘new’ or ‘novel’ (Lazzarato, 1996). On the surface there seems to be the continuous reproduction and valorization of multiple passage points and sites of power. But then as soon as they are produced these passage points are devalued with the next upgrade, the next conceit, the next chance for profit, by in–built obsolescence and patents that are in the danger running out.

Hannah Arendt, in The Human Condition, was clear on the importance of the objectivity or thing–character of the world and particularly public space. Along with Arendt, we might say not only does libre culture provide the possibility for widespread experimentation with public socio–technical space, it also ensures that public spaces can (if we want them to) have a relative durability and stability. Common ownership is the basis from which socio–technical space can be protected, and the stability and durability necessary to democratic engagement and agency be ensured (Arendt, 1998). Libre culture, to put it bluntly, puts these decisions in public and democratic hands.

Libre Commons licences carry the hope that they can be both a way of rethinking the commons, beyond narrow conceptions of public and private ownership, and also contribute to a stability of creativity, a place where things may be placed outside of the ‘system of needs’, with its rampant exploitation and reduction of all to profit. That this space can become re–thought as a space of the ‘common–wealth’, that is, that all may have access to use the ‘common things’ and productively contribute to the common good. This, of course, is but one more expression of libre culture’s long overdue political calling.

The commonalty of creativity shows little regard for national boundaries and, of course, neither does the global reach of the profiteers from the creativity and media industry.

Where is the politics of libre culture to be found? The answer: at numerous levels. Political struggle will no doubt be orientated towards the nation state (for example, as O’Sullivan [2005] argues). For the time being at least, nation states are obligatory passage points that retain a privileged position in upholding and enforcing law. But it cannot remain there alone. The commonalty of creativity shows little regard for national boundaries and, of course, neither does the global reach of the profiteers from the creativity and media industry. Creativity is at once too small and too large. Political action and the struggle for true democracy will have to also be aimed simultaneously at local and global levels. For the latter, we might envisage a treaty obligation through measures such as preventing the commodification of human DNA and life itself. Or a UN protectorate to defend the sanctity of ideas and concepts. We might picture something akin to Bruno Latour’s ‘Parliament of Things’, a space where not just the human is represented, but all of life has a defender, all of life has a voice (Latour, 1993).

Law is a juridico–legal grid placed on social life. This grid is upheld and enforced by a network of states and other forces of governance and governmentality. Reliance on law and the state makes the legal licences of the Creative Commons (or other legal versions of the commons for that matter) vulnerable and precarious. We cannot be sure, as yet, how Creative Commons licences will stand up in legal practice for they have not been properly tested. But there is one thing of which we can be relatively sure. In principle, we might all be equal in the eyes of law. In principle, the ladder of the law might not have a top or a bottom. But, in practice, economic power matters. We know that law and the state are not immune to economic persuasion, to lobbying, to favours and so forth. And, because of this, the commons remains subject to the threat and corruption of privatisation and commodification.

We do not want to suggest by this that all legal and public rights, including the protection of the commons by the state or global institutions such as the UN, are worthless. This would be a perversion of our position. What we would stress is that such rights originate with the people through political struggle, not with legislators or legal professors setting them down on pieces of paper. And if these rights are to be maintained, if a commons is to be instantiated and protected, there is a need for political awareness, for political action, for democracy. Which is to say, any attempt to impair commonalty and common rights for concepts and ideas must meet resistance. We need political awareness and struggle, not lawyers exercising their legal vernacular and skills on complicated licences, court cases and precedents. We hope therefore, that our intervention will open up the question of licences and the commons for greater debate and contestation, and encourage more critical reflection on the numerous licensing schemes that have emerged recently. End of article


About the authors

David M. Berry is a doctoral candidate at the University of Sussex, exploring the critical political economy of free/libre/open–source culture.
E–mail: D [dot] Berry [at] sussex [dot] ac [dot] uk

Giles Moss is a doctoral student of New College, University of Oxford. His research interests span the field of social theory, but he currently works on the intersections of technology, discourse, democratic practice and the concept of the “political.”
E–mail: giles [dot] moss [at] new [dot] oxford [dot] ac [dot] uk


More informtion



1. Our understanding of radical democracy follows more–or–less the various writings of Earnesto Laclau and Chantel Mouffe: it is relational rather than essentialist, stresses the agonistic nature of the political and is radical as in far–reaching.



Hannah Arendt, 1998. The human condition. Second edition. Chicago: University of Chicago Press.

David M. Berry, 2004. “The contestation of code: A preliminary investigation into the discourse of the free/libre and open source movement,” Critical Discourse Studies, volume 1, number 1 (April), pp. 65–89; and at, accessed 20 August 2006.

Michael Hardt and Antonio Negri, 2004. Multitude: War and democracy in the age of empire. New York: Penguin Press.

Benjamin Mako Hill, 2005. “Towards a standard of freedom: Creative Commons and the free software movement,” at, accessed 28 October 2005.

Ernesto Laclau and Chantal Mouffe, 2001. Hegemony and socialist strategy: Towards a radical democratic politics. Second edition. London: Verso.

Bruno Latour, 1993. We have never been modern. Translated by Catherine Porter. Cambridge, Mass.: Harvard University Press.

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Editorial history

Paper received 12 April 2006; accepted 15 July 2006.

Contents Index

Copyright ©2006, First Monday

Copyright ©2006, David M. Berry and Giles Moss. Released under the terms of the GNU Free Documentation License (GFDL).

The politics of the libre commons by David M. Berry and Giles Moss
First Monday, volume 11, number 9 (September 2006),