Cultivating Creative Commons: from Creative Regulation to Regulatory Commons

Cultivating Creative Commons: From Creative Regulation to Regulatory Commons Prodromos Tsiavos Department of Management Information Systems and Innovation Group London School of Economics and Political Science Thesis submitted for the degree of Doctor of Philosophy October 2007 1 Declaration The research presented in this thesis was conducted by Prodromos Tsiavos. This work is licensed under the Creative Commons Attribution 2.0 UK: England & Wales License. To view a copy of this licence, visit http://creativecommons.org/licenses/by/2.0/uk/ or send a letter to Creative Commons, 171 Second Street, Suite 300, San Francisco, California 94105, USA. 2 Cultivating Creative Commons: From Creative Regulation to Regulatory Commons Abstract This thesis explores and explains the development of the Creative Commons (CC) as an alternative to mainstream copyright protection. It argues that the distinctive characteristics of CC as a license based, configurable form of meta–regulation can be explained by consideration of the disciplinary background of the movement’s founder (Lawrence Lessig) and as a consequence of the particular mode of development it undertook (e–mail discussions as commonly used in the arena of software development rather than traditional legal discussions) as well as the influence of a variety of pre- existing regulatory forms. The second part of the research reviews the inputs from multiple existing regulatory structures such as the Free Software Foundation and the Open Content movement, and de-constructs the process by which the CC is developed in practice. The thesis analyzes the trajectory of CC from a licensing project to a political project, the structural elements of the CC licences and the decision making process of their creation and development. This analysis helps to explain the apparent inconsistencies that have been expressed about the CC project and shows how Lessig’s perspectives on regulation and meaning construction contribute to the empowerment of the creator and the attempt to provide regulatory tools instead of regulatory solutions. The thesis argues that imbalances in the existing Copyright system are symptoms of deeper structural problems of distantiation of the regulated subject from the process of regulation construction. CC therefore becomes an effort to increase access to the regulatory process and as a result ignites the creation of the Commons. Instead of the regulation to be enforcing its normative content on the creative practices over the Internet, the CC approach allows the reverse to happen. The intellectual or creative commons are thus achieved as a secondary result of the ability to access the regulatory commons. 3 Acknowledgements My supervisor Dr. Edgar Whitley is the person that has most consistently supported me throughout the process of completing this thesis. Edgar has always believed in my ideas, and showed faith in my research decisions. We have worked really hard together on this thesis and if it is completed today this is due to his commitment to our common objective and his ruthless but always constructive comments on my work. Thank you Edgar. Claudio Ciborra both as a person and as an academic has exercised a tremendous influence on my work. I feel privileged I had the opportunity to meet him in the LSE Information Systems department and very sad that he is not with us any more. Claudio was the person that introduced me to Ole Hanseth, another very special academic who greatly contributed to this thesis with his comments and the work we did together at Oslo University. The idea of working with mailing lists, the cultivation idea and the comparison between technical standards and legal modalities of regulation, all come from my collaboration with Claudio and Ole. I would specially like to thank Chrisanthi Avgerou for her comments on some of my papers in the period 2002-2003 that made me rethink my research direction and crystallize my research focus. The discussions I had with Chrisanthi in 2005 and 2006 have been invaluable for realizing what I wanted and what I did not want to do in my relation with academia, consulting and activism. I am also grateful to Larry Lessig and Jamie Boyle for discussing with me their papers and their work, though having an exceptionally hectic schedule. The insights I got both in relation to the operation of the CC project and their own writings would not be possible had they not been so accessible and open about their research. I would also like to thank a series of other staff and volunteers from the CC project such as Christiane Aschenfeldt, Heather Ford, Mia Garlick, Diane Cambel and Tom Medak for providing crucial information on the workings of the CC project. I would also like to thank Elkin Koren for the discussions we had and the interview I got from her regarding her critique of the CC project that greatly contributed to this thesis. The Information Systems department at the LSE is one of the most vibrant intellectual environments I have ever encountered and I would like to thank all the members of the staff and fellow PhD students with whom I had the opportunity to discuss aspects of my work during my studies at the LSE. I would like to specially thank Dr. Steve Smithson, a very good friend and lecturer that greatly supported me particularly during my first year at the LSE. The discussions I had with professor Dionysia Kallinikou and Anne Barron have greatly informed my Copyright understanding and I am indebted to both of them for their assistance. I would also like to help Mr. Jacques Bus and Philippe Aigrain from the Information Society Directorate General in the European Commission for introducing me to the idea of Creative Commons during my days in Brussels and prof. Eric Brousseau for the discussions we had in Paris regarding his work on regulation, innovation and Intellectual Property Rights. Finally, I would like to thank Maja van der Velden for giving me the most useful advice regarding the PhD process at its most crucial moment. 4 I would specially like to thank Theodora Papadimitriou, one of the brightest young constitutional lawyers and academics, for the lengthy discussions we had regarding issues of regulation and constitutionalism and for greatly assisting me during the final stages of my writing with the fixation of my empirical data. I also sincerely hope she quits smoking one day. Prof. Ian Angell, Dr. Yannis Avgerinos, Dr. Ashutosh Khanna and Yannis Boudouris have supported me in several occasions during the writing of this thesis and I will always be indebted to them for their friendship and faith in my work. I would also like to thank Victoria Koukouzel-Kyritsi for all her support during our time in London and Theodora Gkatzoflia for her support during the last part of the thesis writing. Finally, I would like to thank Caterina Drogiti whose insistence on filling in the LSE application forms a sunny day in front of Athens University some years ago started this journey. During the last one year Dr. Vassia Matzana has helped me enormously both academically and personally transferring her recent PhD experience and giving me practical advice and emotional support on a day by day basis. The writing of this thesis would not have been possible without Vassia and I would genuinely like to thank her for everything she has done for me. I would finally like to specially thank Professor Father Nikolaos Ioannides, Father Peter Mueller, my parents, Konstantinos and Aggeliki, my brother Vaios and my sister Ioanna, as well as Annoula and Giagia Dionysia who were the ones that went with me through the adversities of writing the PhD thesis often compromising their personal time and wishes and it is to them with all my love that this thesis is dedicated. This thesis has been funded by the Greek State Scholarships Foundation and supervised on its behalf by Professor Dionysia Kallinikou. I am indebted to both for their financial and moral support. 5 Contents DECLARATION........................................................................................................................................... 2 ABSTRACT ................................................................................................................................................... 3 ACKNOWLEDGEMENTS.......................................................................................................................... 4 CONTENTS ................................................................................................................................................... 6 LIST OF FIGURES ...................................................................................................................................... 9 LIST OF ACRONYMS............................................................................................................................... 10 CHAPTER ONE INTRODUCTION................................................................................................ 12 1.1 INTRODUCTION.................................................................................................................................... 12 1.2 KEY TERMS ......................................................................................................................................... 14 1.3 RESEARCH OVERVIEW AND THESIS STRUCTURE ................................................................................. 16 1.4. CONCLUSION .....................................................................................................................................

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