Peer Production License
The peer production license is an example of the Copyfarleft type of license, in which only other commoners, cooperatives and nonprofits can share and re-use the material, but not commercial entities intent on making profit through the commons without explicit reciprocity
Created by John Magyar, B.A., J.D. and Dmytri Kleiner, the following Peer Production License, a model for a Copyfarleft license, has been derived from the Creative Commons ‘Attribution-NonCommercial-ShareAlike’ license available at http://creativecommons.org/licenses/by-nc-sa/3.0/legalcode.
THE WORK (AS DEFINED BELOW) IS PROVIDED UNDER THE TERMS OF THIS COPYFARLEFT PUBLIC LICENSE (“LICENSE”). THE WORK IS PROTECTED BY COPYRIGHT AND ALL OTHER APPLICABLE LAWS. ANY USE OF THE WORK OTHER THAN AS AUTHORIZED UNDER THIS LICENSE OR COPYRIGHT LAW IS PROHIBITED. BY EXERCISING ANY RIGHTS TO THE WORK PROVIDED IN THIS LICENSE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. TO THE EXTENT THIS LICENSE MAY BE CONSIDERED TO BE A CONTRACT, THE LICENSOR GRANTS YOU THE RIGHTS CONTAINED HERE IN AS CONSIDERATION FOR ACCEPTING THE TERMS AND CONDITIONS OF THIS LICENSE AND FOR AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE.
- a. “Adaptation” means a work based upon the Work, or upon the Work and other preex isting works, such as a translation, adaptation, derivative work, arrangement of music or other alterations of a literary or artistic work, or phonogram or performance and includes cinematographic adaptations or any other form in which the Work may be recast, trans formed, or adapted including in any form recognizably derived from the original, except that a work that constitutes a Collection will not be considered an Adaptation for the pur pose of this License. For the avoidance of doubt, where the Work is a musical work, perfor mance or phonogram, the synchronization of the Work in timedrelation with a moving image (“synching”) will be considered an Adaptation for the purpose of this License.
- b. “Collection” means a collection of literary or artistic works, such as encyclopedias and anthologies, or performances, phonograms or broadcasts, or other works or subject matter other than works listed in Section 1(f) below, which, by reason of the selection and arrangement of their contents, constitute intellectual creations, in which the Work is included in its entirety in unmodified form along with one or more other con tributions, each constituting separate and independent works in themselves, which together are assembled into a collective whole. A work that constitutes a Collection will not be considered an Adaptation (as defined above) for the purposes of this License.
- c. “Distribute” means to make available to the public the original and copies of the Work or Adaptation, as appropriate, through sale, gift or any other transfer of possession or ownership.
- d. “Licensor” means the individual, individuals, entity or entities that offer(s) the Work under the terms of this License.
- e. “Original Author” means, in the case of a literary or artistic work, the individual, in dividuals, entity or entities who created the Work or if no individual or entity can be identified, the publisher; and in addition (i) in the case of a performance the actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret or otherwise perform literary or artistic works or expressions of folklore; (ii) in the case of a phonogram the producer being the person or legal entity who first fixes the sounds of a performance or other sounds; and, (iii) in the case of broadcasts, the organization that transmits the broadcast.
- f. “Work” means the literary and/or artistic work offered under the terms of this License including without limitation any production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression including digital form, such as a book, pamphlet and other writing; a lecture, address, sermon or other work of the same nature; a dramatic or dramaticomusical work; a choreographic work or entertainment in dumb show; a musical composition with or without words; a cin ematographic work to which are assimilated works expressed by a process analogous to cinematography; a work of drawing, painting, architecture, sculpture, engraving or lithography; a photographic work to which are assimilated works expressed by a pro cess analogous to photography; a work of applied art; an illustration, map, plan, sketch or threedimensional work relative to geography, topography, architecture or science; a performance; a broadcast; a phonogram; a compilation of data to the extent it is pro tected as a copyrightable work; or a work performed by a variety or circus performer to the extent it is not otherwise considered a literary or artistic work.
- g. “You” means an individual or entity exercising rights under this License who has not previously violated the terms of this License with respect to the Work, or who has received express permission from the Licensor to exercise rights under this License despite a previous violation.
- h. “Publicly Perform” means to perform public recitations of the Work and to commu nicate to the public those public recitations, by any means or process, including by wire or wireless means or public digital performances; to make available to the public Works in such a way that members of the public may access these Works from a place and at a place individually chosen by them; to perform the Work to the public by any means or process and the communication to the public of the performances of the Work, including by public digital performance; to broadcast and rebroadcast the Work by any means including signs, sounds or images.
- i. “Reproduce” means to make copies of the Work by any means including without limi tation by sound or visual recordings and the right of fixation and reproducing fixations of the Work, including storage of a protected performance or phonogram in digital form or other electronic medium.
2. FAIR DEALING RIGHTS
Nothing in this License is intended to reduce, limit, or restrict any uses free from copyright or rights arising from limitations or exceptions that are provided for in connection with the copyright protection under copyright law or other applicable laws.
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Subject to the terms and conditions of this License, Licensor hereby grants You a worldwide, royaltyfree, nonexclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in the Work as stated below:
- a. to Reproduce the Work, to incorporate the Work into one or more Collections, and to Reproduce the Work as incorporated in the Collections;
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- a. You may Distribute or Publicly Perform the Work only under the terms of this License. You must include a copy of, or the Uniform Resource Identifier (URI) for, this License with every copy of the Work You Distribute or Publicly Perform. You may not offer or impose any terms on the Work that restrict the terms of this License or the ability of the recipient of the Work to exercise the rights granted to that recipient under the terms of the License. You may not sublicense the Work. You must keep intact all notices that refer to this License and to the disclaimer of warranties with every copy of the Work You Distribute or Publicly Perform. When You Distribute or Publicly Perform the Work, You may not impose any effective technological measures on the Work that restrict the ability of a recipient of the Work from You to exercise the rights granted to that recipient under the terms of the License. This Section 4(a) applies to the Work as incorporated in a Collection, but this does not require the Collection apart from the Work itself to be made subject to the terms of this License. If You create a Collection, upon notice from any Licensor You must, to the extent practicable, remove from the Collection any credit as required by Section 4(d), as requested. If You create an Adaptation, upon notice from any Licensor You must, to the extent practicable, remove from the Adaptation any credit as required by Section 4(d), as requested.
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- i. Nonwaivable Compulsory License Schemes. In those jurisdictions in which the right to collect royalties through any statutory or compulsory licensing scheme can not be waived, the Licensor reserves the exclusive right to collect such royalties for any exercise by You of the rights granted under this License;
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- iii.Voluntary License Schemes. The Licensor reserves the right to collect royalties, whether individually or, in the event that the Licensor is a member of a collecting society that administers voluntary licensing schemes, via that society, from any exercise by You of the rights granted under this License that is for a purpose or use which is otherwise than noncommercial as permitted under Section 4(b).
- g. Except as otherwise agreed in writing by the Licensor or as may be otherwise permitted by applicable law, if You Reproduce, Distribute or Publicly Perform the Work either by itself or as part of any Adaptations or Collections, You must not distort, mutilate, modify or take other derogatory action in relation to the Work which would be prejudicial to the Original Author’s honor or reputation. Licensor agrees that in those jurisdictions (e.g. Japan), in which any exercise of the right granted in Section 3(b) of this License (the right to make Adaptations) would be deemed to be a distortion, mutilation, modification or other derogatory action prejudicial to the Original Author’s honor and reputation, the Licensor will waive or not assert, as appropriate, this Section, to the fullest extent permitted by the applicable national law, to enable You to reasonably exercise Your right under Section 3(b) of this License (right to make Adaptations) but not otherwise.
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- f. The rights granted under, and the subject matter referenced, in this License were draft ed utilizing the terminology of the Berne Convention for the Protection of Literary and Artistic Works (as amended on September 28, 1979), the Rome Convention of 1961, the WIPO Copyright Treaty of 1996, the WIPO Performances and Phonograms Treaty of 1996 and the Universal Copyright Convention (as revised on July 24, 1971). These rights and subject matter take effect in the relevant jurisdiction in which the License terms are sought to be enforced according to the corresponding provisions of the implemen tation of those treaty provisions in the applicable national law. If the standard suite of rights granted under applicable copyright law includes additional rights not granted under this License, such additional rights are deemed to be included in the License; this License is not intended to restrict the license of any rights under applicable law.
Why I still don't believe in the p2p license
"A license for a technology is a limitation of use of that technology. A newly created technology is not a scare city by nature, because it is something that lives in the realm of knowledge, which has very low distribution costs. It is only scarce in terms to the number of individuals who can understand it and to put it into practice. A license creates artificial scarcity, it is in some way going against the nature of the thing.
So why do we have licenses and patents then? They exist because they play a role, because it is more advantageous to have them than not to have them.
The reason for their existence is actually economical. In a world deprived of information technology, the costs of innovation are quite high, because developing a new technology requires putting people with specific technical skills together, under the same roof, and having them use their own intellectual resources and existing knowledge, which in not easy to come by, use specialized equipment, not to mention addressing their human needs. It makes sense to restrict the use of the new technology in order to allow those who invest in it to recover their sunk costs and to make some profit, which in return represents an incentive to innovate more.
But we must note that patents have an expiry date. There is a reason for that too. The full potential of innovation for a society is only developed when it is opened. Therefore, the duration of patents is a compromise between encouraging innovation at the individual level and benefit from it at the social level.
In today's world, the costs of innovation has dropped dramatically, because more and more people are able to exchange ideas online and use computer programs for design and simulation. Moreover, open source communities allow a wider distribution of costs, and a wider sharing of risks. Furthermore, the speed of innovation is also higher within open communities, who make extensive use of digital technology. This partially explains why we are seeing the emergence of open source products.
Since the cost of innovation has dropped, limiting access to a technology makes less sense. By opening a technology one can lose market share, but this disadvantage is offset by the higher innovation speed that we observe within open communities. The predominant strategy becomes first to market and we're transitioning from a knowledge economy to a know low economy, which means to offer the newest thing first, of high quality and with a good service around it. Scarcity doesn't apply to innovation, but to the means to put it practice.
One might argue that this doesn't apply in all areas. For example, innovation in the medical field is still very expensive and risky, because of the high costs of research and because of all the regulations around it.
The argument for the p2p license is to insure that value flows predominantly towards the new economy, which is based on commons and open innovation. It is in fact a defensive or protective mechanism, that implies a weakness of the new economy. Value flows in all directions, but it generally flows predominantly from the economically weak to the economically strong. It is the economically weak who needs protective measures. The economically strong is generally interested in not adding barriers to value flows. This is why the USA goes around and signs free trade agreements, which are very disruptive for smaller economies, because the deal ends up displacing local economic agents, disturbing the local ecosystem.
I actually believe that the p2p economy, once its infrastructure will be in place, will be stronger than the actual economy, therefore I don't see the need for protective measures. We should be the ones to advocate total openness.
One of the most common argument I hear for protective measures, for the p2p license, is that a classical corporation can reduce its costs by feeding on open innovation created by open communities, and can use its market potential to distribute products based on that open innovation, without giving something back to the open community. There are a few implied assumptions in this argument.
The first one is that open communities that produce open innovation have no capability to market products. They are not capable of large scale production, they don't have distribution channels, etc. This is in fact largely true today. Corporations do have these capabilities and they normally fill in the gap, praying open open source, and this upsets a lot of people. That frustration blinds some us from seeing a bit further. But others are turning it into positive action. SENSORICA is evolving to solve that problem. It is a market-oriented open community, integrating manufacturing and distribution capabilities.
The second implied assumption is that a corporation can actually market open source products. Our experience tells us that open products are not always compatible with the corporate business model. The corporation, if interested in an open product, will sell it as a closed product. That puts it at a disadvantage, assuming that it is competing with entities like SENSORICA, because the open product is superior to the closed product. The value structure of open products is really different from closed products. They are usually modular, allow greater compatibility and interoperability, have a longer life, are customizable, are supported by a community, are transparent and cannot be programmed for obsolescence or milked for consumables, which usually comprise patented features, etc. Not to mention the fact that open innovation doesn't guarantee a competitive advantage to corporations, against other corporations, because it can be immediately copied by others. An open value network like SENSORICA can offer all that value and turn all these features into an advantage. .
The third implied assumption is that copying technology is actually easy. This is true for low tech stuff. When the level of complexity increases know how becomes important. So it takes some effort to develop effective in house processes to produce and service the product. By the time that becomes a given, the open value network is working on the next generation of products.
If we believe that open value networks can evolve into an economically superior organization, we then have an incentive to allow corporations to integrate open innovation into their products, as long as that open innovation has transitive properties, i.e. if someone builds on top of it the entire thing would become open. This is in fact a subversive tactic to extract value from the present/old economy. Corporations spend their own resources to add on top of the open innovation, they must open the entire thing, they most probably do a bad job marketing the open product, which is after picked up by an entity like SENSORICA, further improved and marketed successfully. I actually see open innovation as a Trojan horse into the old economy. We actually want corporations to take the bate.
Another important but largely unnoticed problem with the p2p license is that it assumes that corporations actually want open innovation. Our practice/experience tell us that open innovation is actually not valued highly by corporations, because open products usually don't match their business model and don't offer a competitive advantage, within their business paradigm. Therefore, corporations are not ready to pay a lot money to license open technology. They would rather copy it subversively, and present it as proprietary, which would give them a competitive advantage. But that is not very legal. Most of them prefer to continue old practices, which is to innovate internally or to import IP through licensing or acquisitions."
Why I now do believe in the P2P license
I just wanted to respond to a line of thought in the above critique, best exemplified by this passage:
" The argument for the p2p license is to insure that value flows predominantly towards the new economy, which is based on commons and open innovation. It is in fact a defensive or protective mechanism, that implies a weakness of the new economy... "
Essentially I agree with this characterization, but I disagree that "protective" measures are ineffectual in supporting a delicate economy (a term I find more appropriate than "weak", which is full of obvious biases, most significantly the failure to note the this "weak" economy has a much higher creative intellectual potential than the "strong" economy).
The very actor used here as an example of a strong economic party, the US, was once a delicate market, and one on the margins of a much more developed and robust market, England. In that time tariffs or taxes on imported products were used by the US to strengthen it's domestic productivity. We can see that these protective measures were very successful, when implemented properly and over a significant time period. As I said, in principle I agree that CopyFarLeft approaches are essentially protectionism for a developing open market and I would further argue: that's a good thing!
However, all of the above is presented under a false premise: that there are two intellectual markets, a traditional proprietary market and a new open source market. Actually, all IPs make use of public domain and open source knowledge. All proprietary products benefit from the great store of commons data, new and old, raw and developing. There is no proprietary market apart from the commons. It's a subset of the commons. What p2p does is essentially say, "You cannot put a fence around this piece of information, this part of the collective knowledge pool." This license does not move a project from one market to another. It protects that project from becoming inaccessible to the greater market in which it was developed. All projects begin in the commons because all projects are a synthesizing of prior knowledge into new applications. Fundamentally this is about protecting knowledge from the kind of distortion, obscurity and exploitation that is based on secrets and hidden agendas, i.e. privilege and power.
Further more, I would like to put out a neighborly reminder to anyone reading this discussion:
Whether it be in the form of face-to-face communication, analogue media or digital data, KNOWLEDGE is primary wealth. All other products our secondary wealth because all other products are the result of the application of knowledge. Even the use of previously produced wealth is only possible through the application of knowledge. If we ever want to find ourselves living in a fair and open society, we need to continue to innovate open forms of participation in the preservation of knowledge, the distribution of knowledge and the application of knowledge in the creation of new wealth. I believe that the license posted above is one such innovation.
An integrated view
* Article: From the Communism of Capital to Capital for the Commons: Towards an Open Co-operativism. By Michel Bauwens, Vasilis Kostakis. Triple C, Vol 12, No 1 (2014)
Two prominent social progressive movements are faced with a few contradictions and a paradox. On the one side, we have a re-emergence of the co-operative movement and worker-owned enterprises which suffer from certain structural weaknesses. On the other, we have an emergent field of open and Commons-oriented peer production initiatives which create common pools of knowledge for the whole of humanity, but are dominated by start-ups and large multinational enterprises using the same Commons. Thus we have a paradox: the more communist the sharing license used in the peer production of free software or open hardware, the more capitalist the practice. To tackle this paradox and the aforementioned contradictions, we tentatively suggest a new convergence that would combine both Commons-oriented open peer production models with common ownership and governance models, such as those of the co-operatives and the solidarity economic models."