[-empyre-] Week Three - Open Access

Gary Hall gary at garyhall.info
Sat Jun 19 21:20:51 EST 2010

Well, again, open access is not unified or self-identical. As Janneke 
says, some people, whether rightly or wrongly, clearly do understand and 
think of it as a movement. See, for example, Peter Suber's Open Access 
Overview (http://www.earlham.edu/~peters/fos/overview.htm); or, indeed, 
his 'Timeline of the Open Access Movement' 
(http://www.earlham.edu/~peters/fos/timeline.htm). For others it is a 
variety of economic models, a marketing instrument and so on....

To the best of my knowledge, however, relatively few of those who 
identify themselves as being part of the open access 'movement' 
understand it as a 'free for all', or as meaning 'free to appropriate 
under no conditions or limitations'.

Let's stay with the example of Peter Suber, since he's often identified 
as one of the leaders of the open access movement. Suber draws a 
distinction between gratis open access and libre open access. Gratis 
open access is where the obstacle of cost, but only the obstacle of 
cost, has been taken out of the equation. So access to research 
published gratis open access is freely available (as in ‘free beer’). In 
libre open access, meanwhile, not only has the obstacle of cost been 
removed, but one or more of the barriers concerning the permissions 
needed to copy, reproduce or distribute a given text, have been removed 
too. (Peter Suber, SPARC Open Access Newsletter 124, 2 August, 2008. 
Available at 
http://www.earlham.edu/~peters/fos/newsletter/08-02-08.htm.) So we can 
already see that open access does not simply mean 'free for all' or 
'free to appropriate under no conditions or limitations'.

Admittedly, Suber does state in his Open Access Overview that 
'Open-access (OA) literature is digital, online, free of charge, and 
free of most copyright and licensing restrictions', and that 'OA removes 
price barriers (subscriptions, licensing fees, pay-per-view fees) and 
permission barriers (most copyright and licensing restrictions).' 
However, he follows this up by emphasizing that 'OA is compatible with 
copyright' and that:

'The legal basis of OA is either the consent of the copyright holder or 
the public domain, usually the former.

    * Because OA uses copyright-holder consent, or the expiration of 
copyright, it does not require the abolition, reform, or infringement of 
copyright law. Nor does it require that copyright holders waive all the 
rights that run to them under copyright law and assign their work to the 
public domain.
    * One easy, effective, and increasingly common way for copyright 
holders to manifest their consent to OA is to use one of the Creative 
Commons licenses.'

So, actually, open access here has as much basis in copyright as that 
you're ascribing to the Free Culture movement and Free Software.

Still, I very much liked your account of how Free Software, as a highly 
structured commons, is based on private property rights and the right to 
exclude. It's a neat illustration of the paradox in the idea of the 
common Roberto Esposito identifies in Communitas: the way in which 'the 
"common" is defined exactly through its most obvious antonym: what is 
common is that which unites the ethnic, territorial, and spiritual 
property of every one of its members. They have in common which is most 
properly their own; they are the owners of what is common to them all.’

What interest me about Esposito's book, especially from the point of 
view of some of the things we've been discussing over the last week, is 
its attempt to offer at least one way for us to begin to think community 
and the common in a radically different way. Esposito starts by showing 
that in ‘all neo-Latin languages...”common” is what is not proper’. From 
this beginning he proceeds to develop a notion of community and the 
common that brings into question and decenters the unified, sovereign, 
proprietorial subject on which, as you say, the Free Culture movement, 
Free Software, Creative Commons (and open access, I might add) depend:

'The common is not characterized by what is proper but by what is 
improper, or even more drastically, by the other; by a voiding, be it 
partial or whole, of property into its negative; by removing what is 
properly one’s own that invests and decenters the proprietary subject, 
forcing him to take leave of himself, to alter himself. In the 
community, subjects do not find a principle of identification nor an 
aseptic enclosure within which they can establish transparent or even a 
content to be communicated. They don’t find anything else except that 
void, that distance, that extraneousness that constitutes them as being 
missing from themselves.'
(Roberto Esposito, Communitas: The Origin and Destiny of Community)

Perhaps even more interestingly, one way of thinking about 'the central 
void of community', for Esposito, is in terms of the gift...

Best, Gary

j.martin.pedersen wrote:
> Hi,
> I am not supposed to contribute here
> However, I felt I had to chip in since this discussion tends to expres a
> problematic, conceptual conflation between structured and unstructured
> commons.
> Open Access is not really a movement, but a simple concept (or a
> cultural phenomenon): no structure, just take as you please. Roman
> lawyers called it res nullius: anyone can appropriate as they see fit.
> The Free Culture movement, of which the most notable example is Free
> Software (of which Creative Commons, Wikipedia etc. are derivatives), is
> not about open access. On the contrary, Free Software is a highly
> structured commons that is based on the concept of Copyleft, which is
> articulated in its particular form for the purposes of software in the
> GNU General Public License (the GPL), which, in turn, is based on
> copyright, which, in turn, is based on private property rights: the
> right to exclude.
> The right to exclude is used in the GPL to articulate the conditions
> under which you can share freely, but in the moment that you do not obey
> the specific conditions (i.e. if you do not act according to the
> structures of the commons) you will be excluded from the commons - in
> other words, the basic element of private property rights, namely the
> right to exclude, comes into play when you act id discord with the
> structures of the commons (this happens - in legal practice - by the GPL
> simply reverting to default copyright if someone disobeys the
> distribution terms - the structures of the commons - that are
> articulated in the GPL).
> Free Software - and the Free Culture movement - have developed
> sub-clauses to copyright. To discuss these sensibly require
> jurisprdential analysis and a grasp of the surrounding political economy.
> Open Access, by contrast, is simple a "free for all" or an unstructured
> commons. Open access is what the world is to capitalists in their wet
> dreams: free to appropriate under no conditions or limitations. A lack
> of organisation that works in a world of affluence and when riding on
> the surplus of capitalism and tenure tracks.
> However, open access as a cultural phenomenon can be discussed
> interestingly, but it has to be conceptually distinguished from
> structured commons.
> all the best,
> martin
> (who wrote a PhD titled "Property, Commoning and the Politics of Free
> Software" from an anti-capitalist perspective).

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