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Yochai Benkler, Professor of Law at Yale Law School on the need to build a core common infrastructure.
A Core Common Infrastructure
In order to capture the benefits of freedom and innovation
that the networked information economy makes possible, we
must build a core common infrastructure alongside the proprietary
infrastructure. Such a common infrastructure will stretch
from the very physical layer of the information environment to
its logical and content layers. It must be extended so that any
person has some cluster of resources of first and last resort that
will enable that person to make and communicate information,
knowledge, and culture to anyone else. Not all communications
and information production facilities need to be open. But there
must be some portion of each layer that anyone can use without
asking permission from anyone else. This is necessary so that
there is always some avenue open for any person or group to articulate, encode, and transmit whatever he, she, or they want to
communicate no matter how fringe or unmarketable it may
be.
The primary strategies for building the core common infrastructure
are:
An open physical layer should be built through the introduction
of open wireless networks, or a spectrum commons.
An open logical layer should be facilitated through a
systematic policy preference for open over close protocols
and standards, and support for free software platforms that
no person or firm can unilaterally control. More important
are the reversal or refusal to adopt coercive measures that
prefer proprietary to open systems. These include patents on
software platforms, and the emerging cluster of paracopyright
mechanisms like the United States Digital Millennium
Copyright Act2 , intended to preserve the industrial business
models of Hollywood and the recording industries by closing
the logical layer of the Internet.
An open content layer. Not all content must be open, but intellectual
property rights have gone wildly out of control in
the past decade, expanding in scope and force like never
before. There is a pressing need to roll back some of the
rules that are intended to support the twentieth century business
models. These laws were passed in response to heavy
lobbying by incumbents, and ignored the enormous potential
for non market production and decentralized individual
production to become central, rather than peripheral,
components of our information environment.
Reforming organizational and institutional structures that
resist widely distributed production systems.
- The earliest large-scale successful model has been free
software, with its informal social networks girded by the
formal institutional framework of copyleft and open
source licensing.
- In science, we are seeing the early emergence of efforts
by scientists to release science from the old industrial
publication model. The Public Library of Science and
the Budapest Open Access Initiative are the first primary
efforts in this direction. They promise to provide a framework
in which scientists who already do the science,
review the papers, and edit the journals more-or-less for
free can manage their own publication systems without
relying on the large commercial publishers.
- In publication more generally, the emergence of the
Creative Commons is an enormously important facilitating
institutional framework.
- In informal personal communications, blogspace is
emerging as an interesting social space for free, independent,
and widely distributed information production.
- In each case, the particular characteristics of the type of
information, the institutional barriers of incumbency, and
the social patterns of use are somewhat different. In each
case, the solutions may be somewhat different. But in all
cases we are seeing the emergence of social and institutional
structures that allow individuals and groups to
produce information free of the constraints imposed by
the need to sell information as goods in a property-based
market.
We stand at a moment of great opportunity and of a challenge
to our capacity to make policy that puts human beings at the
centre of the networked information society. Digital networks
offer us the opportunity to enhance our productivity and growth
while simultaneously improving our democracy and increasing
individual freedom. These benefits come at the expense, however,
of incumbents who have adapted well to the industrial
model of information production, and are finding it difficult to
adapt to the networked information economy that would
replace it. These incumbents are pushing and pulling law, technology,
and markets to shape the coming century in the image
of the one that passed. It would be tragic if they were to
succeed.
Building a core common infrastructure is a necessary
precondition to allow us to transition away from a society of
passive consumers buying what a small number of commercial
producers are selling. It will allows us to develop into society
in which all can speak to all, and in which anyone can become
an active participant in political, social, and cultural discourse.
This article is an excerpt.
© 2003 by Yochai Benkler. This Work is licensed under the Public Library of
Science Open Access License, and the Creative Commons Attribution License. The Political Economy of Commons first appeared in UPGRADE Vol. IV, No. 3, June 2003.
Yochai Benkler  benklery@juris.law.nyu.edu is Professor of Law at Yale Law School
(US). His research mainly focuses on the effect of the interaction
of law, technology and economic structures on the organization
of information production and exchange.
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DIGITAL ECOLOGY