Building on Richard Stallman's Greatest Achievement
What was Richard Stallman's greatest achievement? Some might say it's Emacs, one of the most powerful and adaptable pieces of software ever written. Others might plump for gcc, an indispensable tool used by probably millions of hackers to write yet more free software. And then there is the entire GNU project, astonishing in its ambition to create a Unix-like operating system from scratch. But for me, his single most important hack was the creation of the GNU General Public Licence.
The GNU GPL did several things. First, it provided a kind of written constitution for free software, helping to define what exactly that meant, and providing a benchmark against which it could be measured. Secondly, it provided a legal framework for something quite new: an attempt to give users rights, rather than take them away. And thirdly, it did that in a totally radical way.
Here's how Eben Moglen, Stallman's right-hand man, and the person who guides the FSF on all legal issues, explained the situation to me a few years back:
The stuff that people do with GPL code – like they modify it, they copy it, they give it to other people – is stuff that under the copyright law you can't do unless you have permission. So if they've got permission, or think they have permission, then the permission they have is the GPL. If they don't have that permission, they have no permission.
In other words, the GPL uses copyright to give permissions that copyright does not provide – a wonderfully playful hack of the copyright system itself.
Intellectually, this is astonishing: nobody before ever had the genius – or the temerity – to turn copyright back on itself in this way. But so far, it has remained an isolated miracle, with little impact on domains beyond copyright.
Until now. For, recently, James Love, Director of Knowledge Ecology International, an NGO that works on issues relating to the creation and control of knowledge, as well as access to knowledge and knowledge embedded goods (such as medicines), has made an astonishing proposal: that we apply Stallman's great hack to nothing less than the World Trade Organisation (WTO).
The similarities are clear. Both copyright and the WTO have both been instruments of control that seek to limit what people – and peoples – can do in their respective spheres of creation and trade. Both have steadily accreted powers over the years, until they have become hugely problematic for those who wish to see knowledge and products based on knowledge made as widely available as possible. So the idea that Stallman's hack might be applicable is certainly attractive – exciting even.
Here's Love's background to the idea:
The world is confronted with a vast under-supply of public goods. Part of the problem is that the current trade system lacks the sufficient incentives and structures to address the free riding problems associated with the supply of public goods. There are increasing calls for a larger supply of public goods and a variety of proposals that involve government commitments to increase the supply of global public goods in specific areas
Wikipedia defines a public good as “a good that is non-rivaled and non-excludable. This means, respectively, that consumption of the good by one individual does not reduce availability of the good for consumption by others; and that no one can be effectively excluded from using the good.” Free software is an example of a public good, as are all the other commons built around sharing knowledge – things like open content, open access, open data, etc. So we can see at once that Love is talking about the same things that Stallman was concerned with, but at a more general level.
Love explains his goals as the following:
to create a new option that will allow governments to make binding offers and commitments for the supply of heterogeneous global public goods, involving in particular knowledge goods.
One of the objectives is to shift from the current WTO focus on trade liberation for private goods and the private enclosure of knowledge through mandatory standards for intellectual property and its enforcement (an area some believe has been over emphasized), to a more balanced agenda that also includes public goods and attention to pressing social needs.
That is, he wants to find a way for government to commit themselves to create more public goods – for example, free software, or content released under a CC licence. In the process, he wants to subvert the entire WTO, just as Stallman subverted copyright. Here's how it's done:
One proposal is to model such an agreement in part on the WTO agreement on services – the General Agreement on Trade in Services (GATS). The GATS in the WTO is designed to privatize and liberalize trade in service, in part though a system of binding “offers.” These offers are not uniform among countries. Offers by one country depend upon their specific willingness to liberalize a specific sector, and the interest of other countries that they do so. Liberalization commitments are traded in a WTO environment where “asks” and “offers” cover a wide range to topics, including changes in tariffs or agricultural subsides, or requests for support of new intellectual property norms. What is key to the services agreement is its ability to accommodate a diverse set of offers, in a multilateral negotiation, where consensus on uniform norms is unlikely.
There is much criticism of the GATS itself, much of it we share. However, as a model for creating binding commitments for a diverse set of obligations, it is quite interesting. Hence, the earlier reference to the “hack” of the WTO. We are interested in borrowing from the GATS the structure of accepting binding heterogeneous offers to supply -- in this case, not liberation of services, but the supply of public goods.
This use of the “binding commitments” might seem trivial, but is actually quite profound, because in practice its effect are far reaching:
If such an agreement existed with the WTO, several countries could propose a collaboration to fund open source research on malaria. Countries could bind government agencies to require government funded research to be made available, for free, on the Internet, as was recently done by the U.S. NIH and in some other government research agencies. Like-minded countries could agree to make binding commitments to support the development of open source software, fund new databases, share the costs of hosting Wikipedia servers, pay for translations of scientific works into other languages, or for the creation of more accessible formats of books and articles for persons who are blind or have other reading disabilities. The lists of things that could be expanded and supported under such an agreement are endless.
In other words, the use of the WTO's binding agreements provides a handy pre-existing framework for the entire gamut of sharing activities. It has the virtue of being readily understood by government functionaries – just as copyright is readily understood by lawyers – which obviates the need to explain things when lobbying for such agreements to be set up. And, like Stallman's GPL, Love's idea has even more profound, indeed, revolutionary effect:
by introducing public goods into the WTO environment - the culture of the WTO would be profoundly changed. “Asks” and “offers” in the WTO negotiations would not longer be exclusively about the private goods market, or about the privatization and enclosure of knowledge itself. There would be an immediate shift to consider the competing benefits of greater openness, and a larger global commons. Knowledge that was produced to be “free” would have a new value, as a trading chip in the WTO environment.
Just as Stallman managed to turn the main way of enclosing creation – copyright – into a way of liberating it, so Love proposes turning the WTO from an organisation that focuses exclusively on trading private goods, bringing wealth to a few, into one that can also be used to create and share public goods, enriching us all.
Like Stallman's, it's a brilliant conceit; unfortunately, unlike Stallman's, it's an idea that's much harder to put into practice, since it requires governments around the world to co-operate with the scheme. Happily, the tangible benefits the GPL has brought in terms of free software and its knock-on effects provide compelling reasons why they really ought to do so.
You can follow Glyn Moody on Twitter at @glynmoody
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