Towards a model of Commons Based Peer Regulatory Production: the Creative Commons Case

Objective of this paper is to examine the reasons why a Commons Based Peer Production (CBPP) model may be applied in the case of developing regulatory instruments and the implications from the implementation of such a production mode. Starting point for the paper is the observation that CBPP constitutes a representation of an increasing number of institutions and organizational constellation of contemporary society ranging from Free Open Source Software to social networks software, open manufacturing or distributed political networks. The prevalence of CBPP is a direct result of contemporary socio-technical conditions and as this paper argues it also causes a paradigmatic shift in the way we built regulation. This study focuses on the regulation of IPRs as a primary example of the way in which CBPP appears as an alternative model for regulatory production. While the discourse in relation to the protection of the public domain has been primarily focused on the question of its regulatory content (i.e. achieving a more balanced rights allocation and dealing with the issue of mass scale infringement), this paper argues that it should also focus on the mode of producing the relevant regulatory instruments. The mis-match between the socio-economic realities of a digitally networked environment and regulatory content is the symptom of a deeper problem of regulatory alienation of the regulated subject from the content of the relevant regulatory instruments. The adoption of a CBPP model for regulatory production could solve problems of efficiency and effectiveness as well as of representation. The Creative Commons (CC) case is presented as a paradigmatic case of applying such a model for the production of licensing schemes and policies that could operate as an add-on to the existing Copyright system. While CC is a first effort toward the direction of CBPP regulatory production is far from being one. This paper examines the degree to which CC conforms to the CBPP model, the reasons why is should move more actively toward such direction and the ways in which this could be done. This research concludes by highlighting the importance such paradigmatic shift could have for the area of IPR regulation and the potentials from adopting such a regulatory strategy.

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