Informal note 
Open Content, Piracy and Access to Knowledge: Notes for Wikimania 2005
I’ve included this very informal note as part of my presentation here at Wikimania to bring attention to the context by which a number of words, phrases and causes that we all work with become loaded when applied outside a specifically bounded sphere, as also to suggest an agenda for action that attendees to Wikimania might consider.
Here’s a question. How open is “open content” in a situation where less than 5% of a 44 million population has access to the internet? (As is the situation in South Africa today) Disregarding a variety of equally Luddite answers, we’re still left with the puzzling fact that the “public domain” is not as public as it seems.
Perhaps we need to rethink who these publics (as referred to in the public domain) are. Lets start with looking at who benefits (and how) from the kind of policy advocacy such as that which I engage with (www.access.org.za) – access to learning materials in Southern Africa – or at the global level, the access to knowledge treaty (www.cptech.org/a2k).
To presume that legal reform will create a wide set of benefits to a wide group of people assumes that the force of law (i.e. the power and ability to enforce the law) is strong – an assumption that further demands a strong, rich state. But the fallibility of law is apparent in both rich and poor countries. Its unlikely that the average (rich) student in the United States has any clue as to what exactly she is entailed to under the provisions of “fair use” for example, or equally, that the average (poor) student in South Africa knows that it is technically illegal to photocopy more than “two excerpts from the same author per school term” (or some other limitation from a whole set of impossibly complicated conditions attached to the reproduction of copyrighted material).
What we are trying to work towards - in different ways - is a situation where the law reflects reality: a policy which allows students in resource-poor settings to be able to do (what, in many cases) they already do, which is, get by – even in situations where personal financial resources are scarce, or the matter in question is unaffordable or limitedly available.
South Africa (broadly speaking) has a limited informal economy, unlike – say – Uganda or India, where “illegal” access mechanisms to learning material (as well as a host of other products of the cultural industry) proliferate. Nevertheless, if the law will only technically enable practices that are already happening on the ground – practices that in many cases are too widespread, and/or isolated to be prosecuted successfully – then what do we hope legal reform to achieve? At the top of the list of potential benefits that would accrue from a better policy environment, is the freeing of resources for institutions engaged in learning. Universities and public libraries could – potentially –do a better job with less money, thus releasing funds to other areas in need of development such as infrastructure – instead of pumping it into rents on intellectual property.
Policy reform – whether of the advocacy kind (i.e. change in national laws) or of the self-determined kind – such as proposed by the wonderful, well-marketed system known as Creative Commons, among others, have tremendous benefits to offer. But it is perhaps wise to stop and consider that even such benefits, when accrued, will be bound within a specific institutional/ class sphere. Technology, information (not least, about the law) and a host of other spatial exclusions will continue to present barriers to accessing learning materials.
A number of people work very hard on policy reform all over the world in the hope of making educational material accessible, and some amount of public funds is utilised to enable their work: what if that money was spent on buying photocopying machines and distributing printed material to students instead?
I should clarify at this point, once more, that I work on policy reform and that I am by no means suggesting that my work is useless. On the contrary – I consider it very important. Still, the provocation posed by the question before is deliberate, because I realise that there are contemporary movements – importantly among them, the phenomenon we dismiss as “piracy” – that present a valuable site of inquiry towards exactly the same goals.
Piracy is the informal economy – it is piracy because the material reproduced, remixed or otherwise is copyrighted, and it is informal because copyright law informs the regulation of entrepreneurship. Open content material – and to a lesser extent, open access content – is an opportunity to turn piracy legal. The informal economy has a variety of practices that constitute important access nodes for people generally deprived of infrastructure, financial wealth and easy availability of cultural industry outputs.
There are important economic reasons that make a case for the informal economy: relative ease of entry into markets, the promotion of small business, the development of entrepreneurship and employment at large. Richard Branson began the Virgin empire selling contraceptive pills, and on the streets of South Africa, a new business opportunity is selling condoms. If the pills or condoms in question hadn’t been given away free by the governments of each country in the first place, it is unlikely that a distribution economy around them could have feasibly existed. But as much as an investment in the informal economy is good for labour, the economy, etc. it must be made clear that it also affords potential access opportunities that cannot be constituted through other (more traditional) market mechanisms.
That is to say: we need the informal economy to make access really work.
Policy reform seeks to (or should seek to) understand the informal economy in the learning materials market and learn from it. The opportunity here, at Wikimania, is to do the same. Given the enormously free frontiers that open content presents, and with a talent pool of thousands of collaborators the world over, the ease and ability by which we may mimic piracy – and enable new and more mechanisms in the informal economy – is virtually boundless.
Plus, for those of us worried by the heavy hand of the law - it’s legal.