What is a creative work?

What is a creative or intellectual work? The assumption that the exercise of human creativity and thought produces discreet objects – works – lies at the heart of the concept of intellectual property. Indeed, this is what copyright and other IP laws do: they define parcels of ideas1, then assign rights over those ideas to people. The commons, by contrast, treats intellectual and cultural works as shared entities.

Ideas Are Never Discreet

In reality, ideas are never discreet entities. Even creative works that appear to be separate – such as novels, music albums, or films – are developed from the raw stuff of other culture. Lawrence Lessig illustrates this beautifully when he describes how Disney’s success was built upon traditional folk tales like Sleeping Beauty and Snow White2. As I have argued, much of the meaning of these works emerges from another source: the audience’s interpretation of culture creates much or most of their value.

Creative, cultural and intellectual works aren’t only tied to other works, they are also tied to other versions of themselves: they change over time and with context. For example, the meaning of a duck & cover video is very different now than when the Cold War was at its height, even though the images themselves have not changed.

Intertwingularity and the Internet3

None of this is new, but it is particularly relevant in the context of online media produced by numerous authors and always in flux. How does one disentangle the contents of a wiki or an online forum? What is the relationship between that content and the ideas and intellectual work that gave rise to it?

A Wikipedia article, for example, is multiple in both space and time. The text itself is hard or impossible to connect to the work that went into creating it: it has likely been written by many people, whose changes to words, sentences, and paragraphs cannot be isolated from each other. The article as a whole is also linked to the larger encyclopedia or to external sources on which it depends for explanation. The content may be further distributed in space as other sites copy it in whole or in part, perhaps making their own changes.

Furthermore, there are many versions of the same article. For a start, Wikipedia keeps a revision history (and if the article is vandalized, an older version may be preferable to a newer one). The article coexists with other versions of itself in time; copies elsewhere may represent different versions. Accurate references to an article must therefore refer to the specific version referenced. Wikipedia is exceptional in this way: most webpages don’t maintain a revision history. References must include the date the page was accessed; even then the content is often ephemeral and lost to history.

The same applies to software, which is typically also the product of multiple authors and versions. Even the point where one piece of software ends and another begins can be hard to determine – hence the dispute as to whether the popular open source operating system is Linux or GNU/Linux: proponents of GNU/Linux argue the core of the operating system cannot be meaningfully separated from other essential parts of the system. Indeed, this echoes the question of the Microsoft antitrust case: was Internet Explorer part of Windows or not? Well, yes and no.

The Work and the Commons

The difficulty with isolating intellectual and creative works from each other helps explain why a strong implementation of intellectual property threatens the creativity it purports to protect. But the commons can also be affected, for the concept of the “work” is common here also (I use the term myself). Lawrence Lessig, for example, has proposed that U.S. copyright be scaled back by again requiring copyright holders to register their works. But what would they register? If the work is changing, when would they have to register again?

Anthony McCann argues that most understandings of the commons, rather than opposing the enclosure entailed in the concept of intellectual property, reinforces it. Advocates of the commons often draw a contrast with with enclosure as an efficient means of managing resources. But, McCann says, accepting an economic perspective of the management of resources implicitly accepts the ideological basis of enclosure and the commodification it entails.

Although I think McCann goes too far – even an economic commons is valuable – his skepticism of such understandings is useful. Indeed I have proposed that it may be more helpful to look at the commons in terms of practice and experience rather than production and consumption. Yet I begin by arguing that creativity is often individual and can be tied to a particular work. The concept of the work is not only helpful analytically, it corresponds to much of our experience of culture and ideas in the world. Works, however, can be defined many ways (the Wikipedia page or paragraph, the edits of a particular author, the Web as a whole, etc.). The danger McCann raises is of commodification even in the commons. One definition of a work may become seen as natural, and be elevated above all the others. A commons that does this diminishes itself4.


1 I say copyright protects ideas. It may be objected that it protects the expression of ideas. For example, the copyright of a novel protects the words expressing the story, not the concept of the story itself (although in practice this is more ambiguous). A series of words is an idea too, however. The distinction only makes sense at a certain level, and only when the contrast with expression is introduced. The ambiguity only reinforces my point about the difficulty of separating ideas.

2 See Lessig’s Free Culture.

3 According to Wikipedia, intertwingularity was coined by Ted Nelson, who also thought up “hypertext”. I first saw the term in recent years used by ambitious web entrepreneurs.

4 That said, I am using an attribution version of the creative commons license for this post. There is on ideal solution.