From legal commons to social commons: Brazil and the cultural industry in the 21st century

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2009-06-17
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This article describes some of the current transformations regarding the processes by which information and culture are generated, from the point of view of developing countries. In this brief analysis, the article discusses the role of projects such as Creative Commons for developing countries. It also discusses the idea of legal commons and social commons. While the idea of legal commons can be understood as the voluntary use of licenses such as Creative Commons in order to create a 'commons', the idea of social commons has to do with the tensions between legality and illegality in developing countries. These tensions appear prominently in the so-called global 'peripheries', and in many instances make the legal structure of intellectual property irrelevant, unfamiliar, or unenforceable, for various reasons. With the emergence of digital technology and the Internet, in many places and regions in developing countries (especially in the 'peripheries'), technology ended up arriving earlier than the idea of intellectual property. Such a de facto situation propitiated the emergence of cultural industries that were not driven by intellectual property incentives. In these cultural businesses, the idea of 'sharing' and of free dissemination of the content is intrinsic to the social circumstances taking place in these peripheries. Also, the appropriation of technology on the part of the 'peripheries' ends up promoting autonomous forms of bridging the digital divide, such as the 'LAN house' phenomenon discussed below. This paper proposes that many lessons can be learned from the business models emerging from social commons practices in developing countries. The tension between legality and illegality in 'peripheral' areas in developing countries is not new. The work of Boaventura de Sousa Santos and others in the 1970s was paradigmatic for the discussion of legal pluralism regarding the occupation of land in Brazil. This paper aims to follow in that same pioneer tradition of studies about legal pluralism, and to apply those principles to the discussion of 'intellectual property' rather than the ownership of land.


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