Dulong de Rosnay, Melanie

Our paper advances two arguments. First, we argue that the existing law and data-political economy in the European Union perpetuates commodification of open data. Instead of enabling a remix culture for shared knowledge production, legal frameworks enable capture of open data by actors with more infrastructural power. This excludes individuals and communities (i.e the ‘real’ data generators) from deriving value out of open data.
We illustrate this argument through three ‘rules-in-use’ for the open data ecosystem. At the constitutional level of regulatory law, literature from critical data studies illuminates the gaps between the ‘imagined’ and the actual beneficiaries of open data initiatives. At the collective choice level where open data and content licenses serve as private legal ordering, license terms are misused during data re-use for training AI models. At the operational level, we discuss commonswashing by Big Tech platforms, for e.g., Google’s Data Commons project.
Second, we propose law and policy solutions that recognise the relational and ecosystemic nature of open data. We argue that to unlock the potential of polycentricity, we must recognize the multi-faceted role played by the state in an open data commons – as an enforcer/sanctioning authority, but also provider, consumer, endorser and curator of open data. We also argue that because data re-use is impacted by copyright, privacy and data colonialism, existing open data and content licenses need to include more community preferences. Finally, we argue that the enforcement of such community preferences requires new legal institutions, to ensure more equity in the distributional impacts of open data. These suggestions can shift the perspective from governance of open data as common property, to governance of the open data ecosystem as a commons that preserves democratic values.

Purtova, N., & van Maanen, G. (2023). Data as an economic good, data as a commons, and data governance. Law, Innovation and Technology, 16(1), 1–42; van Loenen, B., et al. (2021). Towards value-creating and sustainable open data ecosystems: A comparative case study and a research agenda. JeDEM - EJournal of EDemocracy and Open Government, 13(2), 1–27; Contreras. J. (2017). Leviathan in the Commons: Biomedical Data and the State. In Strandburg, K., Frischmann, B., & Madison, M (Eds.), Governing Medical Knowledge Commons (pp. 19-45). Cambridge University Press; Benhamou, Y., & Dulong de Rosnay, M. (2023) Open Data Commons Licenses (ODCL): Licensing Personal and Non Personal Data Supporting the Commons and Privacy.

Schlager & Ostrom (1992) look at tangible commons property as a bundle of rights. We look at how digital commons can also be understood as a bundle of rights. Free and open licenses have frequently been considered to form a bundle of rights which define roles, and segment who is included and who is excluded. Few have actually tried to analyze properly this assessment. Douglas (2011) showed that the key element for free and open source software is not ownership, but access and use, delineation of who has rights and duties. We argue that for digital commons, most of these rights are not based on ownership or copyright, and propose to extend the bundle of rights beyond open and free licenses.

Digital commons are a subset of the commons, where the resources are data, information, culture and knowledge which are created and/or maintained online. They are shared in ways that avoid their enclosure and allow everyone to access and build upon them (Dulong de Rosnay & F. Stalder, 2020). Free and open licenses define the resources' shared rights from a copyright perspective, but the resources’ governance rules result from a combination of licenses with other written and unwritten rules.

We draw from Douglas and include governance documents other than licenses, such charters and code of conducts, to discuss the pertinence of using the bundle-of-rights framework to analyze governance of digital commons beyond copyright.

We achieve this by investigating the rules-in-use for three projects - the operating system Debian, the food transparency database OpenFoodFacts and the communication protocol Matrix. The bundle of rights may include the rights to represent the collective, to take certain decisions, to manage conflict, to redirect the project, to change the license, to ensure care, etc.

References

Douglas, D. M. (2011). A bundle of software rights and duties. Ethics and Information Technology, 13(3), 185–197. https://doi.org/10.1007/s10676-010-9229-3

Dulong de Rosnay, M. (2016). Peer to party: Occupy the law. First Monday, 21(12). https://doi.org/10.5210/fm.v21i12.7117

Dulong de Rosnay, M. & Stalder, F. (2020). Digital commons. Internet Policy Review, 9(4). https://doi.org/10.14763/2020.4.1530

Guillier, V. (2024), Au-delà de la propriété ? Vers de nouveaux faisceaux de droits pour étudier la gouvernance des communs numériques, communication at the “TIC.IS
TIC, Information et Stratégies” conference.

Schlager, E & E. Ostrom, E. (1992), Property-Rights Regimes and Natural Resources: A Conceptual Analysis. Land Economics Vol. 68. n°3, p. 249-262.