Centre for Brazilian Studies, University of Oxford, Working Paper 80
1
From Legal Commons to Social Commons: Brazil and theCultural Industry in the 21
st
Century
Ronaldo Lemos,Coordinator, Centro de Tecnologia e Sociedade,Escola de Direito da Fundação Getúlio Vargas,Rio de Janeiro
Working Paper CBS-80-07
Abstract
This article describes some of the current transformations regarding the processes bywhich information and culture are generated, from the point of view of developingcountries. In this brief analysis, the article discusses the role of projects such asCreative 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 licensessuch 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. Thesetensions appear prominently in the so-called global “peripheries”, and often make thelegal structure of intellectual property irrelevant, unfamiliar, or unenforceable for variousreasons.
Centre for Brazilian Studies, University of Oxford, Working Paper 80
2
With the emergence of digital technology and the Internet, in many places and regionsin developing countries (especially in the “peripheries”), technology ended up arrivingearlier than the idea of intellectual property. Such a
de facto
situation propitiated theemergence of cultural industries that were not driven by intellectual property incentives.In these cultural businesses, the idea of “sharing” and of free dissemination of thecontent is intrinsic to the social circumstances taking place in these peripheries. Also,the appropriation of technology on the part of the “peripheries” ends up promotingautonomous forms of bridging the digital divide, such as the “LAN house” phenomenondiscussed below. This paper proposes that many lessons can be learned from thebusiness models emerging from social commons practices in developing countries.The tension between legality and illegality in “peripheral” areas in developing countriesis not new. The work of Boaventura de Sousa Santos
1
and others in the 1970s wasparadigmatic for the discussion of legal pluralism regarding the occupation of land inBrazil. This paper aims to follow in that same pioneer tradition of studies about legalpluralism, and to apply those principles to the discussion of “intellectual property” rather than the ownership of land.
1
See Boaventura de Sousa Santos,
The Law of the Oppressed: The Construction and Reproduction of Legality in Pasargada,
available at http://www.jstor.org/view/00239216/sp020014/02x0165i/0.
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