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Data Production and Sharing: Towards a Universal Right?

In 1968, Steward Brand, a biologist associated with the American counterculture, imagined the Whole Earth Catalogue. This tool, which took the form of a travel book, aimed to share knowledge between the hippie communities that read it and left behind it the hope for a universal spread of knowledge. Very quickly, starting in 1985, Brand launched an electronic version of the Whole Earth Catalogue, the Whole Earth 'Lectronic Link. This first bulletin board system, which then worked like a forum, brought the idea of the universal spread of knowledge to a whole new level. In fact, the dematerialization of the Whole Earth Catalogue allowed the territorial constraint of the previous experiment to be bypassed. In this, we can see very well that, despite the representation of a military development of the Internet, it continues to be influenced by the American counterculture [TUR 06] and, in essence, contains universalist values.

However, regardless of these universalist values that have fed the development of the Internet, the reality shows greater contrast today. The Web, founded on the principles of freedom and open sharing of resources, has in part taken on the aspects of classical liberalism, an economic line of thought that has largely supplanted the original ideals. Thus, if the Internet remains a place for the spread of knowledge, this knowledge is primarily lucrative and is undergoing privatization. Oligopolies are being formed by the concentration of scientific publishing houses, and platforms like Google Scholar dominate the market. This is why the regulations on knowledge are rudimentary; we are far from any perspective recognizing a universal right to access knowledge.

We have thus decided to consider this right to knowledge and its evolutions with a prospective approach: are we moving towards a universal right?

1.1. The right to knowledge today: between attempts at universalization and "self-regulation" by the GAFA

The Internet, through its deterritorialization, requires new regulations. In fact, the first obstacle to the implementation of a universal right of the Web is that the Internet, by its very nature, questions the principle of the territoriality of rights. The essence of rights as a regulation is founded on the idea that it is exercised in a given space, dominated by a sovereign power responsible for enforcing it. It is thus clear that the emergence of the Internet poses a certain number of questions concerning its regulation due to its global character.

In fact, the favored path to regulating the Internet remains the national path. Thus, with the Marco Civil da Internet [MAR 14] supported by Dilma Rousseff, Brazil proposed an innovative model concerning the recognition of Internet rights. We can also cite the digital law supported by the French Secretary of State Axelle Lemaire. In particular, Article 30 states that the copyright period should be reduced for public research, thereby allowing free access to the results of fundamental research. Unfortunately, we can also cite numerous examples where States failed to enforce intellectual property rights and to prevent the emergence of platforms offering protected content free of charge. In fact, servers need only be hosted in a lenient State for platforms to be kept online.

Ambitious attempts at multilateral regulation have failed on this point, which has led to the implementation of imbalanced regulation. For example, despite the creation of the IGF, a forum for Internet governance, it has not played the central, normative role that would have led to the emergence of a universal right to knowledge. Attempts at multilateral regulation have shown themselves to be impasses, as seen in the failure of the ACTA, the Anti-Counterfeiting Trade Agreement, which was rejected by the European Parliament in 2012 [EUR 12]. However, despite the obstacles to a universal right to the Internet, the extraterritoriality of US law helps spread the hypothesis of self-regulation through GAFA1.

1.1.1. Towards the emergence of a universal right to knowledge subject to divergent economic thinking

In fact, we observe that the current tendency is regulation through a form of extraterritoriality of US law, which then imposes itself as the global web law. We can see this in the ICANN (Internet Corporation for Assigned Names and Numbers) created by the Clinton administration in 1998, which regulates the assignment of domain names around the world. Likewise, the US Department of Justice led a large operation to close the Megaupload platform in 2012. Although this was based in Hong Kong, the US authorities felt that they were in a position to intervene because the data went through servers located in the United States.

Furthermore, we observe that the preferred method of regulation remains soft law, with, for example, the publication of official reports and nonbinding recommendations. Yet, it happens that, very often, these recommendations arrive a posteriori and aim to act and frame the existence of practices that evolve at an extremely fast pace concerning new technologies. In fact, those dominating the Web and creating it, GAFA, become their own regulators [PAR 12].

Maintaining this dynamic could create several important risks for the regulation and sharing of knowledge. In fact, it implies a predominance and reinforcement of American control over the Web, which remains concerning after the Snowden affair. On the contrary, the dominance of large groups makes this a "sixth continent", partly placing oligopolistic businesses ahead of States, which poses a serious democratic problem. Finally, the right of GAFA favors the market and the logic of profitability, rather than promoting the development of open access to knowledge and its conception as a common good that should be freely accessible.

1.1.2. The recognition of a universal right to knowledge: a "realistic utopia"?

In light of the privatization of the Internet by GAFA, more and more militants are mobilizing so that knowledge will be recognized as a common good. A common good is an unrivaled good that is not exclusive due to its public utility. Since the early 2000s, as a reaction to neoliberalism, numerous actors have mobilized to defend this concept and it has spread to various domains, including knowledge.

On 27 July 2015, in Rome, the participants of a conference at the Italian Senate "Universality of human rights for the transition towards the State of law and the affirmation of the right to knowledge" launched an appeal for the recognition of a universal right to knowledge [NON].

In the wake of these alternative militants, numerous solutions are emerging to counter the vision of a closed, private Web, even taking on concrete realities. Thus, many universities have begun offering MOOCs (Massive Open Online Courses), editors are making more and more Open Access content available and a legal regime of copyright has even been created with the Creative Commons. A portion of knowledge can be found in open access today, a status which allows its democratization and reappropriation and nourishes the ideal of the recognition of a universal right to knowledge.

In conclusion, we can say that the current situation of Internet rights is in contradiction. If we admit that there is a need for the universal regulation of knowledge, there remains a preference for adaptations of national law. Despite the failures that we have seen, we are indeed moving towards global regulation. This will remain imperfect and present strong limitations because it will not be democratic. However, the utopia of a universal right to knowledge could become a concrete reality; it is supported by militants of the common good, and concrete actions show its possibility. Far from a radical reality, we are seemingly moving towards a hybrid model, where an imperfect right of GAFA will coexist with embryos of the right to knowledge, which are a minority but democratic.

1.2. Platform and scientific community rights: the absence of an upfront legal framework

1.2.1. A system partly caused by the development of the digital sector

The development of the digital sector has allowed the massive creation of new information as well as the improvement of new tools to process it. This revolution particularly concerns the scientific domain and especially STI (scientific and technical information). There are two categories of STI: the data forming the raw material for research and publications. STI is thus presented in every area of research, both in the starting phases and in the final product. There are two primary uses for it: for researchers, it is a tool, and for laboratories, it provides access to their information. Practically omnipresent, it is easy to highlight the importance that STI takes on in the sector and the new role as a facilitator that the digital sector has assumed.

The automation of many systems thanks to the development of computer technologies can also be observed. This greatly increases researchers' capacities to carry out research on larger data corpora in a more driven and faster way.

Finally, the development of the digital sector has led to the emergence of the notion of the value of data, i.e. the perception of the pure digital product as having an economic value that can be exploited by shrewd investors. This is an interesting notion for both researchers and private businesses, which have sought to benefit from it a...