Public action
Last updated
Last updated
Commons must be distinguished from public goods, from both economical and ownership standpoints. Public goods can indeed most often be considered as the private good of the public administration[^1] [Coriat, 2017]. Without rules that establish a shared governance with its users, goods or services cannot be commons. However, through their mission of defending general interest, public bodies are legitimate to have policies towards commons when these have public value[^2].
First of all, public entities can have a role as investors who support the creation of commons. This investment can be financial, but can also take the form of expertise and of provisioning of resources that public actors hold exclusive access to. By sharing these resources, the public entity becomes a community member rather than a mere funder.
Public power[^3] can be used to ensure the respect of the common that the community decided to follow, in particular regarding rules towards access and non-reenclosure[^4], thus preserving their statute.
Public actors are usually regarded as guardians of ownership models that differ from private property, and are thus likely to ensure this non-reenclosure. In aprticular, preventing a shift towards private ownership can be part of their legal attributions when they have contributed to the commons and thus hold responsibility towards the usage of the public resources that were invested.
Nevertheless, it is important to keep in mint that commons differ from public management just like they differ from private managemnet, and that a public actor is not more legitimate than any other actor to govern them alone.
In the same way that not all public buildings are intended to be common buildings, not all digital public services are intended to become common digital services. Therefore, this paper is not intended to suggest that all digital public services should become commons[^5].
On the other hand, it is not necessary to meet all the criteria set out in this document to start building digital commons. As we have seen, since the common is a political principle, software can become a common even after it has been fully built.
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[^1]: "[The qualification as public good] applies only when the State or its subsidiaries seize a resource, acknowledge it as having a collective purpose, and ensure its production and/or maintenance. Therefore, its dynamic does not apply to all elements that could imply a concern for common use, conservation or transmission. Moreover, it does not imply 'governance' by the members of the community but on their behalf' in Le retour des communs, Coriat, Zimmerman et al, pp 204-205.
[^2]: The legal definition of this aspect does not exist (yet?) for digital objects. Thus, the evaluation of this aspect is not standardised. Note that, by symmetry, this would make them items if they were material and administered by the public power.
[^3]: Public power, not public action, that is, all the means available to the administration and the government to enforce laws and regulations. Thus, justice can be called upon to enforce a licence.
[^4]: Reappropriation means reintroducing exclusivity in the use of resources that were commons, that is, restricting their exploitation - either in total or in part - to a specific actor.
[^5]: On the other hand, it should be noted that the law for a Digital Republic stipulates that source codes and public data are subject to a principle of open access by default.