The Oxymoron of Intellectual Property
Preserving the Commons in the New Information Order
Champions of the market have long assumed that there are really only two sectors for governing the world - markets and the state. Markets are supposed to be the vehicle for economic progress while governments take care of everything else, including the excesses of the market.
Increasingly, however, it is becoming clear that there is another sector that is at least as important to our well-being. This sector is the commons.
The commons is a generic term that refers to a wide array of creations of nature and society that we inherit freely, share and hold in trust for future generations. It includes natural systems that we all depend upon, such as the atmosphere, the human genome, agricultural seeds, fresh water supplies, wildlife and ecosystems. The commons includes the airwaves used by broadcasters and wireless providers, the Internet as an open and shared communications infrastructure, and the information and creative works that constitute our common culture.
While the government is often a trustee for our common resources, it is not the owner. The timber, minerals, water, and parks on public lands do not belong to the government, but to the people. This is not merely a rhetorical distinction, but an important legal and moral one, because as a trustee the government cannot do whatever it wants with our resources. Like any trustee, it must act in the best interests of its beneficiary (the people) and must take care to preserve the capital stock for future generations. The government cannot give private parties preferential access to a common resource, nor - if the resource is suitable for sale in the market - can it simply give it away for free.
Yet that is essentially what is happening today. Governments throughout the world are conspiring with - or acquiescing in - the market ’s plunder of our common wealth. They are allowing private corporations to take valuable resources from the commons and privatize them. Once the cash value has been harvested, those corporations then dump their wastes, social disruptions and other “market externalities” into the commons and declare, “It’s your problem.”
Much that is called “growth” today is actually a form of cannibalization of the commons. Market metrics conveniently do not consider clean air and water as finite, depleteable resources, for example; nor do they consider the long-term impact of privatized information on democracy, science and innovation.
The commons is not just a term for describing a much-abused class of resources. It also refers to an alternative vehicle to the market for creating value. The commons is a regime for managing shared resources and forging communities of shared purpose. Unlike markets, which rely upon price as the sole dimension of value, a commons is organized around a richer blend of human needs and interests. More than a physical asset, a commons is either implicitly or emphatically a social system for managing resources.
Sometimes identity and community are important features for managing a commons. Hundreds of open-source software communities are examples. By leveraging people’s moral and social commitments, these communities have shown that a commons can be extremely efficient, creative and powerful without any legal contracts or exchanges of money. Social trust can be enormously efficient.
If the mental category of the commons seems exotic, its manifestations are usually familiar: Internet communities, scientific disciplines, public libraries, conservation land trusts, open source software, blood banks, and indigenous cultures. As these examples suggest, a commons can provide a way to re-integrate the economic and the moral, the individual and the collective, and the innovative and the traditional, into a new, more humanistic framework.
At the heart of the commons is the idea of inter-dependence. Taking account of social, civic and ecological concerns creates new value. It turns out that pursuing certain projects through impersonal cash transactions in the marketplace can be quite costly, inefficient and destructive. This fact is often overlooked because market theory tends to discount the actual size and costs of market externalities - as well as the dependence of the market upon free and subsidized inputs.
When market champions declare that markets are the only effective way to create value, they are forgetting an essential fact about all markets - that they need a flourishing social and civic context, a commons, in order to function. No market can succeed without ample supplies of social trust, cooperation and a commitment to the common good. Americans in the 18th Century recognized this fact when they referred to their system of self-governance as the “commonwealth.”
Yet as companies increasingly convert commons into markets - and the common wealth into private wealth - they are destroying the very resources upon which markets (and much else) depend. The process is often called “market enclosure,” after the English enclosure movement of the 17th and 18th Centuries, which privatized and commodified vast stores of meadows, orchards, forests and other lands upon which the common people relied.
One of the most intensive market enclosures now underway involves the information and cultural commons. Over the past two decades, film studios, record labels, publishers and information vendors have aggressively sought and won huge expansions of copyright privileges while deploying new “techno-locks” to strictly control their content. Large content distributors are asserting that copyright protection is a natural and perpetual property right, not a democratically granted policy bargain that also entails public rights.
Historically, the public’s stake in the copyright bargain has consisted of a limited term for copyright so that works would eventually enter the public domain and be available to everyone for free. It has also consisted of “fair use rights” to quote or excerpt copyrighted works without asking for permission, and the right to use purchased works however we wish (a rule that allows public libraries to lend books and video stores to rent DVDs).
In the U.S., copyright terms, originally a fourteen-year monopoly, now lasts a lifetime plus seventy years for individuals. Because of a 1998 law that retroactively extended copyright protection for twenty years, thousands of works that should have entered the public domain - Robert Frost poems, Sherwood Anderson novels, films and musicals such as Showboat and The Jazz Singer, and Mickey Mouse - remain in private hands. Not only is future creativity impeded, consumers are paying billions of dollars for works that rightfully belong to them.
The much-criticized Digital Millennium Copyright Act gives copyright owners unprecedented control over how legally acquired works may be accessed and used. The law been invoked to prevent public discussion of software encryption and the playing of DVDs on unauthorized machines. Draconian new sorts of copyright enforcement are arising to monitor how people use copyrighted works.
Sellers are using “shrink-wrap” software licenses and “click-through” web licenses to override the public ’s fair use rights and traditional consumer protections. Trademark owners are claiming that no one can use their names in unauthorized ways, even for non-commercial or free-speech purposes (such as Internet domains like “www.walmartsucks.com” or that use the words “Harry Potter”). Database vendors are trying to claim private ownership of facts as compiled in databases.
The enclosure of the information commons poses some serious questions for the future of democracy, creativity and cultural sovereignty. Will our culture simply become a marketplace in which a handful of major “content providers” sell proprietary “cultural product” to consumers while selling consumers’ attention to advertisers? Will citizens and artists be able to create new works and communicate freely without first obtaining corporate permission? Will the local, authentic, homegrown and diverse be eclipsed by a commercial monoculture?
So long as the market paradigm is the only framework for thinking about the future legal environment for information and creativity, such questions will not even be asked. Talking about the commons, however, helps us initiate a new kind of dialogue and begin to build broad-based movement to defend our common wealth.
David Bollier is the cofounder of Public Knowledge, a public-interest advocacy group in Washington, D.C., and the author of Silent Theft:
The Private Plunder of Our Common Wealth (Routledge).