EnviReform: Strengthening Canada's Environmental Community through International Regime Reform:
Exploring Social Cohesion in a Globalizing Era
Intellectual Property, the Commons and the Public Domain
The culture of commodification and exploitation for private gain has systematically diminished the commons and the public domain not only in tangible goods such as public services utilities and public spaces such as parks and even highways, but also in the intangible goods of ideas and information, now increasingly referred to as Intellectual Property.
We are all impoverished as a result. "In the end," as law professor James Boyle puts it, "the public domain is whatever intellectual property is not." He goes on to say, "You have to be a lion- or jackal-lover of truly limited imagination or unlimited commitment to argue that gazelles are to be understood as no more than whatever is left over after their adversaries have finished feeding." The industry itself presents this image. An ad in the journal Nature Biotechnology for a law firm specializing in "intellectual property litigation" carried the text, "In the biotech world, be the predator, not the prey," under a photo of a stalking tiger.
It is essential to recognize, however, particularly at a time when government is systematically reviled and its social justice and social welfare mandate is degraded and deconstructed, that Intellectual Property is a social construct, dependent for its meaning, legality and application on a strong central government and a legal system willing to enforce and extend the domain of private property at the expense of public good.
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For the past three hundred years or so, industrialized European societies (or at least the class of tangible property owners within them) have become increasingly preoccupied with property, its privatization, and its protection, i.e., the accumulation of capital and control. The debate about ownership of property has been framed as being between enclosure and commons, private property and public property. The ideology of personal (and now corporate) greed has become the unquestioned driver of the economy, with its assumption that humans are motivated only by the prospect of acquisition, and that progress results solely from increased production and consequent economic growth. Any semblance of a common/public property regime is simply a block, if not an enemy, to wealth and progress.
Over the past two decades many of us have criticised the concept and application of intellectual property rights on moral, spiritual and intellectual grounds. We have objected to the part they play, for example, in the relentless erosion of traditional practices of seed saving and herbal medicine, accompanied by the theft of plant, animal and human genetic material, to say nothing of laying claim to the knowledge of indigenous peoples. All of this has been rationalized as reasonable activity by first conceptually reducing plants, animals and people to genetic resources and then making this socially acceptable by labelling them the common heritage of humanity.
The corporate and governmental pirates engaged in this resource exploitation claim that it is in the public interest that they do so on the grounds of the public benefits of the products mostly drugs they promise to produce from these resources. While they demand extensive state intervention to protect what they regard as their intellectual property, they do not appear to consider it unreasonable to demand increasing limitations on any state or community action in the public interest or for the public good.
While the granting of patents on plants, seeds, genes, gene sequences, ideas, data and information has accelerated dramatically in the past decade, proponents of the public domain, public good, the commons, and community life seem to have been unable to gain any significant leverage on the institutions of domination and exploitation. Our thinking and imagination seem to have fallen short of getting to the root of the issue. Our language and analysis has not been sufficiently historically informed and incisive, and relies too much on slogans and emotional appeal.
We seem to have confined ourselves in a straitjacket of limited imagination and narrow concepts, thinking only in terms of private property or a vague and perhaps romantic notion of commons, paying even less attention to public domain. We should, however, recognize three quite distinct categories of property and space private, common and public.
Private is easily understood as belonging to a person or a family, but we have to recognize that corporately-owned property and space is considered just as much private as your domicile. The shopping mall is perhaps the most obvious example of the both the property and the space within it being privately that is, corporately owned. With its pretense of being public space and deliberately setting out to create the sense of a village square, but with political activity and anything that might interfere with commerce excluded, the healthy concept of public domain is further eroded. In fact, children growing up in the malls are deprived of any sense of the politics of public life. Such is our confusion over public and private property and space that a common fishery, or the fields of a village, are not even given the same recognition or status as the shopping mall.
"Commons" is wrongly used to describe what is considered as public. This misrepresentation can be attributed to Garret Hardin and his 1968 essay, The Tragedy of the Commons, in which he set out to demonize the concept of commons in order to finish off any notion of public interest or public good, and with it any positive connotations for public property and space. As James Boyle sarcastically puts it, "Everyone knows that a commons is by definition tragic, and that the logic of enclosure is as true today as it was in the fifteenth century. Private property saves lives." ("The Second Enclosure Movement and the Construction of the Public Domain")
In reality, commons historically referred to property and space that was owned communally by a group of fisherfolk or a village, for example and managed for the long-term good of the group, including succeeding generations. Access to the property and space fields, fishing grounds, forests was limited to the group owning and managing it. It was not open to exploitation by outsiders, though limited use of the space could be extended by the group to outsiders. Thus a well-defined fishing area might be closed for fishing to all but the owners while still permitting everyone to swim or paddle in it.
The public domain, on the other hand, is open to all, but that does not mean a free for all. Access may be denied to those who refuse to play by the rules governing use of the public space and property. Roads and parks are good examples. Access is open to all, but the rules of the road must be obeyed, and are usually enforced by agents of the state police of one sort or another. Village greens and market squares have also been socially and politically vital spaces for communities.
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The following terms and images in current use can all be related to property rights in some form. If allowed to, each of these words could raise questions of access and exclusion. In the current context of North American individualism, materialism and market ideology, however, they customarily only raise questions about rights and innovation, progress and profit and the appropriate penalties for violation.
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Outside the culture of societies dominated by the ideology of the market economy, the ideology of privatization and private property is highly contested and there is a growing resistance to the dictatorship of intellectual property rights.
Fortunately, the critique of IPRs and the search for limits and alternate arrangements is also growing within the market-defined societies, as indicated by the following letter (dated July 2003), sent by 59 individuals, including Boyle and Dr. John Sulston of the Human Genome Project, to the Director General of the World Intellectual Property Organization (WIPO) which states:
Nature 424, p. 118, 10/7/03
WIPO welcomed the letter and Francis Gurry, assistant director-general and legal counsel at WIPO, said that "the director-general looks forward with enthusiasm to taking up the invitation to organize a conference to explore the scope and application of these models" However, within a matter of weeks WIPO was forced to swollow its enthusiasm. As reported in Nature (28/8/03),
In 2001 James Boyle and his colleagues at Duke University School of Law held a conference on the public domain, which he describes as "the outside of the intellectual property system the material that is free for all to use and to build upon."
"So far as we could tell, this was the first conference on the subject," Boyle says in his foreword to the collection of papers presented, "which is surprising when one realizes the central role of the public domain in our traditions of speech, innovation and culture."
Boyle describes the current lack of discourse on the public domain in terms of the recent past when there was no environment and no environmental movement: "Once upon a time there was no environmental movement. Before there could be an environmental movement, the concept of environment had to be created, that is, a discourse about the environment had to be created before a social movement to protect it could emerge." He suggests a similar development needs to take place for public domain. "We have to create a discourse about the concept before a movement to promote it can rise up." ("The Second Enclosure Movement and the Construction of the Public Domain")
To identify the political-ideological context of the diminution of the public domain, Boyle points to the post-Cold War Washington Consensus which claims that history teaches the only way one gets growth and efficiency is through markets, and that property rights are the sine qua non of markets. The phrase Washington Consensus was coined originally by John Williamson in 1990 "to refer to the lowest common denominator of policy advice being addressed by the Washington-based institutions [WTO, IMF etc] to Latin American countries as of 1989." These policies included:
Center for International Development, Harvard University
Boyle mockingly states the Washington Consensus as "Property Saves Lives," explaining that:
Describing the corporate grab for genetic resources plant, animal and human as "the second enclosure" is daily fare for activists around the world who have been battling for farmers rights, retention of their seeds in their village commons and the recognition of traditional/indigenous knowledge. But it is definitely not the language of the public relations firms responsible for corporate image-making.
(The first enclosure was the enclosure of village commons by the feudal lords in Britain. The process began around 1700 and 4000 Private Acts of Enclosure had privatized some 7 million acres of commons before the Great Enclosure Act was passed in 1845, bringing an end to the economy of the commons upon which the welfare of the peasants depended. Deprived of their commons for growing and raising their own food, they were forced to provide the cheap labour for the Industrial Revolution.)
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Those of us who have tended to think of intellectual property rights in largely negative terms as acts of enclosure for private gain have probably regarded the commons, or public domain, as the opposite. As the author of a fair amount of copyrighted material, I found very helpful the idea that "copyright and the public domain were born together" as the outcome of a struggle between the vested interests of authors and publishers enjoying a perpetual property right and the interests of the broader public in a more open literary environment.
"The pre-history of copyright was not total freedom, but rather a set of guild publishing privileges that produced a framework of pervasive regulation. Instituting a copyright system with statutory time limits, particularly after the House of Lords rejected the authors claim of a perpetual common right, enabled a much freer and more open literary environment. It is only after the Statute of Anne  . . . that certain classic works became available for any publisher to print in a competitive market." (Mark Rose, "Nine Tenths of the Law")
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In addition to the British focus on enclosures and commons, there is, as part of the same cultural history, Roman law, which recognized five different categories of what might be described as impersonal property, as identified by Carol Rose in a contribution to the above-mentioned conference. These categories are not tidy, as indicated by the word res, the Latin word for thing, a fuzzy word if there ever was one.
Res nullius: things that are unowned or have simply not yet been appropriated by anyone.
Res communes: things open to all by their nature, such as oceans and the fish in them or the air.
Res publicae: things that are publicly owned and made open to the public by law.
Res universitatis: things owned by a public group in its corporate capacity.
Res divini juris: things unownable (of divine jurisdiction) because of their divine or sacred status.
All of the categories identified above are forms of public property as opposed to what capitalist market societies regard as private property. Obviously there is nothing absolute about these five categories, but the characterization does make the point that there is a far greater range of property-holding arrangements possible than either those of us who oppose privatization or those who support it have been considering. There is a huge chasm between recognition of res nullius and res divini juris on the one hand, and the current push to enclose everything, including life itself, within the for-profit domain of intellectual property rights on the other.
Now is the time for legal and institutional creativity, not defensiveness or retrenchment. Now is the time to give new meaning to the commons and public domain in practice. Property Rights, intellectual or otherwise, need to be pushed back and the public domain regained. Just as self-provisioning communities reduce the power of global agribusiness, so rebuilding the commons may drive out the exploiters. It is not a matter of rights, but of the integrity of persons and communities.
Brewster Kneen lives in British Columbia and is the author of Farmageddon Food and the Culture of Biotechnology, New Society, 1999. He is co-publisher, with his wife, Cathleen, of the monthly newsletter The Rams Horn.