"Enclosing the Commons of the Mind"

The first challenge for the digital public domain is in clearly establishing its location and scope in the imagination of the public. Where is this place where the public hold dominion? Indeed which public – national or global? 

With its goal of exchanging data as efficiently as possible, the internet was not developed in a way which could respect territorial legal and cultural differences. The internet can 'deterritorialise' human activity. This means that it makes us more receptive to the idea that we are part of a network or a community where geographic and political borders are less clear and less relevant.

Deterritorialisation is a term which can refer to the weakening of ties between culture and place. This is a phenomenon well illustrated by colonial history where invading nations eliminate the symbols and rituals of a conquered territory and replace them with their own. The 20th century colonisation of the globe with anglo-american popular culture can be seen as a modern version of deterritorialisation which was hugely lucrative for the music and film industries because the process of distribution was within their control. There is an irony and paradox in the crisis tendencies now arising from that same process for industries that cannot survive without imposing artificial scarcity on an internet which defiantly resists scarcity. 

This quality of the internet might suggest that the public domain, in practical if not in legal terms, has become a considerably bigger domain in the 21st century. Nevertheless, rights-holding industries are desperate to re-territorialise. They want to pursue actions defined within the constructs of the physical world which assert their rights and limit the public domain only to that which falls beyond such rights. They have to change their actions depending on the jurisdiction of the territory they are targeting, as different nation states interpret copyright law differently. They place  varying degrees of emphasis on individual liberty and cultural protection. For these reasons the establishment of a commonly understood definition of the public domain seems a remote possibility.

In his award winning book The Public Domain: Enclosing the Commons of the Mind, James Boyle (2008) covers the full range of idiosyncrasies and absurdities of intellectual property law, drawing examples from science, culture and business. He is by no means anti-property or anti-copyright, but he does make a compelling case for more public engagement with the topic to bring equilibrium into the debate about the future of the public domain.He draws attention to the dangers of the field being regarded as an inaccessible, complex and esoteric topic, and of it being left to the lawyers to sort out. The book is a discursive ‘call-to-arms’ for the establishment of the public domain as a stronger social construct, a Grand Discourse in its own right, not just a residual ‘catch-all’ term for everything that is not enclosed by property rights.

The analogy implicit in his enclosure metaphor is more intuitive and compelling to some people than it is to others: i.e. between the restriction of access to common land and of access to a network for the sharing and further cultivation of intellectual, scientific, creative, social and commercial activity.

One of the obstacles to making the analogy is the relatively narrow but essential activities one might undertake on the common land (grazing, cultivation) compared with the enormity and diversity of activities which occur via the virtual commons. Another obstacle is the difference in clarity and consistency of the ‘fencing’. When common land in England was fenced off and passed into private ownership (over the course of hundreds of years) its boundaries were normally visible, understandable (though not always socially acceptable) and relatively easily enforceable. 

By contrast, there is inconsistency and confusion about the rules, boundaries, rights and privacy within the virtual commons. Where the internet-as-commons metaphor does work effectively, however, is in providing a mutually recognizable historical reference point in the on-going economic argument for and against ‘enclosure’, which is effectively just a word to describe the creation of private property. Enclosure of common land progressed as widely as it did because it demonstrated the productive possibilities of land when managed by a private owner who was incentivised to manage it efficiently, knowing that any investment he makes in the land would be protected. The argument relies on a view of human social relations which assumes that without some incentivising and regulating mechanism, individuals are either too self-interested, or too lazy, to optimise the productive use of the land, i.e. the land will be either ruinously over-grazed, or wasted. The extent to which the increased productivity from enclosure made for a better or fairer society remains a highly contentious topic, but the story of the enclosure movement being an efficient solution to the risk of the ‘tragic’ consequences of the commons has gained strong currency.

It is worth digressing for a moment on ‘the tragedy of the commons’ because it is an interesting and loaded phrase. It is interesting, and indeed frightening, to consider why the proposition that the commons is inherently ‘tragic’ became so readily accepted. The source of the phrase is commonly attributed to the title of an article in the journal Science by bio-scientist Garrett Hardin (1968).

Echoing Malthusian concerns, Hardin tells a tale of herdsman over-grazing their pasture and claims that population growth falls into the category of problems with ‘no technical solution’ (p. 1243), due to the remorseless inevitability of the self-interest of the human condition. I highlight the words remorseless and inevitability, which Hardin repeats in his article, to emphasise how his language draws on a discourse of determinism which is tragic in its denial of hope of human salvation without bold political intervention. He calls for a ‘recognition of necessity’ (p.1248) that the notion of ‘commons must be abandoned as the population increases, in particular abandoning the freedom to breed. Hardin’s paper was published the same year that the Indian government set a goal to reduce the birth rate by 45% within a decade, largely through a programme of sterilisation, and ten years before China introduced its one-child policy. These drastic and desperate social policies are indicative of a prevailing notion that (a) the planet’s resources are finite, and that (b) without intervention, individuals are incapable of behaviour which is in the long-term benefit of the planet.

45 years later, the inevitability of population growth is still one of the largest global concerns, but there is broader acceptance that solutions to population growth should be limited to more dignified and constructive policies, such as the education of women and their wider integration into the workforce, the reduction of poverty, and access to family planning resources. The focus of contention and sensitivity has shifted from Hardin’s restriction on the ‘commons of breeding’, to the questioning of the ‘commons’ of a universal consumption entitlement which is modelled on the voracious ‘developed’ world.

The tale of the tragedy of the commons may seem to be a digression, but I mention it because it does indicate the power of master narratives to feed ideological conflict between elite-capitalist and left-wing or environmental views. The tragedy of the commons has alternatively been described as a ‘pernicious myth’ (Lewis 2012) on the grounds that it ignores the ‘triumph of the commons’ as a sustainable communal option for land usage. It promotes a fear-inducing image of scarce resources and a global race to mutual destruction; a scrambling free-for-all which puts population growth at the top of the list of threats to planetary despoliation, and conveniently demotes the risks of the international development agenda of privatisation and consumerism. The phrase, ‘free-for-all’ captures perfectly the paradox which can be used by either side of the argument: on the one hand it implies open-access and a level-playing field, and on the other, anarchy and aggressive self-interest. 

Developed nations have a huge middle class whose security and values are perceived to depend on protection of ‘capital’ - not just homes and savings, but also intellectual/educational, cultural and social capital. Such capital is rooted in a predominantly enclosed system of property rights, in one form or another, which several generations have grown up with as a robust principle of social organising. 

Relaxing the boundaries of property rights and extending the commons may therefore be associated with, at best, dilution in value, quality and rigour, and at worst, anarchy and lawlessness.

The tendency for many people to lean towards these negative and frightening aspects of ‘free-for- all’ has been described as ‘openness aversion’, or ‘cultural agoraphobia’(Boyle 2008 p.231). To counter such a tendency, Boyle argues that ‘we have to “invent” the public domain before we can save it’. 

There are however obstacles to doing so. The first is inaccessibility of intellectual property law due to its overwhelming combination of technical complexity and enormous range: patents, copyrights, trademarks, all operating across science, technology, healthcare, education, business and culture. There are many issues with which the public and general media do engage, such as patents on human genes, pricing of educational textbooks and scientific journals, lawsuits against whistleblowers who have infringed copyright in the interests of uncovering more serious wrong-doings, affordable access to HIV drugs in poor countries, spurious copyright claims or excessive constraints by the entertainment and publishing industry over ‘fair use’, impossibly onerous clearance processes which stand in the way of cultural production, and excessive penalties against casual downloaders. 

The list goes on, but these are often seen as fragmented and isolated issues rather than being indicative of a larger social problem of intellectual property which could be coherently understood and generically articulated.

The diversity of these issues presents an obstacle to the establishment of commonality, solidarity and political voice amongst the very different communities which care about them. Can a bio-scientist, a librarian, an aspiring musician, a developing-world government minister, a documentary film-maker, a progressive teacher, etc...practically come together to help promote a new discourse of the public domain?

According to Boyle, there are lessons to be learned from the growth of the discourse of ‘environment’ which emerged over the second half of the 20th century, despite facing similar problems of scattered communities which had a huge diversity of interests and concerns, all demanding more political equilibrium. One can imagine that a campaigner for the reintroduction of the beaver to Scotland might not have much to talk about with a Chinese prosecutor involved in a case of the corporate bribery of an environmental pollution inspector. Neither of them would feel an esprit de corps with the Head of Renewables at an investment bank. 

Similarly, within what is now generically recognisable as the environmental movement, there can be some ferociously polarised positions, such as those over whether animals and humans have equal rights, or whether the term ‘international development’ is intrinsically constructive or destructive. But what loosely ties all these disparate agendas together is a shift towards the perception of a common self-interest, and an accompanying coherent discursive repertoire to make the whole environment discourse seem greater than the sum of its parts. The repertoire drew from the science of ecology, which transcended the parameters of its scientific field to become a metaphor which reinforces the importance of equilibrium and the sustainability of diverse interactions and dependencies. It also drew from economics to reveal that traditional accounting standards fail to capture all the costs of market-driven activity, especially the costs to a broader set of stakeholders, including Mother Nature. This then spawned a whole new language of corporate social responsibility, of which environmental impact is one element regularly measured and reported by corporations, often over- simplifying the environment as something which is a direct beneficiary of a reduction in a company’s carbon footprint.

The ‘environment’, in its now common sense usage as ‘the natural world...esp. as affected by human activity.’ (OED, definition ‘d’), grew in influence from the 1950s on, largely due to the compelling narratives and rhetoric as rehearsed and practised by the communities and networks which sought to raise awareness. Such has been its success that it is now difficult to contemplate the word environment without simultaneously conjuring up images of the Earth and its vulnerability to destruction by mankind. This very powerful social construct of the environment has literally been talked into being, albeit with the help of pictures, films and graphs,to move the complex and inaccessible fields of environmental sciences, including their economic and political dimensions, into an engaging and popular set of stories that we tell ourselves to help us make sense of the planet’s ecological complexity.

Despite the diversity and complexity of the issues, the overall raison d’etre of the environmental movement is intuitive to most people. Mother Nature’s story is quite simple and powerful: if individuals, state-institutions and commercial organisations are not measurably and restoratively accountable for their pollution, depletion, or unsustainable, non-renewable resource consumption, then we can expect permanent damage to the planet, and we will all suffer as a consequence, sooner or later. 

Antagonists in the narrative vary in degree: rapacious and unchecked capitalist corporations; the Chinese government with its hubristic economic miracle and aspiration to be the world’s superpower; or simply mankind’s abandonment of community, drawn towards the rocks of destruction by the siren of technological ‘progress’ and the promise of endless gratification through consumption and novelty. 

Protagonists include Mother Nature, political activists, responsible citizens and scientists (at least those who are free from corporate or excessive national interests). 

Competing plot variations do cloud the issues to some extent, as do questions such as:

• are resources finite? 

• when, if ever, will peak population be reached? 

• will technology that we have not yet invented save us? 

• can human relations and behaviour adapt to cope with the consequences of climate change? 

but at the highest level, the master narrative of the environment has become a compelling counter-narrative to the capitalist discourse of globalisation. Its only serious competition is the International Developer’s very seductive tale of social justice and the elimination of poverty through economic growth, to which Mother Nature’s tale is sometimes a thorn in the side. But that is a subject for another book.

Protection of the public domain does not, at least not yet, lend itself to outrage and fear-mongering. Unlike the environmentalist narrative, it does not induce anxiety in most people about the world our grandchildren will inherit in quite the same way as images of polluted rivers, smog-choked cities, devastated rainforests, scorched earth and stranded polar bears. Trying to get broad public engagement with the inequities of intellectual property law in the digital age is a tough challenge. 

Actually, there is plenty of engagement on individual topics; the problem of engagement only really exists when the topic is discussed in the aggregate or in the abstract. The terms public domain, and intellectual property do not really connect with people at an intuitive or empirical level. Tell people that the vast majority of 20th century culture is commercially unavailable, and many, if not most, will give a shrug of the shoulders and say: ‘maybe it isn’t any good?’. 

People need examples, metaphors, stories, and a coherent framework which helps them intuitively link the examples to see that there may be a social imbalance in intellectual property law, the consequences of which (intended or unintended) they might actually care about quite deeply if they understood it better. For now at least, the master narrative of the commons has not been unequivocally established.

There is no shortage of individuals and organisations who have been championing the public interest in response to new technologies and to try to redress the disequilibrium that, it is argued, remains in favour of content-owners and corporate interests. These communities are variously and informally aligned under umbrella ‘movements’ such as Access to Knowledge (A2K) and Open Access (OA) amongst many others, each with their own priorities. So, for example, the A2K network is run by Consumers International and covers a broad range of consumer interests, including privacy and surveillance.

Open Access has its roots in software development but OA is now mostly recognized to refer to the context of scientific and academic publishing, with aims to make scholarly journal articles freely accessible for consumers by changing the traditional concepts of the publishing business model. Public Knowledge and the Open Rights Group are active public interest groups in the US and UK respectively who campaign on a wide range of issues relating to freedom of expression, privacy, innovation, creativity, consumer rights and preservation of an open internet.

To go into detail on all such champions of public interest would be a large and distracting undertaking, but it is worth mentioning a couple of pioneers who became ‘centres of gravity’ in the emerging alternative discourse of intellectual property. 

The Electronic Frontier Foundation, with its motto ‘defending your rights in the digital world’ is one such pioneer. It was founded in 1990 and its roots are in concerns for the protection of freedom of speech, rather than in the reform of intellectual property rights. It is now almost 30 years since its co-founder the late John Perry Barlow wrote a seminal piece for Wired magazine called The Economy of Ideas (1994) which massively boosted an alternative discourse of intellectual property. He called for a new social contract for ‘cyberspace’ (a term he coined) where protections should be based more on ethics and technology than on practically unenforceable laws and rules. He also proposed a new ‘taxonomy of information’ to differentiate the essential characteristics of ‘unbounded creation’ in the digital age from previous forms of industrial property. This new taxonomy regards information as an activity, a verb rather than a noun, a life form (which wants to be free), and as a relationship. As a source of discourse genealogy The Economy of Ideas remains relevant and valuable today, and will resonate with people even more after decades of being challenged, derided, expanded and built upon by thousands of articles and blogs. 

Wired magazine itself has been a very significant source of new discourse, and the ecology background of its pioneering editors (Kevin Kelly and Stewart Brand) is indicative that leveraging tropes from the environmental movement can be effective.

The second discursive ‘centre of gravity’ I want to mention is US law professor Lawrence Lessig. His 1999 book Code: and Other Laws of Cyberspace, updated in 2006 as Code Version 2.0, was a cautionary argument against the then common view of techno-utopians like John Perry Barlow, that cyberspace was beyond the reach of government regulation. That view is best exemplified by Barlow’s 1996 Davos speech, or rather declaration, which rejected any government claim of sovereignty over cyberspace. Lessig is equally concerned and passionate, but more politically pragmatic in his scepticism of government intervention on the internet. He is a strong opponent of the influence exerted by large media companies over policy-making, maintaining that entrenched commercial interests mean that the internet is ever more tightly regulated, even hegemonic, thereby constraining its innovative potential. In this respect, he argues that recent extensions to copyright law are fundamentally unconstitutional in favouring rightsholders over the public interest.

Practically speaking, his focus is the unnecessary restrictions on the usage of copyright material by consumers and creators in their own endeavours. The irony implicit in Lessig’s argument is that the old intellectual property system, which was originally designed to promote culture and creativity, has become, through corporate protectionism, unnecessarily restrictive and now stands as an obstacle to the creative possibilities of new media and technologies. Lessig’s analogy that the law has been re-written so that ‘no-one can do to the Disney Corporation what Walt Disney did to the Brothers Grimm’ (2002) is widely quoted. In his explicitly titled Free culture: how big media uses technology and the law to lock down culture and control creativity (2004), he expounds the alternative copyright system of Creative Commons (www.creativecommons.org), of which he was a co-founder in 2001. 

Creative Commons offers creators an alternative to the traditional ‘all rights reserved’ by offering content producers a free and flexible licensing mechanism of only ‘some rights reserved’,thereby unlocking the creative output of hundreds of millions of works. As an alternative licensing system which tries to at least partially reconcile the old and new world copyright conflict, and which has been recognised and adopted by so many people worldwide, Creative Commons really is a remarkable achievement, the historical significance of which may not yet have been fully recognized.

As influential as Barlow, Lessig and many other articulate visionaries and scholars of the digital age have been, a clear master narrative of the public domain remains elusive. One of the challenges is that there is little consensus on the denouement of the plot nor on the characters, especially the protagonist. The techno/cyber-utopian camp had a very promising revolutionary plot opening of ‘a new Home of Mind, naturally independent of the tyrannies’ which the ‘weary giants of flesh and steel’ seek to impose. Barlow’s antagonist was clearly, if broadly, outlined, but the protagonist was a hazy and undefined ‘we’, implicitly huge and homogenous in its desire that knowledge should break free from the control of two centuries of an industry-government alliance.

His declaration is rhetorically powerful but lacks a narrative framework on which others, including policy advocates, might sensibly build. Another weakness is that, because the majority of peer-to-peer filesharing does not involve the creation of new work, the discourse has been vulnerable to being dismissed as a discourse of ‘dotcommunists’ or ‘freetards’ , the latter being a derogatory term for a person whose ability to make rational decisions is impaired by the possibility of receiving something for free.

At first glance, Lessig’s antagonists of big media and government look the same as those personified and demonised by the cyber-utopians. However, Lessig, like Boyle, is more pragmatic,recognising that an anarchic dismantling of copyright is not a desirable end, as it fails to reflect the essential societal dilemma of promoting and protecting cultural exchange and production. His plot is therefore more about striving to moderate, and to achieve a better balance of stakeholder interests. 

The aim is to reduce the way in which ‘all-rights reserved’ copyright thoughtlessly locks up all creative works as if they were finished products with no metamorphic or reincarnated afterlife, just in case they might be valuable later, or in case other people’s derivative adaptation of them might dilute their exclusively-controlled asset value. This might be achieved by, amongst other measures, significantly shortening copyright term, though making it renewable, and losing rights where owners do not make the works available. These are strong arguments but, being moderate and balanced solutions for problems which are diverse, complex and contested, they are often expressed in subtle, intellectual and esoteric language. They do not lend themselves to having polarised or colourful protagonists and antagonists, nor to having an accessible master narrative which can appeal to a wider public through anger or through fear-inducing tales of life-diminishment and injustice. 

Having apparently recognised the futility of striving further for copyright reform under the current system of lobbying politics, Lessig himself has changed strategy in recent years, and has taken on a more powerful and emotive antagonist: the US political system itself and how it has become corrupted such that it would be no longer recognizable to the Founding Fathers, nor to the Framers of the Constitution. The scope of this book prevents further analysis of this development, but Lessig’s 2013 TED Talk is a narrative masterclass, illustrating the self- protecting nature of the funding and voting system and how it has become hard-wired to maintain the status quo and resist reform of any kind from left or right.

The public domain has some way to go before it achieves the same kind of universal recognition and common sense acceptance of its need for protection. In the meantime the narrative landscape remains one of private property. Unless there is a radical shift In public perception towards the alleged injustice, inefficiency or corruption of intellectual property law, originators and their corporate patrons and protective-curators will continue to tell more successful tales than the liberal- curators and disseminators, the more radical of whom will remain characterised as troublemakers, thieves or pirates.

In the next chapter I look at the narrative history of copyright law in the context of the contested legitimacy of authorship and its protection, and offer some thoughts about the current status of calls for the reform of copyright.