Lewis Hyde, poet, critic and intellectual historian, has been hard at work on a book about “the commons”, and specifically the notion that ideas should be part of a cultural commons, not treated as private property, as they often are today. The idea of commons is an ancient one, from medieval Europe, where lands, streams, and forests were treated as common property by villagers
We’re challenged to offer a definition of property, and most of our definitions center on our ability to make use of a property. Lewis confirms that this is a valid way to think about property – as a right of action. “I have a right of action to drink this cup of tea, to sell it, to pour it out.” Property can be thought of as a bundle of rights of action. But there’s a strong tradition of property based on exclusion – Lewis quotes Lord Blackstone and his description of property as “that sole and despotic dominion” where one asserts rights above and over all other rights. The right to exclude, in western jurisprudence, is asserted as a core property right. Lewis, on the other hand, believes that the right to exclude is a subset of the rights of action.
Many Americans know about the commons from Garrett Hardin’s essay, “The Tragedy of the Commons“. Hardin wasn’t a historian, but a population biologist, who was concerned with problems of population growth. Lewis argues that Hardin’s prediction – that individual economic maximization will destroy collective resources – is based on a fantasy of a commons. In reality, commons had serious limitations on rights. You could only cut wood between Christmas and February, for instance. And commons were local entites – locals could exclude those from outside the region. These customary use rights meant that commons weren’t tragic – in fact, they lasted for millenia in Europe. (I interjected here to ask why Hardin’s idea has had such currency. Lewis offers two speculative reasons why – it’s a great phrase, and it came out at a moment where the Cold War was in full swing, and Hardin’s idea was a strong defense of private capital against communism.) Lewis suggests a different way to look at the commons, quoting Carol Rose, who talks about “the comedic commons”, one with a happy ending. As such, the commons was a site of action, a space for citizens to act on their own rights.
Enclosure was the practice of converting commons into private property. In England in the 18th and 19th century, there was a widespread enclosure movement, and pushback from commoners. Law protected rights to “tear down encroachment” – if someone’s hedge was growing into the common field, you had a right to prune it back. A community ritual of “beating the bounds” was a convivial affair, designed to celebrate the commons while tearing down anything that infringed upon it. Critical legal documents like the Magna Carta and the Great Charter of the Forest contained extensive references to preservation of common rights, forbidding the fencing of land that prevents access to common lands.
The connection of property to exclusion was a challenge for defining the idea of “intellectual property”. The “non-rivalrous, non-excludable” nature of ideas led to an argument that published works were, automatically, not property because they meant someone else would have acces to those ideas. Other arguments pointed to the ancients as a commons, “where you have a free right to fatten your muse.”
As the monopoly on publishing in England – granted by the Crown to a selected set of publishers – was challenged by Scottish printers, who created cheaper editions of works, three theories emerged for protecting intellectual property:
– The labor theory – I made a work, and therefore I own it and can constrain how people use it
– The moral rights argument – The book is an extension of me, and you can’t affect it without affecting my personal rights
– The utilitarian theory – We wish to incentivise creation, which may require us to protect rights so that people can monetize them.
Jamie Boyle argues that, in the past twenty years, we’ve seen a rise in enclosure of intellectual property, exemplified by changes to US copyright law which means that there’s no need to register works to gain copyright and term extension that’s essentially indefinite. Lewis argues that Boyle is actually talking about a second enclosure – an earlier enclosure surrounded the emergence of intellectual property legislation under crown copyright. And he wants to argue that there’s a third enclosure, the “enclosure of the wilderness of the mind.”
Lewis is worried that a lot of our IP rules instantiate a certain model of the human self, the self as a creator and owner of property. But this isn’t the only way to create. He quotes Dogen Zenji, a 12th century zen master: “We study the self to forget the self. And to forget the self is to wake up to the world around you.” Creativity can come from self-abnegation; he quotes a letter from Elizabeth Bishop describing her admiration for Darwin as someone who stared at a mass of material and forgot himself to come up with something new. “To get to something truly new, you can’t work from the known.”
We usually think of what’s outside of intellectual property as “the public domain”. But public domain, Lewis tells us, is a domesticated sphere, a space filled with things we are familiar with. Beyond that is a which is not yet explored. He explores the idea that human beings need to go into silence, to experience solitude to emerge as human beings.
To explain about the enclosure of silence, he cites John Cage and his visit to an anechoic chamber at Harvard. Cage experienced two sounds, a high whining which was the sound of the nervous system operating and a low rumble, the circulatory system. Silence, for Cage, is non-intention. It’s the things you don’t mean to happen. And silence, as explored in pieces like 4’33”, is that makes you listen to that which you don’t intend to listen to.
You may be surprised that silence can be litigated. But Lewis tells the story of a rock album, “Classical Grafitti” by The Planets. To separate two sections of the album, the producer, Mike Batt, put a minute of silence between the two sides and credited it to “Cage/Batt” as something of a joke. But then mechanical royalties from the recording started accruing to Cage. When Cage’s published got a check for £400, he sued Batt for copyright infringment, specifically for the violation of Cage’s moral rights, a right not to be misattributed. The suit was settled out of court with the producer cutting a check to the John Cage Foundation. Lewis sees this is ironic – Cage’s intention was to remove his intent from the work, as he did with chance operations. But intellectual property legislation is designed to protect the personality of the author.
We enclose silence – unknown possibility – at our own risk. Jonathan Zittrain demonstrates in his recent work on generativity that the value of systems often comes from unknown uses – the Apple II became succesful when Visicalc, the first spreadsheet, was written for the platform. If you want generative uses for a technology, Zittrain warns that you need to be careful what you lock down. Lewis also cites a case in which cell biologists patented a particular series of amino acids. They had no idea their purpose, but “purifying and describing gives you a right to own.” A later set of researchers speculated that these aminos bloc the growth of cancer cells – on publishing their research, the first researchers sued them for many millions of dollars. This can very effectively prevent exloratory science, he argues.
“When we enclose wilderness, we begin to give property rights in areas where we have yet to understand what’s happening.” An enclosure of silence affects the human self and the world we inhabit. How do you become a creative actor in this world? How do you beat the bounds of this commons?
As he so often does, David Weinberger has excellent notes of the same talk, which may offer a different perspective.