Opposite of Property

* Article / FOREWORD THE OPPOSITE OF PROPERTY? JAMES BOYLE. LAW AND CONTEMPORARY PROBLEMS Volume 66 Winter/Spring 2003 Numbers 1 & 2.

URL = https://law.duke.edu/boylesite/foreword.pdf

"In November of 2001, Duke University School of Law held a conference on the public domain; 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."

Summary

Based on the reading notes of Michel Bauwens, 2005:

The public domain can be defined as the 'outside of the intellectual property system', the material that is free for all to use and to build upon.

The questions are:

- What makes 'commom pool management' more efficient than legal monopolies ?

- How is the public domain similar to and different from, the idea of the commons ?

The First Enclosure movement targeted arable laqnd; the Second Enclosure aims for the expansion of IP.

Skepticism of IP is expressed in three 'languages':

- anti-monopolistic sentiment'

- pro public domain

- the use of the language of the commons to defend the possibility of distributed methods of non-proprietary production

"The prehistory of copyright was not total freedom, but rather a set of guild publishing privileges that produced of framework of pervasive regulation. Not only did copyright law make many works more freely available, its structure and rationale invited the first reflections on the countervailing claims of civil society. In both practice and rhetoric - as Rose puts its nicely - "copyright and the pubic domain were born together." (p. 4)

This means that the Commons were not a free for all but a cultural construction.

Boyle casts a defense of the public domain on the model of the environmental movement: they made nature visible: we must develop an affirmative discourse that makes the Public Domain a prominent part of the social and cultural landscape.

Carol Rose says, in comparing Tangible Space and Intellectual Space, gives 2 arguments used against public property in physical space:

- 1) the danger of overuse and depletion

- 2) the need to encourage investment and development.

But in Intellectual Space, the overuse argument carries no weight.

The Anglo-American legal tradition has ignored common property, for three centuries, but Roman Law recognized various categories of public property:

   - RES NULLIUS = things that are unowned and open to all by their nature
   - RES COMMUNES = things that are publicly owned and made open to the public by law
   - RES PUBLICAE = things owned by a public group in its corporate capacity
   - RES UNIVERITATIS = things unownable because of their divine or sacred status

According to Carol Rose these are cross-cultural patterns, each with their own logic. She then applies them to Intellectual Space:

- network protocols are 'res publicae', equivalent to the public road system

- the human genome should be considered 'res univeritatis'

Regarding the Tragedy of the Commons, Boyle cites Elinor Ostrom's counter-arguments:

- absence of individual private property control does not mean "no control". She found a great variety of regulations to manage 'Tragedy' effects, which only occur in certain cases

- empirical studies allow to match different type of common pool resources with different management regimes

The public domain and the commons are related, but not the same.

Ostrom and Hess mention 'four confusions':

- 1) the nature of the good vs the nature of property: common pool resources vs common property regimes

- 2) resource systems and the flow of resource units

- 3) common property and open access regimes

- 4) the set of property right involved in ownership

Examples:

- common property (i.e. a clearly defined group), may exclude outsiders, but open access may not ('open seas'). An essential attribute of property is the right of exclusion, or, according to some scholars, 'the right of alienation, to give it away.

There are three domains of application:

- 1) the digital (including the architecture of the internet)

- 2) art and culture

- 3) scientific and technical data

The essay then discusses the nebulousness of the four 'fair use' criteria (US), which are confusing to consumers.

NegativLand, the 'appropriationist' group, says that art was always about 'remaking', until IP came along, with its implied division between creators and consumers.

Boyle recommends a book-length report:

- Jerry Reichman and Paul Uhlir. Promoting 'Public Good' Uses of Scientific Data: a contractually reconstructed Commons for Science and Innovation.

The essay further examines the constitutionalization of the public domain, and threats to sci-tech innovation.

Amongst these threats are:

- underfunding of public data collection

- private patent rights

- the deepening of IP rights

- database rights ('EU') to unoriginal data compilations

In the conclusion, Boyle re-iterates the confusion about two concepts: he notes that while there are 4-5 definitions on 'property', the 'public domain' remains a broad term, in need of specification. It is mostly used where 'open access' is the ideal: while 'commons' is used as alternative to 'individual' control.