Common as Air

Book: Common as Air. Revolution, Art, and Ownership. Lewis Hyde. 2010

= directly addresses the Cultural Commons

Description

"One thesis of the book is that the founding generation in the United States hoped to establish a cultural commons of art and ideas, a lively public domain of created works that all of us use because nobody controls it. What has become apparent in recent years is that the founders did not leave us with any good way to protect this commons. The public domain has turned out to be highly vulnerable to private capture. How might this vulnerability be reduced? How might an unguarded public domain be converted into a rule-governed and thus durable Cultural Commons?" (http://cyber.law.harvard.edu/events/luncheon/2010/06/hyde)

Review

NYT:

"Intellectual property has become such a hot topic that it needs to be doused with some history. Strange as it may sound, this is an argument developed convincingly in Lewis Hyde’s “Common as Air,” an eloquent and erudite plea for protecting our cultural patrimony from appropriation by commercial interests.

The history that Hyde invokes goes back to the Middle Ages, when vil­lagers enjoyed collective rights to common lands, but for the most part it is situated in the era of the founding fathers. Hyde invokes the founders in order to warn us against a new enclosure movement, one that would fence off large sectors of the public domain — in science, the arts, literature, and the entire world of knowledge — in order to exploit monopolies.

He cites plenty of examples from Hollywood, the pharmaceutical industry, agribusiness, and the swarm of lobbyists who transform public knowledge into private preserves by manipulating laws for the protection of intellectual property. Then he draws on Franklin, Adams, Jefferson and Madison for arguments against such privatization." (http://www.nytimes.com/2010/08/22/books/review/Darnton-t.html)

David Bollier:

"At a time when the entertainment industry’s argumentation about copyright and patent law is generally stale, disingenuous and alarmist, Hyde’s book reveals an arc of political history that has been all but obscured by popular mythologies. Common as Air restores a rich tableau of history, law and cultural tradition that is usually bleached and flattened in the standard legal histories. With a careful reading of 18th Century philosophers, jurists and political figures, Hyde mixes scholarly depth with engaging style to give us a daring interpretation of the history of the cultural commons in American life.

But while Hyde shows remarkable resourcefulness in mining primary source material and recovering obscure historical events, Common as Air is no dry, academic tome or legal treatise. Hyde is a consummate story-teller. The story he tells is lively, witty and compelling. It is so rich and full-bodied that most other accounts are destined to be seen as merely mandarin or polemical.

Hyde starts with a chapter, “Defending the Cultural Commons,” which notes that “a movement has arisen to protect the many things held in common.” Deftly mixing contemporary news about YouTube and AIDS medications with wisdom from Heracitus and Jefferson (“The field of knowledge is the common property of mankind”), Hyde’s purpose is to show how the very idea of “intellectual property” is an aberration in the long sweep of humankind.

Then begins our tour of the commons. Hyde’s chapter summarizing the history of the commons, especially during medieval times and English history, is the most succinct and penetrating that I have encountered. He draws upon the classic philosophers and historians to explain how the commons has served as a distinctive mode of self-governance and civic agency. The reader will make the pleasant discovery that even John Locke, the philosopher-saint of the property-rights movement, actually recognized the importance of the commons. According to Locke, a person can take private possession of something from the commons, and exclude others, only “where there is enough, and as good, left in common for others.” This proviso, alas, is one of those oracular truths that modern-day conservatives tend to ignore.

Hyde also reviews the work of the classic commons scholars such as Nobel Prize winner Elinor Ostrom (Governing the Commons), radical historian Peter Linebaugh (The Magna Carta Manifesto) and Garrett Hardin (“The Tragedy of the Commons” essay) to explain the folkways of the commons – the social practices and ethical norms that enable commoners to manage their shared resources equitably and sustainably.

The phenomenon of enclosure rears its head in Chapter 3, raising a new set of policy issues that continue to this day: What shall be converted into private property and what shall remain inalienable, and by what justifications? What are the social and economic harms of enclosure? Turning creative works into property is especially problematic because works of the mind are not finite and depletable as land or water is. As Thomas Jefferson famously put it, “If nature has made any one thing less susceptible than all others of exclusive property it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it.”

Perhaps the most provocative chapter in Common as Air is the chapter, “Benjamin Franklin, Founding Pirate,” in which Hyde argues that “The founders believed that created works belong largely in the commons so as to support and enliven creative communities.” Hyde performs some impressive historical excavations in order to reveal a side of Franklin that is largely unfamiliar.

Even though Franklin is renowned as “the inventor” of the lightning rod, bifocal glasses and many other ingenious devices and methods, Hyde notes that “the idea of owning the innovation, or of preserving it for American use only, never occurred to [Franklin]: he immediately showed his method [a new method of casting printer’s type] to the king’s printer, and soon after the peace accord with Britain was signed, he shared it with British printers.” Hyde also shows how Franklin’s discoveries about electricity and the lightning rod were critically informed by his participation in a wide circle of collaborators. Franklin was, in a sense, the original peer-to-peer networker.

Common as Air delivers many wonderful historical nuggets, many of them culled from the deeper recesses of the Wideman Library at Harvard and Hyde’s own capacious scholarship. I was delighted to encounter this stern conclusion by Ephraim Chambers in his 1728 book, Cyclopaedia: “To offer a thing to the Publick, yet pretend a Right reserves therein to one’s self, if it be not absurd, yet it is sordid.”

While at one level Common as Air is a work of political history and legal scholarship, it is more accurately seen as a meditation on the commerce of the human spirit and creativity. This is the topic that has animated much of Hyde’s writing and that he first addressed in 1983 book, The Gift: Imagination and the Erotic Life of Property. That book, which went on to become a classic, enlarged our awareness of the so-called “gift economy” and its potency in our lives, and informed much of my own thinking on the commons.

Now Hyde has expanded his explorations of creativity and the gift as they play out in the forbiddingly complex realms of copyright law and political culture. Common as Air is a gift to be savored slowly and thoughtfully, and allowed to suffuse one’s larger perspectives on culture, copyrights and the commons. I consider it required reading for anyone seeking to understand the origins and future evolution of the cultural commons." (http://onthecommons.org/founders-mashup-mavens)

Interview

By Mike Linksvayer, August 27th, 2010, for the Creative Commons community

URL = http://creativecommons.org/weblog/entry/23204

Excerpts:

"You emphasize in Common as Air that maintaining a commons requires regular “beating of bounds”–for pre-enclosure land commons this involved destroying private encroachments such as fences and cultivation, often with a merry-making and somewhat extralegal components. Preserving the cultural commons necessarily takes a different kind of bounds beating–proprietary bits can’t be “destroyed”, nor must they (patents on math, genes, and other discovered as opposed to invented things, which you dub the third enclosure, might be an exception, as they do fence off areas from the commons). I can imagine at least three different cultural commons bounds beating activities: (1) Building up and expanding the bounds of the cultural commons, sometimes (perhaps increasingly) out-competing proprietary culture (Wikipedia and free software running the internet infrastructure being the obvious examples). This is obviously the strategy of Creative Commons, the free software movement, and similar–and a truly wonderful thing in that it relies entirely on construction rather than destruction. (2) Pushing back when the commons is threatened, e.g., fighting diminution of fair use and other exceptions and limitations, something which groups like the EFF do with some success. (3) Pretending to ignore the current order altogether (except when thumbing one’s nose at it), i.e., unauthorized sharing, especially the self-conscious pirate movement. I am a little surprised Common as Air does not address the third, given it is the clearly extralegal and putatively destructive option–at least superficially most like beating the bounds of a land commons. Surprised but not upset–I suspect that unauthorized use competes with building of voluntary commons, serving as a marketing and price discrimination mechanism for proprietary culture. What is your take on each of these three as bounds beating for preserving the cultural commons, and are there others I’m missing?

You offer a good summary of ways to enlarge and protect a cultural commons. I don’t have much to add except to expand on your third category a bit. It isn’t entirely true that Common as Air avoids addressing the piracy / unauthorized use option. After all, there’s a whole chapter called “Benjamin Franklin, Founding Pirate”! When Franklin ran away from his Boston printing apprenticeship, he broke the law and, in a sense, “stole” the craft knowledge that his brother had been passing on. More to the point, when Franklin was stationed in France after the Revolution, he encouraged British artisans to ignore their country’s anti-emigration laws and bring both machinery and know-how to America–clear acts of piracy from the British point of view.

Elsewhere in the book I discuss the fact that, in the eighteenth-century, Scottish “piracy” of books that London booksellers thought they owned outright triggered the legal battles that arose around the first copyright laws. It took about fifty years to sort that out at the end of which it became clear that the Scottish booksellers were not pirates at all; the London booksellers, rather, were monopolists hoping to fence off the public domain. Here as elsewhere the charge of “piracy” was in fact a harbinger of an enlarging commons.

In Trickster (p. 130) you say that among ways of acquiring things (make, buy, receive, steal, find) the last is the odd one out, for only it is accidental. However, for anyone who lives much of their life on the net, “acquisition” of intangible goods through “finding” is natural, intentional, and perhaps even dominant. In both Trickster and Common as Air (p. 202) you tell the story of a baby Krishna–”who when asked by his mother if he has stolen butter from the pantry, answers with a question of his own: ‘How could I steal? Doesn’t everything in the house belong to us?’” It strikes me that so-called digital natives, culture, and the net are akin to the baby Krisha, butter in the pantry, and the Krishna household, respectively–”How could finding and using any culture on the net be stealing? Doesn’t all culture belong to us in common?” It seems that to the extent there is a vibrant voluntary cultural commons to draw from, the tension between “finding” and “stealing” is obviated. Further, I wonder if “finding” is not the means by which “receiving” scales–gift-giving and -receiving via mechanisms like Creative Commons licenses tend to happen asynchronously, globally, and often with no further relationship between the parties–all in contrast with traditional gift cultures. Thoughts on the sanity (or perhaps mere inanity) of these extrapolations?

You touch on what I think of as the link between the book on gift exchange to the one on trickster figures: the Greek word hermaion means “a gift of Hermes” and is usually translated as “lucky find” or “windfall.” It is the gift that comes out of nowhere; it is an odd sort of gift, then, carrying with it none of the social obligations often associated with gift exchange.

There is a hidden problem in the gift book: much gift exchange takes place is communities with a strong sense of in-group and out-group. Gift giving may be a wonderful thing, but what if you happen to be in the out-group? What if all the scientists are men and they don’t share their data with the women? In the Greek stories, Hermes is potentially in the out-group (an illegitimate child, etc.) and he begins his relationship to the gods by stealing Apollo’s cattle (pirate!).

Well, there’s much to say about all of this–it’s all in those two books. Here let me just say that digital copying and the internet have created a kind of neo-Hermetic space in which many things “happen” outside of any domesticating or ethicizing container. The rules are not clear. Then we get these polar camps: amateur anarchists on the one side, who happily believe we need no rules, and old guard “intellectual property” purists madly trying to enforce and sharpen the rules that worked so well back in 1965. What Creative Commons and others are doing is trying to enlarge the middle ground.

The basic trope–or mischief, as you put it–of Common as Air is a comparative study, a method far too little used, in particular with respect to copyright. Your points of comparison (among many others possible: you mention “children in China”, and “during the Protestant Reformation” as examples) are the 1700s, primarily in the core areas of the United States and colonies that formed it, and current claims about cultural ownership. The critique of current copyright that falls out of such a comparison will be familiar to many readers involved with Creative Commons. However, you tell another story as well concerning changing attitudes not just about cultural ownership, but about culture, and public life in general, across the 1700s and 1800s–could you say a bit about that arc, and perhaps what current cultivators of the cultural commons might learn from it? The main thing I might add, not fully rehearsed in the book, is the point that Neil Netanel makes in a Yale Law Journal essay, “Copyright and a Democratic Civil Society.” Put simply, in the eighteenth century, at least, if you wanted a civil society that could stand free of the government, the aristocracy, and the church, then you would welcome the rise of an “intellectual property” market. Independent authors, publishing houses, newspapers: all these appear as a print market arises. And right now, of course, we see many of them struggling as that market is undermined.

The Washington Post just published a fine account of the pervasive post-9/11 secret intelligence establishment: who will have the money (and therefore the time and resources) to do that kind of journalism if newspapers like the Post can find no business model fitted to the digital future? Here again we need more thoughtful work in the thinly populated space between the amateur anarchists and the old guard IP purists." (http://creativecommons.org/weblog/entry/23204)

About the Author

"Lewis Hyde is a poet, essayist, translator, and cultural critic with a particular interest in the public life of the imagination. His 1983 book, The Gift, illuminates and defends the non-commercial portion of artistic practice. Trickster Makes This World (1998) uses a group of ancient myths to argue for the kind of disruptive intelligence all cultures need if they are to remain lively, flexible, and open to change. Hyde is currently at work on a book about our “cultural commons,” that vast store of ideas, inventions, and works of art that we have inherited from the past and continue to produce.

A MacArthur Fellow and former director of undergraduate creative writing at Harvard University, Hyde teaches during the fall semesters at Kenyon College, where he is the Richard L. Thomas Professor of Creative Writing. During the rest of the year he lives in Cambridge, Massachusetts, where he is a Fellow at Harvard’s Berkman Center for Internet and Society." (http://cyber.law.harvard.edu/events/luncheon/2010/06/hyde)

More Information

1. Lewis Hyde
2. Berkman lecture transcription by David Weinberger at http://www.hyperorg.com/blogger/2010/06/29/berkman-lewis-hyde-on-preserving-commons/
3. Podcast interview:Lewis Hyde on Common As Air
4. Lewis Hyde on the Cultural Commons