Second Enclosure
Essay
The Second Enclosure Movement and the Construction of the Public Domain. James Boyle.
URL = http://www.law.duke.edu/pd/papers/boyle.pdf
Bibliography
Recommendations by James Boyle:
"Those seeking to understand the various methods by which different aspects of common land were enclosed over a 400 year history in England should start with J. A. Yelling, Common Field and Enclosure in England, 1450–1850 (Hamden, Conn.: Archon Books, 1977). Thomas More, Utopia (New York: W. J. Black, 1947), provides a harsh criticism of the enclosure movement, one that is echoed hundreds of years later by Polanyi: Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (Boston: Beacon Press, 1957). Economic historians have generally believed that the enclosure movement yielded considerable efficiency gains—bringing under centralized control and management, property that had previously been inefficiently managed under a regime of common access. When efficiency gains mean higher productivity so that fewer people starve, this is no small thing. Donald N. McCloskey, “The Enclosure of Open Fields: Preface to a Study of Its Impact on the Efficiency of English Agriculture in the Eighteenth Century,” Journal of Economic History 32 (1972): 15–35; “The Prudent Peasant: New Findings on Open Fields,” Journal of Economic History 51 (1991): 343–355. This argument seems plausible, but it has recently received powerful challenges, for example, that by Robert C. Allen, Enclosure and the Yeoman (New York: Oxford University Press, 1992).
In the twentieth century, the negative effects of open access or common ownership received an environmental gloss thanks to the work of Garrett Hardin, “The Tragedy of the Commons,” Science 162 (1968): 1243–1248. However, work by scholars such as Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge: Cambridge University Press, 1990), and Carol Rose, “The Comedy of the Commons: Custom, Commerce, and Inherently Public Property,” University of Chicago Law Review 53 (1986): 711–781, have introduced considerable nuance to this idea. Some resources may be more efficiently used if they are held in common. In addition, nonlegal, customary, and norm-based forms of “regulation” often act to mitigate the theoretical dangers of overuse or under-investment.
Beyond the theoretical and historical arguments about the effects of enclosure on real property lie the question of how well those arguments translate to the world of the intangible and intellectual. It is that question which this chapter raises. Christopher May, A Global Political Economy of Intellectual Property Rights: The New Enclosures? (London: Routledge, 2000) offers a similar analogy—as do several other articles cited in the text. The key differences obviously lie in the features of intellectual property identified in the earlier chapters—its nonrivalrousness and nonexcludability—and on the ways in which a commons of cultural, scientific, and technical information has been central to the operation of both liberal democracy and capitalist economy. I owe the latter point particularly to Richard Nelson, whose work on the economics of innovation amply repays further study: Richard Nelson, Technology, Institutions, and Economic Growth (Cambridge, Mass.: Harvard University Press, 2005)." (http://www.thepublicdomain.org/download/further-reading-collected/)
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