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)

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. Berkman lecture transcription by David Weinberger at http://www.hyperorg.com/blogger/2010/06/29/berkman-lewis-hyde-on-preserving-commons/