Introduction

David Bollier:

"This wiki contains resources on the history of commons-based law and emerging legal innovations that seek to empower commoners and protect commons. Historically, commons have had a problematic relationship with conventional law, which generally reflects the mindset and priorities of the sovereign (monarch, nation-state, corporation) and not the lived experiences and practices of commoners. Still, in grappling with political, economic and legal realities, commoners often find ways to secure control over their common wealth, livelihoods and modes of commoning. Often, they may entail working arrangements with the law.

Such a struggle is one factor that led to the Magna Carta and Charter of the Forest in the early thirteenth century. It is also what is spurring many commoners today to invent creative new types of law – formal, social, technological – to protect their shared interests, assets and social relationships. This wiki is intended as an introduction to key documents in the history of Law for the Commons, and as a survey of some of the more notable initiatives to invent contemporary forms of commons law in a variety of contexts and locations.

David Bollier http://www.bollier.org of the Commons Strategies Group prepared the initial curation of documents (August 15, 2015), identifying key clusters of commons-law activity and relevant literature and websites.The listings below were compiled by David Bollier, cofounder of the Commons Strategies Group. They were augmented and placed on this wiki by Michel Bauwens, founder of the P2P Foundation and cofounder of the Commons Strategies Group, in collaboration with Stacco Troncoso of Guerrilla Translation."

Introductory Bibliography

Law for the Commons: Premodern Sources

• Institutes of Justinian [1]

The ancient Romans were the first society in recorded history to have made explicit laws regarding distinct categories of property, including common property and other categories of things that should not be privately owned. In 535 CE, the Codex Justinianus, or Institutes of Justinian, details the legal divisions of things, which included res communes, or things owned in common to all such as the seashore and rivers. This was the first known legal recognition of the commons. Other categories of things that cannot be privately owned included res publicae, or things that were crated by public authorities such as buildings and theaters; and res sacrae, or things that are sacred and dedicated to the service of God and cannot be sold or mortgaged.

• The Magna Carta [2]

The Magna Carta, or “Great Charter,” is often cited as one of the foundations of Western civilization because it enshrined the rule of law as a cornerstone of governance, limited the power of the sovereign and recognized specific rights and liberties of citizens. The “Great Charter,” which King John agreed to in 1215 after years of brutal armed conflict with feudal barons and commoners, is widely regarded as a source for legal principles such as habeas corpus, trial by jury, and the prohibition of torture. The document is less widely known as guaranteeing a right of access to commons, as set forth in a companion document, The Charter of the Forest.

See also:

- Peter Linebaugh book, The Magna Carta Manifesto: Liberty and Commons for All (University of California Press, 2008). Pdf file. https://provisionaluniversity.files.wordpress.com/2012/12/peter-linebaugh-the-magna-carta-manifesto-liberties-and-commons-for-all-2008.pdf

- The BBC four-part radio series, “The Legacy of Magna Carta,” hosted by Melvyn Bragg. http://www.bbc.co.uk/programmes/b04y6wdt

• The Charter of the Forest [3]

The Charter of the Forest was adopted in 1217, two years after Magna Carta, by King Henry III, the son and successor of King John (1166-1216). The Charter of the Forest formally recognized the vernacular traditions and practices (“laws”) of English commoners – that is, their traditional rights of access to and use of royal lands and forests. The document enumerates specific subsistence rights to the forest such as pannage (pasture for pigs), agistment (grazing of cattle), estover (collecting of firewood), and turbary (cutting of turf), all of which were considered elemental, traditional entitlements of commoners. The Charter of the Forest was later incorporated into Magna Carta and considered an integral part of it.

See also:

An excellent overview of the Charter of the Forest can be found in Peter Linebaugh’s “The Secret History of the Magna Carta,” in the Boston Review. http://bostonreview.net/archives/BR28.3/linebaugh.html

• The Enclosures of the England Commons

Raymond Williams, “Enclosures, Commons and Communities,” in The Country and the City (Oxford University Press, 1973), pp. 96-107. Google version

From 1776 to 1825, the English Parliament passed more than 4,000 Acts that served to appropriate common lands from commoners, chiefly to the benefit of politically connected landowners. These enclosures of the commons seized about 25 percent of all cultivated acreage in England, according to historian Raymond Williams, and concentrated ownership of it in a small minority of the population. These “lawful” enclosures also dispossessed millions of citizens, swept away traditional ways of life, and forcibly introduced the new economy of industrialization, occupational specialties and large-scale production. “The many miles of new fences and walls, the new paper rights” – and the many “great houses” that came to dominate the rural landscape – “were the formal declaration of where the power now lay,” writes Williams.

• Gerrard Winstanley and the Levellers

Gerrard Winstanley (1609-1660) was an Protestant reformer during Oliver Cromwell’s rule who agitated for the commons and land redistribution through a group known as the True Levellers (or “Diggers”). To protest enclosures of land, Levellers occupied the land, knocked down hedges and filled in ditches meant to mark off private property boundaries, and grew crops that they distributed for free to other Levellers. Winstanley’s was a commons advocate who commanded a following through ringing declarations that are still quoted today, such as “The power of enclosing land and owning property was brought into creation by your ancestors by the sword; which first did murder their fellow creatures, men, and after plunder or steal away their land, and left this land successively to you, their children.” And: “In the beginning of Time, the great Creator Reason, made the Earth to be a Common Treasury, ... but not one word was spoken in the beginning, That one branch of mankind should rule over another.”

Wikipedia entry: https://en.wikipedia.org/wiki/Gerrard_Winstanley The Gerrard Winstanley Archive: https://www.marxists.org/reference/archive/winstanley/1649/levellers-standard.htm

Law for the Commons in our Time

David Bollier:

"Historically, most commons have not needed nor sought formal protections of law. Their self-organized customs, socially negotiated rules and relative isolation from outside capital and markets, were enough to sustain them. This has changed dramatically over the past 30-40 years, however, as global commerce, technology and conventional law have relentlessly expanded, superimposing the logic and values of markets on nearly every corner of the nature and social life.

These trends have spurred commoners around the world to devise a wide variety of “hacks” around conventional law to protect their access and use of shared resources. These include adaptations of laws dealing with contracts, trusts, co-operatives, municipal government, copyright, patents, and other bodies of law, which in each instance aims to protect common assets and the social practices of commoning. One might say that this experimentation is producing a new, not-yet-recognized body of socio-legal-political innovation, Law for the Commons.

A longer treatment of this subject can be found in David Bollier’s memorandum, “Reinventing Law for the Commons.” [add link once document is completed in late August] Below are a select group of materials about commons-based legal innovation in nine distinct clusters: indigenous commons, subsistence commons in the global South, digital commons, stakeholder trusts, co-operative law, urban commons, localism, new organizational forms, and re-imagining state policy to empower commons."

Clusters of Contemporary Commons Law

1. Indigenous Commons

The legal rights of the world’s 300 million indigenous peoples is of particular interest to commoners because both face similar philosophical and strategic challenges in coming to terms with (unresponsive, sometimes hostile) national and international law. In that sense, the legal fights of indigenous peoples may be a bellwether for commoners and a source of guidance.

Biocultural Rights

Biocultural rights represent a new legal jurisprudence that aims to protect natural ecosystems and indigenous knowledge and ways of life, especially from the threats of trade treaties. The rights – based on the 1993 Convention on Biological Diversity, which has been ratified by 193 nations – have been developed by legal advocates such as Natural Justice in South Africa to give legal protection to a community’s identity, culture, governance system, spirituality and way of life as embedded in a specific landscape. This bold departure in human rights law seeks to validate community-led instruments for recognizing and supporting “ways of life that are based on the sustainable use of biodiversity, according to customary, national and international laws and policies.”

See also

• Intellectual Property Issues in Cultural Heritage (IPinCH) http://www.sfu.ca/ipinch

A major international effort to facilitate “fair and equitable exchanges” of indigenous knowledge and culture is directed by the Intellectual Property Issues in Cultural Heritage (IPinCH) research project, an international collaboration of archaeologists, indigenous organizations, lawyers, anthropologists, ethicists, policy makers, and others. Based at Simon Fraser University in British Columbia, Canada, IPinCH explains that its focus is on “archaeology as a primary component of cultural heritage; however, this project is ultimately concerned with larger issues of the nature of knowledge and rights based on culture – how these are defined and used, who has control and access, and especially how fair and appropriate use and access can be achieved to the benefit of all stakeholders in the past.” The project includes fifty researchers and twenty-five partnering organizations from Canada, Australia, United States, New Zealand, South Africa, Germany, England, and Switzerland.

• The Potato Park

The Potato Park in Peru is a sui generis legal regime that empowers indigenous Quechua indigenous peoples in an area near Cusco, Peru, to act as stewards of a rich biodiversity of more than 900 genetically distinct potatoes that they have managed for millennia. The Quechua joined with a nonprofit group ANDES in the 1990s to develop a legal regime to recognize the Indigenous Biocultural Heritage Area (IBCHA). This consists of 12,000 hectares of traditional lands that the Quechua regard as essential to the agrobiodiversity of the region and to conserve their traditional culture, knowledge and livelihoods. Besides assuring a community-led and rights-based approach to conservation (rather than market development), the Potato Park seeks to prevent biopiracy of genetic knowledge by agro-biotech corporations. Although the Potato Park does not have state recognition within either Peruvian national law of the International Union for the Conservation of Nature, the IBCHA agreement is legally compatible with existing systems of national and international law, and is seen as an inspiration for similar projects to protect agrobiodiversity in the Andes. The IBCHA agreement does empower the Quechua societies to control scientific studies in the region and the Potato Park database can be used to thwart patent applications for indigenous medicinal plants and knowledge.

See also Alejandro Argumedo, “The Potato Park, Peru: Conserving Agro-Biodiversity in an Andean Indigenous Biocultural Heritage Area,” in Protected Landscapes and Agrobiodiversity Values, ed. Thora Amend et al. (Gland, Switzerland: International Union for the Conservation of Nature, 2008), 45-58.

2. Subsistence Commons in the Global South

There are many subsistence commons (not necessarily managed by indigenous peoples) that rely upon self-governed access and use of forests, fisheries, farmlands, coastal lands, bodies of water, wild game, and other natural resources. An estimated two billion people around the world depend on natural resource commons for their everyday (nonmarket) needs, according to the International Land Alliance. [4] But since these commons do not generally involve market activity and do not contribute to GDP, they are ignored by conventional economists as insufficiently interesting or as a deficiency to be remedied by “development.”

It is important to protect subsistence commons from enclosure as a way to preserve the collective wealth and autonomy of the communities involved; at the same time, it is important to try to improve their governance and functioning. This may require certain legal frameworks or selective, light-touch state support to help regularize self-governance; it may require new types of local dialogues and collaboration to get beyond entrenched corruption, patriarchy and adversarialism.

• Subsistence Commons in India

Subsistence commons in India based on farmland, forests, water and other natural resources have been formally recognized by Indian law as commons. This remarkable fact stems from a landmark ruling by the Indian Supreme Court in 2012 [5] that ruled against a real estate developer whose buildings had enclosed a village pond functioning as a commons. The political and legal repercussions of this ruling are still reverberating in India, but it is symbolically and perhaps substantively an important legal victory for commoners, whose “unowned” land and water have so often been regarded by conventional law as “wastelands.” The Indian commons advocacy group, the Foundation for Ecological Security (Jagdeesh Rao, director), is actively tracking the dozens of judgments and orders about the commons that have since emerged from Indian courts and state governments. (See its biomonthly e-publication, “The Case for the Commons.”) [6]

• The Forests Act in India

The Forests Act is one of the more significant legislative acts authorizing commons-based management of forests. The 1997 Act explicitly empowers village panchayats to act as commons-based stewards of forests, an authority that has not been faithfully respected by the government’s Forest Department. Still, many panchayats have mobilized to assert their authority to manage village forests as a more effective traditional method of conservation and stewardship. This has often resulting in conflicts between conventional bureaucratic authority and expertise against village-based participatory governance and local knowledge.

See Soma K P and Richa Audichya, “Our Ways of Knowing: Women Protect Common Forest Rights in Rajasthan,” in the forthcoming Patterns of Commoning (Off the Common Books, 2015).

• Land Tenure Rights for Subsistence Commons

Legal recognition for land used by subsistence commoners could help save tens of thousands of commons that people have relied upon for generations. These lands – an estimated 8.54 million hectares – are increasing being seized by investors as part of a massive land grab in the global South. Fortunately, there are some efforts to formally recognize customary rights to land use, which, if implemented, could help commoners resist the investor-oriented terms of national laws and international treaties. Liz Alden Wiley, a land reform expert and specialist based in Africa, and others are pushing for legal reforms that do not require property rights in land to be fungible, based on individual ownership, or formally registered in order for land to be recognized as real property – measures that have been adopted by some African and Latin America states.

Wiley has written: [7] “In light of the fact that most allocations to investors are in the form of renewable medium-term leases of up to 99 years, it may be expected that loss of common properties will remove these lands from meaningful access, use and livelihood benefit for at least one generation and potentially up to four generations.” This is a recipe for decades of famine, poverty, political turmoil and additional forms of fossil-fuel-intensive “development.”

• Cooperative Governance of Public Forests in Oregon

For decades the timber industry in the US did great harm to forest ecosystems through the clear-cutting of forests, re-seeding with tree monocultures, and the building of roads – all with the sanction of the US Forest Service. The political and legal hostilities between environmentalists and the timber industry reached a peak in the Pacific Northwest of the US in 1991, when a federal court shut down timber operations in the entire region. In the aftermath, the US Forest Service improbably initiated a remarkable experiment in collaborative governance for the Siuslaw National Forest. As told by the film “Seeing the Forest,” [8] the government abandoned its standard bureaucratic processes, which were generally driven by congressional politics, industry lobbying and divisive public posturing, and instead convened a “watershed council” of the region’s stakeholders. Anyone who was interested could participate. The goal was to manage the forest through an informal process of open commoning, which included a strong advisory role in the allocation of funds, with the Forest Service hovering in the background as the final arbiter. It took many years, but the informal dialogues and pragmatic, consensus-based decisionmaking resulted in a significant restoration of the forest ecosystems and a radically different mindset toward forest stewardship. This history raises an urgent socio-legal challenge: How to adapt formal state law and regulation to authorize new sorts of locally empowered decisionmaking and commoning?

• The System of Rice Intensification http://sri.ciifad.cornell.edu

SRI is an agroecological system for improving the productivity of irrigated rice by changing the mix of plants, soil, water, and nutrients. While SRI is not a system of law, it is a self-organized social network of farmers in several dozen countries that has been tremendously empowering and productive. SRI collaborations in cyberspace have helped farmers boost rice yields by 20 to 100%; reduce the seed required by 90%; and reduce water usage by up to 50%. The project is notable for blending the use of online platforms with physical resource management – a trend exemplified by other “eco-digital commons.”

See Erika Styger, “The System of Rice Intensification and Its International Community of Practice,” in the forthcoming Patterns of Commoning (Off the Common Press, 2015).

3. Digital Commons

A recurring challenge for people working on open networks is to find ways to prevent businesses from treating the shared resources of commoners – code, information, images, videos, product design, etc. – as “free” feedstock for their proprietary market machines. For-profit corporations can mobilize enormous capital and other resources to convert socially generated wealth into marketable products and service, essentially privatizing the shared community wealth or at least its market rewards. This is a concern to participants in various digital commons, which include free and open source software, Wikipedia in dozens of languages, more than 10,000 open access scholarly journals, the open educational resources movement (OpenCourseWare, open textbooks, etc.), the open data movement, various open design and manufacturing commons, and others.

A variety of legal and technological innovations are now starting to address the structural limits of open platforms as vehicles for commoning. Below, a brief review of these new commons-friendly legal innovations in digital spaces.

Among the more prominent initiatives:. One example of the latter are new systems that democratize the ability of collectives to authenticate digital identity without having to rely on Google, Facebook, and other tech giants who use their power to data-mine people’s personal information. Other examples include digital currencies that enable communities to capture and manage the value that its members create; “smart contracts” that enable self-executing contractual agreements on networks; a system of open-source modules of legal boilerplate that can be used on open platforms to minimize the need for expensive lawyers; and data-sharing commons that allow only stipulated usage of shared pools of data.

• Copyright-Based Licenses

Licensed based on copyright ownership of a work have a long and respected history in digital spaces. The most notable licenses are probably the General Public License that enables countless free software (especially Linux) to remain freely usable by anyone; and the Creative Commons licenses, created in 2003, which are used in an estimated 85 million digital works around the world. To deal with the corporate appropriation of work from open platforms, the P2P Foundation, working with Dmytri Kleiner, are seriously exploring the idea of “commons-based reciprocity licenses.” [9]. These licenses would allow no-cost sharing among members of a commons, but require payment by any commercial users of the community’s work. [10]. Unlike the Creative Commons NonCommercial license, which absolutely stops commercial development of a line of information or creative work, the CopyFair license would allow commercialization, but on the basis of mandatory (monetized) reciprocity.

• The Blockchain Ledger

The blockchain ledger – a software innovation that lies at the heart of Bitcoin – is a breakthrough that could be of enormous importance to the future of commoning on open network platforms. Although Bitcoin itself has been designed to serve familiar capitalist functions (tax avoidance, private accumulation through speculation), the blockchain ledger is significant because it can enable highly reliable, versatile forms of collective action on open networks. It does this by validating the authenticity of a digital object (for now, a bitcoin) without the need for a third-party guarantor such as a bank or government body. The blockchain ledger solves a particularly difficult collective-action problem in an open network context: How do you know that a given digital object -- a bitcoin, a legal document, digital certificate, dataset, a vote or digital identity asserted by an individual – is the “real thing” and not a forgery? Blockchain technology can help solve this problem by using a searchable online “ledger” that keeps track of all transactions (i.e., bitcoins). The ledger is updated about six times an hour, each time incorporating details of the latest transactions (the “block”) into the ledger – a record that is shared by everyone on the network using the Bitcoin software. The ledger acts as a kind of permanent record maintained by a vast distributed peer network, which makes it far more secure than data kept at a centralized location. The authenticity of a given bitcoin is assured because it’s virtually impossible to corrupt a ledger that is spread across so many nodes in the network.

See also:

• Distributed Collaborative Organizations Based on the Blockchain http://bollier.org/distributed-networks-and-law

A recently released report suggests that blockchain technology could provide a critical infrastructure for building what are called “distributed collaborative organizations” (sometimes “distributed autonomous organizations”). These are essentially self-organized online commons. A DCO could use blockchain technology to give its members specified rights within the organization, which could be managed and guaranteed by the blockchain. This set of rights, in turn, can be linked to the conventional legal system to make those rights legally cognizable.

• Solar Power Commons Using the Blockchain. https://idcubed.org/chapter-10-green-coins-using-digital-currency-build-new-power-platform

One rudimentary example of how the blockchain might be used to facilitate a commons: former FCC Chairman Reed Hundt in the US has proposed using blockchain technology to create distributed networks of solar power on residential houses coordinated as commons. The ledger would keep track of how much energy a given homeowner generates and shares with others, and consumes. In effect the system would enable the efficient organization of decentralized solar grids and a “green currency” that could serve as a medium of exchange within solar microgrids or networks, helping to propel adoption of solar panels. The blockchain amounts to a network-based architecture for enabling commons-based governance.

See also

• • Rachel O’Dwyer, “The Revolution Will (Not) Be Decentralized,” [11] Commons Transition website, June 11, 2015; and

• • Morgen E. Peck, “The Future of the Web Looks a Lot Like Bitcoin,” [12] IEEE Spectrum, July 1, 2015.

• Smart Contracts https://en.wikipedia.org/wiki/Smart_contract

A more generic aspect of this field of blockchain-related experimentation is smart contracts. These are dynamic software modules that may soon enable new types of group governance, decisionmaking and rules-enforcement on open network platforms. We are already familiar with rudimentary – and corporate-oriented versions – of this idea, such as Digital Rights Management (DRM), an encryption/authentication system that attempts to constrain how users may use their legally purchased technologies (DVDs, CDs, etc.). Based on the power of collaborative networks, some tech innovators have realized that the challenge is not how to lock up and privatize digital artifacts, but how to assure that they can be shared on open platforms in legally enforceable ways. Hence the many active efforts now underway to devise technical systems that would act as “smart” digital software agents whose transactions would also be enforceable under conventional law. The “transactions” could, of course, be used to invent new types of markets, but they also could be used to create new types of commons; ultimately, the two realms may bleed into each other and create social hybrids that conjoin community commitments and market activity.

See also Jay Cassano, “What are Smart Contracts? Cryptocurrency’s Killer App,” Fast Company, September 17, 2014; and Smart Contract. [13] Wikipedia entry, “Smart contract.”

• Terms of Service Contracts for Peer Production

Many websites use self-serving “contracts of adhesion” in their Terms of Service (ToS) as a way to impose their own one-sided terms of usage while formally abiding by the premises of contract law (a mutually negotiated set of legal terms that bind both parties). But what if a ToS, instead asserting strict proprietary rights for business purposes, legally authorized and required peer sharing among users of the website? Such a ToS would assert legal terms for automatic access, use and sharing of collectively “owned” digital resources, perhaps with customizable options for specific needs. This Peer Production ToS is now being developed by Intrinsic, [14] a startup company that is building an open-source architecture for online collaboration.

• Common Accord http://www.commonaccord.org

This is a fledgling project that is attempting to apply open source principles to the inefficiencies and costs of conventional lawyering. The goal is to decentralize the writing of legal documents and empower users by developing a massive global inventory of standard legal forms, libraries of legal clauses and specific use-cases in civil law. The many modular elements can then be mixed-and-matched by users to apply to their specific needs. Specific legal modules would be rated, annotated and commented up by recognized legal experts, in an open-source fashion, helping to provide a measure of credibility and trust in the legal draftsmanship of legal documents.

While the system would not necessarily eliminate the need for a real lawyer in a given situation, it could automate, simplify and reduce the legal costs for many standard commercial and civil transactions. Common Accord is also involved in devising machine-readable legal consent forms for contributors to peer production projects, such as open source software projects, data sharing by municipalities, patients who share their genetic information with hospitals and pharmaceutical companies, and musicians eager to collaborate on collective pieces of music. Such collaborations are often plagued by legal terms that favor the data-using institutions and by incompatibilities among national legal systems and digital technical standards.

See also the P2P Foundation wiki: [15]: “The goal is to make the documents so modular that much of the text disappears, leaving parties with only specific deal points and clear relationships. These relationships can be ‘rendered’ at any time into full legal documents, for verification and enforcement. Technically, this is a data-model for text, an extremely simple and expandable data-model that consists of a series of nested lists that render into texts. The texts can be improved, extended and forked by the community. As such, CommonAccord is expected to play the same role in facilitating and accelerating collaboration on legal texts as git has played for code.” The three active contributors to Common Accord are James Hazard, an American lawyer based in Paris; Primavera De Filippi of the Harvard Berkman Center and CERSA/CNRS; and Marc Dangeard of Be-Bound.com.

See, e.g., CommonAccord version of a model contract [16]; patient consent forms; [17]; and Municipal Data Sharing. [18]

• New Software Platforms To Enable Participatory Online Deliberation.

There are a wide variety of software platforms that are experimenting with better ways to facilitate group deliberations and decisionmaking. These programs t could have important implications for new types of governance. The more notable experiments include Loomio, [19] DemocracyOS [20] and Liquid Feedback. [21] The point of such systems is to enable direct, sustained and somewhat complicated discussions that can then clarify group sentiment and foster commitments that participants see as legitimate and meaningful.

• Ubiquitous Commons http://www.ubiquitouscommons.org

This project, headed by Italians Salvatore Iasconesi and Oriana Persico, [22] is attempting to overcome impediments to data-sharing in cities and develop better ways to use data to improve social research and governance. Ubiquitous Commons is trying to develop new systems that can creatively use enormous flows of data on social networks and public databases for public purposes, especially via maps of urban spaces. The idea is to enable citizens, city governments, scientists, health researchers and others to use dynamic data flows to understand actual social behaviors and design appropriate services and policies, while protecting individual privacy rights. Prototypes have been launched in Rome, Sao Paulo, and New Haven, Connecticut. The project has obvious implications for improving the quality of self-governance and participation.

• Faircoin https://fair-coin.org

Faircoin is a recently founded project of Cooperativa Integrale Catalana (CIC), an “omni-commons” based in Barcelona. CIC is attempting to build a new set of free economic tools that will “promote cooperation, ethics, solidarity and justice in our economic relations.” The CIC-founded group FairCoop has developed a new Cryptocurrency, Faircoin, a descendent of an earlier digital currency, Peercoin. The basic idea of Faircoin is “to hack the foreign exchange market” by developing a new currency that fosters cooperation over private competition. (Faircoin relies less on “mining” new coins than on “minting” them in more ecologically responsible ways and distributing them to those who want them.)

The Faircoin system aims to be “fractal” in character, meaning that “from the experience in the root platform, it can be moved and replicated at different regional and local scales around the globe, with interoperability at different levels for the entire fair.coop ecosystem….,” as CIC founder Enric Duran has explained. http://blog.p2pfoundation.net /enric-duran-introduces-fair-coop/2014/09/18 While the project is unabashedly ambitious, CIC correctly recognizes that the existing monetary system and private banks pose insuperable barriers to reducing inequality and ensuring productive work and wealth for all. The only “realistic” alternative to existing fiat currencies and foreign exchange is to invent a new monetary system! CIC intends to use Faircoin to help build a larger ecosystem of economic institutions, which will include Faircredit, a worldwide mutual credit system for exchanging goods and services via Faircoin; and Fairfunds, a group of Faircoin donation vehicles for various types of projects.

• New State Policies to Enable Digital Commoning

Formal government policies to assist digital commoning remain mostly on the margin of mainstream politics and policymaking. However, a significant initiative in this area was the 2013-14 research project of the FLOK Society [23] – Free/Libre Open Knowledge Society – in Ecuador. This project, headed by P2P Foundation founder Michel Bauwens, sought to “envisage an economy that would no longer be dependent on limited material resources, but on infinite immaterial resources.” The project developed a policy framework to promote online commons-based peer production in its many diverse forms, resulting in more than eighteen legislative proposals including a dozen pilot projects, which were validated in the Buen Conocer Summit at the end of May 2014.

The FLOK project’s detailed research paper addresses the many challenges of building commons-oriented productive capacities (sustainable agriculture, distributed manufacturing and energy), social infrastructure and institutional innovation (the social economy, the partner state, open government), open technical infrastructures (free software, free hardware, cybersecurity), and policies to protect traditional and ancestral knowledge and biodiversity, among other topics. The general FLOK Society agenda, which has larger implications beyond Ecuador, is now continuing under the auspices of the Commons Transition Initiative, http://www.commonstransition.org headed by Michel Bauwens and Stacco Troncoso.

See also Bauwens’ assessment of post-FLOK priorities. [24]

A notable new form of commons-based peer production, Open Value Networks, is described below in #8, “New Organizational Forms.” [insert link to webpage]

4. Stakeholder Trusts

Stakeholder trusts are a species of large-scale commons that distributes revenues from a shared asset, typically a natural resource, and distributes it to citizens with a recognized “stake” in the resource. Stakeholder trusts are also touted as “common wealth trusts” that can safeguard natural and social resources that are our collective inheritance.

• Alaska Permanent Fund http://www.apfc.org/home/Content/home/index.cfm

The archetypical example of a stakeholder trust is the Alaska Permanent Fund, a state-chartered trust that is authorized to collect, manage and distribute revenues from oil drilled on state land, on behalf of Alaska residents. In 2015, the Fund held $52 billion, which has typically generated an annual dividend of between $1,000 to $2,000 for every resident of the state. The Fund’s endowment comes from royalties paid to it from corporations extracting oil on Alaska state lands. The annual dividends paid to individual citizens are praised by both progressives and conservatives as a welcome display of citizen sovereignty over “what we own” and a source of non-wage income for ordinary people that can reduce inequality.

• Common Wealth Trusts

In his 2014 book, Liberty and Dividends for All, [25] Peter Barnes extended the idea of stakeholder trusts to wide variety of “common assets” that could be responsibly monetized and revenues shared via common wealth trusts. The trusts would act as trustees for revenues collected from various commercial users of common assets (where monetization is appropriate): industries that use the atmosphere for their wastes (and thus must buy air pollution rights to use that scarce resource); banks and stock sellers who must pay a financial transaction tax (in recognition of public support for the financial infrastructure); copyright-, trademark- and patent-based industries that rely on government-created property rights and enforcement systems; and broadcasters and other users of the public’s electromagnetic spectrum. Stakeholder trusts could be applied at the state or provincial level.

See also Peter Barnes’ essay for the Great Transition Initiative website. www.greattransition.org/publication/common-wealth-trusts

In Vermont, a 2008 report [26] outlined the various state assets that could be managed via stakeholder trusts – forests, rocks and minerals, water used in bottling, broadcast spectrum, land, wind. In 2011, a bill was introduced in the Vermont state legislature to establish a “Vermont Common Assets Trust” for a variety of natural resources; the bill was never enacted but the idea is still viable in Vermont and other legal jurisdictions. Versions of the stakeholder trust governance/management model have also been proposed the atmosphere (“Earth Atmospheric Trust”), oceans, and the human genome.

See also:

• • Barnes et al., “Creating an Earth Atmospheric Trust: A System to Control Climate Change and Reduce Poverty,” 319, no. 5864 (March 2008):724

• • Peter H. Sand, “Public Trusteeship for the Oceans,” in Law of the Sea, Environmental Law and Settlement of Disputes, eds. Tafsir Malic Ndiaye and Rudiger Wolfrum (Boston: Martinus Nijhoff, 2007), 521.

• • David E. Winickoff and Richard N. Winickoff, “The Charitable Trust as a Model for Genomic Biobanks,” New England Journal of Medicine 329 (September 2003): 1180.

• • David Bollier, “The Vermont Common Assets Trust ,”Bollier.org (Blog), March 10, 2011. [27]

• • Burns H. Weston and David Bollier, Green Governance: Ecological Survival, Human Rights and the Law of the Commons (New York: Cambridge University Press, 2012), pp. 245-248.

• Local Commons Trusts

Working with Peter Barnes, the Sustainable Economies Law Center [28] (Janelle Orsi, director) is currently exploring ways to extend and adapt the stakeholder trust idea to different contexts. For example, local commons trusts could serve as a steward of local forests, watersheds or open spaces (e.g., community forests or the cooperative management of a public forest described above). [insert link to corresponding paragraphs]

• Model Versions of Government-Chartered Trusts

Interested citizens and legislatures could use standard organizational forms for creating commons-managed trusts. In such a scheme, as Peter Barnes explains, “Outwardly, the shells [of trusts] would be not-for-profit corporations with state charters, self-governance, perpetual life and legal personhood. Inwardly, they’d be coded to protect their assets for future generations and to share current income. In this vein, the Sustainable Economies Law Center (SELC) currently exploring the [[Agrarian Trust Model [29] – the idea of putting farm land into trusts as a strategy to help retiring farmers sell their farms while preserving the land for agricultural uses.

• Baby Bonds / Child Trust Funds

The Sustainable Economies Law Center is also exploring new legal and financial structures to provide universal basic incomes and to create “Baby Bonds” – “child trust funds” in the UK https://en.wikipedia.org/wiki/Child_Trust_Fund – which consist of assets that appreciate in value and pay dividends to children when they become 18 years old. All of these trust forms seek to protect common wealth from marketization, especially over intergenerational periods of time, and promote greater social equity.

See also Will Paxton and Stuart White, “Universal Capital Grants: The Issue of Responsible Use,” in Will Paxton and Stuart White, with Dominic Maxwell, The Citizen’s Stake: Exploring the Future of Universal Asset Policies (Bristol, UK: Policy Press, 2006), pp. 121-134.

Detailed and Expanded Bibliography

See, as of September: Reinventing Law for the Commons