Lewis Hyde is giving a Berkman talk about the book he’s working on. The book is about the ownership of art and ideas, and argues that they should lie in a cultual commons, rather than be treated as property.

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Lewis begins by talk about what a commons is. The term comes from medieval property ideas, and Lewis thinks of commons as a kind of property. He asks the group for a definition of property. Suggestions from the audience: “Exclusive rights.” “Anything I can use and have some degree of control over, not necessarily exclusively.” Lewis says that a 1900 dictionary defines property as that over which one has “rights of action.” Property is a bundle of rights of action. Lewis likes this definition because it includes human actors, Blackstone defines property rights in maximalist terms: the right to exclude the entire universe. Scalia also thinks property is the right to exclude. Lewis thinks the right to exclude is one of the bundle, not the whole thing. This is because, he says, he’s interested in commons. (He notes that in medieval times, “common” could be used as a verb. E.g., “a man may commons in the forest.)

Lewis talks about Hardin’s “The Tragedy of the Commons” essay. In fact, traditionally commons had governance rules to prevent the destruction of the commons’ asset, including the right of exclusion. “Commons were in fact not tragic. They lasted for millennia in Europe. Not tragic because they were rule-governed and stinted.” Why has the phrase “The tragedy of the commons” persisted? In part, because the phrase is catchy. In part because Hardin proposed it during the Cold War and it was taken as showing that common-ism doesn’t work.

There used to be an annual ritual of “beating the bounds,” to keep any gradual encroachment on the commons. “These were convivial affairs.” Lewis wonders if there are ways we can recover this resistance to encroachment.

Applied to the cultural realm, Lewis thinks cultural products are by nature in a commons. In the 18th century you get the idea that we could own poems, novels, etc. Until then, people thought of property as applying only to land. If something is not excludable, there’s no property in it. Many argued in the 18th century that therefore artistic works can’t be property. (Lewis recommends Terry Fisher’s article on philosophies of property. Terry points to four : Labor, moral rights, commercial utilitarianism, and civic utilitarianism.)

The first copyright law was in 1710 (Statute of Anne). By giving authors and publishers rights, it removed the “in perpetuity” of the crown’s monopolistic grants. It also created the public domain by creating a clear limit on the term of ownership: After 14 years, it enters the public domain. It’s as if the commons is the default state, says Lewis.

Jamie Boyle talks about the “second enclosure” in which everything is copyrighted by default, the term is extended. The second enclosure is an enclosure of the mind, says Boyle. Lewis now thinks there might be a third enclosure: The enclosure of wilderness of the mind. Lewis agrees that it makes sense to let the creator of a work, say a novel, get rewarded for it. “I wrote it, so it’s mine.” But, asks Lewis, what does the “I” mean? What is the self? He cites a 12th century Buddhist: “We study the self to forget the self.” To forget the self is to wake up to the world around you. Creativity comes out of self-abnegation. To get to something truly new, you have to a door open to the unknown. We usually think that the outside of owned property is the public domain. But that’s a domesticated sphere, things we are familiar with. There’s a old tradition that during the period of maturation, you have to leave the known world, go away from where instruction is given, and become familiar with your ignorance. (Lewis says he’s drawing on Thoreau.)

He takes an example from Jonathan Zittrain. When the Apple II came out, there was a spurt in sales because the first spreadsheet emerged, something that had not been expected. If you want a generative Internet, you have to be careful about what you lock down. Another example: In the 1980s, San Diego cell biologists patented a sequence of amino acids. They didn’t know its biological purpose. Ten years later, other researchers think that that sequence blocks blood to tumors. The patent owners sued the researchers. The patent gums up the system. Exploratory science goes into the unknown. “To enclose wilderness means giving property rights in areas where we as yet have no understanding what’s happening.” Lewis adds: “This makes no sense.” Lewis would like us to restore the idea that there are things that are unowned.

Emblematic of the third enclosure is silence. John Cage in 1952 came to Harvard to see/hear a completely soundproofed room. But Cage could hear a low rumbling and high whining. The low rumbling is the sound of your blood and the high whining is the sound of your nervous system. Silence for Cage meant not no sound but non-intention. He composed “4 mins and 33 seconds” which is a stretch of silence. The audience hears the ambient noise. In 2002 a rock group called the Planets put in a minute of silence. As a joke/homage, they credited it to Cage. The royalty-collecting societies started to send checks to Cage’s publisher. The publisher sued for copyright infringement on moral rights grounds (i.e., misattribution). They settled. But Cage held a Buddhist-like view of artistic creation. He tried to remove the self. A lot of copyright law assumes the work contains the imprint of the author’s personality. That’s one of the reasons we give a copyright. But those laws can get in the way of our ability to live in the wilderness, i.e., the third enclosure. How do you become a creator in a world in which scientists can patent unknown sequences and silence can be copyrighted?

Q: Maybe part of the problem in defending the commons is that we say we’re defending freedom, not as in free beer. Fighting for free beer is more compelling than fighting for free speech.
A: Beating the bounds was a fun event. So, yes, people have to want to do this.

Q: [me] How do we counter the fairness argument: If I did it, I ought to get the reward. How do we respond to that?
A: It’s hard to do this in political debate because it’s a long argument. I raise the question of the “I”: To what extent is my contribution really from me? With cultural works, you’re working in a vast sea of existing material. What you create is not entirely yours. Even if it becomes popular and useful, it’s other people who made it so. You can also point to the utilitarian consequences: The public interest is advanced by enabling things to enter the public domain.

Q: [jason] You’re making a creativity defense, i.e., that the commons is generative. But, if we take Cage or Thoreau to heart and say that true creativity consists of transcending the self, could we say that that leads to saying all works should be owned, so that you’re forced to create something new?
A: The puzzle is how much you can actually go to the wilderness. You can face it, but there’s no way to escape the world you come out of. Thoreau has The Iliad with him. There’s no way to escape the known. You always work from materials you’ve collected elsewhere.

Q: [ethanz] What’s so bad about private property? You’re hearkening back to a romantic conception that worked for a very small set of people. We’ve got an enormous amount of development vased on increasingly strong enclosure movements. Those movements have given us a great deal of what we love. Despite the first and second enclosures, creativity seems not to have been much hindered. Why should we worry about the third enclosure? Couldn’t we say that you’re attempting to protect and defend something that most of us have not experienced? How do we know that your romantic vision is superior to the world we’re interacting with?
A: I’m not against private property. The question is always where the lines should be drawn. I think we’ve extended the right to exclude too far. Yes, the world is quite creative. But we don’t know what we’re missing. With the enclosing of wilderness, we’re enclosing that which we don’t know about. Researchers are reluctant to do certain kinds of work, for fear of being sued.
Ethan: My diabetes medicine — recombinant DNA — exists because Eli Lilly worked within enclosures. How do we know we would have made the same progress if those enclosures weren’t there?
A: Let’s leave that hanging as a question. It’s a good question. You’re right that the existing dominant system has produced remarkable results.

Q: Michael Heller in The Gridlock Economy goes through the economic models that explain what we lose by locking stuff down. What’s the cultural loss?
A: Lessig and others write books about this… [Tags: lewis_hyde copyright commons copyleft science art ]

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