Intellectual property rights – the modern day enclosure of the commons

Capitalism attempts to turn everything into private property, the air we breathe, the water we drink and even ideas. Attempts of capitalists to make money from “their” intellectual property are like the highway robbery of medieval aristocrats who levied tolls on traders and restricted the growth of commerce and prosperity. Today private property and the profit motive are the biggest threat to our enjoyment of new ideas, our progress and even our existence as a species. Capitalism is a greedy system. It seeks profit everywhere and turns everything into private property. In doing so, it inevitably destroys all those things we hold in common - the “commons”. The world is dominated by capital. Wage labourers do the work and turn the profits for capital because they have no other way of making a living. And that's because in the past we were disinherited from our “commons”, which were enclosed by the rising capitalist class.

So what? Isn't that all in the past? Well, actually no. Consider the Internet. What is it but a vast intellectual commons, a “common carrier” of ideas? Clean air is a common, as is clean water. The Antarctic, the Brazilian rain forests and wildlife are all commons, and all under threat.

We now regard biodiversity as a good in itself, and one to be defended against the depredations of private profit. Moreover progress, even under capitalism, generates new commons. Airwaves for mobile phones, Internet addresses and gene sequences are all commons not conceived twenty years ago. Just like villagers four hundred years ago, we can't live without commons. And, just as in the past, the rich are out to seize our common possessions in a vast new enclosure movement. Let's make sure they don't get away with it this time!

In Capital, Marx explains the process of primitive accumulation, which established the preconditions for capitalist production. On the one hand, rich men gained fortunes in money rather than land or slaves. On the other hand, the common people were reduced to property less proletarians, forced to sell their labour power in order to live.

“(T)hese newly freed men became sellers of themselves only after they had [been] robbed of all their own means of production, and all the guarantees of existence afforded by the old feudal arrangements. And this history, the history of their expropriation, is written in the annals of mankind in letters of blood and fire.” (Capital, Volume I, p. 875)

Marx uses Britain as his example of primitive accumulation. Part of this expropriation was the separation of the people from the commons. Medieval and early modern villages had, at their centre, the crop fields. All around were “wastes”, which supplied wood for fuel and building materials, running water and fishing rights and rough grazing for their animals. The villagers could not make a living without these commons. Yet the coming of capitalism saw the enclosures, the seizure of these lands from the villagers and their conversion into the private property of the rich.

“Communal property - which is entirely distinct from the state property we have just been considering - was an old Teutonic institution which lived on under the cover of feudalism. We have seen how its forcible usurpation, generally accompanied by the turning of arable into pasture land, begins at the end of the fifteenth century and extends into the sixteenth. But at that time the process was carried on by means of individual acts of violence… The advance made by the eighteenth century shows itself in this, that the law itself now becomes the instrument by which the people's land is stolen… The Parliamentary form of the robbery is that of 'Bills for Inclosure of Commons', in other words decrees by which landowners grant themselves the people's land as private property, decrees of expropriation of the people.” (ibid, p. 885)

The poet, and farm labourer, John Clare lamented the enclosure movement in his native village in Northamptonshire with these words:

“Ye injur'd fields ye once where gay
When nature's hand displayed
Long waving rows of willows grey
And clumps of hawthorn shade
But now alas your awthorn bowers
All desolate we see
The woodman's axe their shade devours
And cuts down every tree

Not tree alone have owned their force
Whole woods beneath them bowed
They turned the winding riv'lets course
And all thy pastures plough'd
To shrub nor tree throughout thy fields
They no compassion show
The uplifted axe no mercy yields
But strikes a fatal blow”

('Helpston Green.' Spelling as in the original. See p. 29 John Clare: a champion for the poor, Carcarnet press, 2000)

Capitalism required a revolution in relations between the classes and a revolution in the way we thought about the world to come into being. Karl Polanyi was well aware of this. “There was nothing natural about laissez-faire; free markets could not have come into being merely by allowing things to take their course.” (The Great Transformation: the political and economic origins of our time, Beacon press, 1957, p. 139) “While laissez-faire economy was the product of deliberate state action, subsequent restrictions on laissez-faire started in a spontaneous way. Laissez-faire was planned; planning was not.” (ibid, p. 141)

Capitalism had to fight long and hard against what the historian E.P. Thompson calls the “moral economy”, a code of ethics and practice radically at odds with capitalist behaviour. (E.P. Thompson - Customs in common, Penguin Books, 1993). This piece of doggerel from the seventeenth century shows the hatred felt by common people against the enclosure movement:

“The law hangs the man and flogs the woman
Who steal the goose from off the common,
But leaves the greater villain loose,
Who steals the common from the goose.”

A similar process of expropriation took place in the Scottish highlands in the years after Culloden. Marx explains the situation.

“The Highland Celts were organized in clans, each of which was the owner of the land on which it was settled. The representative of the clan, its chief or 'great man' was only the titular owner of this property, just as the Queen of England is the titular owner of all the national soil.” (ibid p 890)…

“In the eighteenth century the Gaels were both driven from the land and forbidden to emigrate, with a view to driving them forcibly to Glasgow and other manufacturing towns. As an example of the method used in the nineteenth century, the 'clearings' made by the Duchess of Sutherland will suffice here. This person, who had been well instructed in economics, resolved, when she succeeded to the headship of the clan, to undertake a radical economic cure, and to turn the whole county of Sutherland, the population of which had already been reduced to 15,000 by similar processes, into a sheep-walk. Between 1814 and 1820 these 15,000 inhabitants, about 3,000 families, were systematically hunted and rooted out. All their villages were destroyed and burnt, all their fields turned into pasturage.” (Capital, Vol. I, pp. 890-891)

In describing the process of expropriation, Marx makes two points. The first is that property is not reducible to private property. There is also the communal property of the villagers and of the clan. The second point is that conventional economics acted throughout as a justification for this legalised robbery of common lands. Hence the sarcastic aside about the Duchess of Sutherland - “well instructed in economics.” The hollowed out concepts of bourgeois economics reduce all property to private property. After all, how could the landed gentry be stealing the commons when they didn't belong to anyone?

“Economics” continues to justify the theft of the commons. The classic piece is Garrett Hardin's article, 'The tragedy of the commons' (Science, 162, 1968, pp. 1243-1248). Hardin was a Professor of Human Ecology at the University of California. He is not one for empirical enquiry on this subject. He prefers to appeal to the reader to perform a so-called 'thought experiment.'

“Picture a pasture open to all,” he asks us. The result is obvious! Greedy individuals will overgraze their livestock, because “the effects of overgrazing are shared by all the herdsmen.” The solution comes as no surprise! “The tragedy of the commons as a food basket is averted by private property.”

Hardin could have made a living as economic adviser to the Duchess of Sutherland! Like his predecessors, Hardin pleads efficiency gains as the justification for enclosure. In reality they were a form of class struggle, intended to make the poor incapable of scraping any kind of living independently of the rich, and utterly dependent on them to earn a crust.

Hardin's theorem is a fable from beginning to end. The commons were not actually open to all and sundry to graze their animals upon. This right was reserved to people known as the commoners, usually the local villagers. Even the commoners' grazing rights were strictly regulated by officials, known in Britain as beadles, in order to prevent overgrazing. The Wikipedia comments (in the section 'Historical background' on Hardin's thesis) “Historians… agree that there is no evidence that commonland use was itself unsustainable.”

Hardin could have checked his thesis by simply asking his colleagues from the economic history department about this while they were passing round the port and walnuts. If he had consulted the anthropologists, he would again have drawn a blank.

The environmentalist George Monbiot deals with the Masai who live as herders in Kenya and Tanzania. (No man's land: an investigative journey through Kenya and Tanzania, Green Books, 2003). They regard their lands as collectively owned by themselves, the Masai, not as open to all. Centuries of wisdom cause them to treat the delicate ecosystem in which they live with the greatest care to keep it sustainable. Their way of life is now in danger of extinction because of the encroachments of capitalism - not a conclusion Hardin would want to encourage.

Despite the lack of evidence, Hardin's fable has become the accepted wisdom among the fraternity of economists. Hardin is a disciple of the economist Thomas Malthus. Malthus believed that growing population pressed against finite natural resources. His was a powerful reactionary argument in the nineteenth century. The only thing the working class could therefore do to improve their lot was to tie a knot in it! (Marx wrote extensively against Malthus, but we will not deal with the arguments here.)

On the one hand Hardin uses his Malthusian perspective to refute the notion that rational (that is utility maximising) individuals will produce an optimal equilibrium. This is often called Adam Smith's invisible hand theorem and is the classical justification for laissez-faire capitalism. Compared with Adam Smith's optimism about harmony and progress (under capitalism) though, for Hardin to adopt instead Malthus' pessimism about the eternal condition of humanity may be regarded as a step back.

On the other side, the reason the invisible hand of the market doesn't work in the case of the commons according to Hardin, is because there is an incentive for greedy individuals to overgraze their animals, since the cost is borne by others. All suffer as a result.

This is an example of what economists call an externality. This means that, in “ordinary” profit-making activity, individuals or firms incidentally produce side effects affecting third parties. Externalities may be positive or negative. A firm produces steel, but also smoke. Respiratory illness for those who live near the steel mill is definitely a 'negative externality.' So is the destruction of the commons.

The extreme examples of external effects on economic activity are public goods. This refers to a narrow range of products with two characteristics. They are non-rival in consumption and non-excludable. Public goods are to be compared with private goods. These are rival in consumption. If I eat a KitKat, you cannot eat the same KitKat. I can also deprive you of access to my KitKat by buying it and keeping it in my pocket - that is, I can exclude you from it.

Pure public goods are non-rival in consumption. The light of a street lamp can allow any number of people to weave their way home from the pub - it doesn't cost any more than to light the way for one person. And it isn't possible to switch the light off if somebody comes along who hasn't paid their local tax to the council that provides street lighting.

Hardin uses this conceptual framework, and argues that the grass on the commons is limited, and can only sustain a finite number of animals. On the other hand it is not possible to exclude strangers from taking advantage of the common's bounty. This is called the free rider problem. So the commons are rival but non-excludable in the terms of neoclassical economics. An example given by Hardin's disciples is over-fishing, since the world's fisheries are a common good. Over-fishing is a fact, but what Hardin conveniently ignores is that the reason for it is capitalist greed, not some flaw in human nature.

What certainly is true is that most economics textbooks give public goods a page or so as an exception to the rule and then spend the rest of the book dealing with all goods as if they are pure private goods. This economic outlook is deep rooted. For capitalism, the commons are not amenable to the logic of capital accumulation.

Why bother with this? We all live in little boxes and all property is private property. Aren't we all propertyless members of the working class, and all the better for it? Actually, no. Just like villagers four hundred years ago, humanity can't live without commons.

Actually people are not on the take all the time, as Hardin and orthodox economics assume. The Internet has grown so vast because people want to share their ideas and don't feel the need to get paid for it. (I actually got Hardin's article off the Internet. I didn't have to go to a library to read it. A library is an institution which collects books and journals   which, once sold, are someone's private property  and allows wider access.).

Capitalism cannot exist without such commons. Yet the tendency is for capitalists to destroy the commons by turning them into private property. The biggest common of the lot is the planet earth as the home of humankind. If capitalism destroys that through shortsighted greed, which is not impossible, that would be a considerable “externality”.

Marx remarks, “From the standpoint of a higher socio-economic formation, the private property of particular individuals in the earth will appear just as absurd as the private property of one man in other men. Even an entire society, a nation or all simultaneously existing societies taken together are not the owners of the earth. They are simply its possessors, its beneficiaries and have to bequeath it in an improved state to succeeding generations, as boni patres familias. (good heads of the household)” (Capital, Vol. III, p. 911).

Economics textbooks may make do with the public good/private good divide. The real world is a multi-coloured place. Public good characteristics are widespread in commodities which cannot be described as pure public goods. Thomas Jefferson said of ideas that they are like the light of a candle. They can pass their light to someone else's candle without dimming their own. In other words ideas are non-rival in consumption. This is important for, as materialists, we Marxists know that it is ideas that make the world go round!

Neoclassical economics has a problem with public goods. It has this problem because capitalism has a problem with public goods. Economists such as Pigou pioneered neoclassical welfare economics. This is an attempt to assess and judge economic outcomes and establish when markets deliver “optimum” results and when they fail. Markets, welfare economists say, are optimal when price is equal to marginal cost (the cost of supplying another unit). Under these conditions, it is supposed, marginal benefit = marginal cost and total benefits are maximised relative to total costs.

Public goods have been identified as an instance of market failure, when capitalism cannot deliver optimal output. To repeat, public goods have two characteristics:

There is non-rivalry in consumption because there is zero cost of reproduction for another user. The logic of this in neoclassical welfare economics is that the good should be provided free. After all, a charge is only levied in neoclassical theory because supplying an extra unit involves additional real cost.

The problem of free provision is obviously that there is no incentive for the capitalist to supply the good at all, so capitalism systematically undersupplies public goods and markets fail.

The second characteristic of a public good is that the provider should be unable to prevent users from free riding on their product and capturing the benefits without paying. The classic example is the light from a street light or lighthouse. So how can a capitalist sell light for profit?

Our main point in this article is to look at ideas as a commodity, which is what capitalism strives to turn them into so as to make money. Marx was aware that selling ideas created a problem under capitalism. In Theories of Surplus Value, Volume I, on paged 353 he says, “The product of mental labour  science - is far below its value, because the labour time to reproduce it bears no relation to that required for its original production. A schoolboy can learn the binomial theorem in an hour.”

And in Capital, Volume I, on page 508, “once discovered, the law of deflection of a magnetic needle in a field of electric current, or the law of magnetisation of iron by electricity, cost absolutely nothing.” And, in a footnote on the same page, “Science, generally speaking, costs the capitalist nothing, a fact that by no means prevents him from exploiting it.”

And again, “…a distinction should be made between universal labour and co-operative labour. Both kinds play their role in the process of production, both flow one into the other, but both are also differentiated. Universal labour is all scientific labour, all discovery and all invention… The far greater cost of operating an establishment based on a new invention as compared to later establishments arising ex suis ossibus.” (from their very bones)

“This is so very true that the trail-blazers generally go bankrupt, and only those who later buy the buildings, machinery etc., at a cheaper price make money out of it. It is therefore, generally the most worthless and miserable sort of money capitalists who draw the greatest profit out of all the new developments of the universal labour of the human spirit and their social application through combined labour.” (Capital, Volume III, p. 199)

So information and ideas have some, but not all, the characteristics of a public good. It is possible to sell information, though there are problems. Ideas can be excluded from other people's use. But their consumption does not prevent anyone else using them - they are not rival in consumption. In that sense the world of ideas is the opposite of the “tragedy of the commons”. It ought to be freely available, but capitalists can enclose it - and that's exactly what they are trying to do.

Aristotle despised the Sophists because they sold philosophy for money. He said it was wise that they insisted in cash up front because “no one will pay for what they already know.” The problem in selling information is that revealing it to a potential buyer renders it worthless. But there are ways of packaging information as a commodity. And very profitable it can be! Business and legal databases in particular command huge prices.

It would actually be in the interests of the development of the productive forces that all information and innovation were freely diffused throughout the economy. Under capitalism, innovation would not take place at all under those conditions. Only by retarding the spread of ideas and charging rents can capitalism develop the powers of production. In other words this is an example of capitalism as a fetter on the development of the productive forces.

We naturally regard ideas, whether they be the writings of Shakespeare, knowledge as to how to mend a flat tyre on a bike or the binomial theorem, as common property. They are part of our common heritage, the basis of what we have achieved so far and the launch pad for further progress for humanity.

Now, however, private property has been artificially created in certain classes of ideas. This is called intellectual property. The aim of these laws was to give an incentive under capitalism for individuals to generate new ideas and to stop others free riding on them. In return the creators were awarded monopoly ownership of the product of their thought for a limited period, and the right to charge others for using it. Whether this has actually accelerated the creation of ideas is a moot point. Marx realised that John Milton would have written poetry whether he found a buyer for the manuscript or not, for, “Milton produced Paradise Lost as a silkworm produces silk, as an activity of his own nature.” (Capital, Vol. I, p. 1044)

In any case, creation is seldom only the result of individual genius. We all incorporate the advances of others as building blocks in our own thought without even considering it. That is how humanity advances. And they want to stop it! Lawrence Lessig makes this point strongly. (Free culture: the nature and future of creativity, Penguin, USA, 2005).

The Marx brothers were a funny act; but they came from a long tradition of performers who swapped and stole from each others' gags and routines - and improved them. (No intellectual property rights in jokes, then!)

Walt Disney took tales like 'Snow White' collected by the brothers Grimm and turned them into feature length cartoons. On page 87, while emphasising the communal nature of creativity and culture, Lessig asserts that Shakespeare wrote Romeo and Juliet. Actually the outlines of the plot are in Ovid's Metamorphoses, written in Latin around the time of Christ. Does this make Shakespeare a plagiarist? If alive today, would he live in fear of the intellectual property police?

An example of this intellectual property is copyright. Charles Dickens' works were very popular in the USA in the nineteenth century, but he didn't receive a penny from the pirated editions published there. But the principle was that Dickens wrote the books; he deserved the reward. That principle has been turned upside down by the new privatisers who are using intellectual property laws to steal our intellectual commons. A classic example is the articles academics write for learned journals. You might think they get paid for their efforts. Not a bit of it. They assign the copyright to the publisher. They can't even distribute the article they've written to their own students without permission.

But the academics are the ones who come up with the innovative ideas, if that is what they are. Copyright does not protect them if their work is published in a journal. It protects the handful of global publishing companies - Thomson, Elsevier, Lexis/Nexis, Taylor & Francis and so on - who dominate this market. And who pays the academics to do the research? We do. Through our taxes we subsidise the research departments of our public universities. We effectively subsidise these super-rich publishing companies to make money out of other people's ideas. They sell most of their scholarly journals to university libraries at a price typically three times as high as they would charge an individual. The university library, a captive buyer, holds out the begging bowl to the government. We pay again. Overall result: the intellectual commons are ploughed up and fenced in just like Helpston Green.

The rights of copyright are continually being extended to encroach on the commons of ideas. Till recently, the US publishing company West claimed to own the rights to all American court cases since 1776, because they had published the reports. At least with a book or journal, once you have paid to get access to the content, you can sell it or pass it on. These days, academic journals are more likely to be delivered in university libraries in the form of databases. The library rents them from the database owner, who can restrict access to the online content. The library never gets to own the information or articles on the databases. With a book or journal a library can build up a back file over time. But with a database every year the institution has to renew its subscription to retain access to back issues.

The additional result of this new enclosure is a slowing in the process of mutual exchange of ideas, which is what academia is surely supposed to be about. And, if these ideas are helpful for humanity, their diffusion will be slowed by the monopolists who - grotesque notion! - claim to own ideas they never thought up. In a striking phrase Bollier has referred in his book 'Silent Theft' to the “medievalisation of the national system of innovation.” (David Bollier, Silent theft: the private plunder of our common wealth, Routledge, 2003). He is comparing the attempts of capitalists to capture rents from “their” intellectual property with the highway robbery of medieval aristocrats who levied tolls on traders and restricted the growth of commerce and prosperity.

Intellectual rights are getting everywhere. And they are no spur to creativity. Gilberto Gil was a famous Brazilian musician, who is now a minister in the reformist government there. He sees tough intellectual property laws as a 20th century idea, and says, “the 20th century is a cul de sac.” He decided to set an example by making his songs available for free download. Time Warner disagreed, and Time Warner won. Gilberto wrote and performed the songs. What have Time Warner ever “created” apart from money?

Private property rights have already been extended to the airwaves, so radio and TV companies are given monopoly rights to broadcast  a “licence to print money.” Senator John McCain, a critic of the American giveaway to the big diversified media and entertainment monopolies, commented that this is, “one of the great rip-offs in American history. They used to rob trains in the Old West, now we rob spectrum.”

The looting of the natural world by capitalists is a story we have covered before, so we shall be brief. The World Wide Fund for Nature in 1988 reported that about 30% of nature had been destroyed in the previous 25 years by human activity. This destruction continues apace. This planet has been our home for about two million years. For how much longer?

The destruction of the Amazon rainforest is not only the end for innumerable irreplaceable forms of flora and fauna. According to scientists, forests are our main “sink” for capturing the excess carbon dioxide emissions that are poisoning our planet. Antarctica is not just a unique wilderness. Its ruin is part of the process of global warming that could reduce future generations to beggary.

Obscenely, the ownership of things has been extended to life forms. The US firm RiceTec has laid claim to own basmati rice. Everyone knows that this rice has been grown for centuries in the shadow of the Himalayas in India and Pakistan and was developed long ago by unknown peasants. These peasants would have regarded this superior strain of rice as a gift to future generations.

The cracking of the human genetic code in DNA (billed as the basic building block of life) has been accompanied by various capitalists rushing to the patent office to claim they own bits of us all. It is too soon to tell what this will mean in practice, but your immediate feeling is that they're having a laugh. Like the yeomen who blinked in amazement as landowners told them that they actually owned the rabbits hopping on and off their land, to us it is utterly fantastic that humans (actually corporations) can claim to own life itself.

It is characteristic of any commons that, since one person's enjoyment does not get in the way of another's, the fullest involvement of all participants make the facility more useful and enjoyable for all. The more, the merrier. In this sense, the commons are the opposite of a rival good. The more people who load content on to the Internet, the better it works for us all. Those who strive to privatise these commons impoverish the value of the network as a whole, and all of us in the process. Private property and the profit motive are the biggest threat to our enjoyment of the new commons, our progress and even our existence as a species.

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