Enclosure without and within the ‘information commons’

Abstract

The paper starts by pointing to the lack of any theoretical analysis for the concepts of ‘the commons’ and ‘information’ in the general reference to the ‘enclosure of the information commons’. The author suggests, instead, the concept of ‘enclosure’ as a key to understanding of ‘the information commons’, although it is underdeveloped and often equated with privatization or commodification. This paper attempts to establish a systematic theory of enclosure that enables examination of possible contradictions that may lie deep within the ‘information commons’.

The information commons is an idea whose time has come. In part this is a result of pressures that face the commons. Issues related to intellectual property law in particular are leading to what many are now calling the enclosure of the information commons—a process that separates people from ideas. This process is analogous to the fencing off of the English commons, an act that separated people from the material resources they needed for their survival. (Info-commons.org, 2002)

Within a repressive society, even progressive movements threaten to turn into their [declared] opposite to the degree to which they accept the rules of the game. (Herbert Marcuse, 1965)

Unless we demonstrate greater caution with analytical models that are products, as they all are, of particular histories, we are in danger not only of solving but also of producing tragedies and dilemmas in the commons and elsewhere. (Pauline E. Peters, 1987)

Notes

1 This is reflected in book titles such as The Enclosure and Recovery of the Commons: Biodiversity, Indigenous Knowledge and Intellectual Property Rights (Shiva et al., 1997), or A Global Political Economy of Intellectual Property Rights: the new enclosures? (May 2000).

2 ‘… Luddism, the real Luddism, was not the cry of the empty gut against innovations which inexplicably (at least to the victims) threw people out of work. It was an answer from many ordinary working people to changes imposed from above which had repercussions on their whole way of life, notably through the ‘mobilisation’ of women's and children's labour in place of that of skilled men. Luddism was above all else an attempt by working people to exert some control over changes that were felt to be fundamentally against their interests and mode of life. It was a protest, in the days before the existence of any organised trade union movement, against new modes of accountancy, employment patterns, work rhythms, and industrial discipline’ (Robins and Webster, 1999, p. 46).

3 See http://www.biodev.org/archives/000494.php.

4 Apologists of parliamentary enclosure almost invariably criticized ‘the commons’, ‘common rights’ or ‘common property’ as negatives. The privileged criterion was often the maximization of utility, such that ‘[Enclosers] deplored the insubordination of commoners, the unimprovability of their pastures, and the brake on production represented by shared property’ (Neeson, 1993, p. 7).

5 In passing, most of the ‘collectively-owned resources’ that Bollier mentions I might potentially identify as environments of enclosure, depending on the particulars of circumstance.

6 Bollier at one point suggests, without a shred of irony that: ‘The idea that human beings share a moral and civic inheritance that cannot be alienated, commodified, or sold is part of an American tradition that has its roots in the Declaration of Independence’ (Bollier, 2002c, p. 16).

7 Nevertheless, resource management notions of ‘the commons’ have provided a shining beacon for many people during anxious times, a clear focus for active and purposeful attitudes in the face of crisis. Visit reclaimthecommons.net, for example, and you will find ‘a movement of people who ‘want to teach and demonstrate sustainable, life-affirming alternatives to biotechnology and corporate power in general’ (http://www.reclaimthecommons.net/article.php?list=type&type=6). The Global Commons Institute (gci.org.uk) declares that its mission is ‘to globally shrink and share future greenhouse gas emissions to avert dangerous rates of global climate change’. The Chaordic Commons (http://www.chaordic.org) seeks ‘to develop, disseminate and implement new concepts of organization that result in more equitable sharing of power and wealth, improved health, and greater compatability with the human spirit and biosphere’. The Caribou Commons Project (http://www.cariboucommons.com) is ‘an international effort to permanently protect the calving grounds of the Porcupine caribou herd, located in Alaska's Artic National Wildlife Refuge.’ The ‘Cultural Commons’ project of the Center for Arts and Culture in Washington DC (http://www.culturalcommons.org), the title referring to a ‘think tank that seeks to inform and improve the decisions that affect our cultural life’.

8 Little wonder, then, that many of the ‘(information) commons’ apologists characterize their ‘commons’ within victimizing frameworks, whereby a static, threatened, feminized pool of resources ‘(information) commons’ is under threat from a dynamic, aggressive, masculinist process of enclosure. This, again, is a classic rhetorical position taken by people in favour of enclosure (and by colonizers and empire builders, as it happens).

9 Sometimes ‘the (information) commons’ is not enclosure; sometimes ‘the (information) commons’ is the opposite of enclosure; sometimes ‘the (information) commons’ works with enclosure; sometimes ‘the (information) commons’ is enclosure.

10 Enforcement of the property right of copyright can be exercised by other persons by licence or assignment (WIPO, 1997, p. 5). When the representatives of the Irish Music Rights Organisation identify that a premises requires an IMRO licence the proprietor is approached, and asked to sign a standard public performance contract. The licence granted by IMRO permits the licensee ãto perform copyright music from the IMRO repertoire on the premises, in return for paying royalties to IMRO according to the applicable tariffã (Lyons, 1999, p. 7). IMRO agents are granted a right of free entry, for monitoring purposes, to any premises which has been licensed.

 Licensing constituted the primary activity of the Irish Music Rights Organisation during the period 1995 – 2000, for ‘the licensing of works is how collectives earn their money’ (Sinacore-Guinn, 1993, p. 30). In 1999 licensing revenue for the Irish Music Rights Organisation came to IR£17,418,077. In 2000, the figure had risen to IR£19,457,780 (IMRO, 2000, p. 6). The performance royalty licensing rates vary greatly from premises to premises. They take account of the type and frequency of ‘performances’, the nature of the venue and other variable conditions. Royalties are paid annually and, in advance. This blanket licence runs from year to year, until such time as the licence is cancelled. Most music users will not attempt to contact licensing collectives. Often they will only enter into a licensing agreement upon threat of litigation (Sinacore-Guinn, 1993, p. 36). As a result, collectives actively identify and pursue all potential music users:

• It is an unfortunate fact of life that respect for the rights of creators is not the norm. Asignificant number of users avoid or even actively resist a collective's efforts to control the use of its repertoire of works. It is up to the collective to assert its rights and the rights of its affiliated rights owners in a way that will cause compliance (Sinacore-Guinn, 1993, p. 39).

Strong-arm, coercive tactics, including litigation, are generally avoided, as they are costly and generate bad public relations. Nevertheless, licensing is the most debated and litigated area of collective administration worldwide (Sinacore-Guinn, 1993). In 1993 the Irish Music Rights Organisation paid out more than IR£47,000 in legal expenses (Curran, 1994). By 1999 IMRO's legal, collection and professional fees came to IR£476,258, a rise from IR£413,453 the previous year. If someone refuses to pay for an IMRO licence when approached, then the organization takes recourse to the Circuit Court. If a licensing agreement has been contracted but royalties are not paid, then the ‘music user’ is sued by the Irish Music Rights Organisation as a commercial debtor. The use of debt-collection agencies is standard practice for IMRO as the last attempt at resolution before more substantial coercion. The use of persuasion is preferable for the organization, so significant efforts are made to convince users of the necessity for proper licensing. Often a performing rights society will undertake cultural activities, programs, and sponsorships in order to encourage the creation of new works, educate people as to the nature of creative rights, and garner support for those rights. The Irish Music Rights Organisation is very active in this regard. Such activities also perform the obvious functions of brand recognition and public relations.

11 According to the Irish Copyright and Related Rights Act, 2000, ‘copyright is a property right whereby, subject to this Act, the owner of the copyright in any work may undertake or authorise other persons in relation to that work to undertake certain acts in the State, being acts which are designated by this Act as acts restricted by copyright in a work of that description’ (17.1). Copyright, then, is a set of prescriptions on the actions of others in relation to a ‘literary or artistic work’ which control what can or cannot be done by other people in relation to that ‘work’. According to the Copyright and Related Rights Act, 2000 (4.37), the owner of a copyright has the exclusive right to undertake, or authorise others to undertake, all or any of the ‘acts restricted by copyright’. A person is understood to infringe the copyright in a work if they undertake or authorize another to undertake any of these acts without the licence of the copyright owner. The acts restricted by copyright are as follows:

1. to copy the work;

2. to make the work available to the public;

3. to make an adaptation of the work or to undertake either (a) or (b) in relation to an adaptation.

The ‘performing right’, although not specifically mentioned in the Copyright and Related Rights Act, is generally understood to pertain to (b), making a work available to the public. If the act of copying is the first act which requires authorization, then the second is the act of public performance: ‘The right to control this act of public performance is of interest not only to the owners of copyright in works originally designed for public performance. It is of interest also to the owners of copyright, and to persons authorized by them, when others may wish to arrange the public performance of works originally intended to be used by being reproduced and published’ (WIPO, 1997, p. 155). This ‘performance’ is often assumed (without much discussion) to be at least analogous to copying. This includes performing, showing or playing a copy of the work in public; broadcasting a copy of the work in public; including a copy of the work in a cable programme service; issuing copies of the work to the public; renting copies of the work; or lending copies of the work without the payment of remuneration to the owner of the copyright in the work. Performing rights are statutory, that is, they exist solely and exclusively by virtue of the laws that create and recognize them (Sinacore-Guinn, 1993, p. 14).

12 A developed theoretical perspective on the commodifying and expansionary qualities of the process of enclosure did not exist, at least not exactly. What did exist were various sociological critiques of political processes that seem to affect us in our everyday lives. In developing the tone and colour of my own understanding of the concept of ‘enclosure’ I drew on the spirit of Tönnies and his critique of gesellschaft, and on Marx's critiques of objectification, alienation, and commodity relations. I kept in mind Lukács’ critiques (1972) of reification and totalization, and Simmel's critique of the relational implications of abstraction and reification as found within works such as The Philosophy of Money (1978). I also drew upon the spirit of Weber's extended critique of rationalization, and his typologies of authority, in particular his analyses of legal, institutional, and bureaucratic relationship structures (I am indebted here to the Weberian work of Raymond Murphy (1988) on ‘social closure’). I also consider this work to be resonant with much counter-enlightenment critique, among which I would include certain strands of postmodernisms, poststructuralisms, feminisms, critical theory and the Frankfurt School, and Holocaust Studies. I think it is also hard to underestimate the influence of the spirit of Michel Foucault in the thinking outlined here. While in a general fashion Foucault's work allowed me to consider that I never needed permission to think for myself, more particularly I find his work on disciplinary power provides me with a kindred critique.

13 Understanding the characteristic features of enclosure in this way, I am as happy to identify practises of enclosure at work in Hitler's Germany, an abusive relationship, a gambling casino, or the corporate logic of an organization, as I am to identify them in the historical narratives of parliamentary enclosures in eighteenth-century England.

14 I understand ‘disposition’ as a consistency of relationship to uncertainty (for more on this see McCann, 2003).

15 While acknowledging that there is a broad literature available concerning the notion of ‘discourse’ (see, for example, Jaworski and Coupland, Eds, 1999, Mills, 2003), in simple terms, my approach to discursive analysis involves asking the following questions:

	What do people, including myself, say and think about what happens?
	What actually happens?
	How might we increase the discrepancies between what we say happens and what actually happens, and thereby come to more misrepresentative renderings of our experience?
	How might we reduce the discrepancies between what we say happens and what actually happens, and thereby come to less partial renderings of our experience?

16 Following this line of thought has, of course, profound implications for the analysis and critique of many scientific methodologies that are still deployed in a classic Baconian or Newtonian mode, which are often explicitly founded on aspirations to the ‘elimination’ of uncertainty and the drive towards the certitude of verifiable knowledge. Scholars such as John Dewey (1929), Richard Rorty (1979), Jane Flax (1992), Donald N. McCloskey (1994), Edward S. Reed (1996), and F. David Peat (2002), among others, have drawn attention to this ‘quest for certainty’ insofar as it underpins the dominant trends of European and American philosophical thought.

17 In my dissertation I present ‘framing’ as the coupling of these strategies (McCann, 2003, chap. 9).

18 It seems helpful to suggest that there might be degrees of commodification, depending on the circumstances. For example, the more formal, rigid, or rule-bound the situation in which you find yourself, the more commodifying the environment. Or, the more unquestioned and unchallengeable authorities, roles, positions, icons, or symbols in your experience, the more commodifying may be your environment.

19 http://grace.evergreen.edu/∼arunc/texts/frankfurt/marcuse/tolerance.pdf