The Second Enclosure Movement and the Construction of the Public Domain

Author(s) / Editor(s): Boyle, James

Summary of: The Second Enclosure Movement and the Construction of the Public Domain

The “second enclosure movement” attempts to put fences around the intellectual commons of ideas and facts in a manner analogous to the enclosure and transfer of property rights from the public to the private sphere during the first enclosure movement in England that fenced off common areas between the fifteenth and nineteenth centuries. A new way of thinking about the public domain, the intellectual commons, is needed to combat the negative impact of this trend.

Discipline: Law

Keywords: intellectual property, open source, property rights, public goods

Publication Reference:

Published in/by Law and Contemporary Problems, Vol. 66:33

Date: Winter/Spring 2003


Findings

•Limits on intellectual property rights are being eroded. Brandeis’ sense that intellectual property rights are the exception rather than the norm and that ideas and facts must always remain in the public domain is under attack. The commons of facts and ideas is being enclosed.

•The networked commons of the mind is different from the grassy commons of Old England, “enclosed” between the fifteenth and nineteenth centuries, in that it is generally “non-rival.” The threat of overuse of fields and fisheries is generally not a problem with informational and innovational commons. In fact, one may argue that increased innovation would occur from wider dissemination.

•The decreasing cost of copying intellectual property does not necessarily lead to reduced income for the creators of information: it also leads to lower costs of production, distribution, and advertising and increases the size of the potential market. “A large, leaky market may actually provide more revenue than a small one over which one’s control is much stronger.”

•“We rush to enclose ever-larger stretches of the commons of he mind without convincing economic evidence that it will help our processes of innovation and with very good reason to believe it will actually hurt them.”

•The dysfunctional side of property/monopoly can be seen as a restraint on innovation rather than a problem of price gouging.

•A new way of speaking about the intellectual commons and the public domain of intellectual works is necessary for its protection in a manner analogous to the creation of the concept of the “environment” as a rallying point to clarify and reshape perceptions of self-interest. Boyle points out that it was only after the creation of discourse around “an environment” was it possible for a coalition to be built around a reframed conception of common interest.


The “second enclosure movement” attempts to put fences around the intellectual commons of ideas and facts in a manner analogous to the enclosure and transfer of property rights from the public to the private sphere during the first enclosure movement in England that fenced off common areas between the fifteenth and nineteenth centuries. A new way of thinking about the public domain, the intellectual commons, is needed to combat the negative impact of this trend.

Limits on intellectual property rights are being eroded by specious arguments about the need to protect against piracy and to encourage innovation. Historically there was a sense that any grant of intellectual property rights, effectively a state granted monopoly, was to be strictly limited in term. In fact, the erosion of those historical limits through legislation and extensions of intellectual property protections like business method patents, the Digital Millennium Copyright Act, and patents on the human genome can be argued to decrease the possibilities for collaborative creation traditional in domains as varied as science, law, education, and music.

The first enclosure movement can be viewed as a “revolution of the rich against the poor”, it was justified by the incentives it offered for large-scale investment, for the control it offered over exploitation, and for the efficiency of exploitation of resources. It was said to “avoid the tragedies of overuse and underinvestment,” a conclusion that is subject to some debate.

The second enclosure movement is the similar much more recent application of intellectual property law to “the enclosure of the intangible commons of the mind”: things that were formerly thought of as either common property or uncommodifiable are being covered with new, or newly extended, property rights.

Advocates of the second enclosure argue that the extension of property rights is essential to create incentives to invention. Opponents point to the restrictions and bottlenecks on innovation and, in the case of the human genome, the claim that it is the “common heritage of humankind belonging to everyone.”


Dangers:

•Propertization is a vicious circle. Once something is made private it’s hard to take it back.

•To enclose the intellectual commons requires throwing away or restricting the characteristics of the Internet that made it so effective a force for innovation.

•The arguments for enclosure are analytically unsound and often based on the vested interests with financial abilities to sway lawmakers.


The notion of intellectual property has had critics through its history: Jefferson was concerned with the state creation of unbounded monopoly. He felt that intellectual property rights might be necessary, but should not be treated as natural rights and should be strictly limited in term.

The concept of public domain as applied to intellectual property is a relatively recent construct. Copyright is a system designed to feed the public domain providing temporary and narrowly limited rights. The public domain is “a commons that includes those aspects of copyrighted works which copyright does not protect.”

The Internet expanded rapidly because its core protocols, TCP/IP and HTML, are open.

A global network transforms the nature of creativity by introducing new ways of collaborating: examples include the free software and open-source software movement.

The free software and open-source software movements may serve as models for thinking about alternative ways of dealing with intellectual property which encourage collaborative innovation while offering creators the ability to distribute their inventions for financial gain. These movements stand squarely on intellectual property: they build on a living ecology of open code where the price for participation is a commitment to make incremental innovation part of the ecology.

Lessig defines a commons as “a resource that is free. Not necessarily zero cost, but if there is a cost, it is a neutrally imposed, or equally imposed cost.”

The General Public License (GPL) of the open-source software movement encourages continuing improvement by making source code for software and its modifications available for members of the community. Continuous, peer-monitored improvement is encouraged without violating individuals’ rights to distribute products for financial gain. Presumably the best solutions are adopted by the community.

Boyle proposes using the concept of “public domain” for intellectual property, a relatively recent term in legal discourse, as a rallying point for combating the erosion of the intellectual commons in much the manner that the concept of the “environment” was used to create a coalition of disparate self-interests.