3.2 Commons

As ‘commons’ is the core concept in The Future of Ideas, it is worth taking a bit of time to understand exactly what the author means by the term. The commons is a concept that many, in affluent western society, have trouble understanding. If something is free it can't be worth anything, can it?

Read pages 19 and 20 of The Future of Ideas again (linked below). Think of Lessig's examples of commons:

  • public streets

  • public parks

  • Einstein's theory of relativity

  • writings in the public domain, such as an 1890 edition of Shakespeare, whose copyright has expired.

Click 'view document' to open Chapters 2 and 3 of The Future of Ideas.

Think of some other examples which might be considered commons. The village green or the local common are examples that you might be familiar with if you live in the UK – patches of grass that local people can walk on or children can play freely on. What about derelict waste ground in an inner city? Or the air, water or local ecosystem? Shared peer-reviewed scientific or other academic research? Cultural traditions, such as arranged marriages or the tendency to speak quietly or not at all when we enter a church?

Might any of the examples in the preceding paragraph not be a commons? The waste ground is one illustrated by the case of New York?s community gardens. Small groups of volunteers slowly turned forgotten wasteland and abandoned properties into hundreds of community gardens. This helped to lead to the economic and social revival of the local communities. Technically the city had become the legal owner of the sites, as the previous owners had stopped paying taxes on them. As the economic value of the sites increased as a direct result of the work of the volunteers, they became visible again to the City as a potential source of revenue. When the then Mayor of New York, Rudolf Giuliani, proposed selling off over one hundred of the gardens in the late 1990s, the volunteers and local communities were angry and the New York newspapers widely publicised the resulting controversy.

Whether Mayor Giuliani was right to sell the gardens is a question of perspective. They were legally owned by the City and he was entitled to sell. They were not a commons. But they had come to be perceived as such because of the efforts of the volunteers and local communities. Their efforts had revitalised the localities concerned and increased their economic value so that the City came to notice them again. But their value to the local communities transcended their economic worth.

Let's now consider a very different example. The Disney character Mickey Mouse first appeared in the cartoon Steamboat Willie in 1928. Steamboat Willie was based on the Buster Keaton film Steamboat Bill, which had been released earlier the same year. The script notes for the cartoon say: ‘Orchestra starts playing opening verses of Steamboat Bill.’ The cartoon was thus clearly and openly based on the earlier film. Does that mean the original film was a commons or part of a commons? Steamboat Bill was protected by copyright laws, but copyright laws are designed to be leaky, so the film might be considered to partly reside in a commons. In 1928 copyright laws leaked to the extent that the production of parodies such as Steamboat Willie were allowed. Walt Disney did not need Buster Keaton's permission to produce his cartoon.

Today, however, if someone were to produce a parody of Mickey Mouse or any other Disney film, or copy the opening music, there is a good chance that Disney's lawyers and the courts might shut it down, as happened in the 1970s with the Air Pirates case. Ironically, the Open University Rights Department, quite correctly given the nature of UK copyright law, advised against the inclusion on the T182 course CD of an Electronic Frontier Foundation animated parody that included two four-second clips of Mickey Mouse.

The Air Pirates case involved some cartoonists who had produced a series of comics in which Disney characters were involved in storylines that included sex and drugs. Disney had the comics impounded and destroyed, but the whole saga dragged on right through the 1970s. Disney finally reached an out-of-court settlement with the main protagonist, Dan O'Neill, in 1978.

Does that mean that copyrighted works today receive more protection than their earlier counterparts? Lessig would argue that this is exactly the case. On the other hand, copyright laws in the US do still permit the making of parodies of original copyrighted works. A poster of Leslie Nielson advertising the film Naked Gun 33 1/3: The Final Insult, for example, was found by the courts to be an acceptable parody. It was a clear spoof of the photograph of a well-known actress, clearly pregnant, on the cover of Vanity Fair magazine in 1991. (Note: Parodies are not explicitly permitted in the UK.)

Parody is perhaps not the best example of how copyright has become less leaky since the early part of the 20th century, since parody, theoretically, still does constitute ‘fair use’ of copyrighted materials in the US. Disney, however, has been one of the prime lobbyists encouraging Congress to extend the term of copyright – eleven times between the early 1960s and 1998. As such they have been criticised by advocates like Lessig of refusing to allow future creators to do to Disney what Disney did to others. The Disney company has based many of its creations, such as Steamboat Bill, Snow White and Jungle Book on the work of earlier authors but apparently wants to restrict the production of creative works based on its own output.

‘Common’ is defined in the Oxford English Dictionary as ‘belonging equally to more than one’ and ‘free to be used by every one’. ‘The commons’ is defined as ‘a common land or estate; the undivided land held in joint-occupation by a community.’

For the purposes of this unit, a commons is a resource freely (or neutrally) available to the community. There may be a nominal cost or access fee that needs to be paid, but once that fee is paid individuals have access to the resource. Most importantly, there are no gatekeepers who can refuse access because they don't like the look of someone or because they may fear how someone might use the resource.

The New York community gardens had most of the features of a commons. They were a resource apparently enjoyed by the local community without restrictions. They did, however, have a gatekeeper, a legal owner: the City. The gatekeeper was dormant for many years because the sites had been forgotten or perceived to have no economic value. The City, in the guise of Mayor Giuliani, was able to step in and sell the sites, though, and could have done so at any time.

Deciding whether and to what extent works protected by copyright, such as Steamboat Bill, are part of a commons can be more complicated.

It is very important to understand this notion of a commons, to be able to get a real handle on the arguments in The Future of Ideas. When Lessig talks about the commons, he is not claiming that every resource should be free. He does say, however, that before we decide who gets to own a valuable resource, we should ask whether the resource would be better preserved as a commons.

Lessig sees the internet as an ‘innovation commons’. What is that? It means that the internet is an accessible source of ideas, information, software and hardware that anybody can use to create and innovate.

So when businesses try to control the innovation commons that is the internet, should they be criticised? Well, you could say that this is rather like criticising a fox whose metabolism needs a chicken diet. The objective of a business is to make money. However, according to Lessig, putting businesses in charge of deciding how a resource like the internet gets divided is not always the best option, any more than putting the fox in charge of the henhouse. This is a controversial viewpoint, particularly in the US.

The main thing to take from this discussion, then, is that freely accessible resources can be valuable.

Commons or not?

You were asked above to consider which of a series of examples could be considered to be a commons.

Discussion

Here are my suggested answers:

  • Inner city waste ground is not a commons, as the New York City gardens case demonstrated. The air is a commons.

  • In the UK, the water companies and the Environment Agency are effectively gatekeepers, so water is not a commons. Rainwater might still be a commons.

  • The local ecosystem may or may not be a commons. At its simplest, if it is on private land it is not a commons; if it is on common land it is a commons.

  • Scientific or other academic research may or may not be a commons. Research shared openly and freely is a commons. That which comes with intellectual property or contractual restrictions may not be a commons.

  • I would argue that cultural traditions are a commons. Like the ecosystem and research example above, however, this is debatable. It is difficult to use or participate in certain cultural traditions if we are not aware of or don't understand them. Likewise, if certain elements of culture come with intellectual property or other restrictions then there are gatekeepers who control access. The more complex the system the more complex the question of whether or not that system might constitute a commons.

3 Commons, layers and learning from history

3.3 Rivalrous and non-rivalrous