Property in the commons?
mike_hales
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Key references please . . . Is there property in the commons? Or is property an intrinsically non-commons construct?
Is some underlying notion of property required, if legal instruments associated with commons are to be reconciled with established law (eg Roman law?) and defended in court? In which case, what kinds of property are there; and what kind is 'commons property'? Is there ownership in the commons; or some other kind of relationship of commoners and commoned resources, perhaps called 'holding'?
I'm thinking specifically of material entities - wild water, life, genomes, documents, data files - rather than immaterial resources. Although in any case I understand the so-called immaterial resources of 'knowledge' to be nothing other than the material capabilities of specific collectives of people: labour-power. But labour-power commons are another story? Back to the question . . .
Alternatively, is there a legitimate (legally defensible) status for resources held in common, without any person having property of any kind in them; but with rights and duties asserted over these resources, by customary or contemporary commoners, bearing upon commoners? Does this depend on the commoners having manifestly made the resources? Or can it be also asserted over 'natural' or customary resources, traditionally associated with the commoners' lives? Can non-commoners be excluded from access to a commons 'with legal force'? Or just with main force?
Is there a distinct category of resources - perhaps called assets? - that have been assigned a (temporary) right for exploitation by specific non-commoners (market actors) under (copyLeft/copyFair etc) licence? And does this then make them property?
Apologies for asking such basic questions, I hope they make sense? I haven't the first clue when it comes to law, and there's so much out there on reciprocity, copyLeft/copyFair etc.
It makes my brain hurt rather, but I do see how basic it is, that we should be able to accumulate resources in commons, constituting massive forces of production (and nurture) in the commons, which are excluded - in legally defensible ways - from exploitation in capitalist markets. And that we should become literate in these esoteric things, even if (especially because) most of the commonplace associated language (eg 'property' itself) is a Trojan horse for capital.
Paul B. Hartzog Mon 16 Apr 2018 3:38PM
There's no need for brain hurting. My Stanford Lecture covers the details:
https://www.youtube.com/watch?v=DpWYTjsxLw8
I'll sum up here. Basically, there are 4 types of property:
- no one owns and manages it (open access)
- the state owns and manages it (public)
- someone owns and manages it (private)
- the community owns and manages it (commons)
The primary problem of contemporary civilization is that ever since Garrett Hardin confused 1 and 4 people have believed in the inevitability of the Tragedy of the Commons and so we are always told to use public or private. Mancur Olson explained the obstacles to collective action, but what Howard Rheingold dubbed "Technologies of Cooperation" makes cooperation much easier (see Smart Mobs) so we can now follow Elinor Ostrom's rules and collectively manage our resources. :-)
Would love to know what you think!
mike_hales Thu 19 Apr 2018 7:59AM
Another version of my starting query . . . Is a commons a form of ownership? Or a form of stewardship? And is there a tradition of stewardship law, as distinct from property law, which would be more helpful to start from?
Sophie Jerram Tue 24 Apr 2018 9:26AM
The Galicians refer to 'holding' their property.
Simon Grant Thu 19 Apr 2018 8:28AM
In my experience, the very word "ownership" is problematic, as different people interpret it in different ways -- some from a legal point of view, others from a moral or ethical starting point. To me, it is more helpful simply to list the rights, responsibilities, benefits and obligations that come along with a person's relationship to a resource. I do believe this unpacking / unpicking is an important starting point in reconstructing a common understanding of common "ownership", or our relationship to the commons, and other commoners.
Come to think of it, maybe the most challenging part is exactly our relationship to other commoners (or non-commoners)? This is an issue that was illustrated for me just last night in a meeting in our cohousing community.
I should add the point (probably obvious) that Intellectual Property is one of the most curious areas of property, and clearly differs in some ways from physical property.
mike_hales Thu 19 Apr 2018 9:05AM
I agree that being clear among those we collaborate with is primary. With you, I feel that rights, responsibilities, obligations & benefits is core language. And see this as a language of stewardship and, as you said, practical working relationship.
I’m reluctantly beginning to think also in terms of law because, ultimately, we have a fight on our hands over commons, and law may be a key battlefield in holding our territory. So if we have to argue with a corporate lawyer . . what's the language that’s admissible in courts of law? I’d be glad to know how clear-cut and how muddy this is. Maybe ownership trumps stewardship in law? Is it down to picket lines and barricades in the end?
Simon Carter Thu 19 Apr 2018 9:50AM
is the problem commons as property, or is the problem who encloses commons as property, & what they do with it? My thoughts are we do not fight the system as is, but play it at it's own game, in other words band together & buy stuff back. We have it within our power to stop helping to make rich people richer. The more commons we own collectively as communities & as stakeholders, the less we need to rely on private property held for personal gain. To quote David Korten, 'walk away from the King'.
Liam Murphy Thu 19 Apr 2018 11:41AM
At a rudimentary level: you make something. You own it - legally - and all rights emanating from it. Peer production asks you to ‘give this up’, which can seem counterintuitive. It is your livelihood. Stock in trade as shared resources. How to tackle that is my specific and pending problem... any thoughts welcome..? ( I do have solutions but interested in others ideas) LM
mike_hales Thu 19 Apr 2018 1:06PM
The stuff that we directly make - as artisans or hackers, say - is a relatively straightforward case of property (patents may complicate things)? Yes, 'giving it away' may be confusing or unwelcome for some, if they regard this stuff as livelihood. To what extent are artisans in different spheres even interested in commons stewardship of individually-hatched cultural products, as distinct from personal intellectual property? Attitudes and working relationships are perhaps not the same as in the hacker community, with OpenSource?
My mind is more on the pre-existing or casually created stuff that we thought was common or public but is increasingly being enclosed - air, water, forest, ocean on one hand; city spaces, even gossip (via social media) on the other. Oh, and that little cultural thing called 'science'! I would be happy to feel that we can increasingly assert - in law when necessary - a very broad stewardship relationship with such diverse things, in place of the state ownership that can’t be relied on to safeguard public or common interests. In place, too, of the dubious stewardship of elites and corporations whose core concerns are not 'social', in Science. Science hasn't ever been a commons: its more of a 'gated community' inhabited by an elite whose members are nominally peers.
Thus I’m interest in the status of stewardship in law (as distinct from private or public ownership), and what kinds of things are presently regarded as being under this kind of governance. Is it just archaic things (like subsistence commons) or does law in some areas readily acknowledge modern stewardship too, and cultural commons as well as material commons?
This is different from your main concern Liam? Which seems to be intellectual property in a conventional sense, and collection of rents on cultural real estate?
Greg Cassel Thu 19 Apr 2018 2:28PM
The stuff that we directly make - as artisans or hackers, say - is a relatively straightforward case of property (patents may complicate things)?
Unfortunately I don't think it's always that straightforward. If I make a spear out of a stick I find in the woods, okay maybe it's "my spear" in that most people would peacefully agree that I hold exclusive rights to keep and use that spear. But what if I made the spear out of a stick I found in a private park, or someone's yard?
These are complex "what ifs" but my point is simply that humans never make physical resources in a literal sense. All we do is intentionally transform physical resources to (hopefully) make them more useful for specific purposes or functions.
In our actions to transform physical resources, we may use physical resources and information resources (such as recipes) which are either governed exclusively or available in a commons. In addition to those ingredients, of course, we also add our own effort: time, attention, manual actions; "work". However, the amount of work which a creative action requires from a "creator" varies immensely. For example, if I decided to build a modern house by myself-- using no prefabricated parts-- I doubt I'd ever finish! On the other hand, if a real estate developer decides to "build a house", all they may ever do is to sign a paper which sets other "gears" (including humans) in motion.
I'm intentionally complicating "creation", "property" and "ownership", but not because I want a complicated world! As a p2p designer, all I want to do is develop healthy communication and collaboration processes based on mutually beneficial, consent-based relationships. To develop such processes, I think we must develop many intentionally shared commons of physical and information resources, and we must develop clear and effective standards for an unlimited variety of economic relationships and transactions.
To develop intentionally shared and sustainable commons, we must develop our ability to steward. I think that's a good term here @mikeh8 . To develop effective standards for economic commitments and transactions, I think we must develop more accurate representations of (as @asimong wrote) "the rights, responsibilities, benefits and obligations that come along with a person's relationship to a resource". And we can do that! It just requires lots of focus, conversation and time.
I don't mean to imply that the terms property or ownership are doomed. I don't know. I think we're still early in the evolution of language.
Liam Murphy · Mon 16 Apr 2018 9:54AM
Maybe phrasing this as a question will tease out some guidance: Is artwork as stock in trade ever going to be 'common stock' - and if it can be - how? A salient question re: 'property' as 'artworks' are not listed under the international classification of goods act - other than, potentially, textile weavings (as rugs - which poses another question about classifying craft based production as 'art'). There is no categorisation of, for example, an 'Oil Painting' or 'Sculpture'. I'm very keen to understand the suitability of artwork for creating a material commons (in law) - so any thoughts or links most welcome. 'CultureBanking' (https://www.loomio.org/invitations/475e91ab6cdd40734c7f) proposes a 'floating form of ownership' which acknowledges both private property and a debt to the (cultural) commons....) https://www.gov.uk/government/publications/how-to-classify-trade-marks/trade-mark-classification-list-of-goods-and-services
http://www.wipo.int/export/sites/www/classifications/nice/en/pdf/8_list_class_order.pdf So, to re-cap: "Can artworks form part of a material commons at the same time as realising private incomes for their creators - and if so - how"? THANKS