If the culture industries wonder why people have so little respect for copyright law these days, they need look no further than the Warner Music Group’s claimed copyright of the song “Happy Birthday.”  It’s a grotesque mockery of the avowed principles of copyright law and a scam on the public that has persisted for decades.  But with a revenue stream of $5,000 a day, or $2 million a year, Warner Music is not about to stop charging people for the right to perform “its” song.

Thanks to a courageous filmmaker, however, this travesty may soon come to an end.  Jennifer Nelson had been making a documentary about the “Happy Birthday” song when Warner said it would cost her $1,500 to use it in her film.  Nelson filed a lawsuit two years ago, a remarkable challenge in itself to the usual legal bullying by copyright owners. After all, who has the money or stomach to battle large corporations with well-paid lawyers or to lobby Members of Congress whose minds have already been made up by campaign contributions from music, film and publishing companies? Most TV shows simply forbid their hosts and performers from singing "Happy Birthday," and various restaurants have come up with their own alternative songs, lest they incur licensing fees.

It now appears that Nelson’s legal team has uncovered hard evidence that the copyright to "Happy Birthday" has been invalid for years.  In a storage facility used by the University of Pittsburgh, lawyers found a 1922 songbook that contained the lyrics of “Happy Birthday” in a song entitled “Good Morning and Birthday Song.” This is significant because there was no copyright notice on the song in the book – a requirement for copyright protection under the law at the time – and anything published before 1923 has entered the public domain and is free for anyone to use.

The Commons and EU Knowledge Policies

One of the great advantages of a commons analysis is its ability to deconstruct the prevailing myths of “intellectual property” as a wholly private “product” – and then to reconstruct it as knowledge and culture that lives and breathes only in a social context, among real people.  This opens up a new conversation about if and how property rights in knowledge should be granted in the first place.  It also renders any ownership claims about knowledge under copyrights and patents far more complicated -- and requires a fair consideration of how commons might actually be more productive substitutes or complements to traditional intellectual property rights.

After all, it is taxpayers who subsidize much of the R&D that goes into most new drugs, which are then claimed as proprietary and sold at exorbitant prices.  Musicians don’t create their songs out of thin air, but in a cultural context that first allows them to freely use inherited music and words from the public domain -- which future musicians must also have access to. Science can only advance by being able to build on the findings of earlier generations.  And so on.

The great virtue of a new report recently released by the Berlin-based Commons Network is its application of a commons lens to a wide range of European policies dealing with health, the environment, science, culture, and the Internet.  “The EU and the Commons:  A Commons Approach to European Knowledge Policy,” by Sophie Bloemen and David Hammerstein, takes on the EU’s rigid and highly traditional policy defense of intellectual property rights.  Bloemen and Hammerstein are Coordinators of the Berlin-based Commons Network, which published the report along with the Heinrich Böll Foundation.  (I played a role in its editing.)  The 39-page report can be downloaded here -- and an Executive Summary can be read here

“The EU and the Commons” describes how treating many types of knowledge as commons could not only promote greater access to knowledge and social justice, it could help European economies become more competitive. If EU policymakers could begin to recognize the generative capacities of knowledge commons, drug prices could be reduced and climate-friendly “green technologies” could be shared with other countries. “Net neutrality” could assure that startups with new ideas would not be stifled by giant companies, but could emerge. And scientific journals, instead of being locked behind paywalls and high subscription fees, could be made accessible to anyone.

When the state no longer enforces its own legal standards on human rights or ecological protection, often in deference to corporate partners, the logical response is to establish a commons-based alternative – a people’s tribunal. That’s what is now planned in the case of fracking and its implications for human rights.

The Permanent Peoples’ Tribunal (PPT) has scheduled a session in March 2017 to “consider whether sufficient evidence exists to indict certain named States on charges of failing adequately to respect the human rights of citizens as a result of permitting, and failing to adopt a precautionary approach to, hydraulic fracturing and other techniques of unconventional oil and gas extraction within their jurisdictions.”  The Tribunal is an internationally recognized public opinion tribunal functioning independently of state authorities and operating out of Rome. The Tribunal will hold a week of hearings in both the US and UK.

Governments take great pains to prevent their most sacrosanct policies from being questioned in courts of law.  Consider how the US Government short-circuited any significant court rulings about the NSA’s extensive secret surveillance of citizens, in violation of the Fifth Amendment.  It took Edward Snowden's revelations to force judicial review. 

We’ve been here before, of course. The lawless Vietnam War was a prime example. As a corrective to the state crimes committed in that instance, philosopher Bertrand Russell and Jean Paul Sartre organized the Vietnam War Crimes Tribunal in 1967 to hear evidence about violations of the citizen’s basic human rights. In that tradition, today’s PPT will assess the human rights implications of fracking.

Sometimes it takes anthropologists to ask the really deep questions and help us imagine another world. That became clear to me after listening to Dr. Harry Walker, an anthropologist at the London School of Economics, give the prestigious Malinowski Memorial Lecture in late May. 

Walker has long studied the people of Peruvian-Amazonia, with special attention to “the nature of the self and its relationship to interpersonal and political processes.” His provocative, thoughtful lecture, “Equality Without Equivalence: an anthropology of the common,” is a meditation on the deep clash between our modern, western ideas of liberal equality and private property, and the different modes of being and knowing that are nourished in commons.

The talk essentially juxtaposes Walker's conclusions about aboriginal commons against the context of representative government and market economics, helping to reveal the peculiar ideals of humanity embedded in the liberal polity.  (Thanks, Miguel Vieira, for alerting me to Walker's podcast!)

A bit of background:  Walker is the author of Under a Watchful Eye:  Self, Power and Intimacy in Amazonia, which is described on the author’s website as an exploration of

the pervasive tension in Amazonian societies between a cultural prioritization of individual autonomy and uniqueness, and an equally strong sense that satisfaction and self-realization only come through relations with others. In seeking to understand the inherently shared or ‘accompanied’ nature of human experience, it brings together considerations of child care and socialization, relations with nonhumans, and concepts of power, in order to show how agency and a sense of self emerge through everyday practices involving the cultivation of intimate but asymmetrical relationships of nurturance and dependency.

Walker’s one-hour talk is too long and complex to summarize here, so I will focus on some of his concluding insights. He noted that a central theme of Amazonian commons is the idea of “living well” – to organize one’s life and productive efforts in such a way that it “imbues life with a sense of meaning, purpose and direction.” The point is to strive for “a state of happiness and tranquility,” especially with loved ones.

Italians once again took the vanguard in advancing the commons paradigm by hosting a three-day festival in Chieri, a town of 60,000 people on the outskirts of Torino, Italy.  The International Festival of the Commons featured films, musical performances, video exhibits, lectures, panel discussions, food and drink, and lots of enjoyable conversation.

I think festivals are a fantastic way to bring together both deeply committed commoners and ordinary citizens who are just looking for a fun time with a dash of politics and education. The festival attracted hundreds of townspeople who strolled through city parking lots converted into concert spaces, and listened intently to public talks and debates about the commons. 

Jurist and politician Stefano Rodota, a prominent Italian politician who has pioneered the idea of a human right to “common assets” (things needed by everybody), spoke one evening to a packed crowd about “the commons as between solidarity and fraternity.” 

A performance at the International Festival of the Commons, Chieri, Italy.On another evening, seed activist Vandana Shiva – fresh from a series of protests against GMOs at a major food expo in Milan – spoke about the commons as living systems that should not be commodified and sold. To the great satisfaction of an audience of about 600 people, she noted that Italy is one of the few places that still produces juicy, tasty tomatoes; the rest have been so modified by agribusiness to suit global commerce that they amount to biological cardboard. Shiva did a great job of showing how the commons is not an academic abstraction, but a language for explaining why so many aspects of daily life are being degraded and how enclosures dispossess us.

Half the challenge is to rip the mask from the face. Now that has happened. After months of the Troika’s unrelenting, unrealistic demands on the Greek people, it has become clear what this conflict is really all about:  maintaining the supremacy of the neoliberal market/state alliance. The Greeks must be punished for wishing to explore serious alternatives. 

Creditors, having conveniently socialized their losses through taxpayer-funded bailouts, are now using their hammerlock on state power to keep the lid on neoliberal austerity. That’s their only plan:  their idée fixe. Democracy?  Political stability?  Social or humanitarian need? Secondary details. This negotiation is not about reviving the Greek economy, which has only worsened after five years of enforced fiscal austerity and credit-dependency (which is why it’s absurd to continue with the same policies). It's about which vision of the future shall prevail. 

Syriza, armed with a democratic mandate to reject further bailouts and austerity cuts, is locked in a fierce struggle pitting raw financial power and neoliberal policies against democratic sovereignty and a nascent vision of something better. We know who generally wins such struggles (e.g., Chile in 1973).  Will it be different this time?   

A lot rides on whether the Greek people, in the face of desperate circumstances, are willing to stand up to reclaim their self-determination or whether abject realities will simply force them to surrender and become a colony dependent on European creditors.

The Troika surely wants to send a strong cautionary message to the citizens of Spain, Portugal, Italy and other European countries with problematic finances. If that means imposing further unemployment, social disintegration and trauma on the Greeks, without offering a credible plan for the country’s economic revival, the Troika and its European backers are clearly willing to go there.

The Economist magazine captured this insane choice with a darkly humorous cover, “Acropolis Now.” Angela Merkel enters the “heart of darkness” of subduing the Greeks, only to discover the unanticipated costs.  “The horror, the horror.”

I am happy to report that the Italian translation of my book, Think Like a Commoner, has now been published. La Rinascita dei Commons: Successi e potenzialita del movimento globale a tutela dei beni comuni -- or The Rebirth of Commons:  Successes and Potential of the Global Movement for the Protection of Commons --was translated by Bernardo Parrella over the past year. 

My thanks to Bernardo for his initiative and tenacity in doing the translation and in finding a suitable publisher, Stampa Alternativa. And my thanks also to the pioneering Italian commons thinker and activist Ugo Mattei for writing the preface. 

Italy is at the vanguard of many commons innovations these days.  One sign of this is the first International Festival of the Commons (organized by Mattei), which will be held in Chieri, Italy, from July 9 to 12. I plan to attend, so perhaps I will see you there.

For the record, the Italian edition of Think Like a Commoner is the third translation, following the Polish and French translations. Translations into Spanish, Korean and Chinese are now pending.

So what might a commons-based economy actually look like in its broadest dimensions, and how might we achieve it?  My colleague Michel Bauwens of the P2P Foundation offers a remarkably thoughtful and detailed explanation in a just-released YouTube talk, produced by FutureSharp. It’s not really a video – just Michel’s voiceover and a simple schematic chart – but the 20-minute talk does a great job of sketching the big-picture strategies that must be pursued if we are going to invent a new type of post-capitalist economy.

Michel focuses on the importance of three specific realms that are crucial to this new vision – ecological sustainability, open knowledge and social solidarity. Each is critical as a field of action for overturning the existing logic of market capitalism. 

Fortunately, there are many promising developments in each of these realms. Many parts of the environmental movement seek to go beyond the standard “market-oriented solutions.” There is a growing body of open source-inspired projects for software code, information, design and physical production, which is now spawning new types of global sharing of information with distributed local production. And there are many advocates and initiatives for social justice and fairness in the economy, such as cooperatives and the solidarity economy movement.

The problem, says Bauwens, is that these movements do not generally connect with each other or coordinate internationally. He therefore sees the need for “meta-economic networks” to bridge these fields of action. So, for example, we need “open cooperativism” enterprises to bridge open knowledge systems and cooperatives, so that open network (or licensed) systems are not simply dominated by large corporations in the way that Google, Uber and Airbnb have done. We also need to develop an “open source circular economy” to bridge the worlds of eco-sustainability and open knowledge.  We will never address major environmental problems if the technological and product solutions are based on proprietary knowledge; open circulation of knowledge can change that.

The European Parliament is formally focusing on the commons paradigm through a new “Intergroup on common goods,” which is part of a larger group known as the "European Parliamentary Intergroup on Common Goods and Public Services."  The group met for the first time on May 26 in Brussels, at the European Parliament.  At this early stage, it’s hard to tell if it will be influential either within the European Parliament or with the public, but it certainly represents a significant new threshold for commons activism. 

Intergroups are official forums of the Parliament at which members, political organizations and movements can air their views and try to rally attention to a given topic. As Sophie Bloemen of the Commons Network writes:

Even though the intergroups have no legislative power, they can be valuable having such a representation in the European Parliament. At the minimum, it is a multiparty forum where one can exchange views and propose ideas on particular subjects in an informal way. Those who choose to work with such an intergroup, its Members of Parliament, and civil society or lobbyists, share the notion that a certain topic is important and can focus on how to get things done.

Now there will also be a Commons Intergroup. This particular group will allow for discussions on policy from a shared perspective: the idea that “the commons” – is an important and helpful way of framing the important themes of present times. As there can only be so many Intergroups, inevitably the group is the result of a political compromise. It has been formed by Members of the European Parliament from the Greens, the left group GUE, the large Social Democrat party (S&D) and the group EFDD which now includes Beppe Grillo with his Cinque Stelle party. The movement on water as a commons has been instrumental for the mobilization of the intergroup. 

For political reasons, the Commons Intergroup is one of two subgroups of the European Parliamentary intergroup on Common Goods and Public Services. MEP Marisa Matias from GUE is the president of the Commons Intergroup.

Property Rights, Inequality and Commons

I recently spoke at a conference, “Property and Inequality in the 21st Century,” hosted by The Common Core of European Private Law, an annual gathering of legal scholars, mostly from Europe.  They had asked me how the commons might be a force for reducing inequality.  Below are my remarks, “The Commons as a Tool for Sharing the Wealth.”  The conference was held at the University of Göteborg, Sweden, on June 12-13, 2015.

Thank you for inviting me to speak today about the relationship between property law and inequality – a topic that receives far too little attention.  This should not be surprising.  Now that free-market ideology has become the default worldview and political consensus around the world, private property is seen as synonymous with freedom, economic growth and human progress. 

Oh yes, there is this nasty side issue known as inequality.  Malcontents like the Occupy movement and renegade economists like Thomas Pikketty have brought this problem to the fore after years of neglect.  Their success has been quite an achievement because for years the very existence of inequality has been portrayed as an accident, an aberration, a mysterious and shadowy guest at the grand banquet of human progress. 

I wish to argue that hunger, poverty, inadequate education and medical care, and assaults on human dignity and human rights, are not bugs in the system.  They are features.  Indeed, market ideologues often argue that such deprivations are a necessary incentive to human enterprise and economic growth; poverty is supposedly needed to spur people to escape through the work ethic and entrepreneurialism. 

Property rights lie at the heart of this dynamic because they are a vital tool for defining and patrolling the boundaries of private wealth, and for justifying the inevitably unequal outcomes.  So it’s important that we focus on the role of property rights in producing social inequality – without ignoring the many other forces, including social practice, culture and politics, that also play important roles.

I’d like to focus on the obsession in modern industrial societies to propertize everything, including life itself, and to use law as a tool to impose a social order of markets and private property as expansively as possible.  This cultural reflex is known as the enclosure of the commons.  The term describes how property owners assert sweeping rights – often with the active complicity of governments – as a way to appropriate collectively owned resources for private gain. 

We can see this dynamic in the international land grab now underway, the incessant attempts to privatize groundwater and municipal water systems, the grotesque expansion of copyright and patent law to privatize scientific knowledge and cultural works, and the use of the Earth’s atmosphere as a free waste dump by polluters.  The mania for privatizing the world has reached such an extreme stage that even intangible wealth as public spaces, microorganisms, genetically created mammals, artificially created nanomatter and human consciousness itself are claimed as objects of private property rights.  

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