The Public Domain as a “Jungle”

For decades, the public domain was essentially ignored in legal circles. The first significant law review article on the topic did not appear until 1981, and scholarship on the importance of the public domain did not really take off until the mid-1990s, when the World Wide Web was exploding.

Now that scholars have established the value of the public domain, mapped its contours and suggested new ways to conceptualize it (e.g., let’s lose the spatial metaphors), it is refreshing to see “public domain studies” advance in new directions. In her new book, Terms of Use: Negotiating the Jungle of the Intellectual Commons, Eva Hemmungs Wirtén offers up an internationally minded, interdisciplinary meditation on the “intellectual commons.” Wirtén, a professor at Uppsala University in Sweden, is developing a sophisticated new frontier of public domain scholarship.

Not only does she explore the value of the public domain in history, and especially the tensions between industrialized and developing nations; she is comfortable discussing the commons as something distinct from the public domain and isconversant with the subtle, complicated political dilemmas posed by the commons.

Wirtén’s special interest in Terms of Use is the non-western, “undeveloped” world. The “jungle” of the book’s subtitle — “Negotiating the Jungle of the Intellectual Commons” — refers to the “locale of the primitive.” It is a place of biological abundance and vernacular culture, a place that markets have barely penetrated, and a place where the past and the present are intimately connected. Wirtén’s focus on “the jungle” is also meant to highlight the role that imperialist nations have played in mining the “public domain” in pre-modern nations for valuable resources.

Terms of Use starts by recounting the English history of enclosure of rural lands, a history that is paradigmatic for the national and corporate plunder that have occurred in subsequent centuries, including our own. Wirtén then moves on to explore the how pharmaceutical companies are plundering the biodiversity in developing nations to develop lucrative new medicines.

It is revealing to link the original English enclosures with contemporary pharmaceutical enclosures of biodiversity in developing nations. While the means of enclosure differ, the same general principles apply: identify the economic value of the resource, develop new language for describing this “value” while denigrating local and traditional knowledge, and then superimpose this new matrix of “intellectual property” on the social/ecological system that had long functioned as a commons.

I had no idea that the British obsession with botanical gardens in the nineteenth century was intimately connected to that country’s colonial agenda. When scouring the Caribbean, the Indian subcontinent and the Pacific, the Brits developed botanical gardens as a place for saving and replicating the precious seeds and plants that they were seizing for commercial purposes.

This raid of the South by the North has reached the point today, writes Wirtén, that plant genetic material from the less developed regions of the world provide “the base for fully 95.7 percent of the global food crop production.” Yet in 2002, Europe, the U.S. and Japan owned nearly 90 percent of all biotechnology patents filed at the European Patent Office. Intellectual property law is a reflection of the geopolitical power of the industrialized West. It is no accident that IP law has peddled the myth that the public domain has no value — ostensibly because “value” requires money and market activity, and the commons rarely hosts either.

Wirtén usefully explores the neglected underside of “openness” and “freedom” that American progressives champion. She points out, for example, that expansions of the public domain have been highly useful to multinational corporations as they seek to appropriate the genes, ethnobotanical knowledge and cultural works of indigenous cultures. If such resources must be “open” and in the public domain, then the most powerful, resourceful players will be free to appropriate and privatize them as they strive to develop commercial products. This theme has been powerfully explained by Anupam Chander and Madhavi Sunder in a notable 2004 law review article, “The Romance of the Public Domain,” which is recommended reading for anyone interested in this issue.

Similarly, the idea of calling certain global resources the “heritage of mankind” — like oceans, rain forests, the moon and space — seems to be an entirely fair-minded, laudable goal. But making such resources available to all under an open-access regime can, in fact, be quite harmful. It lets anyone exploit the resource, and nobody is empowered to exclude others who may over-exploit or abuse the resource. The dreaded tragedy of the commons results.

For those who think that copyright and patent law only became a scourge in recent decades, especially since the arrival of the Internet, we need only revisit the philosophical roots of IP law: John Locke. Wirtén shows how John Locke’s theories of property rights helped justify the expropriation of wealth from colonized countries.

Locke’s labor theory of value has been particularly pernicious, Wirtén writes: “Amerindian practices were always defined negatively, or as ‘no doing’: not enclosing, not having tame cattle, not choosing settled habitation instead of nomadic existence, and above all, not improving.” Since indigenous peoples are not investing their labor into natural resources and “developing” them, as industrialized countries do, they are seen as having no entitlement to the fruits of those resources, according to Locke’s theory.

By such logic, John Locke provided the English with a convenient justification for seizing “unoccupied” lands and “unused” natural resources. In the process, the value that once inhered in a local community and its knowledge, and the value that once inhered in an intact ecosystem, is redefined in negative ways. Henceforth, what is “valuable” is that which can be monetized through commerce. “The Lockean view on labor effectively separates local from universal knowledge,” writes Wirtén, and validates a system that commodifies knowledge and resources.

Yet as this worldview has proliferated, paradoxes abound. Even though public universities have been in the forefront of patenting scientific research, they are also leading new efforts to establish new types of “science commons” for data, journal articles and research.

Similarly, even though large drug companies are aggressively patenting biological knowledge, they are also in the forefront of establishing new research commons in order to share data. The companies increasingly realize the dangers of the so-called “tragedy of the anti-commons,” in which fragmented and dispersed property rights make it difficult to share and collaborate, and therefore to innovate.

Wirtén has an interesting chapter on taxidermy and the public display of big game animals in 19the century English life. The practice was part of British society’s obsession with classification and its determination to showcase its mastery over nature and small, exotic countries. Wirtén also explores the use and abuse of the public domain through Rudyard Kipling’s Jungle Books and the Walt Disney Company’s appropriation of folk stories and classic literature.

Although Wirtén shows a scholar’s sophistication about the commons, she sometimes shows herself to be out of touch with the latest trends in commons advocacy. For example, she writes that “one would be hard pressed to find anyone [who criticizes the expansion of intellectual property] defining himself or herself as a commoner.” While she identifies an instance in which Creative Commons referred to its large donors as “commonists,” in fact, the use of the term “commoner” is frequent and unsurprising among the many commoners I know. The thousands of wildly heterogeneous participants in Creative Commons projects and in the annual iCommons Summits routinely call themselves “commoners.”

Wirtén argues that “the image of the commons is appealing, but the experience of the commoners is not.” Again, I have found this untrue, at least in Internet culture. Citing the poverty of commoners in rural land commons, Wirtén equates the life of a commoner with “the small talk of apple picking.” The more elevated identity — the one that we moderns presumably embrace, according to Wirtén — is that of “the public.” Members of the public participate in “informed conversation with others that [sociologist Jurgen] Habermas visualized.”

This is a case where new practices are investing old terms with new meanings. From my extensive travels in the free culture and free software worlds, people proudly self-identify as “commoners” because the term enables them to assert a fresh, cosmopolitan identity and distance themselves from the problematic, ethically dubious aspects of neoliberalism as now practiced. The commoners of the tech world would regard Habermas’ notions about the bourgeois “public sphere” as a relic from another age (his book on the topic was published in 1962).

Aside from such occasional lapses, Wirtén’s book is a welcome addition to the literature on the public domain. Although the lay reader may miss some references that scholarly readers would take for granted, Terms of Use is highly readable and even entertaining. Its focus on the public domain in history, and on the clashes between North and South on IP matters, is thoughtful, provocative and long overdue.