Cultural Commons

I am under contract with Farrar, Straus & Giroux to write a book offering a model and defense of our "cultural commons," that vast store of unowned ideas, inventions and works of art that we have inherited from the past and that we continue to create.

I am building the book around a brief history of the commons as an idea (how it came out of medieval Europe and what happened to it when it got to America), and around a parallel history of how we have imagined the creative self.

Always in the background lies the question of the commercialization of culture, exemplified at the moment by many things—the "enclosure" of the public domain, the patenting of aboriginal medicines, proprietary control of genetic materials or of the internet, and the general market triumphalism that has followed the end of the Cold War.

A fuller project description follows below. A sample essay from this work in progress is posted on the Social Science Research Network: “Frames from the Framers.”

Cultural Commons Project Description

I am at work on a book in which I hope to offer a modern and American model of our cultural commons, that vast store of unowned ideas, inventions, and works of art we have inherited from the past. At present this legacy suffers from a kind of public invisibility, a lack of political, economic, and juridical standing. The free market is surrounded by full and well-elaborated speech, but the commons is not. It is therefore hard for us to reckon the value of our common assets, and hard to know how best to protect them, keep them lively, and continue to engender them. It is hard to be good stewards of a wealth so few can see or seem to care about.

A good illustration of the problem of stewardship lies in the regular debates we now have over how best to let thinkers, inventors and artists own and benefit from their creations while at the same time meeting the need that all creative communities have for open access to the materials of their art. The U.S. Constitution itself sets the terms for such deliberations—it allows Congress to grant "exclusive right" to authors and inventors "for limited times": "exclusive" so that creators may benefit short term, but "limited" so that the public may benefit in the long run. The Constitution, that is, asks Congress to find an apt balance between private wealth and commonwealth, between proprietary interests and the public domain. It allows a market in cultural property but also puts an outer boundary on that market.

That does not mean, however, that we have any good public sense of where to set the boundary. The congressional decision a few years ago to extend the term of copyright by twenty years offers a good case in point. In the terms laid out by the Constitution, copyright term extension moved the market boundary; it enriched a set of private interests by a legislative taking from the commons. More to the point for the book I am writing, the strikingly one-sided discussion on the issue revealed how hard it is to find public servants who think it is their job to speak for or defend cultural commons.

This lack of articulated presence seems all the more troubling once one begins to make an inventory of where the commons—cultural and otherwise—might lie in America today. Many environmental issues are usefully approached in terms of common assets, from aquifers to wetlands to the oceans and sky. People who think about technology find themselves more and more speaking in terms of a commons, especially in regard to broadcast spectrum, the architecture of the internet, and software. Arguments that arise out of biotechnology—about seedlines, patented drugs, the ownership of genetic materials and so forth—also benefit from a clear model of what it would mean to place limits on the market and hold some things in common. Finally, and more to the point for the book I am writing, we have culture itself, from the art and inventions already mentioned to wisdom literature, spiritual teachings, the common law, the institutions of governance, oral traditions, public libraries, museums, and so forth.

Charting the scope of the commons in this way makes it clear how fruitful the topic is but also how important it will be to narrow the target if one hopes to write a useful book. One way I intend to focus the discussion is to write a brief history of the commons as an idea—how it came out of medieval Europe and what happened to it when it got to America. European commons were not exactly "property" in the modern sense; they are better thought of as the physical embodiment of the social structures of feudalism. A feudal commons, that is, was not really owned by anyone but was rather the focal point of an elaborate set of interlocking use rights and reciprocal duties—all of which would strike a modern sensibility as markedly constraining, governed as it was by that rigid hierarchy Defoe called "the great law of subordination."

It is not surprising, then, that there was almost no support for any form of common property at the founding of the American republic. Federalist and anti-Federalist alike took individual, fee simple ownership of modest holdings to be the form of property best suited to liberal democracy. For many in the founding generation such holdings were of a piece with an ethic of civic republicanism, a sense that the point of owning property was to free the owner to become an actor in civic life, "virtue" being understood as the suppression of self-interest in service of the public good. Within a few decades, however, that high-minded ideal was replaced by the still-current ethic of commercial republicanism, the one in which virtue is simply self-interest freely sought and a hidden alchemy supposedly converts private and subjective good into whatever civic good a community might need.

It was the good fortune of the early commercial ethic to have seemingly unlimited natural resources at hand. For a century or more one of the issues facing most commons remained muted, the problem, that is, of carrying capacity (most commons have limits to what they "carry": only so many sheep can graze a pasture if the grass is to return each year). Carrying capacity was the subject of Garrett Hardin's 1968 essay, "The Tragedy of the Commons," and though Hardin's work has been justly criticized for historical blindness, it nonetheless made it clear that any "commons open to all," ungoverned by custom or law, will eventually collapse. What are inevitably our common assets (the atmosphere, stores of fresh water, offshore fisheries...) survived in spite of commercial republicanism and individualist land tenure simply because their carrying capacity was so vast. Now we are coming to some clear limits, however, and puzzling out how to respond to them is made all the more difficult by the invisibility of the commons in law, economics, and politics.

This said, one reason that cultural commons interest me is that their carrying capacity is endless—Shakespeare's plays will never collapse, no matter how many people read them—and such commons therefore serve as a kind of limiting case for the argument that the market will serve us well in every sphere of life. There are good reasons to manage scarce resources through market forces, but cultural commons are never by nature scarce, so why enclose them far into the future with the fences of copyright and patent? Thomas Jefferson, our first Commissioner of patents, once described the inherent abundance of intellectual property:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea.... He who receives an idea from me, receives instruction himself without lessening mine; as he who lites his taper at mine, receives light without darkening me.

Jefferson's language brings me to a second way I plan to focus my work. Along with a history of the commons I plan to write a parallel analysis of how we have imagined the creative self. We have a long tradition that takes creative work to be the fruit of individual genius working in isolation. Henry Thoreau in his cabin is the American type. But might we not as easily say that the creative mind is itself a kind of commons? A remark that Goethe made toward the end of his life gives a sample of a more communitarian tradition of artistic self-imagining:

What am I then...? Everything that I have seen, heard, and observed I have collected and exploited. My works have been nourished by countless different individuals, by innocent and wise ones, people of intelligence and dunces. Childhood, maturity, and old age all have brought me their thoughts,... their perspectives on life. I have often reaped what others have sowed. My work is the work of a collective being that bears the name of Goethe.

"Created Commons," one of the essays I have already published on these matters, takes Goethe's image and applies it to Thoreau to show how, despite his fabled independence, we would not have his work were it not for the remarkably rich community and communal institutions that surrounded him in Concord.

These two histories—of the commons and of the imagined creative self—run together, of course. The citizen called into being by a republic of freehold farms is close cousin to the writer who built himself that cabin at Walden Pond. But along with such mainstream icons goes a shadow tradition, the one that made Jefferson skeptical of patents, the one that made even Thoreau argue late in life that every "town should have...a primitive forest..., where a stick should never be cut for fuel, a common possession forever," the one that led the framers of the Constitution to balance "exclusive right" with "limited times."

It is a tradition worth recovering. As I have done in earlier books—The Gift and Trickster Makes This World—I would like to take from past and present practice a set of stories, metaphors, images, and terms, and elaborate them in such a way as to create a useful tool, in this case one that can be brought to bear in any discussion of our common assets, be they environ-mental, technological, or artistic. I would like to help give our cultural commons greater visibility and standing.