> [!summary] Progressive Summary > This book is "a defense of the cultural commons, that vast store of unowned ideas, inventions, and works of art that we have inherited from the past and continue to enrich." It does this by comparing the views of the eighteenth-century American founding fathers and those of today. # Structured Notes ## Definitions ## Chapter Summaries ### Chapter 1 - Defending the Cultural Commons #### Intellectual property laws are a new form of colonialism > Industrialized nations like the United States now aggressively export their “knowledge laws” in much the same way that the British long ago spread their “land laws” to distant colonies. Late in the nineteenth century, in country after country, British colonial governments simply erased the rules of customary common land tenure and substituted their own. In New Zealand after the Native Land Act of 1865, for example, courts refused to “recognize” anyone who showed up claiming to own land in common. In India, the Forest Acts of 1865 and 1878 similarly extinguished centuries of customary rights in the rural villages. What happened in the nineteenth century to tangible properties is happening now to intangibles. > > Take as a first example a recent change in Saudi Arabian law brought about by the World Trade Organization. As the historian Carla Hesse has noted, in traditional Islamic legal practice, authors did not own the ideas expressed in their books: "A thief who stole a book was thus not subject to the punishment for theft—the amputation of his hand. Islamic law held that he had not intended to steal the book as paper and ink, but the ideas in the book—and unlike the paper and ink, these ideas were not tangible property." > > Thus when Saudi Arabia wished to join the WTO, its religious judges objected to the notion that bootlegged videos and software could be classified as stolen goods. The WTO flew a group of them to Geneva and persuaded them to change their minds. > Or take the “100 Orders” that L. Paul Bremer issued during the year that the Coalition Provisional Authority governed occupied Iraq. Issued mostly in 2004, these are a set of “binding instructions . . . to the Iraqi people” laying out a series of regulations, “penal consequences,” and “changes in Iraqi law.” Order 83 amends Iraqi copyright law in ways that Iraqi citizens might well have found worthy of debate: it allows ownership of “collections of works which have fallen into the public domain,” and of “collections of official documents, such as texts of international laws”; it protects databases (a practice much debated in the United States and Europe); it treats computer programs “as literary works” (a common formula worldwide, but worthy of discussion nonetheless). It even protects “public recitals of the Holy Koran”—oddly so, one might think, as the Koran is taken to embody the word of Allah and its principal means of transmission has always been oral recitation from teacher to student (the word “Koran” itself means “recitation”). > > Another of Bremer’s decrees, Order 81, amends Iraqi patent laws no less boldly. For the first time in Iraq’s history, it adds “the protection of new varieties of plants” to the list of patentable things and it prohibits farmers from reproducing patented plants without permission of their owners. Most striking of all, it prohibits farmers from “re-using seeds of protected varieties.” > > Among the many ironies of Order 81, as an essayist for The Ecologist pointed out, is the fact that Iraq lies in the original fertile crescent of the Tigris-Euphrates river system, where humankind first domesticated wheat ten thousand years ago. Worldwide, there are today over 200,000 varieties of wheat, most of them developed by indigenous farmers to fit local growing conditions. Hundreds of these are found in Iraq itself, and before the 2003 invasion, almost all Iraqi farmers saved their local seed, or bought it from neighbors who did. Order 81 does not necessarily wipe out the millennia-long tradition of local plant breeding, seed-saving, and exchange, of course, but it may well do so in practice, for it lays the legal groundwork through which these ancient practices can more easily be replaced by what the order calls “**the international trading system**.” The enclosure of intellectual property has to be as vigorously promoted at home as abroad. The Motion Pictures Association of American ran a massive campaign to insert a particular view on intellectual property into American schools. In 2006, they even managed to convince the Boy Scouts of Los Angeles to introduce a merit badge for "Respect Copyright". As part of this curriculum, students are taught that: - If you haven’t paid for it, you’ve stolen it. - Intellectual property is no different than physical property. - As the creator of your work, you should have the right to control what people can and cannot do with your work. - Never copy someone else’s creative work without permission from the copyright holder. - Students who have learned to strictly respect the intellectual work of others in order to avoid plagiarism already have a solid foundation for understanding the laws of copyright. #### Past cultures can show us what's weird about the concept of intellectual property By looking at how previous societies have viewed property, we are able to question the views of our own. The idea of intellectual property is newer than cars, or the lighbulb, or jazz. Many cultures have viewed humans as merely the vessels or carriers of divine inspiration, rather than originators. In these cultures, it didn't make sense to view creative work as property belonging to anyone. It's also not clear that creative works are solely the result of the intellect: > There is intellect, of course, but also imagination, intuition, sagacity, persistence, prudence, fantasy, lust, humor, sympathy, serendipity, will, prayer, grief, courage, visual acuity, ambition, guesswork, mother wit, memory, delight, vitality, venality, kindness, generosity, fortitude, fear, awe, compassion, surrender, sincerity, humility, and the ability to integrate diametrically opposed states of mind into harmonious wholes . . . We would need quite a few new categories to fully map this territory—“dream property,” “courage property,” “grief property”—and even if we had that list, only half the problem would have been addressed. #### The thread of Lewis Hyde's work This book draws on themes that Lewis Hyde explored in his previous books. In The Gift, he explored the noncommercial side of artistic and creative endeavours. In Trickster Makes the World, he argued for "the kind of disruptive intelligence all cultures need if they are to remain lively, flexible, and open to change." In this book, he draws on insights from both books in order to challenge the contemporary regime of intellectual property. > Tricksters are the mythic characters who threaten to take the myths themselves apart. Their task is to unsettle the eternals, the propaganda of the faith, the seemingly foundational truths. > In the Norse tales, the mischief-maker Loki once approached the goddess Idunn, who tends the orchard where the Apples of Immortality grow, and persuaded her to bring a sample of her fruit out of Asgard, the Norse heaven. To fool her into leaving her post, he claimed that he had found better apples elsewhere, and asked her to bring some of her own for comparison. As soon as Idunn left the orchard, disaster struck the gods: they began to grow old and gray. > >It’s a simple trick, really: to show that what was assumed to be unchanging and eternal can in fact be infected by time, simply leave the garden and compare what grows there to something else. Modern tactics are the same, if more mundane, when it comes to claims about cultural truths: compare them to those from some other time or place and see how they fare. Maybe it is currently true for schoolchildren in Los Angeles that “if you haven’t paid for it, you’ve stolen it,” but is that true for children in China? Was it true during the Protestant Reformation? The question I am left with is: **"What if we lived like oral cultures that want their works to be copied and plagiarised, because they contain essential information for their descendants?"** ### Chapter 2 - What is a Commons? Property is defined as a right to action, and a right to exclude. Taking the simple example of a pencil in my house, I have the right to do whatever I want with it (except harm someone else with it). Similarly, I can do a lot of things with my house (but must obey all zoning restrictions), and as part of a city, I have the right to vote. This inalienable action (I can't give the right to vote to anyone else) is what makes me a citizen. Right to exclude - owning something, eg. a car, gives me the right to exclude anyone else from driving it An old book in British law uses "common" as a verb: "Generally a man may common in a forest." Focusing on the action part of property allows us to pay attention to what blocks our agency. > True citizens are not the audience of their government, nor its consumers; they are its makers. The same may be said of a viable culture. Culture is always arising, and those who participate in its ongoing creation will rightly want to question any cultural expression that comes to them wrapped in a right to exclude. # Quotes # References