July/August 2002 - VOLUME 23 - NUMBER 7&8
C o r p o r a t e R e f o r m A f t e r E n r o n
By David Bollier
Community Ownership and
the Displacement of Corporate Control
Something curious is happening to the near-religious faith that private property and markets are the only serious tools for improving people's lives. Slowly and unpredictably, like irrepressible plant life pushing its way through crumbling pavement, new models of community-based management are sprouting forth while old models are re-discovered.
Call it the renaissance of the commons, a quiet insurgency with diverse manifestations. It consists of new policy models such as stakeholder trusts, locally managed natural resources, innovations in private contracts, and bold reinterpretations of public trust doctrine in environmental law and the public domain in copyright law.
But this proto-movement is not just about policy, but also about a cultural rediscovery of public collaboration. The Internet, the biggest and most robust commons in history, has a lot to do with this trend. It has provided the crucial infrastructure for thousands of commons such as websites, list serves, open source software development and peer-to-peer file sharing.
This re-conceptualization of what should be public and shared -- as opposed to private and marketable -- is reaching into new territory. More citizens are realizing that public spaces and civic institutions represent a cultural commons, and are mobilizing to fight marketing in schools, the over-commercialization of sports and new forms of intrusive advertising. Others are fighting new corporate attempts to commodify and sell global water supplies, bioengineered life forms and the human genome. Such natural systems, say activists, belong to everyone and must be treated as commons.
The mainstream media has not caught on to this burgeoning movement, so its features remain somewhat obscure to the general public. Yet the breadth and vitality of commons activism are impressive. The real question is whether the champions of the commons will be able to develop fuller critiques of this emerging paradigm; popularize it among public policy makers, the press and the public; and build the rudiments of a multi-pronged movement.
The Tragedy Stigma
The "tragedy of the commons" has become one of those unfortunate phrases that stick in the mind but are fundamentally flawed. What Hardin was describing, in fact, was an open-access regime, in which a resource is essentially open to everyone without restriction. An open-access regime has no recognized authority or defined property rights. Aggressive predators can appropriate the output and sell it to others.
A real commons is quite different. It consists of a distinct community managing a resource through specific rules and traditions. Resources are intended for personal use by members of the commons, not for sale in the market. An ethic of openness in a functioning community helps assure that the resource is not over-exploited and that free riders are identified and disciplined.
While the catchphrase about the tragedy of the commons persists, a rich literature within political science, anthropology, sociology and economics shows that a sustainable commons is not only possible, but often more attractive than a market regime.
Market actors relentlessly strive to cut costs in order to maximize profitability. In many instances, this makes them a vital force in development. But this very tendency to minimize costs often results in "externalizing" -- or shifting -- costs from companies to the environment, communities and future generations. Market prices in such cases do not reflect the fuller, long-term costs of producing a good or service. This is an important reason why a commons can be a superior regime. Members of a commons personally have to live with the "externalities" they create, so they have keen structural incentives to minimize anti-social outcomes.
Varieties of Commons
Broadly speaking, the commons identifies a set of interests that are distinct from the state and the market. A good shorthand might be "we the people." The commons is about the sovereign interests of the general public, even if it is unorganized. While the state may intervene as a trustee on behalf of the commons -- to protect widely shared interests or resources -- the people have interests apart from those of government and markets. In environmental law, public trust doctrine has formally recognized this fact by prohibiting governments from seizing or selling resources that belong to the people.
But the public trust doctrine is only a modest beachhead in the law, one that has never been fully developed. The unfortunate truth is that as a "market populism" has arisen to claim that markets are more democratic than governments, people in the United States have not had a rich conceptual language for expressing the "people's interests."
The commons is an antidote. It offers a way to talk about how members of a defined community can access and share resources without relying on money or markets. Instead of the impersonal, take-it-or-leave-it procedures of the market, the commons is a social model based on co-production and co-responsibility. Individual voice and enfranchisement are honored, yet this participation is balanced against the larger needs of the community. And these needs are expressed through the places, history and personalities of a specific commons, not through the impersonal abstractions of money and markets.
It matters a great deal whether a commons revolves around finite, depletable resources (fish, timber, water) or social networks that are "infinite" (the Internet, cultural norms). In the case of the former, guardians of a commons must take pains to assure that free riders do not over-exploit it and create a "tragedy." But when a commons is infinite, the more people that are participating, the greater the value created. There is a cornucopia of the commons. Just as a telephone network becomes more valuable as more people get telephones, so an online community tends to become more robust and valuable as more users join it.
This dynamic has made GNU Linux software operating system one of the most technically advanced and stable software systems in the world despite the lack of a conventional corporate apparatus and marketing. (GNU Linux is a non-commercial, nonproprietary competitor to Windows that most computer experts agree is a superior product. It is widely used in computer servers, and increasingly for personal use.) Tens of thousands of computer programmers have contributed expertise to improving the code through a vast global software commons. The Internet has been a key factor in the success of Linux and other open source projects, but another critical factor has been a special contract provision known as the GNU General Public License, which prevents any users of the code from privatizing it for profit. This assures that the volunteers' contributions will stay within the commons, and not be siphoned away by free riders.
Most commons tend to fall into four broad categories:
Public assets. These are resources that the people own and that government manages as a trustee and steward. Collectively, people in the United States own the electro-magnetic spectrum used by broadcasters and wireless companies; millions of acres of public lands containing minerals, timber, oil and grazing areas; and enormous stores of federally sponsored research, reports and databases. Too often, the government gives away these valuable resources to private companies at steep discounts or for free.
Common assets. These are "unowned" resources that have not been formally brought under the control of either markets or government. Examples include genetic structures, the global atmosphere, regional ecosystems and public spaces. Common assets are resources that the people own as a moral right, but which have no formal recognition in law.
Frontier commons. Frontier commons are currently under siege by companies aggressively seeking to convert common assets into property and sell them in the market. Among the more prominent frontier commons are fresh water supplies of northern portions of the globe and genetic structures of life, especially the human genome, agricultural crops and indigenous knowledge.
Social commons. Many commons have less to do with managing a physical resource than with pursuing a shared mission as a social or civic organism. Examples include scientific communities, Internet affinity groups and local communities. Through the exchange of gifts -- time, energy, resources -- members of social commons create special interpersonal bonds among each other, which over time are the basis for creating value in highly efficient, socially satisfying ways. Online genealogical websites and blood donation systems, for instance, are based on people freely "giving" to the commons -- and eventually reaping benefits later by dint of their membership in that specific community.
The Commons and Corporate Power
One of the more interesting strategic initiatives for the commons involves stakeholder trusts, whose goal is to give all citizens a personal stake in public assets. The most successful example may be the Alaska Permanent Fund, a citizen-owned investment account that pays equal annual dividends to every Alaskan citizen. Created in 1976 at the instigation of Republican Governor Jay Hammond, the Fund has accumulated some $27 billion in revenues from oil drilling on the state's North Slope. In 2000, it generated some $1.15 billion in dividends for the state's residents, or nearly $2,000 per person.
The Alaska Permanent Fund is a direct inspiration for the Sky Trust proposal (www.skyowners.org), developed by social entrepreneur Peter Barnes to help curb greenhouse gas emissions. Instead of allowing the government to give away emission permits to polluters, the Sky Trust proposal would require auctions in which companies buy a limited number of emission permits. While this would raise prices for gasoline and other carbon-burning products, it would also provide incentives for companies to reduce their carbon emissions. Moreover, consumers would be protected from paying higher prices because they would receive dividends from the Sky Trust, funded by the auctioning of emission permits.
The idea behind the Sky Trust, writes Peter Barnes in Who Owns the Sky?, is "from all according to their use of the sky, to all according to their equal ownership of it. Those who burn more carbon will pay more than those who burn less."
Another innovative series of initiatives aim to protect the commons of creative works and information. Increasingly, content industries are using technology and copyright law to "lock up" the digital versions of works and control how they may be used. This can be seen in the copy-protection schemes that record labels are devising to prevent people from making or sharing personal copies of CDs. Film studios want to require anti-copying technology in all electronic appliances in order to prevent the copying and Internet distribution of their movies. And book publishers are trying to devise restrictive licenses for e-books, eliminating the easy copying, excerpting and sharing that we now take for granted with paper books.
Not all fights against "market enclosure" look to public policy. Some creative initiatives are trying to create functioning digital commons for cultural expression. The Budapest Open Access Initiative, instigated by the Open Society Institute, seeks to promote the self-archiving of peer-reviewed journal literature in order to create a new generation of open access alternative journals. The idea is to bypass commercial publishers who continue to raise prices for their journals, making them less accessible -- a dynamic that undermines the very basis of science as an open inquiry based on shared knowledge.
A second initiative is the Creative Commons, an effort by a coalition of law professors led by Stanford's Lawrence Lessig to create a series of customizable licenses for putting works in the public domain. Currently, all new works are automatically "born" copyrighted. There is no formal means by which an author can legally put a work into the public domain or to stipulate permissible public uses of it.
The Creative Commons plans to offer licenses that will allow authors to declare that their works may be used by anyone so long as it is not altered, used without attribution or used for commercial purposes, for example. An innovative aspect of the licenses is the use of "metatags" in electronic documents to help Internet users locate and use public domain material.
Interest in protecting the "information commons" is exploding in other quarters as well. A new public interest advocacy group, Public Knowledge, was recently organized to defend the commons of the Internet, science and culture. And the American Library Association recently formed an Information Commons Project to enhance its efforts to ensure that information is open and accessible to everyone.
"The commons" is also the banner behind a number of new initiatives to protect frontier commons. In Porto Alegre, biotech activists from more than 50 nations in February 2002 launched a treaty initiative seeking to have the earth's gene pool declared a "global commons" that is off-limits to patenting. The "Treaty Initiative to Share the Genetic Commons" will be part of a larger effort to defend the planet's biodiversity.
The treaty initiative builds upon work by Cultural Survival, ETC (formerly RAFI, or Rural Advancement Foundation International) and others to protect the biological integrity of agricultural seedlines and native plants and to preserve indigenous knowledge.
A Commons Paradigm
"The commons" is not just a useful critique, but also a tool for advancing a positive vision and values. It instigates a broader vector of conversation than the sterile, misleading debates about free markets ("good") versus regulation ("bad") that tend to dominate policymaking. Proponents of "the market" have a highly refined literature and analysis for their values. Why shouldn't defenders of "the commons" have an equally coherent and developed field of research and analysis?
At this early stage, it is unclear how the emerging commons movement will evolve and perhaps consolidate. But one thing is clear: the scope and ferocity of market activity is rapidly expanding into every nook and cranny of nature and culture.
As market imperialism intensifies, seeking to transform nature, communities and culture in new ways, the commons is likely to become a more frequently invoked organizing principle for resisting -- and for imagining better, more humane alternatives.
David Bollier is author of Silent Theft: The Private Plunder of Our Common Wealth (Routledge; www.silenttheft.com) and co-founder of Public Knowledge.