Tthorough discussion of enclosure must consider the international institutions that impose it. The International Monetary Fund is a well-known example; its “rescue” agreements attack the intellectual commons through “user fees” for public school, which prevent millions of poor children from attending. A less well-known culprit is the World Intellectual Property Organization, which is dominated by representatives of the businesses that own copyrights, patents, and trademarks. It seeks to impose ever-greater restrictions on a broad range of human knowledge and culture.
The propaganda term “intellectual property” acts as a motor for these restrictions, because it leads people to assume that writings and ideas must be proprietary. It also focuses attention at an abstract economic level, where writings and ideas are merely interchangeable tokens that a business can own. The public policy issues raised by various artificial monopoly laws (copyright law, patent law, and so on) arise from the details of their restrictions; if you think about them at an abstract level, you cannot even see the issues. Since the value to humanity of a novel, a musical composition, a computer program, or an invention lies in its specifics, the “intellectual property” perspective devalues these works intellectually by valuing them economically; it is the perspective of a philistine who regards them only as investment vehicles. (I was pleased to see that David Bollier’s article avoided this expression completely.)
People often recommend private ownership of assets as a solution to the so-called tragedy of the commons. That approach can work well for physical assets, when the owners think about the long term. Today, with corporations fudging their books to keep stock prices up—even if that hurts their prospects a year in the future—we cannot expect corporate owners to manage resources wisely, even in their own interest. Some other solution is needed.
Discussions of government incompetence, or corrupt disregard of the public interest, often present an alternate picture in which business is imagined to serve public needs perfectly. But business executives can also be incompetent or corrupt, and they often don’t even pretend to care about the public interest. Unless kept in check with vigorous anti-trust law, they tend to develop monopolies or alliances that have the power of governments without a pretense of responding to the public.
In fact, the free-rider problem is rampant in the United States today in the form of corporate welfare. For instance, overgrazing on U.S. public lands results not from a naïve policy of openness, but from corporate power that has blocked every attempt to raise grazing fees to a competitive level.
Intellectual works cannot be worn out by overuse, so the tragedy of the commons through overuse cannot occur in this field. It happens only through undercontribution. Each time a work is restricted using the legal powers available to publishers, that contributes to the tragedy of the intellectual commons. Publishers are procuring laws to increase these powers, and trying to impose new restricted media on the public. E-books are a crucial example: they deny readers the traditional freedoms they have always enjoyed for paper books. If you have ever borrowed a book from the public library, bought a book from a used book store, lent a book to a friend, bought a book anonymously with cash, or even kept a book for years and read it again, you have taken advantage of these freedoms. Most e-book systems are designed to take them away.
Despite the strength of this lobby, it is not strong enough to procure laws in the United States abolishing these freedoms for traditional paper books—too many readers who vote would object. So publishers started by lobbying Congress to pass the Digital Millennium Copyright Act (DMCA), which abolishes these freedoms for e-books (and other electronic media). They faced little opposition because there were as yet no e-books, and thus no constituency of readers for them.
The next step is to shift readers from paper books to e-books. This step has failed, so far; readers rejected e-books—but they did so out of practical convenience, not for the sake of their freedom, so we should not feel safe. The threat may return in the form of “electronic ink,” which looks like paper but has an array of computer-controlled pixels into which an image can be downloaded. In effect, these are another display system for e-books, and the danger is that consumers may like them better than display screens. In the long term, if we wish to keep our traditional freedoms, we will have to repeal the DMCA.