Fri 13 Apr 2018 8:57AM

Property in the commons?

M mike_hales Public Seen by 138

Key references please . . . Is there property in the commons? Or is property an intrinsically non-commons construct?

Is some underlying notion of property required, if legal instruments associated with commons are to be reconciled with established law (eg Roman law?) and defended in court? In which case, what kinds of property are there; and what kind is 'commons property'? Is there ownership in the commons; or some other kind of relationship of commoners and commoned resources, perhaps called 'holding'?

I'm thinking specifically of material entities - wild water, life, genomes, documents, data files - rather than immaterial resources. Although in any case I understand the so-called immaterial resources of 'knowledge' to be nothing other than the material capabilities of specific collectives of people: labour-power. But labour-power commons are another story? Back to the question . . .

Alternatively, is there a legitimate (legally defensible) status for resources held in common, without any person having property of any kind in them; but with rights and duties asserted over these resources, by customary or contemporary commoners, bearing upon commoners? Does this depend on the commoners having manifestly made the resources? Or can it be also asserted over 'natural' or customary resources, traditionally associated with the commoners' lives? Can non-commoners be excluded from access to a commons 'with legal force'? Or just with main force?

Is there a distinct category of resources - perhaps called assets? - that have been assigned a (temporary) right for exploitation by specific non-commoners (market actors) under (copyLeft/copyFair etc) licence? And does this then make them property?

Apologies for asking such basic questions, I hope they make sense? I haven't the first clue when it comes to law, and there's so much out there on reciprocity, copyLeft/copyFair etc.

It makes my brain hurt rather, but I do see how basic it is, that we should be able to accumulate resources in commons, constituting massive forces of production (and nurture) in the commons, which are excluded - in legally defensible ways - from exploitation in capitalist markets. And that we should become literate in these esoteric things, even if (especially because) most of the commonplace associated language (eg 'property' itself) is a Trojan horse for capital.


Liam Murphy Fri 13 Apr 2018 10:18AM

From: http://wiki.p2pfoundation.net/Peer_Production_License:

It is important to note that the PPL is primarily designed to liberate cultural or consumer goods or products, and to offer more choices to content creators or artists presently using Creative Commons non-commercial options. But Kleiner does not recommend the PPL for productive or capital assets. The latter should be licensed with copyleft (GPL, AGPL, etc.), allowing large corporations and capitalist consortia to exploit these commons to their benefit. What is this all about?

To understand the distinction, it is important to grasp the concept of “exvestment” (wordplay on “investment”). Kleiner explains it as follows:

[Exvestment occurs…] when a company spends money to improve Linux because that company makes money running a social networking site, that company benefits from such expenditure, however it is exvestment not investment, because the capitalist class as a whole does not benefit since this reduces the market for commercial software by improving free alternatives and makes such means of production available to non-capitalist producers as well. This is why I think we need to be careful when we apply the PPL (or similar) to software, because I think to maximize transvestment [the transfer of value from one mode of production to another] in the direction of commons-based production we need to keep Department I goods (Capital Goods or Producers’ Goods) free for capitalists so they can exvest in them, while keeping Department II (Consumer goods or commodities) goods non-free for them.


Jay Cumberland Fri 13 Apr 2018 3:52PM

I would look at David Bollier's Reinventing Law for the Commons for a general overview of how law can be used to support the commons and then at Sheila Foster and Christian Iaione's The City as a Commons for a theoretical study at how property rights undergird all conceptions of the commons within cities.


mike_hales Fri 13 Apr 2018 6:16PM

These papers look like a good read Jay, thank you.


Jay Cumberland Sat 14 Apr 2018 1:43AM

My pleasure. And, for an article examining how property (as it has developed in the West) is innately anti-commons, I would check out Ugo Mattei's "The State, the Market, and some Preliminary Question about the Commons."


mike_hales Sat 14 Apr 2018 9:04AM

Further thanks Jay. Very much the kind of perspective I was seeking.

Is there anything you'd recommend, regarding the might that sits behind any right? Surely at root it's all a matter of fiat - 'legal force' stands on main force? I guess, this is simply the (historical? intrinsic?) relationship between the law and the State? Can you suggest a good article on this, maybe speculations on the nature of the force - in pursuit of justice? - that must be understood to be part of any actual commons?

Justice - as distinct from law - is something else? At root, a common(s) action of some particular community/tribe/collective who believe their interests (livelihood, cultural balance, dignity, etc) are being systematically harmed, rather than a preserve of the State? This can be unwise, of course: tribes are not to be trusted any more than elites.


Sophie Jerram Sun 15 Apr 2018 8:34AM

Mike these are not basic questions at all -thanks for starting the thread. I am researching art practice and spatial commoning through my PhD. I utimately have to encounter property law even though it is less conceptually attractive to artists and activists. Jay has given you some great links. You might be interested in a recent New Zealand case. I am working on a paper comparing commons notions of property with this Te Urewera Act of 2014. The Act has allowed for an area of land -including a prominent ancient forest - to have the legal status of personhood - in conjunction with a governance board comprised of Tuhoe iwi (local Maori tribe) and pākeha (white settlers). It's at one level an ideal outcome for a commons but there are many practical issues to sort out. http://www.ngaituhoe.iwi.nz/te-kawa-o-te-urewera


mike_hales Sun 15 Apr 2018 8:56AM

Thanks Sophie. An area of land as 'a person'! Wow! Things in New Zealand do seem interesting, with strong Maori cultural movements - the guys at Loomio/Enspiral clearly link into this as a basic orientation. I wonder, though, whether this implies that there will be many local variants on law for commons, in different cultural settings?

I guess so - we're into a 'pluriverse' with commons, and there's no way back to the imposed simplicity (ethno-class domination) of liberal-Enlightenment 'universal' reason? This is hard going! But Mattei and other comparative law scholars seem to be hard at work on it thank goodness.

Please do update us when your commons/Te Urewera paper is done?


Sophie Jerram Sun 15 Apr 2018 9:16AM

Sure I will post it here Mike. Unsure how Mattei wd read this legal action in NZ. I think Donna Harraway and Gibson-Graham and more-than-human scholars are closer to understanding the relationships this new form will take, informed by local forces as you suggest. Yes Enspiral continues to inform NZ's innovative thinking (I'm a long term associate and a founding director of Loomio) but it is the Tuhoe tribe who have been long term activists for mana motuhake- self determination - often in isolation fm the liberal city dwellers like us.


mike_hales Sun 15 Apr 2018 9:24AM

Haraway and more-than-human cyborg orientations I can take quite happily. This is just an advanced materialist-humanist stance? But they’re quite some distance from actual working legal practice?

It’s the 'post-human’ guys who scare the shit out of me. That’s another topic, though.


Liam Murphy Sun 15 Apr 2018 10:10AM

At a very real and practical level, I am finding it challenging to ask artists, designers and craftspeople - who’s work and IP is materially theirs and ( they perceive) has to be to earn money from - to view as ‘everybodys’. For Cultural Commons transitions, the transition is as important as the end goal. This discussion would be valuable in threads on Cultural Commons Coalitions and CuktureBanks... thanks, LM

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