Addendum: Why do I say Culture is not a Commons?

Addendum to Culture is Anti Rivalrous

Why do I say Culture is not a Commons?

Because a commons is a publicly or collectively owned good, and culture can’t be owned. Page 12 in Lewis Hyde’s Common As Air (see article on why air isn’t a metaphor I’d use) refers to “the old idea of ‘the commons’ as a way to approach the collective side of ownership.” Whoa there. We agree that Culture shouldn’t be privately owned, but where I differ is that Culture shouldn’t – and can’t – be owned at all. When we call Culture a commons we remain in the framework of culture-as-property, the framework of ownership.

But: Culture. Can’t. Be. Owned.

The correct answer to the question of “who owns culture?” is “no one.” Not Sony. Not “The Author.” Not “The Public.” No one owns Culture, because Culture isn’t property. So I prefer not to talk about it like it is property, or something that can be owned. So I don’t call it a commons.

Also, I wrote that real commons – real collectively owned goods – need to be regulated and/or managed, because they are rivalrous and/or scarce. Calling Culture a commons implies that it needs to be regulated and/or managed. That sometimes betrays an unexamined belief that copyright is “natural,” that private interests could somehow step in and “own” Culture without interference. But Copyright and cultural ownership are completely artificial, legal fictions, State-granted monopolies that can only exist if Culture is artificially (and misguidedly) “managed.” So again, calling Culture a Commons implies it needs to be “managed”, reinforcing the same mental framework that allows copyright and the private ownership of ideas to thrive.

I’m not going to fight against anyone calling Culture a commons. Most progressives do it, and we should be working together, blah blah etc. But I did want to clarify why I wrote that Culture is not a commons, since it may freak some people out. Sometimes I refer to “our shared cultural heritage,” which is about as close as I come to calling it a commons myself. Language is tough. For example, there’s no word for the opposite of property. Until there is, it may be difficult to wrap our heads around the idea that something actually isn’t property and can’t be owned, collectively or privately.

At least I can use the word anti-rivalrous now.


Author: Nina Paley

Animator. Director. Artist. Scapegoat.

36 thoughts on “Addendum: Why do I say Culture is not a Commons?”

  1. Some people see some things as commons by their nature. They aren’t talking about something they’d regulate. I think part of your analysis is motivated as a response to someone, or some body of theory, who conveyed the idea of commons in terms of regulation to you — that’s not necessarily the general view.

  2. It’s also the implication of ownership.
    If “commons” merely meant “commonly shared” I’d be all over it. But a “commons” is a kind of property.
    Maybe the meaning is changing. That’s cool. The meanings of words can change over time, so maybe “commons” will just mean “shared” at some point.

  3. It’s likewise for that implication — the term commons doesn’t generally imply property, for much the same reason. It can for some, but it isn’t necessarily implied. I have often used it to mean owned by none or owned by all. It’s interesting to me to encounter someone with the impression of it you have. Economists would tend to analyze that way, and there are legal bases for understanding commons as the property of the state, but I have not found that those control the sense of the term. Once again, the notion I refer to is the understanding that some things are by nature commons — language, math, logic, etc. Published information is inherently commons, though regulated under copyright to give some folks exclusive rights of various kinds to original expression. Even with that regulation, the unavoidably common nature of information is acknowledged by granting that factual elements of works are free for the taking. This understanding has been with us for a very long time. It’s just that more recently it’s been disregarded.

  4. The distinction you make is important, but I’m not sure that current usage really is as you describe. In the academic work I’m familiar with (mostly law, some economics, some cultural and historical work), “commons” is more often used to refer to an unowned resource than to property. These scholars tend to use “common-pool resource” to describe a shared resource that is owned/managed by a group, and “commons” to describe an entirely unowned resource. It’s true that “commons” is an overloaded term, but in terms of explaining how information and culture work to people, I think it does more good than harm.

  5. @Nina: You have to distinguish between property and possession. Normaly, this is confused or mixed. Property is a legally defined (abstract) relationship of a person excluding others with regard to a good. Possession means using a good, with is a concrete relationship. The first does not necessarily imply the latter, and vice versa. In everyday language both are used as synonyms.

    What you explained applies to possession, not to property. Culture can not be possessed, or, which means the same, everybody using/doing culture is automatically possessing it.

    However, culture can by property! That’s why copyright and other means of exlusion (DRM, copy protection etc.) exist. They define, that you legally own a piece of culture, which allows you to exclude others from using it. The state will (try to) guarantee this by using punishments.

    Owning in the sense of property does not imply, that you have to hold the piece in your hands (virtually said). Many properties have never ever been even seen by their property owners.

    Therefore, culture can be and, I think, have to be a commons, in order to defend the freedom of use and fight against enclosure.

  6. So, nina, you’re going to wind up in this “typical libertarian spiral” of having to define things. So what’s property?

    I think, largely the theories of property can be binned into several: The Tucker/Proudhon “property is theft” tongue-in-cheek theory which contains a heaping of historical truth. The Hobbesean “you own what you can defend”, and the Lockean “you own what you create”. There is a more modern theory of property which explicitly states that property ought to exist precisely to prevent the tragedy of the commons. The solution to the commons is to assign property rights and merely regulate the market for exchanging those rights.

    There is no commons problem with culture, precisely because culture is neither scarce nor rivalrous, so there is no need for it to be propertized.

  7. I would take a pragmatic view on this. Nina is right about ‘culture’ in the abstract … but culture is not a thing but a verb, it’s about creating and maintaining something collectively, as in ‘commoning’. And what we see in practice is that people and communities create and care for culture in collections, which they consider as their commons to care for and they are building individual and collectively livelyhoods around it …

    take the p2pfoundation, it’s knowledge is mostly ‘third party’, a lot of it public domain, a lot of it ‘cc’, a lot of it copyrighted but used as fair use .. but it is also forming a specific ‘knowledge commons’, nurtured by a specific community of people that care about it, and consider it their commons, and are building, or trying to build, livelyhoods around it …

    THis is less about ‘property’ than about caring ‘specifically’ for something that is more ‘defined’ than general abstract culture.

    Stefan Meretz gives the other side of the argument, i.e. considering as a commons allows a defense of it against private appropriation, “if it’s from all of us” it needs specific protection, and this takes forms which can be ‘property’ forms ..


  8. @StefanMz, fighting fire with water is maybe better than fighting it with fire?

    Of course the legal construct is there using the undeniable identity of an object as the basis for a set of rules to manifest itself through enforcement.

    And the legal construct is of course a (temporal) cultural expression, itself creating new classifications (also known as “works”) for the purpose of manifesting itself further (for comparison, is an Indian Raga a “work”?).

    So does it really help to engage in “more of the same”? Can you really defend freedom with the construct that created enclosure in the first place?

    Maybe it helps. Maybe you can. But maybe the whole construct is obsolete? Maybe it was ill conceived from the beginning?

    I think most culture happens on the outside of the enforceable box anyway. And inside it you will have serious and increasingly difficult problems with enforcement, since assessing infringement is the same (problem) as assessing unity/unicity/identity of a “work”.

    This discussion inevitably has to be connected to discussions on ontology (Popper talked about world three as the world of the products of the human mind). Maybe Ms. Paley’s conjecture should be seen as an observation in that discourse rather than a comment on the current legal framework? She is definitely aiming at saying something about reality as such: you cannot own culture.

    @Ms. Paley, thanks for sharing your work (just saw Sita 🙂 and I very much appreciate your perspective/experience/authority in this discussion.

  9. I think the initial post reading that “culture can’t be owned” brings the matter in the realm of ideas or ideals. The author contemplates ‘how things should be’ while the comments are mostly about how things are. In my understanding Nina’s approach to the matter is practical and productive. We need to understand how things should, or I would rather say ought be and then to discuss how close and by what means we can reach the ideal.

    Regarding the essence, I unequivocally agree: culture must not be owned, meaning it must not be restricted for any use, for any purpose, under any circumstances. This is in its nature. Or we can say that culture (realm of ideas and aesthetic forms) belongs to the entire Humankind in space and time (back to the past and forward to the future without limits).

    Just to play around the term we can also say the culture is realm of ultimate freedom and in this respect it may be “explained” by a metaphor like “ultimate property” for our freedom physically depends on property. Still we need to remember that unrestricted access to culture gives us inner freedom first and foremost.

    All in all it comes to the question what property is. The simplest and essential idea
    of it is that property consists of tradable goods and services which develop when ideas join labor time. Thus, so called IP, which separates cultural phenomena from physical medium, in doing so ultimately is to destroy trade and industry (indirectly). And it is to kill (and it definitely does so) culture directly.

    The issue of “management” is not that clear for me. I understand that even today we can have a law to provide ideal governing of relationships between author, his/her work, business and general public. If we insist that culture should not be formally managed at all (which idea looks rather reasonable and attractive) we look then in some ideal society which I cannot reliably depict.

    In any case it’s new turn in my thinking and I want to thank Nina Paley for that.

  10. I agree culture cannot be owned. Culture are community agreed-to standards that are “subscribed” to. It is the P2P nature of culture that binds the community together. Trust is an example of a common standard. In the on-line p2p world, we need standards of accepted principles of behavior and measurement of trustworthiness that are subscribed to. For example we do not own our reputation in the traditional economic sense, it is rewarded to us through every on-line interaction through our kept-commitments and perceptions of us by others. We can validate our reputation by subscribing to an open and standard interaction process that captures and scores our transparent on-line behavior of kept-commitments and perceptions. Also called “Relationship Capital (RC)”. RC links the public culture with our private unique capabilities.

  11. I would say that we’ve known for a very long time that published information is the common wealth of humankind. It’s useful to point out that this was a fundamental aspect of the Enlightenment. Information *is* free, it’s not that it “wants to be.” Copyright doesn’t cover information (just original expression). DRM is really just an absurd attempt to create “not-really-published” information.

  12. @Seth. OK, it’s important to distinguish between culture and information–if that was one of your points (see Chapter II of my book, paragraph “Form in a Work of Art”:), but for what purpose? Does it mean that copyright isn’t “that terrible thing” for it covers “just original expression,” while that precious information is free anyway, or I misread you?
    Yet another point needs clarification. You say information “is free” and at the same time refer to DRM, which is supported by and is nothing without DMCA. So, it is actually DMCA you refer to and it is to obscure freedom of information then, right? How is it free now?

  13. @Anatoly — My point here is that information, once published, is an example of something that is by its nature a part of the commons. Any kind of DRM is an attempt to evade this fact. You’re looking for things I didn’t actually say.

  14. When we call Culture a commons we remain in the framework of culture-as-property, the framework of ownership.

    This is not strictly speaking true, for example, res communes was originally defined as that which lay outside the sphere of law, and therefore outside of property. It was what was left beyond the ‘owned’, if you like. So it was the opposite of property. See Res Communes Licence and the Res Divini Juris Licence for an attempt to think these ideas through.

    Today commons are sometimes defined outside of national law frameworks (e.g. the moon or the deep seabed), and conversely can be defined within a particular legal regime, e.g. commons in UK law. But there is no reason why we cannot re-articulate these ancient meanings..

  15. @Erik Josefsson: If you finally ask me what the distintion between property and possession is good for, then I would answer: Not for the sake of involving in endless legal debates. The reason is very practical:

    Although a good is legally defined as a property, we can decide to treat it as possession.

    Although culture is legally defined as exclusive, we can treat culture inclusively.

    Although any good is legally defined as »mine«, I can share it.

    Although copyright is made for exclusion, we can use it for free licenses in order to be inclusive.

    Neither the good itself (by rivalry) nor the legal form (being private or collective property) determines if it can be shared, _we_ decide it. This practice is named commoning, and this constitutes a commons.

    »Commoning is an act of love« — to extend Nina’s slogan »Copying is an act of love« 🙂

  16. @Seth: As soon, as you talk about “nature” here, any speech either written or oral, any music, song, movie, idea, painting, etc. –any “shareable thing” i.e. cultural phenomena or “product” of free human spirit (beside a medium it inscribed into) is free by nature. Information is not something exceptional in this respect. IP of any kind is an attempt to evade this fact.
    It seems that distinction between “information” and “form of expression” plays essential role in your view, doesn’t it? It does in my view. In a work of art form is the main “component” and restriction put on its communication to people (copyright) is no less dangerous to society that that put on information (patents, censorship, drm). Let it be just a matter of belief, although I can substantiate this theoretically.

  17. @StefanMz: Regardless what we decide about our possessions, there is a matter of nature, justice, right and wrong, good and bad, etc. to be considered. For example, a slave owner can free or keep slaves having been permitted by law to act either way. But the question is whether it’s permissible to enslave human being in principle.
    It is my understanding that the matter of copyright (just an example here although the major issue for me) is of the same nature and of the same scale. Taking the matter in realm of ideals (justice, etc.) I say: cultural phenomena are as free as human beings are. Any restrictions put on free communication of culture to people are against the nature of culture, i.e. they are against humanity as such.

  18. @yonemoto: Hi, you said “There is no commons problem with culture, precisely because culture is neither scarce nor rivalrous, so there is no need for it to be propertized.” That is there is no need for copyrights and IP of all kinds for those are tools to “propertize” culture. Is that what you wanted to say, or…?

  19. @Anatoly Volynets:

    cultural phenomena are as free as human beings are. Any restrictions put on free communication of culture to people are against the nature of culture, i.e. they are against humanity as such.

    I agree. However, this does not only apply to culture, but to all human creations. That’s why commoning is legitimate defense against enclosures of non-material as well as of material outcomes of human creativity. In this regard I see no difference.

  20. Public Domain is the domain in which non-property resides. It’s a domain, a realm, a conceptual space. It’s not property (the same way “blue” is not property) but it’s not the opposite of property, or anti-property.

  21. @StefanMz: We probably have come to definitions here. What is culture and what are other human creations for you? Anyway, can we use “culture” as the short for all human creations minus media here? Music piece minus disk, text minus paper, speech minus speaker:). I think it’s rather close to culture as I understand it. And such a culture is the only really free thing. Moreover, its freedom must be provided, encouraged, guarded… Is that what you’d call “commoning?”

  22. @Ken & Nina: I wasn’t thinking about notion of public domain as such, but have something to say about public domain as a legal term in respect of culture. I encouraged myself once to read US Copyright Code (don’t remember exact title) and figured out that law permits me to rewrite the Bible word by word and to claim the authorship, because the book is in the public domain. You can do anything you want with a work in the public domain and don’t have any obligations toward the author, public or humankind according the law. There is no problem with a work or idea which is common knowledge there. But what if a little known work falls into the public domain? Shouldn’t it be used with attribution to its author and source?

  23. @Anatoly: Yes, you may use the word culture in the sense of an anti-rival good (as Nina explained). Other human creations can be anything: material/non-material goods, rival/non- or anti-rival, exclusive/inclusive, private/collective property etc. Have a look at my proposal of a taxonomy of goods.

    My central argument here is: We decide, what we make a commons. This does not depend on constitution, resources, legal form, or rivalry. Culture is not »really free«. There is no such quality as »really free«, because everything is under attack (called enclosure). So yes, the freedom of a commons »must be provided, encouraged, guarded«, which is part of what I would call »commoning«.

    However, I am not the inventor of the term commoning, it is Historian Peter Linebaugh who said: »There is no commons without commoning«.

  24. My central argument is that there is a phenomenon called the tragedy of the commons, and the purpose of property is to prevent the tragedy of the commons. For any domains that has properties that make a tragedy of the commons unnecessary – propertization is unnecessary. Since there is no ‘tragedy of the commons’ in culture, or information, then there is no need to propertize it.

    Under this rubric, things like atmosphere, communications spectra, land, ocean resources, etc, are things that should be “propertized”, i.e. subjected to a market-licence-allocation model.

    I don’t buy that “property” is itself a fundamental concept. I’d rather take the fundamental, anti-rivalrousness, property of culture and show that because of this there is no tragedy of the commons, and then derive the ill-advisedness of propertization from that.

  25. @StefanMz: I looked at your proposal, Stefan, just to find out that it all makes sense, but isn’t really in my field of competence:( OTOH, we think along somewhat similar lines. My take on the subject:
    I’m sure we’ll be able to deal with our differences when and if it comes to action some time. The culture must be “commoned”–to follow your understanding, right? Otherwise humankind runs into problems of apocalyptic scale.

  26. @yonemoto: In my view, there is only one point of essence is here–are we talking about shareable or tradable things. They tied together in the nucleus of human communication & trade: if I want trade with you something, we both must know what the tradable things are for, i.e. we have to share the idea first. If shareable things (ideas, texts) are limited in their communication to people then troubles start. Anyway, it looks like we share the conclusion, don’t we?

  27. Remember, it is not the culture that must be free, but the people. It is the people who were born free and it is to freedom they would return.

    If the people are at liberty to engage with their own culture then that liberty is reflected into their culture.

    The culture of a free society exhibits far greater diversity and cultural intercourse.

    What we have today is a culture full of discrete, razor-wired works designed from the outset to appeal to the lowest common denominator – in order to maximise sale of copies at monopoly protected prices.

  28. @Crosbie Fitch: Look, you started with the notion of freedom for people and finished by pointing out to “razor-wired works (culture?).” While people in the US, for example, are rather free (with all reservations about practices, the law of the land, generally is a law for free people), the culture is legally imprisoned by all kinds of IP. This, in turn, undermines freedom of the people in reality. Regarding “maximization of sale of copies”–it’s totally unsubstantiated speculation that copyrights, etc. improve any sales. It’s just a delusion everyone suffers from: artists, businesses, public, humankind. Both topics and other ones got elaborated in my book:

  29. Great points, Nina: it is not that we “all” own culture; it is not proeprty. exactly right. Libertarians often make a similar mistake sometimes, when, in opposing intellectual property, they say that you own ideas in your head. Well you never really own ideas. Ideas, information, knowledge are just facts, patterns. You can know something but you don’t own that knowledge. Especially if it’s publicly known.

    Mises and some economists refer to things that played a role in action but that were not scarce goods as “general conditions” of action, or sometimes “free goods.” I sometimes call them nonscarce goods. But I agree that it feels funny to refer to culture even as a free good or general condition of human action.

  30. Anatoly, I’ve not said that copyright improves sale of copies, but that ‘appeal to the lowest common denominator’ improves sale of copies. If you have a monopoly in sale of copies you’ll want to maximise the number of copies you can sell to maximise revenue.

    And yes, it’s the people’s liberty that is legally constrained by copyright – the liberty to share and build upon it. There’s nothing wrong with people purchasing books and CDs and locking them up in their basement.

    And Stephan, I’ve just thought of a two digit number, and I own the knowledge of this number I’m thinking of. Pay me $5 and I’ll reveal this knowledge to you. The fact that I own this knowledge doesn’t constrain anyone else’s use of all two digit numbers. I could have thought of a limerick. I own the limerick. And again, obviously, my ownership of this limerick doesn’t constrain anyone else’s liberty to coincidentally arrive at a similar or indistinguishable limerick.

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