Subtle But Effective: Modern Forms of Enclosures

Hervé Le Crosnier

The history of the commons can be read as the expansion of the market sphere and of private decision-making over goods that hitherto were subject to common rules. From this point of view, the late 20th century technologies are double-edged: They have made it possible to expand the commons by offering new modes of regulation, favoring the non-market sphere and creating new opportunities for human activity, particularly in cyberspace.1 Yet they can also empower private control over common resources, especially in the living world and the biosphere.

Some have thought that the expansion of digital commons was inherent in the very nature of the goods in question. Digital information–reproducible ad infinitum at a marginal cost of zero – could be the very symbol of an inalienable public good. The development of new infrastructure for miniaturizing material production to create even more digitally driven devices (3D printers, programmable machines tools, etc.) is expected to drive a similar phenomenon in manufacturing. The self-reproducible capacity of living beings2 made it appear to be the ultimate commons available to be shared by all humankind, to develop new foods, medications and environmental services.

Yet if one views the commons as the social organization of the maintenance of resources that can be shared by communities of actors acting in concert, one may see many new threats to both the commons and nature. Private control over living beings is now reaching into the deepest levels of people, plants and animals, i.e., their DNA. The same impulse to implant “code for control” is also being implemented deep inside the new digital commons. To understand the nature of these threats in the “knowledge-based society” and the means for combating them, we must define the angles for analyzing these new enclosures, their effects, and their weaknesses.

The commons are still facing enclosures

One can distinguish three categories of threats to the commons. First, those that loom over common-pool resources themselves; second, those that threaten the communities that have constructed and now maintain these resources and organize their shared use; and finally, threats to the very activity of commoning.

Common-pool resources may be degraded by pollution, over-exploitation, or even not being used for a collective good (the “anti-commons”).3 Free riders may use resources without helping to maintain them. Such threats to the resources themselves exist with respect to the new emerging sectors. A commons such as Wikipedia is easily subject to different forms of “pollution,” such as dishonest articles, propaganda and distortions. This demands constant attention and considerable energy from the Wikipedia community to take note of, monitor, and correct such cases of pollution; it is energy drawn away from the capacity to construct an even more complete encyclopedia. Similarly, the commons of world scientific research may also be contaminated by fraud, which erodes collective confidence in the research while boosting the careers of deceitful researchers. Deceptions may at times lead the scientific community to pursue dead-end lines of research and ignore more promising research priorities.

The threats to the commons are also threats to communities, their existence and their ways of life. The dispersion of communities, generally due to violence, is the main form of attacks on the commons. One could even apply the term “petro-violence” to designate the ways in which the mad search for fossil fuel hydro­carbons has destroyed the environments of peoples living on oil-rich lands. With the new technologies for prospecting for water tables, or exploitation in difficult conditions such as under the Arctic, or in the great depths of the seas, this petro-violence seeks to capture global common-pool resources for its own profit. The disastrous experience of the explosion of the Blue Horizon oil platform in the Gulf of Mexico in 2010 – which has imperiled the marine ecosystem as well as the coastal economies (very low shrimp production in 2011) – illustrates this point.

Communities may also be victims of internal conflicts provoked by enclosures. Biopiracy is a major example of this phenomenon. It is very difficult to designate an identifiable “community” that can be said to “own” knowledge described as “traditional” – for example, cultural knowledge about the medicinal properties of a plant. Such cultural knowledge is constantly being circulated, and no border has kept people from transmitting their wisdom to one another. Yet rules negotiated at the World Intellectual Property Organization (WIPO) propose a model for distributing benefits that would assign rights to “communities” that possess “traditional knowledge,” two terms that are difficult to define in legal terms.

When nations and corporations therefore try to introduce notions of “intellectual property” to indigenous communities that find the concept alien, even when defined as “traditional knowledge,” it can provoke internal community conflicts. The same can be said of current so-called land grabbing now occurring internationally, especially in Africa, when communal lands are sold by the village leaders to large foreign companies, speculators and even states, to the detriment of the prior collective uses.

Indigenous communities refer to their existence using the term “peoples,” a term that has been recognized by the United Nations. There is a major danger of ignoring the acquired forms of representation in order to leave it up to the appropriators to choose and designate a “restricted” group of actors with whom to negotiate the exploitation of their knowledge. Then, the limited returns to those who possess knowledge induce suspicions and internal wars, ultimately destroying the forms of solidarity that had been part of a community’s way of life.4 Sometimes outside actors – corporations and states – seek to buy off certain major actors in the communities to get them to work outside the collective circle. One encounters this phenomenon in both the traditional communities and in networked communities such as developers of free software or university researchers, who often sell their community-derived expertise to large proprietary software companies.

The threats to the very activity of creating and maintaining the commons – “commoning” – often occur when laws external to communities are imposed on them. For example, when the patent offices of the United States and Japan allow information and technology companies to take out patents on software or business methods, as they have since the 1980s, they limit the possibilities for the open exchange of code, algorithms and knowledge within the community of free software developers. This means that there will always be a patent to hinder the use of a method or protocol, especially since patents are often formulated in general and very vague terms. Patents can override community rules that developers have adopted, such as the General Public License, which had previously assured the sharing of computer code.5

Commoning is also hindered when that which belongs to everyone, or which was not appropriable by anyone, becomes a marketable good. The growth of mass tourism, for example, has dealt blows to landscape management practices. When researchers or their universities can take out patents, and indeed when they themselves are interested in marketing their research instead of transmitting it in disinterested fashion to students or society in general, knowledge, whether traditional or emerging from public laboratories, can no longer be shared and serve larger global interests.6

The sources of the new enclosures

Threats to the commons often fall into the following three categories: legal restrictions, technological interventions, and economic decision-making.

The laws favoring enclosures come from outside the communities, and are imposed on them by virtue of the political organization of the world, and through multilateral negotiations. This was quite clearly how “colonial laws” dispossessed the communities of the dominated countries. Today international laws and regulations concerning “intellectual property” often play the leading role, with all the ambiguities with which this term is fraught.7

Enclosures may also be animated by new technological discoveries and inventions. The appropriators install locks “inside” the shared resource in order to limit its capacity to be shared or to be reproduced at a low cost, so that it must be purchased. Digital Rights Management systems (DRM) are the very symbol of such enclosures by means of technology. The publisher of a digital resource in a DRM decides how a work may be used, often to the detriment of collective uses (libraries), the specific situations of the buyers (requiring that one buy or use certain machines or software), or hitherto legal forms of sharing (private copying). Once encryption is designed into the governance of a resource, one can no longer turn to the courts or social norms to settle the shared use of a resource; rather, its sharing is governed directly by the need to possess a key for de-encryption, which ties the user to the producer. It is this relationship of dependence on producers that recent copyright laws seek to reinforce (the European Union Copyright Directive in Europe, the Digital Millennium Copyright Act in the United States, etc.).

This model of locks built into resources is in the process of taking over the world of living beings: first with genetically modified organisms, or GMOs, which are a “property marker,” but especially by Genetic Use Restriction Technologies, or GURTs, which block certain traits in plants that can only be made operational again by adding a chemical product.8 “Terminator” procedures, which block the reproductive capacity of plants, are one application of GURTs. Still other new forms are expected to emerge and further subjugate agriculture to the providers of modified seed and the corresponding chemical product. If successful, GURTs will call into question the centuries-old logic of sharing seeds and cuttings, not to mention possible military applications.

New business practices are also enclosing the commons in novel ways. Industrial agriculture, for example, is attempting to consolidate landholdings, which often takes lands that commoners have used for generations. It is also producing calibrated fruits and vegetables, which require that one purchase certified seed, which in turn require the purchase of specific chemical inputs. This disrupts the traditional model of seed exchange used by village communities, which has guaranteed biodiversity in the peasants’ fields and adaptation of crops to specific localities.

The very success of certain practices in commons can paradoxically be threatening because they attract new types of users who do not share either the goals or the common experience of the first communities of users. One example are newcomers drawn to free software because they need not pay but then behave like consumers rather than user-contributors by failing to exchange knowledge and reinforce the community. Another example are tourists, whose commercial visits modify the structures of village relations and encourage seaside construction to the detriment of the mangroves. The outside wealth brought by tourists can contribute a new ruling class and erode the ways of life and local access to natural resources. Organized mendacity, where children can get tourists’ money easily instead of going to school, becomes an economic activity that supplants work in the commons.

The processes described above are just some of the new forms of enclosure that threaten the commons in a world dominated by technology and in which international relations are marked by stark inequalities. These new enclosures affect both commons tied to nature and those directly produced by communities of exchange and sharing, especially in the digital domain. With technology replacing barbed wire, the forms of enclosures have become more subtle and less visible. Yet the logic of destruction of communities and new limits imposed on collective practices and commoning, remain the same as in the long history of enclosures of land.

  • 1. See especially the essays by Christian Siefkes, Josh Tenenberg, Michel Bauwens and Franco Iacomella.
  • 2. See, for instance, Roberto Verzola’s argument in the conversation about abundance in nature.
  • 3. See Michael Heller’s essay on the “tragedy of the anti-commons.”
  • 4. Julie Duchatel and Laurent Gaberelle, eds. 2011. “La propriété intellectuelle contre la biodiversité? Géopolitique de la diversité biologique.” CETIM. 217.
  • 5. For more details on the GPL, see Christian Siefkes’ essay.
  • 6. A concrete example is examined by Christine Godt, Christian Wagner-Ahlfs and Peter Timmermann in Part 5.
  • 7. Beatriz Busaniche discusses intellectual property rules in the framework of the international trade agenda in Part 2.
  • 8. See P.V. Satheesh’s essay on genetically engineered crops in India in Part 2.