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Privatisation and the public domain

by Brewster Kneen
The Ram's Horn

(Thursday, May 27, 2004 -- CropChoice guest commentary) -- Once upon a time, the public domain was very large and very diverse. In fact, it probably accounted for most human activity and organization. Private property was very limited -- little more than a knife, a cooking pot or two, some clothing and maybe a goat. Over time (to make a long story very short) people began accumulating possessions -- some more than others -- and the concept of 'mine' and 'yours' took on greater meaning. As disparities in the distribution of wealth and property deepened, these possessions began to require 'protection'. With the industrial revolution and the rise of a materialist culture in what we now call 'The West,' property gained increasing prominence as the measure of success and the concept was extended to inventions and non-material ideas. Then came the drug companies, the software companies, the giant media corporations... and the World Trade Organization and its TRIPS agreement.

Of course it all took a long time and was considerably more complex than this!

The domain of private property -- and privatization -- did not expand without cost, however, and the cost was paid by the public domain, which was steadily eroded and enclosed to create more private property. A good illustration of this is the replacement of the public commercial-social-cultural-political space of the market square with the private, commercial-only space of The Mall.

(The 'first enclosure' was the enclosure of village commons by the feudal lords in Britain. The process began around 1700, and 4,000 Private Acts of Enclosure had privatized some 7 million acres of commons before the Great Enclosure Act was passed in 1845, bringing an end to the economy of the commons upon which the welfare of the peasants depended. Deprived of their commons for growing and raising their own food, they were forced to provide the cheap labour required by the Industrial Revolution.)

The culture of commodification and exploitation for private gain has systematically diminished the commons and the public domain not only in tangible goods such as public services, utilities, and public spaces such as parks and even highways, but also in the intangible goods of ideas and information, now increasingly referred to as Intellectual Property.

It is essential to recognize, however, that Intellectual Property is a social construct, dependent for its meaning, legality and application on a strong central government and a legal system willing to enforce and extend the domain of private property at the expense of public good. Of course, there is a contradiction here when 'government' is systematically reviled and its social justice and social welfare mandate is degraded and deconstructed.

Despite their dependence on a strong state, personal and corporate greed have become the unquestioned drivers of the economy, with the assumption that humans are motivated only by the prospect of acquisition, and that progress results solely from increased production and consequent economic growth. Any semblance of a common/public property regime is simply a block, if not an enemy, to wealth and progress.

While the granting of patents on plants, seeds, genes, gene sequences, ideas, data and information has accelerated dramatically in the past decade, proponents of the public domain, public good, the commons, and community life seem to have been unable to gain any significant leverage on the institutions of domination and exploitation.

One problem may be a lack of clarity on the basic concepts. We seed to recognize three quite distinct categories of property and space -- private, common and public. (See also Ramshorn #213)

'Private' is easily understood as belonging to a person or a family, however, since a corporation is a legal 'person', corporately-owned property and space is considered just as much private as your domicile. The shopping mall is perhaps the most obvious example of the both the property and the space within it being privately -- that is, corporately -- owned. It pretends to be public space -- and deliberately sets out to create the sense of a village square, but political activity and anything that might interfere with commerce is excluded. In fact, children growing up in the malls are deprived of any sense of the politics of public life along with an understanding of 'commons.'

The term 'commons' is wrongly used to describe what is considered as public. This misrepresentation can be attributed to Garret Hardin and his 1968 essay, The Tragedy of the Commons, in which he set out to demonize the concept of commons in order to finish off any notion of public interest or public good, and with it any positive connotations for public property and space. In reality, commons historically referred to property and space that was 'owned' communally -- by a group of fisherfolk or a village, for example -- and managed for the long-term good of the group, including succeeding generations. Access to the property and space -- fields, fishing grounds, forests -- was limited to the group 'owning' and managing it. It was not open to exploitation by outsiders, though limited use of the space could be extended by the group to 'outsiders.' Thus a well-defined fishing area might be closed for fishing to all but the 'owners' while still permitting everyone to swim or paddle in it.

The public domain, on the other hand, is open to all, but that does not mean a 'free for all.' Access may be denied to those who refuse to play by the rules governing use of the public space and 'property.' Roads and parks are good examples: anyone can use them, but the rules of the road must be obeyed, and are usually enforced by agents of the 'state'-- police of one sort or another. Village greens and market squares have also been socially and politically vital spaces for communities. (In British Columbia, the current 'Liberal' regime has violated its public trust regarding public spaces by simply ignoring maintenance in many small provincial parks, firing most of the provincial park rangers and privatizing park management.)

The corporate grab for 'genetic resources' -- plant, animal and human -- is being called "the second enclosure" by activists around the world who have been battling for farmers rights, retention of their seeds in their village commons and the recognition of traditional/indigenous knowledge. The public relations firms responsible for corporate image-making prefer to hide this reality behind language about 'the common heritage of humanity.'

The social, environmental and personal costs resulting from ownership claims and privatization are increasingly visible and the moral and commercial claims made for privatization and private property are increasingly flimsy. What we need now is a vehicle for a broad public discussion about the theory and practice, merits and consequences of privatization and intellectual property regimes.

Canada, at this time, occupies a unique position on the issue of patenting life forms. The Canadian Intellectual Property Office has consistently opposed the patenting of higher life forms and the courts, up to and including the Supreme Court in the oncomouse case, have taken the position that if Parliament wants to change the patent act to allow such patents, it is up to Parliament to do so, and it is not the role of the courts or the patent office to interpret existing legislation to suit purposes its framers could not possibly have foreseen. (The judgement of the Supreme Court of Canada in the Schmeiser vs. Monsanto case is still outstanding).

In the meantime, there are strong, well-financed interests, particularly the drug and biotech industries, pushing to enclose ever more of the public domain through intellectual property claims. A strong public voice is essential if the public domain is to regain its health and strength.

The Forum on Privatization and the Public Domain

In light of all this, we are circulating a proposal to create a public voice -- The Forum on Privatization and the Public Domain (P&PD) -- on the full range of issues raised by the relentless expansion of what are considered to be patentable products, processes, discoveries, inventions and appropriated goods, or what is commonly referred to as intellectual property, and the instruments of privatization, particularly patents and copyright. This advancing domain stretches from seeds to software, from drugs to human genetic material, from Traditional Knowledge to poetry and music.

This is a huge task, and will require full-time, dedicated staff and appropriate funding as an independent non-profit organization. The Forum will be the focal point and clearinghouse for documentation on social, economic and legal aspects of intellectual property and related issues via electronic and print media. It will develop a base of speakers and resource persons for meetings, conferences and consulting. It will engage in public education and analysis on current issues and alternatives to existing intellectual property and privatization practices such as open source software and creative commons, and to current R&D funding practices in health care and agriculture.

The Forum will produce a monthly newsletter/ (paper and/or electronic) both for educational purposes and to build the network of interested citizens (the public voice). As appropriate, the Forum will raise this public voice to address matters of current importance. A listserv, the Forum on the Patenting of Life/Forum sur le brevetage du vivant, is already in place. (To be added to the list, send a brief self-descriptive message to Devlin Kuyek: devlink@sympatico.ca)

To get this off the ground with staff and communications capability, we need $100,000-200,000. We are in the process of developing a notable 'steering committee' to oversee the project in its initial stage and to give it visibility. If this project is something that you would like to be part of in some way, or would like to support financially, or if you know of someone who might be able and willing to make a substantial tax-deductable contribution, please do let us know.

Contact Brewster: brewster@ramshorn.ca
phone: 250-675-4866,
mail: S6, C27, RR #1, Sorrento, BC V0E 2W0.

This article appeared in edition number #220: April/May 2004 of The Ram's Horn, online at http://www.ramshorn.bc.ca