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"The enclosure movement continues to draw our attention. It offers irresistible ironies about the two-edged sword of 'respect for property,' and lessons about the way in which the state defines and enforces property rights to promote controversial social goals.
"I am not going to concentrate on the first enclosure movement here. It is worth noting, however, that while earlier scholarship extolled enclosure's beneficial effects, some more recent empirical work has indicated that it had few, if any, effects in increasing agricultural production. The tragedies predicted in articles such as Hardin's Tragedy of the Commons did not occur. In fact, the commons frequently may have been well-run, though the restraints on its depletion and the incentives for investment in it may have been 'softer' than the hard-edged norms of private property. Thus, while enclosure produced significant distributional changes of the kind that so incensed an earlier generation of critical historians, there are significant questions about whether it led to greater efficiency or innovation. These results are little known, however, outside of the world of economic historians. 'Everyone' knows that a commons is by definition tragic, and that the logic of enclosure is as true today as it was in the fifteenth century. Private property saves lives.
"We are in the middle of a second enclosure movement. It sounds grandiloquent to call it 'the enclosure of the intangible commons of the mind,' but in a very real sense that is just what it is. True, the new state-created property rights may be 'intellectual' rather than 'real,' but once again things that were formerly thought of as either common property or uncommodifiable are being covered with new, or newly extended, property rights.
"In 1918, Brandeis confidently claimed that '[t]he general rule of law is, that the noblest of human productions - knowledge, truths ascertained, conceptions, and ideas - become, after voluntary communication to others, free as the air to common use.' That baseline - intellectual property rights are the exception rather than the norm; ideas and facts must always remain in the public domain - is still supposed to be our starting point. It is, however, under attack. Both overtly and covertly, the commons of facts and ideas is being enclosed. Patents are increasingly stretched out to cover 'ideas' that twenty years ago all scholars would have agreed were unpatentable." |
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