Common as Air: Revolution, Art and Ownership

There is much to be admired about Lewis Hyde’s Common as Air: Revolution, Art and Ownership, which critically enquires into the intellectual and historical development of our current laws and practices dealing with intellectual property. His guiding thesis, that the public good should limit the duration of any monopoly by artist, inventor or thinker on his or her work, enables Hyde to retell certain historical episodes in a revealing way, and clear the muddied waters about individuality and ownership. There is more. Hyde speaks with the authority and voice of a philosopher and historian, yet with the gift of a public intellectual. These qualities ensure that the book’s reach extends to both scholars and non-specialists.

So what exactly is involved in an appeal to the commons? And how does it bear on intellectual property? Hyde is careful when providing responses to these questions, taking aim at conceptual biases that are reinforced by decades of individualism. Through a study of such figures as John Locke, Benjamin Franklin and Thomas Jefferson, he finds that much of European intellectual and legal heritage is actually founded on a notion of the public good, a stark contrast to our current over-valuation of the individual. Hyde argues that for general areas of technological and intellectual achievements which have the primary aim of benefitting the public, rights of ownership should be subordinated to the public good.

One of the more vivid cases is Hyde’s discussion of John Adams’ original protest against the Stamp Act of 1765, which was not against the idea of taxation without representation (as commonly thought) but against a levy which limited public access to knowledge. Hyde’s clarification of terminology is also useful; he points out early on that the original usage of the term “property” in legal parlance meant “a right of action.” This is a meaning so unfamiliar to modern ears that it verges on the nonsensical. How can an entity, such as a book, be a right of action? As property it enables one to perform various actions—to read (for education), to read aloud to others (for entertainment), to quote or reference (for research), to place on one’s bookshelf (for interior design).

A modern perspective tends to emphasise only the aspect of right as ownership and thus departs from the original meaning. A few of these differences that Hyde notes might help clarify. First, the right of action is an action in view of the public good; to own property is to participate in the civil conventions reinforcing such ownership. Second, right of action presupposes the use of and access to other property; to use a book, I need a place to do so—perhaps a house or library. Third, with respect to intellectual property, which cannot be exhausted like scarce material property, open access does not diminish or corrupt its availability.

All three of these points indicate that the functioning and flourishing of a community require both individual use of property and public accessibility. Enter Hyde’s argument that the inventor should be entitled to reap the benefit of his or her creation; however, because this creation relies on the work of predecessors and contemporaries and because the use of property presupposes the community at large and its conventions, the duration of benefits received should be limited. In view of this, the concluding chapters offer more practical suggestions involving copyright and fair use.

Regardless of whether or not one agrees with these suggestions, the author paints a rich landscape showing how our modern situation is too myopically focussed on individual gain at the risk of forgetting what any individual requires in order to exist. In doing this, Hyde’s book is as refreshing as it is thought-provoking.

Todd Mei