Poet and scholar Lewis Hyde has been writing about the commons for over thirty years. His first book, The Gift (1983), is regarded as the modern classic on Creativity and the Artist in the Modern World–the 25^th anniversary edition’s subtitle. His new book, Common as Air, directly addresses the cultural commons, and could hardly be more relevant to understanding at a deep level the work of Creative Commons.

I’ve taken this opportunity to ask the author a series of long-winded questions about the commons. Many thanks to Lewis Hyde for his forbearance in answering, and for the great inspiration he has given to many who support Creative Commons, and the commons writ large!

Your first book, The Gift, evinces great concern for the cultural commons, in some cases (e.g., commentary on science) very explicitly in language recognizable to current movements that share such concerns. You were probably writing The Gift at about the same time Richard Stallman was becoming what we’d now recognize as a free software activist. Having been a Berkman fellow for a number of years and writing about free software, Creative Commons, and related movements in Common as Air, you’ve obviously been aware of these movements for some time. When and how did your path first cross with one of these movements?

My book is dedicated to my late father, by profession a physicist with a specialty in optics. As the dedication says, it was he who first told me about “Dollond’s case,” an eighteenth-century patent dispute involving telescope lenses in which Lord Mansfield ruled that ownership of an idea belonged not to the person who kept his invention secret but to the person “who brought it forth for the benefit of mankind.”

The point being: for a long time I’ve been aware of the commons narrative in regard to ideas and for a long time I’ve thought of something as old as patent law as being among the methods we’ve devised for moving potentially private knowledge into the public sphere.

As for the more specific modern innovations in this line, I had a vague awareness for a long time but the fight over copyright term extension in the mid 1990s managed to focus my attention. I wrote an essay–“Created Commons”–arguing against such extension; I was co-signatory to one of the amicus briefs in the Supreme Court case, Eldred v. Ashcroft; and I was present on the day that Lessig argued for Eldred before the Court. I consequently watched with attention and admiration as Creative Commons came to life in the years following.

One sentence in particular in The Gift presages current free software and free culture practice: “A gift community puts certain constraints on its members, yes, but these constraints assure the freedom of the gift” (p 107). This sounds exactly like the copyleft mechanism of the GNU GPL–the requirement that an adaptation be distributed under terms offering the public the same freedoms offered by the source work. In Common as Air you argue that copyleft would be better described as copyduty, reflecting that rights come with responsibilities. Two questions concerning this. First, the GPL is often described as a key innovation in the history of free software–clearly it is, but I wonder if its typical description doesn’t seem a bit taken out of history, not cognizant of antecedents in gift cultures nor of the likelihood the precise mechanism would have been invented in a similar time frame had Stallman never become a free software activist? Second, the copyleft mechanism is known as ShareAlike in the Creative Commons license suite–how do you think this terminology comports with your explanation of copyduty?

It is surely the case that the GPL has antecedents in gift cultures. As I explain in The Gift, one old ethic asks that gifts be “kept in motion”; they ought to be passed along in the same spirit with which they were received. Put another way, in a gift culture one is not supposed to capitalize on the generosity of others or of the community.

That said, such ethics belong to custom rather than law; the wit of the GPL was to give legal footing to the gift ethic of the software community. As for antecedents in that line, I note in Common as Air that I found one other example of a gift norm that got grounded in law: Pete Seeger and his friends secured the copyright on “We Shall Overcome,” then set up a trusteeship to donate the money earned to support “African-American music in the South.” That trusteeship has a “claim and release” structure not unlike the one built into the later GPL.

As for links between the Creative Commons license suite and my sense of copyduty, I’m not sure these need be limited to the “Share Alike” option. Many are the duties that arise from a person’s sense of both self and community. One might, for example, feel a duty to contribute to the public domain with no strings attached, in which case “copyduty” would be best expressed by the CC0 tool. That was Benjamin Franklin preferred mode, by the way. He believed that any claim to own his ideas and inventions could only lead to the kind of disputes that “sour one’s Temper and disturb one’s Quiet.” He never took a patent or registered a copyright.

Each of your three prose books concern keeping various aspects of society “lively”, through the circulation of gifts, transgressive art (Trickster Makes This World, 1997), and the cultural commons. Furthermore, the mechanisms required to maintain liveliness change with the overall environment (e.g., The Gift’s portrayal of usury as vice within a tribe, necessity for commerce with strangers) and can have the effect of changing or destroying a settled order (as primarily told through myth in Trickster). I don’t get a sense from Common as Air of the trajectory of the cultural commons in these dimensions–something to feel loss over (such as perhaps close knit tribal groups and pre-enclosure land commons) but never to be dominant again or something ascendant, and if the latter, something that will be digested by the current cultural order, or something that will replace the current order?

The question calls for a bit of soothsaying or prophecy and that makes me think of a remark of Foucault’s cited at the end of Trickster: “I’m no prophet. My job is making windows where there were once walls.” Are the cultural commons doomed to enclosure, or will they thrive and therefore alter (or replace) the current landscape? Hard to say! What I’ve tried to do in the book is describe, as clearly as I can, the cultural tensions we now live with, believing that clarity is the precondition of action, however action itself eventually plays out.

That said, for a thoughtful survey of how the commons, cultural and otherwise, might thrive inside of, or along with, with current conditions I recommend Peter Barnes’s book, Capitalism 3.0: A Guide to Reclaiming the Commons. One of Barnes’s points is that our debates about the future often imagine only two actors: the government and private business. Barnes suggests a third set, common property trusts (as, for example, the kind of land trusts devised by the Nature Conservancy). There is much to say about common property trusts but for now the point is simply that we already have a mix of cultural modes and should continue to have them going forward with, I hope, the commons recognized and strengthened.

You emphasize in Common as Air that maintaining a commons requires regular “beating of bounds”–for pre-enclosure land commons this involved destroying private encroachments such as fences and cultivation, often with a merry-making and somewhat extralegal components. Preserving the cultural commons necessarily takes a different kind of bounds beating–proprietary bits can’t be “destroyed”, nor must they (patents on math, genes, and other discovered as opposed to invented things, which you dub the third enclosure, might be an exception, as they do fence off areas from the commons). I can imagine at least three different cultural commons bounds beating activities: (1) Building up and expanding the bounds of the cultural commons, sometimes (perhaps increasingly) out-competing proprietary culture (Wikipedia and free software running the internet infrastructure being the obvious examples). This is obviously the strategy of Creative Commons, the free software movement, and similar–and a truly wonderful thing in that it relies entirely on construction rather than destruction. (2) Pushing back when the commons is threatened, e.g., fighting diminution of fair use and other exceptions and limitations, something which groups like the EFF do with some success. (3) Pretending to ignore the current order altogether (except when thumbing one’s nose at it), i.e., unauthorized sharing, especially the self-conscious pirate movement. I am a little surprised Common as Air does not address the third, given it is the clearly extralegal and putatively destructive option–at least superficially most like beating the bounds of a land commons. Surprised but not upset–I suspect that unauthorized use competes with building of voluntary commons, serving as a marketing and price discrimination mechanism for proprietary culture. What is your take on each of these three as bounds beating for preserving the cultural commons, and are there others I’m missing?

You offer a good summary of ways to enlarge and protect a cultural commons. I don’t have much to add except to expand on your third category a bit. It isn’t entirely true that Common as Air avoids addressing the piracy / unauthorized use option. After all, there’s a whole chapter called “Benjamin Franklin, Founding Pirate”! When Franklin ran away from his Boston printing apprenticeship, he broke the law and, in a sense, “stole” the craft knowledge that his brother had been passing on. More to the point, when Franklin was stationed in France after the Revolution, he encouraged British artisans to ignore their country’s anti-emigration laws and bring both machinery and know-how to America–clear acts of piracy from the British point of view.

Elsewhere in the book I discuss the fact that, in the eighteenth-century, Scottish “piracy” of books that London booksellers thought they owned outright triggered the legal battles that arose around the first copyright laws. It took about fifty years to sort that out at the end of which it became clear that the Scottish booksellers were not pirates at all; the London booksellers, rather, were monopolists hoping to fence off the public domain. Here as elsewhere the charge of “piracy” was in fact a harbinger of an enlarging commons.

In Trickster (p. 130) you say that among ways of acquiring things (make, buy, receive, steal, find) the last is the odd one out, for only it is accidental. However, for anyone who lives much of their life on the net, “acquisition” of intangible goods through “finding” is natural, intentional, and perhaps even dominant. In both Trickster and Common as Air (p. 202) you tell the story of a baby Krishna–“who when asked by his mother if he has stolen butter from the pantry, answers with a question of his own: ‘How could I steal? Doesn’t everything in the house belong to us?'” It strikes me that so-called digital natives, culture, and the net are akin to the baby Krisha, butter in the pantry, and the Krishna household, respectively–“How could finding and using any culture on the net be stealing? Doesn’t all culture belong to us in common?” It seems that to the extent there is a vibrant voluntary cultural commons to draw from, the tension between “finding” and “stealing” is obviated. Further, I wonder if “finding” is not the means by which “receiving” scales–gift-giving and -receiving via mechanisms like Creative Commons licenses tend to happen asynchronously, globally, and often with no further relationship between the parties–all in contrast with traditional gift cultures. Thoughts on the sanity (or perhaps mere inanity) of these extrapolations?

You touch on what I think of as the link between the book on gift exchange to the one on trickster figures: the Greek word hermaion means “a gift of Hermes” and is usually translated as “lucky find” or “windfall.” It is the gift that comes out of nowhere; it is an odd sort of gift, then, carrying with it none of the social obligations often associated with gift exchange.

There is a hidden problem in the gift book: much gift exchange takes place is communities with a strong sense of in-group and out-group. Gift giving may be a wonderful thing, but what if you happen to be in the out-group? What if all the scientists are men and they don’t share their data with the women? In the Greek stories, Hermes is potentially in the out-group (an illegitimate child, etc.) and he begins his relationship to the gods by stealing Apollo’s cattle (pirate!).

Well, there’s much to say about all of this–it’s all in those two books. Here let me just say that digital copying and the internet have created a kind of neo-Hermetic space in which many things “happen” outside of any domesticating or ethicizing container. The rules are not clear. Then we get these polar camps: amateur anarchists on the one side, who happily believe we need no rules, and old guard “intellectual property” purists madly trying to enforce and sharpen the rules that worked so well back in 1965. What Creative Commons and others are doing is trying to enlarge the middle ground.

The basic trope–or mischief, as you put it–of Common as Air is a comparative study, a method far too little used, in particular with respect to copyright. Your points of comparison (among many others possible: you mention “children in China”, and “during the Protestant Reformation” as examples) are the 1700s, primarily in the core areas of the United States and colonies that formed it, and current claims about cultural ownership. The critique of current copyright that falls out of such a comparison will be familiar to many readers involved with Creative Commons. However, you tell another story as well concerning changing attitudes not just about cultural ownership, but about culture, and public life in general, across the 1700s and 1800s–could you say a bit about that arc, and perhaps what current cultivators of the cultural commons might learn from it?

The main thing I might add, not fully rehearsed in the book, is the point that Neil Netanel makes in a Yale Law Journal essay, “Copyright and a Democratic Civil Society.” Put simply, in the eighteenth century, at least, if you wanted a civil society that could stand free of the government, the aristocracy, and the church, then you would welcome the rise of an “intellectual property” market. Independent authors, publishing houses, newspapers: all these appear as a print market arises. And right now, of course, we see many of them struggling as that market is undermined.

The Washington Post just published a fine account of the pervasive post-9/11 secret intelligence establishment: who will have the money (and therefore the time and resources) to do that kind of journalism if newspapers like the Post can find no business model fitted to the digital future? Here again we need more thoughtful work in the thinly populated space between the amateur anarchists and the old guard IP purists.

I should leave well enough alone, as you earlier answered that Creative Commons and others are trying to enlarge the (thinly populated as yet) middle ground. That is positioning we like. However, (1) I had in mind another shift occurring across the 1700s and 1800s–very coarsely, from the conception of great people as building on the work of others, with concomitant responsibility to society at large, to the conception of great people as singletons, with no responsibility but self-aggrandizement. In Common as Air you wonderfully note this shift in the changing public narrative about Ben Franklin during and after his life. (2) Does not your answer “money (and therefore the time and resources)” privilege the default argument of “old guard IP purists”? Though business and money are crucial, time and resources may flow from non-pecuniary sources–“cognitive surplus” is a newfangled term for one such source; you’ve described many others. Learning how to fully leverage such sources may be just as important to society as new “business models”–and would seem to be a major determinant of how big of a role the cultural commons has to play in this world. To wrap up, I wonder if you have thoughts on any causal relationships in either direction between popular conceptions of how innovation occurs (by accumulation of knowledge and widespread collaboration, or singularly great and self-aggrandizing individuals) and how innovation is pursued (with or without sharing) and the implications of such?

You are right that I answered in terms of “money” and “business” and you offer one of the useful ways to widen my response–to include all the non-monetary ways to tap time and resources.

I am obviously someone who cares about gift-exchange and sharing in the creation of knowledge and culture but I am also a bit of a contrarian and thus find that sometimes I want to underline the complications that necessarily arise around gift-exchange in our current situation.

In Common as Air I devote some space to the publicly financed part of the human genome project. It makes a good example of an enterprise undertaken in a non-commercial spirit. At the same time, in the background one needs to recognize that funding came from the public purse (in the U.S.) and private philanthropy (the Wellcome Trust in England). Behind each of these lies “money” and “business” (a pharmaceutical empire behind Wellcome, for example).

That said, the Internet has produced modes of production we could not have imagined 25 years ago. Yochai Benkler seems to me to be doing some of the best work on tracking these and suggesting future possibilities. We should keep ourselves open to surprise.