David Bollier

by Jonny Gordon-Farleigh, STIR magazine no.04, Winter 2014
by David Peter Kerr

The commons is an eternal idea that traverses political history but has now become a political identity again - combining computer hackers and indigenous farmers. 

Jonny Gordon-Farleigh: The Canadian Musician John Oswald said, “If creativity is the field, copyright is the fence”. Have questions around creative enclosure resuscitated concerns about land ownership and other commons?

David Bollier: It’s not just a matter of ‘creativity against copyright’, but the fact the internet has made more visible the fact that creativity is a field of sharing, and a collaborative, intergenerational affair. This shift has allowed us to step outside of the 20th century, so to speak, and helped us see how market norms have become so entrenched and normative. We can now begin to ask questions that would previously have made you a social pariah to raise. We can more clearly see the extensive marketisation of so many aspects of life today — not just creativity or culture, but land and water. This has accelerated a broader, richer cultural awareness of both enclosures and the commons. 

There are other factors. The market’s squeeze on human sensibilities have gotten tighter and tighter, making it inevitable that people would eventually resist and push back. This would have happened even without the internet. Part of our struggle, though, is finding a vocabulary to talk about the over-marketisation of life at a time when the left is intellectually exhausted or so state-orientated that is unable to step back and develop its own sovereign vision, one that is not utopian but pragmatic. For me, the commons is a framing vocabulary that helps us get a conceptual grip on a lot of core political issues whilst popularising them, and drawing upon history and legal precedents and enabling a penetrating political critique of market culture.

JGF: It is difficult to talk of the commons without referring to historical communism. How much does the modern commons movement owe to communism or is not relevant?

DB: Well, it can’t and shouldn’t be ignored but as a practical matter so much of the general public associates communism with a failed experiment. Is communism the co-operative activity that Karl Marx and other communists had in mind? Or is it what the Soviet Union did? Many people have trouble distinguishing this and in some ways you could argue that the word ‘communism’ has become so stigmatised that it’s difficult to use in a clear-headed way. 

I don’t think we should ignore communist history as there is a lot that is instructive, both in a positive sense and a negative sense. For myself, however, I’ve always seen the commons as a non-state directed activity in its primary form. That is the first way in which I’d distinguish the commons from communism. 

I might add that I am not a politically correct stickler for the commons vocabulary as the only acceptable one. I think there are clusters of histories and identities associated with the commons, from the co-operative movement, the communitarians and communism to the Degrowth movement, Social and Solidarity Economy movement, Transition Town movement, and so forth. It’s important to discuss differences, but I don’t think they need to vie for hegemony or become sectarian. I am a radical ecumenicist in that I think a diversity of approaches is helpful. Each approach has its place within different places, cultures and environments. However, I’d hate to see the word ‘communism’ become a snare for diverting discussion and sucking it into other people’s hostile terms of debate. I think that is a danger.

JGF: The commons is an eternal idea and the post-socialist malaise would be one predictable reason for its contemporary resurgence. What other reasons could you give for its new popularity as a frame of reference for political activity?

DB: There has not only been the failure of socialist projects, but also the failure of neoliberalism, especially since 2008. I think there is a growing awareness that we are adrift and don’t have any guiding vision for reconstructing society and improving our circumstances. One discovery has been that context matters a lot in finding a coherent way of conceptualising political culture and in talking about our individual roles in public life. This is complicated and I don’t fully understand how to describe it but, as I pointed to earlier, the internet has helped to dramatise the opportunity for co-operative and networked activity. This cultural awareness has migrated to ‘real world’ activity, such as the design and manufacture of physical things, ecological stewardship and the monitoring of resources. 

So I think in some ways we are recovering our self-confidence by starting to talk about co-operative endeavours, many of which were stigmatised and eclipsed when the Soviet Union still existed. At that time, especially in the US, you could not talk about co-operation or collective activity without it being conflated with communism and its supposed evil. The very idea of collective activity was vilified for so long that it seems we are now reemerging from that period and recovering our confidence in certain human capacities — again, enabled by the internet as a demonstration proof that another world is possible.

The commons is probably also growing because we live in a world where so many of the legitimate channels for political change have been corrupted or shut down. If you look at the Occupy movement, the Indignados, or the Arab Spring, you see that there are so few legitimate channels for changing the system. Many people have put a lot of hope in the commons as a staging area, or as a placeholder or intellectual scaffolding, for imagining and practicing a better way. Many commons-based innovations are quite feasible on a small or regional scale, but we haven’t seen, imagined or actualised them on a larger scale. 

At a time when so many systems of inherited thought and action are either discredited or not very credible, the commons is a pathway that lets people feel they have control to make their own way with others who share their interests and values. I see the commons as distinctly non-ideological. Philosophical or theoretical issues are secondary to “Does this feel right? Does this nourish me as a human being? Does it advance certain practical interests and needs I have?” In some ways that is refreshing after the fatal ideologies of the 20th century. People see the commons as a way to be serious but at the same time avoid being captured by totalistic thinking.

JGF: While there may be many thinkers attached to the ideas and practices of the commons, do you think we should be careful to avoid the monopoly that Marx has in relation to communism?

DB: I suppose that it is the paradox we have to deal with. Sometimes we want interpreters of political experience to become charismatic leaders, and they may in fact have genuine talents in organising. Still, I like to think that the commons, much like the Occupy movement, takes pride in not necessarily having no leaders but in having a breadth of leadership and in recognising the capacity of everyone to be a leader. I think that there are always going to be the Richard Stallmans of Free Software, for example. And don’t get me wrong – we need leaders. But we don’t have to bow down before those idols. I like to think that the internal dynamics of the culture of the commons make it less prone to be dominated by large personalities. Time will tell!

JGF: One of the major tensions in the global commons is the conflict between customary rights and formalised rights (those acknowledged in legislation). Should we work within the given game or try to change the paradigm? 

DB: That’s a great and complicated question that, I think, will take years to resolve. Some of us in the movement are thinking about how those who care about the commons can get recognised legal systems to either protect or facilitate commons. This is particularly difficult because the modern liberal polity doesn’t comprehend the commons. It is focused on individual rights, the state and representative democracy as the only legitimate vehicles for actualising collective interests. The idea of self-organised commons having their own standing in law simply does not compute. 

I think what needs to happen, at least for the mid-term, are legal hacks around the law — just as Creative Commons inscribed collective sharing within the property regime of copyright law; just as the General Public License has done the same for software; and just as land trusts try to use property law to create sharing regimes for land. I think we need to generalise some of those legal hacks. We need to be ingenious and creative in recognising collective interests that can be defended without the state. 

There are a handful of examples of this, which are either very historical or very novel. Historically, the companion document to the Magna Carta — the Charter of the Forest — enumerated and protected lots of collective interests, most having to do with personal household needs. Over time many of these interests were reinterpreted by market-based law and were either ignored or eclipsed and so today they have little standing in law. One that has survived is the public trust doctrine, which holds that the state cannot sell off natural resources that belong to the public. This is to say, there are some historical legal precedents that can be built on. I tried to do this in a collaborative effort with Professor Burns Weston, an international law and human rights scholar, in our recent book Green Governance: Ecological Survival, Human Rights and the Law. In the book we bring together some strands of historical law that could be used by commoners within the present framework of national and international law. This is one arena for moving forward and protecting the commons.

Another approach is simply outright legal innovation to give standing to our values. We see a lot of this in South America, particularly in Bolivia and Ecuador where they have recognised a plurinational self-governance in their constitution. This means they can recognise different types of people — indigenous or otherwise — in the nation-state framework. They have also innovated by recognising the rights of nature, which could really become a beachhead for creative legal innovations. There are groups in South Africa, such as Natural Justice, who have developed ‘biocultural protocols’, which are a set of legal principles that articulate the cultural values of indigenous peoples with respect to their land stewardship. They are trying to use these protocols to protect themselves from neoliberal trade regimes and assert sovereignty over the ways in which their communities interact with the land. 

I mention these examples because they are interesting innovations in law that we need more of. But we also need to be brutally honest with ourselves about the philosophical — one might even say the epistemological — difficulties in getting legal protection for collective regimes in the present nation-state system.

JGF: Some argue that Lawrence Lessig’s creation of Creative Commons is problematic because it merely builds on already existing copyright law. In some sense it is the use of proprietary law to protect non-proprietary things. Is this a case of politics being a matter of strategy and not morality?

DB: This may be the case, but we have to be prepared to acknowledge that we live within a particular political context. I’m familiar with the argument made by many idealistic leftists who consider Creative Commons to be a sell-out because it recognises copyright law and builds upon it. They also criticise Lessig for being too friendly with big corporations such as Google. So from the outset there were criticisms that Creative Commons and Lessig were not sufficiently critical of copyright and big record companies. 

I think this is a red herring because, as co-founder of Public Knowledge in 2002, a Washington advocacy group for copyright and internet issues, I was keenly aware that harsh condemnations of copyright alone could not move a political agenda. It could not persuade sufficient numbers of people to support change through the conventional channels. We needed to come to terms with that reality if we were to achieve anything. Creative Commons’ huge achievement was to create network-driven licenses that allowed entirely new constituencies to materialise. Moreover, it did this on a global basis in unexpected venues from open access scholarly publishing to Wikipedia to remix culture and so on. So whatever we might think of Lawrence Lessig’s politics, Creative Commons went on to have a life of its own beyond him and its founders. Is Creative Commons a less-than-pure critique of copyright law? Absolutely. Has it had more impact than those who just criticise copyright? Absolutely. 

I think we need to keep in mind that it’s important to be realistic and pragmatic while also being rigorous and principled. I would also say that while I’ve had some disagreements with some directions that Creative Commons has taken, the organisation been a landmark in catalysing lots of cultural reform that wouldn’t have happened otherwise. This history confirms that it can be dangerous to be too politically correct or absolutist because it’s not always clear how circumstances will change and evolve, and what unexpected opportunities will arise. I think it’s important to have philosophical and strategic debates but its also important not to be fixated on pure and absolutist ‘solutions’.

JGF: In his essay Shadow Work, Ivan Illich plainly asks: “How did a rioting proto-industrial crowd defending its right to subsistence become a striking labour force defending its ‘rights to wages’?” How would you answer this?

DB: It’s a good question. I’m going to have to partially contradict what I’ve just said in the last question about being realistic and pragmatic. The definition of ‘realism’ is a very collectively driven question. The organisers of the first Occupy encampment were surprised by the deep resonances of their protests and how quickly they spread — which is to say, the shared sense of what is ‘realistic’ rapidly changed. Unfortunately, the right to wage labour, a job, is seen as the only viable framework for progressive political struggle right now. It’s a mystery how we can make politics more visionary — for example, in focusing on the right to subsistence or on imagining everyday governance that trumps markets. I suspect any answers in the future will come partly through desperation, partly through bravery and partly through a given historical moment.

In any case, we have worked ourselves into a corner [focusing chiefly on wage labour] and we have to somehow work ourselves out of it. Nowadays I think people are far more likely to entertain visionary, bracing, ‘crazy’ ideas because the present political situation is just so dismal. Why not ask for everything since we already know that the present system is going to deliver so little?

I think there has also been a huge lack of courage in asking politics to address deeper human needs. This whole topic has been cynically marginalised. We have reached a point in the whole neoliberal project of commodification that it is not only expanding everywhere — public spaces, private information, consciousness, genes, water — but the progress that democratic political systems used to deliver is now being reversed. At one time organic farming used to be about a whole set of relationships to an ecosystem and within a community. Now organic food has become just a commodified label on a product that itself is being constantly degraded as companies lobby governments to set lower standards for what organic means. 

This corresponds to what we’ve seen politically — a steady constriction of what is seen as ‘realistic’ and possible. It’s what Illich meant when he noted that our broader sensibilities about ourselves and humanity have been narrowed into a strict political frame that defines us as only wage-slaves and consumers. And even within this frame, the system is shrinking our freedoms and entitlements. We are getting so tightly squeezed that we have no alternative but to be ‘unreasonable’ and demand that we be allowed to be human beings.

David Bollier is an independent commons scholar, cofounder of the Commons Strategies Group and blogger at He is the author of twelve books, including the forthcoming Think Like a Commoner (New Society Publishers) and the 2012 anthology co-edited with Silke Helfrich, The Wealth of the Commons (Levellers Press).

We need to be ingenious and creative in recognising collective interests that can be defended without the state.

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Published in STIR magazine no.04, Winter 2014