Saturday, January 21, 2012

An Enclosure Movement for the 21st Century

"Enclosure" is a term that refers to the parcelization and privatization of "the commons," i.e., lands previously open to all "commoners" to graze livestock, hunt wildlife (within legal limits), and gather peat, wood, and other resources. The commons were enclosed in order to create incentives for greater economic production (as many economist historians including Douglass North and Deirdre McCloskey have pointed out), but also to consolidate political power in a small group of large landowners, who were well represented in the various parliaments that passed "inclosure acts." As the great Marx-ish social historian, E.P. Thompson wrote in Whigs and Hunters (1975), p. 261, n. 3,
What was often at issue was not property, supported by law, against noproperty;it was alternative definitions of property-rights: for the landowner,enclosure; for the cottager, common rights; for the forest officialdom,'preserved grounds' for the deer; for the foresters, the fight to take turfs. For as long as it remained possible, the ruled - if they could find a purse and a lawyer - would actually fight for their rights by means of law; occasionally the copyholders, resting upon the precedents of sixteenth-century law, could actually win a case. When it ceased to be possible to continue the fight at law,men still felt a sense of legal wrong: the propertied had obtained their power by illegitimate means.
As I wrote many years ago in an article about Thompson's conception of the rule of law, which he articulated as an afterward to Whigs and Hunters, "[t]he enclosure laws took away property rights - specifically, common-use rights - from those who traditionally had foraged and grazed their animals on the commons, and gave those rights to other, politically powerful individuals who already possessed a great deal of property." Daniel H. Cole, "'An Unqualified Public Good:' : E.P. Thompson and the Rule of Law," 28(2) Journal of Law & Society 177, 180 (2001).

This past week, the U.S. Supreme Court upheld legislation with precisely the same effect in Golan et al. v. Holder, 2012 U.S. LEXIS 907 (2012) (full opinion available here). In a 6-2 decision (Justice Kagan did not participate in the ruling because she had worked on the case as Soliciter General before she joined the Court), the Court upheld section 514 of the Uruguay Round Agreements Act, 17 U.S.C. sec. 104A, 109(a), which sought to improve US compliance with the Berne Convention for the Protection of Literary and Artistic Works (in effect since 1886) by expanding US copyright protection to works that have long been in the "public domain" under US law. Traditionally, the US only recognized intellectual property of foreign writers and artists if their works were published in this country or their home countries granted reciprocal rights to US writers and artists.

The Court's ruling is just the latest example of its unwillingness to set limits on the intellectual property rights under the Copyright Clause (see Eldred v. Ashcroft, 537 US 186 (2003)), and is already being criticized by constitutional and intellectual property scholars (including my IU colleague Gerard Magliocca, from the Robert H. McKinney School of Law in Indianapolis, here). Effectively, the Court held that Congress can take remove works from the public domain, giving their creators monopoly property rights, thereby raising the cost of use by others, including the symphony orchestras and individual musicians who were among the petitioners arguing that the law was unconstitutional. The named petitioner in the case, Lawrence Golan, is a Professor of Music and conductor of the symphony orchestra at the University of Denver. His long and ultimately unsuccessful battle against the Uruguay Round Agreements Act is chronicled here, in an article that also clearly explains what was at stake for musicians, scholars, and students in the US.

It is difficult to see how such a Uruguay Round Agreement Act furthers the purposes of the US Constitution's Copyright Clause (Art. I, sec. 8) which gives Congress the authority: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The progress of science and useful Arts cannot possibly be promoted by the post hoc granting copyrights to writers and artists whose works have long been in public domain and who are long dead. It seems unlikely that Stravinsky, Virginia Woolfe, or Picasso will be taking advantage of the new incentives Congress has created for them. But their estates and descendants will profit at the expense of artists, musicians, and students in the US. Meanwhile, the Act does nothing to increase protections for current or future generations of artists, composers, and writers. The effects are purely redistributional, and in ways that do not obviously improve social welfare.

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