Last month, an interesting article on Jean-Luc Danneyrolles was published (in French) on the site Reporterre. Danneyrolles is the founder of “Potager d’un curieux” (The Curious One’s Garden), a place in the Vaucluse region of France which is dedicated to the preservation and promotion of free seeds. In particular, the article explains the obstacle course this farmer had to cross in order to have his activities accepted by administrative authorities. Fortunately, he has been able to stabilize the situation more or less, but one point continues to create friction: the marketing of the seeds produced.

When Jean-Luc is asked the simple question of the right to sell all his seeds, he reverses the question. “By what right would we not have the right to produce good seeds and to market them? It is the reappropriation of this heritage that I defend. We do not have the right, we take the right” To take a right is not to steal something, he explains. “I never imagined that the police would come to arrest me because I sell my seeds. We are supported by civil society, that is to say that there are plenty of people who encourage me to continue and that is enough for me.”

Prohibition on the marketing of free seed?

As I have already had occasion to mention on SILex, seeds can be the subject of intellectual property rights in Europe through Certificates of Plant Production (VOCs) which protect varieties obtained by seed producers. Moreover, in order to legally market seeds, they must be registered in a catalog based on criteria excluding by definition old varieties, as explained in the article by Reporterre:

For the marketing of seeds or seedlings, Decree No 81-605 of 18 May 1981 requires the inclusion of varieties in the official catalog of plant species and varieties. To be registered, the varieties must undergo two tests: DHS (for “distinction, homogeneity, stability”) and VAT (for “agronomic and technological value”). First hitch, the old, peasant, terroir varieties, call them as you want, are essentially unstable. They are expressed differently according to biotopes and climatic conditions. So, they are checked by the catalog entry tests.

The varieties which respect the DHS criteria are generally “F1 hybrids” produced by the large seed companies, which yield plants with identical characteristics, whatever their environment. They also degenerate from the first reproduction, which prevents farmers and gardeners from reusing the seeds and obliges them to repurchase seeds each year from the same manufacturers. Thus, the system has been designed to mechanically privilege varieties protected by intellectual property rights, while so-called “free” seeds (those belonging to the public domain) are disadvantaged, specifically because they can not be marketed.

The regulation has, nevertheless, been relaxed somewhat at the European level since 2011, with the introduction of a list complementary to the official catalog based on criteria of less drastic homogeneity, which makes it possible to include old varieties. But this margin of maneuver remains insufficient to cover all seeds in the public domain, which means that militant peasants such as Jean-Luc Danneyroles remain largely illegal when they want to market seeds that they produce. They risk fines imposed by the repression of fraud, which can be high (even if they are rarely applied in practice). A French association called Kokopelli decided openly to brave these aberrant prohibitions, claiming as a right the possibility of marketing free seeds, to defend it before the courts. Last year it was believed that the situation would change with the Biodiversity Act, an article of which explicitly allowed non-profit associations to market seeds belonging to the public domain. However, unfortunately, the French Constitutional Council declared this part of the text to be annulled, on the very objectionable ground that it entailed a breach of equality towards commercial companies.

Ambiguous links between enclosures and commodification

What I find interesting with this story told in Reporterre, but more broadly with the issue of free seeds, is that they illustrate well the complex relationships that exist between the common goods and the market. Indeed, free seeds are considered to be a typical example of “common” resources. They have reached us through a process of transmission from generation to generation of farmers, which has led the process of selection and crossing necessary to develop the varieties and adapt them to their environment. The so-called “old”, “peasant” or “traditional” varieties are not protected by intellectual property rights: they are in the public domain and are therefore freely reproducible. That’s why they are very interesting for farmers, especially to rid themselves of their dependence on the seed industries.

Since these seeds are in the public domain, they should also be free to be sold on the market as physical objects. It is clear that this is a prerequisite for activities such as “The Vegetable Garden of a Curious One” or Kokopelli to be sustainable and develop. Even if these structures generally adopt associative forms oriented towards non-profit or limited profitability, they need a connection with the market, at least to cover the costs incurred by the production and distribution of seeds. However, this is precisely what is now theoretically prohibited by regulations, which has been organized to exclude traditional seeds from the market, notably via the registration requirements in the official catalog.

We see here that the specific enclosure that weighs on seeds consists of forced exclusion from the market, and it is somewhat counter-intuitive, in relation to the general idea that one can make of the phenomenon of common property. Historically, enclosures first hit certain lands that were collectively used by the distribution of private property rights to convert them into commodities. Landowners have been recognized in several waves of the right to enclose land that was previously the subject of customary collective rights of use. This is particularly the case in England during the 18th and 19th centuries. In France, the dismantling of the Commons took the form, in the French Revolution, of a process of “sharing the Communals”, which consisted in the sale in certain regions of these lands so that they became private properties. In both cases, enclosure takes the form of a forced inclusion in the market of goods that previously were “protected” and it can even be said that enclosure is then explicitly aimed at the commodification of the good.

In this regard, we must re-read the analyses of the historian Karl Polanyi in his book “The Great Transformation” in which he explains how “market society” has been constituted and generalized by producing three kinds of “fictitious goods”: the Land (and more generally nature), labor (human activity) and money. In his vision, it was the forced inclusion of these three essential goods in the market mechanisms that allowed the latter to “disentangle” the rest of society and become a self-regulated system that allowed the rise of capitalism.

Exclusion from the market as an enclosure

From the foregoing, one may have the impression that enclosure is thus intimately linked to “commodification”. Moreover, many of the social struggles carried out on behalf of the Commons demand that certain goods be excluded from the market or subject to a specific regulation which protects them from the most destructive excesses. This is the case, for example, for the fighting on water, in particular in Italy, which has gone through opposition to the privatization of water management by large companies.

Nevertheless, the case of seeds shows us that the issue of enclosures is much more complex. In order to grasp what happens to the seeds, we must understand them in two different ways: in their immaterial dimension, through the plant varieties that the seeds express and in their material dimension, through the physical objects that are the seeds produced by the peasants. Old plant varieties do not (and have never) been subject to intellectual property rights, unlike the F1 hybrids produced by the seed industry. As such, these varieties are actually ‘de-marketed’, in the sense that they can not, as such, be subject to exclusivity subject to authorization and transaction. But the seeds produced by the peasants constitute rival physical objects, which are the object of property rights and can be legitimately sold on the market. Except that the legislation on seeds has been organized to prevent these seeds from entering the market and being able to be marketed, unlike proprietary varieties. The enclosure of the common good which constitutes traditional seeds, therefore, does not have the same nature as that which has struck land or water: it consists of a forced exclusion from the market.

Indeed, it could be said that free seeds are subjected to a double process of enclosure, both working in opposite directions. It is known that some large companies like Bayer or Monsanto are working to file abusive patents on some of the characteristics of old plants, such as natural resistance to diseases. They do this to reserve rights over the “immaterial dimension” of plants, by creating new GMO varieties in which they will inject the genes carrying these particular traits. In such cases, they use an intellectual property right to induce a forced entry into the market on an element which previously belonged to the public domain and was freely usable. One of the best known examples of this phenomenon known as “biopiracy” has, for example, concerned a patent filed by a Dutch company on an aphid resistance of a lettuce, allowing it to levy a toll on all producers’ seeds for these salad greens.

Enclosure may therefore consist of forced entry into the market and is often the effect of the enforcement of intellectual property rights. Another example which could be cited in this sense is that of scientific articles. The vast majority of these products are produced by researchers employed by public universities. They are collected by private publishers through the transfer of copyright granted by the same researchers at the time of publication. They then resold at very high prices to universities. They are then obliged to buy back with public money what had originally been financed by public funds (salaries of researchers). To use Polanyi’s vocabulary, we are here in a caricature of “fictitious goods”, created by the artificial application of intellectual property rights on goods in order to forcefully include them in a market.

But conversely, there are also intangible goods which undergo, like seeds, phenomena of enclosure by forced exclusion from the market. If one takes for example the case of free software, one knows for example the problem of tied selling (sometimes also called “forced sale”) which means that one can not generally buy computers without proprietary software pre-installed, which conditions users to the use of protected software to the detriment of free software. Last year the Court of Justice of the European Union refused to consider that the tying of PCs and proprietary operating systems constituted an unfair commercial practice. The seed analogy is not perfect, but there is a link as long as the problem of tied selling prevents free software from reaching the consumer under the same conditions as proprietary software. The machinery market would be important for their distribution and adoption by the greatest number. In the end, the consumer is deprived in both cases of the choice of being able to opt for a free solution, radically with regard to the seeds and relatively for the software.

For a complex approach to the links between Commons and the market

To be able to grasp the phenomenon of enclosures in its complexity is, in my opinion, important, in particular to avoid misunderstandings on the question of the Commons. It is sometimes said that the Commons constitute a “third way between the market and the state”, but this way of presenting things is rather misleading. It would be better to say that the Commons, with the State and the market, constitute a way for humans to take charge of resources. These three poles can, depending on the moment in history, have more or less importance (today we are going through a period of overwhelming dominance of the mechanisms of the self-regulated market, resulting in a marginalization of the Commons and a weakening of the State). But the Commons are always articulated to the State and the market: they never constitute a completely autonomous sphere. In particular, they may need market opportunities to exist and weigh significantly in social relationships. This is clearly illustrated by the example of free seeds.

Of course, there are also cases where we have to fight for a “de-commodification” of certain goods and many struggles for the recovery of the Commons go through this confrontation with the market to “snatch” from the essential resources. But there are also cases where, on the contrary, it will be necessary to fight for the right to have resources joining the market to be traded. At first glance this may sound confusing, but it seems crucial to keep this in mind so as not to sink into a romanticism that would lead us to believe that the goal is to “get out of the economy”, as one can sometimes read … There is also a struggle to lead “in the economy”, as Karl Polanyi rightly said, in order to “re-integrate” this sphere within the processes of social regulation and in particular in the logics of reciprocity.

That is what Jean-Luc Danneyroles expresses in his own way at the end of the article by Reporterre, referring to the question of barter and the commons. One senses at the same time his reluctance to consider the seeds as goods “like the others” and his need to connect yet to a market:

Quietly, in his open kitchen, at the time of the coffee, as almost every day, Jean-Luc receives the visit. A curious one looking for Roman chamomile for skin care. Jean-Luc gives him advice, names of plants and methods of cultivation. She will leave with her sachets of seeds, in exchange for soap and toothpaste that she has made. Jean-Luc always has a little trouble with getting paid. “The ideal is barter, I like the idea of common goods, which one does not pay for what belongs to nature. Utopian, yes, but feet on the ground. “Every work deserves salary,” he knows, and his seeds are his means of living.

Photos used by permission, Éric Besatti/Reporterre

The post Forced market exclusion as an enclosure of the commons appeared first on P2P Foundation.

Below is the text of the interview, conducted in March:

Some believe that the commons are incompatible with commodity markets. Others claim that markets and commons may form mutually beneficial relations with each other. What are your own views on this issue?

I think it is entirely possible for markets and commons to “play nicely together,” but only if commoners can have “value sovereignty” over their resources and community governance.  Market players such as businesses and investors cannot be able to freely appropriate the fruits of a commons for themselves without the express authorization of commoners.  Nor should markets be allowed to uses their power to force commoners to assume market, money-based roles such as “consumers” and “employees.”  In short, a commons must have the capacity to self-regulate its relations with the market and to assure that significant aspects of its common wealth and social relationships remain inalienable – not for sale via market exchange.

A commons must be able to develop “semi-permeable boundaries” that enable it to safely interact with markets on its own terms.  So, for example, a coastal fishery functioning as a commons may sell some of its fish to markets, but the goals of earning money and maximizing profit cannot be allowed to become so foundational that it crowds out commons governance and respect for ecological limits.

Of course, market/commons relations are easier when it comes to digital commons and their shared wealth such as code, text, music, images and other intangible (non-physical) resources.  Such digital resources can be reproduced and shared at virtually no cost, so there is not the “subtractability” or depletion problems of finite bodies of shared resources.  In such cases, the problem for commons is less about preventing “free riding” than in intelligently curating digital information and preventing mischievous disruptions.  In digital spaces, the principle of “the more, the merrier” generally prevails.

That said, even digital commoners must be able to prevent powerful market players from simply appropriating their work for commercial purposes, at no cost.  Digital commoners should not simply generate “free resources” for larger market players to exploit for private gain.  That is why some digital communities are exploring the use of the newly created Peer Production License, which authorizes free usage of digital material for noncommercial and commons-based people but requires any commercial users to pay a fee.  Other communities are exploring the potential of “platform co-operatives,” in which an networked platform is owned and managed by the group for the benefit of its members.

The terms by which a commons protects its shared wealth and community ethos will vary immensely from one commons to another, but assuring a stable, benign relationship with markets is a major and sometimes tricky challenge.

During the last years we saw a boom in digital-commons, developed in urban areas by collectives and hack labs. What are the potentialities for non-digital commoning in the city in its present form – heavily urbanized and under constant surveillance? Are its proportions incompatible with the logic of the commons or the social right to the city is still achievable?

There has been an explosion of urban commons in the past several years, or at least a keen awareness of the need and potential of self-organized citizen projects and systems, going well beyond what either markets or city governments can provide.  To be sure, digital commons such as maker spaces and FabLabs are more salient and familiar types of urban commons.  And there is growing interest, as mentioned, in platform co-operatives, mutually owned and managed platforms to counter the extractive, sometimes-predatory behaviors of proprietary platforms such as Uber, Airbnb, Taskrabbit and others.

But there are many types of urban commons that already exist and that could expand, if given sufficient support.  Urban agriculture and community gardens, for example, are important ways to relocalize food production and lower the carbon footprint.  They also provide a way to improve the quality of food and invigorate the local economy.  As fuel and transport costs rise with the approach of Peak Oil, these types of urban commons will become more important.

I might add, it is not just about growing food but about the distribution, storage and retailing of food along the whole value-chain.  There is no reason that regional food systems could not be re-invented to mutualize costs, limit transport costs and ecological harm, and improve wages, working conditions, food quality (e.g., no pesticides; fresher produce), and affordability of food through commons-based food systems.  Jose Luis Vivero Pol has explored the idea of “food commons” to help achieve such results, and cities like Fresno, California, are engaged with re-inventing their local agriculture/food systems as systems.

Other important urban commons are social in character, such as timebanks for bartering one’s time and services when money is scarce; urban gardens and parks managed by residents of the nearby neighborhoods, such as the Nidiaci garden in Florence, Italy; telcommunications infrastructures such as Guifi.net in Barcelona; and alternative currencies such as the BerkShares in western Massachusetts in the US, which help regions retain more of the value they generate, rather than allowing it to be siphoned away via conventional finance and banking systems.

There are also new types of state/commons partnerships such as the Bologna Regulation for the Care and Regeneration of Urban commons. This model of post-bureaucratic governance actively invites citizen groups to take responsibility for urban spaces and gardens, kindergartens and eldercare. The state remains the more powerful partner, but instead of the usual public/private partnerships that can be blatant ripoffs of the public treasury, the Bologna Regulation enlists citizens to take active responsibility for some aspect of the city. It’s not just government on behalf of citizens, but governance with citizens. It’s based on the idea of “horizontal subsidiarity” – that all levels of governments must find ways to share their powers and cooperate with single or associated citizens willing to exercise their constitutional right to carry out activities of general interest.

In France and the US, there are growing “community chartering” movements that give communities the ability to express their own interests and needs, often in the face of hostile pressures by corporations and governments.  There are also efforts to develop data commons that will give ordinary people greater control over their data from mobile devices, computers and other equipment, and prevent tech companies from asserting proprietary control over data that has important public health, transport, planning or other uses.  Another important form of urban commons is urban land trusts, which enable the de-commodification of urban land so that the buildings (and housing) built upon it can be more affordable to ordinary people.  This is a particularly important approach as more “global cities” becomes sites of speculative investment and Airbnb-style rentals; ordinary city dwellers are being priced out of their own cities.  Commons-based approaches offer some help in recovering the city for its residents.

Why bring the commons to the management and governance of a city?  Urban commons can also reduce costs that a city and its citizens must pay. They do this by mutualizing the costs of infrastructure and sharing the benefits — and by inviting self-organized initiatives to contribute to the city’s needs. Urban commons enliven social life simply by bringing people together for a common purpose, whether social or civic, going beyond shopping and consumerism.  And urban commons can empower people and build a sense of fairness.  In a time of political alienation, this is a significant achievement.

Urban commons can unleash creative social energies of ordinary citizens, who have a range of talents and the passion to share them.  They can produce artworks and music, murals and neighborhood self-improvement, data collections and stewardship of public spaces, among other things.  Finally, as international and national governance structures become less effective and less trusted, cities and urban regions are likely to become the most appropriately scaled governance systems, and more receptive to the constructive role that commons can play.

Contemporary struggles for protection of commons seem to be strongly intertwined with ecological matters. We can clearly see this in struggles like the one that is currently taking place in North Dakota. Is there a direct link between the commons and ecology?

Historically, commoning has been the dominant mode of managing land and even today, in places like Africa, Asia and Latin America, it is arguably the default norm, notwithstanding the efforts of governments and investors to commodify land and natural resources.  According to the International Land Alliance, an estimated 2 billion people in the world still depend upon forests, fisheries, farmland, water, wild game and other natural resources for their everyday survival.  This is a huge number of people, yet conventional economists still regard this “subsistence” economy and indigenous societies as uninteresting because there is little market-exchange going on.  Yet these communities are surely more ecologically mindful of their relations to the land than agribusinesses that rely upon monoculture crops and pesticides, or which exploit a plot of land purely for its commercial potential without regard for biodiversity or long-term effects, such as the massive palm oil plantations in tropical regions.

Commoning is a way for we humans to re-integrate our social and commercial practices with the fundamental imperatives of nature.  By honoring specific local landscapes, the situated knowledge of commoners, the principle of inalienability, and the evolving social practices of commoning, the commons can be a powerful force for ecological improvement.

What should be the role of the state in relation to the commons?

This is a very complex subject, but in general, one can say that the state has very different ideas than commoners about how power, governance and accountability should be structured.  The state is also far more eager to strike tight, cozy alliances with investors, businesses and financial institutions because of its own desires to share in the benefits of markets, and particularly, tax revenues.  I call our system the market/state system because the alliance – and collusion – between the two are so extensive, and their goals and worldview so similar despite their different roles, that commoners often don’t have the freedom or choice to enact commons.  Indeed, the state often criminalizes commoning – think seed sharing, file sharing, cultural re-use – because it “competes” with market forms of production and stands as a “bad example” of alternative modes of provisioning.

Having said this, state power could play many useful roles in supporting commoning, if it could be properly deployed.  For example, the state could provide greater legal recognition to commoning, and not insist upon strict forms of private property and monetization.  State law Is generally so hostile or indifferent to commoning that commoners often have to develop their own legal hacks or workarounds to achieve some measure of protection for their shared wealth.  Think about the General Public License for software, the Creative Commons licenses, and land trusts.  Each amounts to an ingenious re-purposing of property law to serve the interests of sharing and intergenerational access.

The state could also be more supportive of bottom-up infrastructures developed by commoners, whether they be wifi systems, energy coops, community solar grids, or platform co-operatives.  If city governments were to develop municipal platforms for ride-hailing or apartment rentals – or many other functions – they could begin to mutualize the benefits or such services and better protect the interests of workers, consumers and the general public.

The state could also help develop better forms of finance and banking to help commoning expand.  The state provides all sorts of subsidies to the banking industry despite its intense commitment to private extraction of value.  Why not use “quantitative easing” or seignorage (the state’s right to create money without it being considered public debt) to finance the building of infrastructure, environmental remediation, and social needs?  Commoners could benefit from new sources of credit for social or ecological purposes – or a transition to a more climate-friendly economy — that would not likely be as remunerative as conventional market activity.

For more on these topics, I recommend two reports by the Commons Strategies Group:  “Democratic Money and Capital for the Commons:  Strategies for Transforming Neoliberal Finance through Commons-based Alternatives,” about new types of commons-based finance and banking (http://commonsstrategies.org/democratic-money-and-capital-for-the-commons-2/); and “State Power and Commoning:  Transcending a Problematic Relationship,” a report about how we might reconceptualize state power so that it could foster commoning as a post-capitalist, post-growth means of provisioning and governance.  (http://commonsstrategies.org/state-power-commoning-transcending-problematic-relationship)

How essential is, in your opinion, direct user participation for practices of commoning? Can the management of the commons be delegated to structures like the state or are the commons essentially connected to genuine grassroots democracy?

Direct participation in commoning is preferred and often essential.  However, each of us has only so many hours in the day, and we can remember the complaint that “the trouble with socialism is that it takes too many evenings.”  Still, there are many systems, particularly in digital commons, for assuring bottom-up opportunities for participation along with accountable governance and transparency.   And there are ways in which commons values can be embedded in the design of infrastructures and institutions, much as Internet protocols favor a distributed egalitarianism.  By building commons principles into the structures of larger institutions, it can help prevent or impede the private capture of them or a betrayal of their collective purposes.

That said, neither legal forms or nor organizational forms are a guarantee that the integrity of a commons and its shared wealth will remain intact.  Consider how some larger co-operatives resemble conventional corporations.  That is why some elemental forms of commoning remain important for assuring the cultural and ethical integrity of a commons.

We are entering in an age of aggressive privatization and degradation of commons: from privatization of water resources, through internet surveillance, to extreme air pollution. What should be the priorities of the movements fighting for protection of the commons? What about their organizational structure?

Besides securing their own commons against the threats of enclosure, commons should begin to federate and cooperate as a way to build a more self-aware Commons Sector as a viable alternative to both the state and market.  We can see rudimentary forms of this in the “assemblies of the commons” that have self-organized in some cities, and in the recently formed European Commons Assembly.  I am agnostic about the best organizational structure for such work because I think it will be emergent; the participants themselves must decide what will be most suitable at that time.  Of course, in this digital age, I have a predisposition to think that the forms will consist of many disparate types of players loosely joined; it won’t be a centralized, hierarchical organization.  The future is a “pluriverse,” and the new organizational forms will need to recognize this reality in operational ways.

What is your vision of a commons-based society? How would it look like?

I don’t have a grand vision.  I stand by core values and learn from ongoing practical lessons.  We don’t know the developmental evolution that will occur in the future, or for that matter, what our own imaginations and capacities might be able to actualize.  Emergence happens.  Yet I do believe that commoning is far more of a default talent of the human species than homo economicus.  We are hard-wired to cooperate, coordinate and co-evolve together.  Especially as the grand, centralized market/state systems of the 20^th century begin to implode through their own dysfunctionality, the commons will more swiftly step into the breach by offering more local, convivial and trusted systems of survival.

The transition of “commonification” will likely be bumpy, if only because the current masters of the universe will not readily cede their power and prerogatives. They will be incapable of recognizing a “competing” worldview and social order.  But the costs of maintaining the antiquated Old Order are becoming increasingly prohibitive.  The capital expense, coercion, organizational complexities, and ecological instability are growing even as popular trust in the market/state and its political legitimacy is declining.

Rather than propose a glowing vision of a commons-based society, I am content to point to hundreds of smaller-scale projects and movements.  As they find each other, replicate their innovations, and federate into a more coordinated, self-aware polity – if we dare call it that! – well, that’s when things will get very interesting.

Interview by Antonis Brumas and Yavor Tarinski

The post The Future is a “Pluriverse”- An Interview with David Bollier on the Potential of the Commons appeared first on P2P Foundation.