An important book review by David Bollier in the On the Commons blog.

Book: Terms of Use: Negotiating the Jungle of the Intellectual Commons, Eva Hemmungs Wirtén.

David Bollier (excerpt):

“Now that scholars have established the value of the public domain, mapped its contours and suggested new ways to conceptualize it (e.g., let’s lose the spatial metaphors), it is refreshing to see “public domain studies” advance in new directions. In her new book, Terms of Use: Negotiating the Jungle of the Intellectual Commons, Eva Hemmungs Wirtén offers up an internationally minded, interdisciplinary meditation on the “intellectual commons.” Wirtén, a professor at Uppsala University in Sweden, is developing a sophisticated new frontier of public domain scholarship.

Not only does she explore the value of the public domain in history, and especially the tensions between industrialized and developing nations; she is comfortable discussing the commons as something distinct from the public domain and isconversant with the subtle, complicated political dilemmas posed by the commons.

Wirtén’s special interest in Terms of Use is the non-western, “undeveloped” world. The “jungle” of the book’s subtitle — “Negotiating the Jungle of the Intellectual Commons” – refers to the “locale of the primitive.” It is a place of biological abundance and vernacular culture, a place that markets have barely penetrated, and a place where the past and the present are intimately connected. Wirtén’s focus on “the jungle” is also meant to highlight the role that imperialist nations have played in mining the “public domain” in pre-modern nations for valuable resources.

Terms of Use starts by recounting the English history of enclosure of rural lands, a history that is paradigmatic for the national and corporate plunder that have occurred in subsequent centuries, including our own. Wirtén then moves on to explore the how pharmaceutical companies are plundering the biodiversity in developing nations to develop lucrative new medicines.

It is revealing to link the original English enclosures with contemporary pharmaceutical enclosures of biodiversity in developing nations. While the means of enclosure differ, the same general principles apply: identify the economic value of the resource, develop new language for describing this “value” while denigrating local and traditional knowledge, and then superimpose this new matrix of “intellectual property” on the social/ecological system that had long functioned as a commons.

I had no idea that the British obsession with botanical gardens in the nineteenth century was intimately connected to that country’s colonial agenda. When scouring the Caribbean, the Indian subcontinent and the Pacific, the Brits developed botanical gardens as a place for saving and replicating the precious seeds and plants that they were seizing for commercial purposes.

This raid of the South by the North has reached the point today, writes Wirtén, that plant genetic material from the less developed regions of the world provide “the base for fully 95.7 percent of the global food crop production.” Yet in 2002, Europe, the U.S. and Japan owned nearly 90 percent of all biotechnology patents filed at the European Patent Office. Intellectual property law is a reflection of the geopolitical power of the industrialized West. It is no accident that IP law has peddled the myth that the public domain has no value — ostensibly because “value” requires money and market activity, and the commons rarely hosts either.

Wirtén usefully explores the neglected underside of “openness” and “freedom” that American progressives champion. She points out, for example, that expansions of the public domain have been highly useful to multinational corporations as they seek to appropriate the genes, ethnobotanical knowledge and cultural works of indigenous cultures. If such resources must be “open” and in the public domain, then the most powerful, resourceful players will be free to appropriate and privatize them as they strive to develop commercial products. This theme has been powerfully explained by Anupam Chander and Madhavi Sunder in a notable 2004 law review article, “The Romance of the Public Domain,” which is recommended reading for anyone interested in this issue.

Similarly, the idea of calling certain global resources the “heritage of mankind” – like oceans, rain forests, the moon and space – seems to be an entirely fair-minded, laudable goal. But making such resources available to all under an open-access regime can, in fact, be quite harmful. It lets anyone exploit the resource, and nobody is empowered to exclude others who may over-exploit or abuse the resource. The dreaded tragedy of the commons results.”