Illustration by Tamara Shopsin
By ROBERT DARNTONPublished: August 20, 2010
Intellectual property has become such a hot topic that it needs to be doused with some history. Strange as it may sound, this is an argument developed convincingly in Lewis Hyde’s “Common as Air,” an eloquent and erudite plea for protecting our cultural patrimony from appropriation by commercial interests.
The history that Hyde invokes goes back to the Middle Ages, when villagers enjoyed collective rights to common lands, but for the most part it is situated in the era of the founding fathers. Hyde invokes the founders in order to warn us against a new enclosure movement, one that would fence off large sectors of the public domain — in science, the arts, literature, and the entire world of knowledge — in order to exploit monopolies.
He cites plenty of examples from Hollywood, the pharmaceutical industry, agribusiness, and the swarm of lobbyists who transform public knowledge into private preserves by manipulating laws for the protection of intellectual property. Then he draws on Franklin, Adams, Jefferson and Madison for arguments against such privatization.
On the face of it, this way of defending the cultural commons might seem dubious, because the kind of knowledge that led to the Human Genome Project and the Internet was not dreamt of in the philosophies of the founders. To argue against Jack Valenti and the Motion Picture Association of America by leaping across two centuries could be wildly anachronistic.
To be sure, the founders built up a stockpile of quotable chunks of wisdom. Jefferson: “The field of knowledge is the common property of mankind.” Franklin: “That as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours, and this we should do freely and generously.” The United States Constitution, Article I, Section 8, Clause 8, providing for copyrights and patents “to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” But the devil can quote Jefferson, and lawyers can construe the Constitution in ways that restrict knowledge rather than promote it.
Hyde, the author of “The Gift” (1983), a defense of the noncommercial aspects of art, does not merely cull the works of the founding fathers for quotations. He pitches his argument at a level where historians and political philosophers have contributed most to our understanding of intellectual history. Instead of treating the ideas of the founders as self-contained units of meaning, he explores their interconnections and shows how they shared a common conceptual frame. Not that he pretends to have uncovered anything unknown to the authorities he cites, notably the historian J. G. A. Pocock, whose studies of civic republicanism reveal how early modern philosophers drew on a current of thought about the nature of citizenship that goes back to ancient Greece and Rome. Hyde builds his argument by telling stories, and he tells them well. His book brims with vignettes, which may be familiar but complement one other in ways that produce original insights.