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Art and ownership: on Lewis Hyde's Common as Air.

Common as Air: Revolution, Art, and Ownership by Lewis Hyde

New York: Farrar, Straus and Giroux, 2010


One thing is obvious from Lewis Hyde's latest work, Common as Air. Lewis Hyde loves Benjamin Franklin. This should not be surprising. The author of Trickster Makes His World, an explanation of the modern artistic temperament by reference to the Trickster figure common in numerous cultural traditions, would naturally be attracted to our Founding Trickster. Franklin was a polymath, interested in everything and determined not only to invent new contraptions but also to invent new ways for persons to talk to and hear each other. In Hyde's view, he was the ideal citizen of our new republic, responsible, creative, and open to new ideas which grow out of our shared experience.

In Common as Air, a call to arms to all artists and scientists to protect their rights to free access to and free distribution of ideas, Hyde, a poet, anthropologist, and now an expert in copyright and patent disputes, appears Franklinesque in his enthusiasm and breadth of ambition. His agenda is to foster an informed and active citizenry of artists and scientists who take responsibility for preserving our common cultural heritage.

To do that, he describes the urgency of the present circumstances. New copyright law is cutting off public access to cultural property. His response to that problem comes from the attitudes of the Founding Fathers, including but not limited to Franklin, and his response is personal. Not "personal" in the sense of being idiosyncratic, but "personal" in the sense of being attentive to who we are as persons.

Hyde sees us as diminished as persons so long as our access to art and science are diminished. To regain our stature as citizens we need to reclaim our right in the Cultural Commons he is so concerned about. What worries him and what can be done is the subject of this essay.

Summary of Hyde's Argument

Real Property and Intellectual Property

There exists a Cultural Commons. This Cultural Commons consists of art and ideas and is comparable to a form of land use, a real property Commons, which was how commoners in Great Britain held interests in land during the 16th, 17th, and 18th centuries. A Commons consisted of a variety or bundle of property rights held by numerous commoners. One commoner might hold the right to cut rushes on the common land, but only between March and April each year, while another might hold the right to cut furze on the same land, but only so much as could be carried on that person's back. A single Commons might be the subject of property rights and interests for a large number of commoners who all had to cooperate in making use of the common land. Not only did they cooperate in using the common land, they also cooperated in enforcing each other's rights and making certain interlopers did not make unauthorized use of the land. (1)

Eventually Parliament allowed for the enclosure of land held in common, which cut off the rights of commoners to use the land as they had for generations. Use of the common land, which once had been a commoner's right so long as he shared that right with his fellows, then became a commodity. Persons who wanted to use land had to rent it. Land became commodified and reduced to monetary terms.

What is more, the change in land use resulted in a change in the identity of the commoner. Once land became a mere commodity subject to the free market, the commoner became a mere consumer. This shift in personal identity, which follows the shift in how land is used, is a crucial point for Hyde, because his book is not about real property and not even so much about intellectual property either. It is about how the common use of, and access to, art and ideas creates a citizenry, while a restricted access creates a culture of consumers.

The Enclosure of the Cultural Commons

Our Cultural Commons consists of art and ideas: Homer and Aristotle, the work of Woody Guthrie, and the Human Genome Project. However, we do not have complete access to all cultural products because the commons is partially enclosed.

Hyde admits that the first enclosure of the Cultural Commons came at the hands of the Founding Fathers (and their British forebears) when the copyrighting of cultural property was recognized in the United States Constitution. In order to stimulate the production of art and ideas, authors were allowed ownership and control of their work for fourteen years. A copyright prevented anyone from exploiting someone else's creation for profit and allowed authors or creators to profit from their own work for a limited period of time, after which the artistic creation became part of the public domain and access was free to all.

However, Hyde abhors what he calls the "Second Enclosure"--modern copyright law allowing an author or artist to keep copyright ownership of a work of art for his or her entire lifetime plus seventy years. Such an extended period of copyright essentially gives an author a perennial copyright because few works of art will be relevant or useful for more than seventy years after the death of their creator. Modern copyright law, therefore, keeps all contemporary works of art out of the public domain for the entire time they may be of interest and of use to the greater community. Further, there have recently been attempts to restrict access to the classics as well, and Hyde describes in detail a singular horror story about the contemporary attempted restriction on the use of Lewis Carroll's Alice in Wonderland. An electronic book publisher offered Alice in Wonderland with the following totalitarian warnings, which it must have believed were enforceable: no printing of the book permitted; the book could not be loaned to anyone; the book could not even be given to anyone; and the book could not be read aloud.

Nevertheless, Hyde recognizes the utility of limited copyright as a partial enclosure of the Cultural Commons and hopes that, by explaining the uses of limited copyright, he will illuminate the dysfunctionality of the longer contemporary copyright statutes. To that end, he identifies three justifications for the older copyright and patent laws. First, an artist, thinker, or inventor should be compensated for his or her labor. Second, an artistic work is an extension of the artist and should be accorded the same respect that a person commands not to be mutilated, misattributed, or used for the monetary benefit of another.

However, it is the third justification that is most interesting to Hyde. The utilitarian or public benefit justification allows for copyright and patent because the community at large benefits from artistic and other creations, and if a copyright or patent stimulates the production of such a public benefit, it is justified. The utilitarian justification combines a concern for the artist with a concern for the greater common good.

Hyde therefore has sympathy for the first enclosure of the Cultural Commons and takes some time to explain the Founding Fathers' understanding of copyright and patent law.

The Republican Two-Step

Despite the fact that Hyde is concerned with the contemporary state of the Cultural Commons, which he perceives as besieged, he thinks our Founding Fathers, Benjamin Franklin and John Adams specifically, have much to teach us about copyright, patent, and intellectual property. He identifies a particular pattern in the lives of these icons which exemplifies a dual appreciation of both the individual artist and the welfare of the larger community.

John Adams, for instance, was a landholder (by inheritance), whose landed wealth gave him both the opportunity and obligation to become, in his first public office, a surveyor of highways. That public post was an unpaid position, but, because he was landed, he could afford to work gratis for the public good. Adams' biography exemplifies what Hyde calls the "Republican Two-Step."
 First, autonomy, then service; first the private
 thing, then the res publica
. Note that allodial
 holdings as I have described them contain a
 built-in model of maturation. Holding land allodially
 allows one to become self-possessed, and
 self-possession allows one to-become a public
 person, an agent, not a servant. (2) (Common as
 at p. 105) 

The two-step is constituted initially by private work and compensation, but is complemented by the second step, engagement in public life. For Hyde, the Republican Two-Step is not about property. It is about persons. While his book may superficially be about intellectual property, Hyde is ultimately concerned with citizenship. Free access to art, literature, and ideas is essential to the creation of informed responsible citizens who can then work together to form a progressive and intelligent republic. Hyde further believes that Benjamin Franklin is the one person who lived the ideal he is espousing.

Benjamin Franklin, Citizen of the Commons

Hyde devotes considerable attention to Franklin, stressing that his career exemplifies how a citizen of the Cultural Commons should behave. Out of the details of Franklin's inventiveness there emerge for Hyde three principles that guided Franklin's work.


First, he worked with others. His experiments were not done solo. He had collaborators and friends whom he credited and learned from. Second, he drew on the larger scientific community. He read and corresponded widely and unabashedly based his discoveries on the work of other scientists. Third, he shared his results and findings openly and without resort to patent or copyright. Whatever he produced, be it a theory of electricity or a new type of stove, was publicized without restriction or demand for remuneration.

This is the heart of Hyde's book. He sees Franklin as a model of how to be both creative and devoted to the public good. As a final example of Franklin's contribution to the Creative Commons, Hyde cites his building of a lecture hall in Philadelphia that was to be a meeting place, open to all points of view, specifically diverse religious voices. The intention behind the hall, which eventually became the University of Pennsylvania, was to create a space where a multiplicity of voices could be heard. And again the purpose of the hall was to create a particular kind of citizen, one who is a public and pluralistic person and therefore prepared to participate in a progressive republic.
 The hall was thus built to serve the eighteenth-century
 ideal of replacing the partial self with a
 plural or public self, one who is a host to many
 voices, even those otherwise at odds with the
 singular being you thought you were when you
 first walked into the hall....
 Franklin shares that assumption: intelligence
 arises in the common world, where many voices
 can be heard; it belongs to collectivity, not privacy,
 and is available especially to those who can
 master the difficult art of plural listening. (Common
 as Air
 at p. 229) 

As always, Hyde is intent on fostering the best public persons through which the best republic may flourish. He believes he has a model for such a citizen in Franklin.

The Contemporary Commons

Hyde concludes his book with a discussion, through various concrete examples, of how the Cultural Commons is today facing increasing encroachment and how some are finding new ways to protect it. On the negative side, he tells of how Martin Luther King's family has thoroughly kept his "I Have a Dream" speech for their own use and out of the hands of the public. He also explains that Bob Dylan made extensive use of the folk tradition, especially the work of Woody Guthrie, and he muses on the fact that in today's copyright environment Dylan might have been completely stifled by Guthrie's estate. And to the contrary he recounts how Pete Seeger and others have made certain, through something called a General Public License, that the civil rights anthem "We Shall Overcome" endures as a public treasure and one that benefits African American music in the South.

Hyde embraces the concept of "copyduty" along with copyright. A copyduty is an obligation voluntarily owed by an author or artist to the public or some segment thereof which may serve as an offset to that author or artist's copyright. In the case of "We Shall Overcome," Seeger and others took upon themselves the duty to hold that song in trust for the benefit of African Americans and assigned the profits from that song to a trust for that purpose. In that instance, copyright was transformed into copyduty for the benefit of the public.

By the end of the book, we understand that, for Hyde, every artist owes the public a duty. However, what exactly is that duty and how may it be fulfilled? To put a point on it, what does an author who writes for a living owe to the public? In order to explore that aspect of Hyde's book, I indulge in the following thought experiment.

Benjamin Franklin and Pierre Menard

There is no doubt that, for Hyde, Benjamin Franklin is the paragon of what a citizen should be when it comes to copyright and patent. However, a paragon, almost by definition, is inimitable. Franklin, unlike most artists and inventors, had independent sources of income which allowed him to publish his findings and inventions without copyright protection. He was not concerned if others profited from his work. Hyde's readership is probably, in the main, not so fortunate. How, then, can the rest of us understand or respond to Hyde's claim that we have ongoing obligations to the cultural commons?

In order to further understand our public obligations, I have resorted to a thought experiment, a simple comparison between Franklin, a paragon of public virtue, and a lesser-known person who may not share Franklin's devotion to the common good. The person I have chosen for this comparison is fictional; hence the necessity of a thought experiment. He is the creation of Jorge Borges, the Argentinian fabulist and poet.

In 1939 Borges wrote an eight-page short story entitled "Pierre Menard, Author of the Quixote," in which a fictional eulogist extols the work of one Pierre Menard, recently deceased, and also fictional, who had taken it upon himself, in the early part of the twentieth century, in France, to write the novel Don Quixote. Borges, his narrator, and Menard are all fully aware that Cervantes wrote Don Quixote between 1605 and 1615. Nonetheless, Menard was determined to write Don Quixote a second time. To that end he schooled himself in seventeenth-century Castilian, withdrew from public life for long periods of time, and, in his apartment, set about to write the classic that had already been written.

In Borges' story he succeeds, after much trial and error and numerous drafts, in writing the ninth and thirty-eighth chapters of Part One of Don Quixote and a fragment of Chapter Twenty-two. This accomplishment is not a paraphrase or restatement of Don Quixote. Nor is it the result of random pecking at a typewriter like the proverbial monkeys who, given enough time at typewriters, will eventually, purely by chance, produce Shakespeare. And, of course, Menard did not copy Don Quixote.
 Nor, surely, need one have to say that his goal
 was never a mechanical transcription of the
 original; he had no intention of copying
 it. His
 admirable ambition was to produce a number of
 pages which coincided--word for word and line
 for line--with those of Miguel de Cervantes. 

Instead, Menard set out to create Don Quixote, the character and the novel drawing, from his own life experience.
 Being, somehow Cervantes, and arriving thereby
 at the Quixote--that looked to Menard less challenging
 (and therefore less interesting) than continuing
 to be Pierre Menard and coming to the
 Quixote through the experiences of Pierre Menard

As noted above, in Borges' story, Menard is successful in his endeavor, although only able to produce a few chapters before he dies.

Menard's accomplishment, although fictional, is significant for our purposes because he managed to be a creative genius while at the same time duplicating the work of another artist. Menard, had he lived, could have copyrighted his work under Hyde's labor theory of copyright--he certainly worked hard enough--and Hyde's self theory of copyright. No one else could lay claim to Menard's Don Quixote, although Cervantes authored the identical work.

Moreover, Menard is a worthy foil for Franklin. While Franklin created his work in collaboration with colleagues and friends, Menard was an isolato. He worked entirely alone. And while Franklin based his work on the work of his scientific contemporaries, building upon their successes and contributing to a body of technical literature available to the scientific community, Menard was not influenced by others, Cervantes included. He rewrote Don Quixote without reference to Don Quixote.

With all this in mind, we may proceed to the thought experiment. What if both Cervantes and Menard were bound by the copyright laws of the United States?

At first glance, we might be subject to the kind of horror story Hyde tells about Alice in Wonderland. Menard might be able to suppress access to Cervantes' Don Quixote on the grounds that it is an infringing work and that he, Menard, on the basis of his Don Quixote, should be entitled to compensation every time someone quoted or used Cervantes' work. Outrageous as such a claim might sound, I think Hyde would agree that, if Menard's claims concerning his authorship are taken as true, given the present attitude toward original work embodied in the copyright laws, Menard might have a plausible claim.

Similarly, Cervantes might have a claim against Menard, although Menard would assert in his defense that he did not copy Cervantes' novel and that he had created a stand-alone work which bore no obligation to the original Don Quixote or its author.

With Borges' fiction placed in the context of copyright law, the limitations of that law become clear. Moreover, the conundrum raised by this thought experiment is a result of the popular understanding that authors are solely responsible for their works and their rights therein are based on (1) the author's hard work and (2) the expression of the author's self embodied in the work. If an author can prove that his or her work is the result of the two factors just stated, then he or she may be able to assert copyrights despite the fact that the work duplicates another.

This conclusion would be anathema to Hyde because it ignores an additional aspect of every author's work, the debt the author owes to the public, the Cultural Commons. But what exactly is that debt? Again I think that Menard, although fictional, give us an answer.

It is well established that most if not all artistic works are based on prior works of art and may be understood as having been influenced by a literary or other artistic tradition. (3) The work of Benjamin Franklin, although scientific, appears to prove this point. Menard, on the other hand, is a counter example. He claims to have no debt to the original Don Quixote. He admits to reading it as a child but has only a vague recollection of it. Nor is he indebted to any other work of fiction. He worked in solitude and from his own experience and no one else's. He may claim that he produced his Don Quixote without reference to the literary tradition which produced the original. He, therefore, has no debt to the Cultural Commons.

However, here Menard is incorrect, and his eulogist proves that point. By the end of the story, the author not only touts Menard's accomplishment, he proclaims that Menard's Don Quixote is more subtle and, therefore, a greater work than Cervantes'. When read in the light of the art and philosophy produced between Cervantes' time and the early twentieth century, including the work of Bertrand Russell and Nietzsche, Menard's Don Quixote is far more nuanced and ironic. In short, even if Menard was not influenced by a literary and artistic tradition, he cannot be understood without reference to that tradition. Even an isolated author like Menard, who theoretically owes nothing to the Cultural Commons for producing his work, is nonetheless obligated to the Commons if he wants his work to be read and appreciated. Menard's work may not be based on prior picaresque stories such as the Odyssey or Huckleberry Finn. However, a reader's understanding of Menard's Don Quixote is much diminished if the reader has no knowledge of those works. To the extent that writers want their works to be read and understood, they are indebted to the literary, artistic, and philosophical tradition that may form the context for new creations.

This, then, is the ultimate debt of the artist to the Cultural Commons. The universe of prior work makes appreciation of new work possible. Restricted access to that universe, the Cultural Commons, abbreviates and shrinks our understanding of contemporary art and literature. Evory artist has a given, unavoidable debt to the Cultural Commons no matter how hard he worked or how individualistic her product is. But if the copyright laws are intended to protect the individual's creation and foster creativity, how can the debt to the Cultural Commons also be acknowledged without undermining copyright protection? Is there a way for artists to both protect their creations and contribute to the Cultural Commons so that they may also be, as Hyde hopes, responsible and active republican citizens in the image of the Founding Fathers?

Poultry and Poetry

Hyde is focused on the individual, the creative person, who is also a citizen. To that end he provides examples of individual efforts to foster and protect the Cultural Commons. While looking at the problem from the perspective of individual artists may be realistic, reasonable, and consistent with Hyde's vision, there can also be institutional responses to the enclosing of the Cultural Commons. The following is a legislative proposal which, if it lacks the practicality of Hyde's final chapters, at least establishes the possibility of a societal response to the problems Hyde identifies.

To understand the following proposal we must turn away for a moment from the world of art and literature and look for inspiration to the common grocery store. Grocers have their own federal trust fund. They pay into it as part of their tax burden. The purpose of the Grocer's Trust Fund is to protect them and their creditors should a grocer or grocery chain not be able to pay its debts.

For example, Zacky Farms provides two thousand fresh frozen chickens to the Acme Grocery, but expects payment only after the chickens are actually sold. Zacky is actually loaning Acme the cash value of those chickens. As each chicken is sold, Acme pays down its debt to Zacky from a portion of the retail price of the chicken. This is called "floor planning" the chickens, and is common practice in the grocery business and in retail business in general.

Of course, there is always the risk that Acme will not be able to sell the chickens because its customers do not want them or do not want to buy them from Acme. But the loan to Acme is a secured loan, because the chickens are Zacky's collateral. If Acme cannot pay back its debt to Zacky, Zacky just repossesses the chickens. Then Zacky is back where it started, and Acme has no debt to Zacky.

This system works fine where the merchandise in question is color TVs or athletic shoes. But when the collateral is chickens, there is the obvious problem that the time consumed in proceeding to repossess the chickens will far exceed their shelf life. In short, Zacky will repossess thousands of rotten chickens. The collateral, being perishable, is worthless.

How then can we both encourage Zacky to loan its capital, i.e., its chickens, to Acme and at the same time protect Zacky and Acme from potential losses? The federal government came up with a relatively simple solution. All grocers pay a percentage of their taxes into the federal Grocer's Trust Fund. When one grocer is unable to pay its debts, its creditors, like Zacky, have recourse, not against the perishable collateral, but against the Trust Fund. In this manner, both the grocer and the creditor are insured. The grocer, by paying into the fund when solvent, is protected from the creditor when insolvent. The creditor's recourse is only against the Trust Fund, leaving the grocer with more assets to pay off its other creditors who have no security, like the landlord or the electric company. The creditor is also protected. It is more willing to risk loaning money in the form of chickens, or other perishable produce, to the grocer if it knows there exists a guaranteed Trust Fund from which the creditor may be compensated.

If the federal government can protect farmers and grocers in this manner, it can do the same for artists. All artists can pledge a percentage of the royalties earned from the books or songs or plays they publish to be paid into a Copyright Trust Fund. The payment would be a tax and could be calculated on a sliding scale. An author might pay 1 percent of his or her royalties into the trust fund for the first year of publication and z percent the second year, with slowly growing increments during the 14 years that have been the traditional term of copyright protection. After that time, the work would no longer be copyright protected, and 100 percent of the royalties would be paid to the author. Here the artist is paying his built-in and given debt to the Cultural Commons.

If at any point the author is accused of infringing on the copyright of another author or making unfair use of that second author's work, the second author, who is claiming the infringement, would only have recourse to compensation from the Copyright Trust Fund. Copyright claims of the type deplored by Hyde would be adjudicated by administrative officials, and compensation would be at a low level, not to exceed the limits imposed by the administration of the Fund. Only if a complainant could prove an intent to maliciously misappropriate another's work would the case be tried in a federal or state court and the compensation be punitive.

In this manner, artists would be encouraged to publish their work. They would know that they would be protected from frivolous claims of infringement. They would also know that if infringed upon to their detriment by an artist without malicious intent, they could be compensated without driving the infringer out of the Cultural Commons entirely.

For example, Hyde describes the career of Bob Dylan, who wrote all his early songs by immersing himself in the work of previous songwriters like Woody Guthrie. Dylan's work can certainly be seen as a series of variations on a theme already stated by a previous artist. Guthrie, in today's copyright climate, would have an infringement claim against Dylan. If his estate had asserted those claims in the 1960s, he might have shut down Bob Dylan entirely, and the Cultural Commons would be that much poorer.

However, given the Copyright Trust Fund I just described, both Dylan and Guthrie would be protected. Suppose the Copyright Trust Fund had existed at the time Guthrie wrote his songs and had continued to exist to the time Dylan wrote his. Guthrie would have paid a percentage of his royalties into the Fund. Years later, Dylan would be contributing a small percentage of his royalties for "Blowin' in the Wind" and other songs to the Copyright Trust Fund, in which there would be a substantial amount of money not only from his contributions but from the contributions of other artists.

Once Guthrie's estate establishes that Dylan has been using Guthrie's work as a springboard for his own songs, Guthrie may be compensated for the hard work he put into writing those songs. The compensation would come out of the Trust Fund. Compensation could be at a set rate per song and would be conceived as payback of that cultural debt inevitably arising out of the very existence of the Cultural Commons. Guthrie would be paid back in some manner for the monies he originally paid into the Fund. But Dylan would not be punished for using Guthrie's material and participating in the Cultural Commons. Guthrie's only recourse would be to the Trust Fund, into which both he and Guthrie had made yearly payments. In this manner, Guthrie is compensated for his work and Dylan is encouraged to write and work in cultural conversation with artists of previous generations.

While Dylan might not conceive of himself as a guitar strumming Ben Franklin, that might be Hyde's fondest wish. Hyde's vision of a citizenry of artists, informed and connected among themselves by the free access to all their work, is an inspiration to conjure as many types of connection as possible. That inspiration should begin and not end when the last page of his remarkable book has been turned.

Code of Best Practices in Fair Use for Poetry

The code of best practices was facilitated and prepared by the Center for Social Media and the Harriet Monroe Poetry Institute. It helps poets understand when they and others have the right to excerpt, quote, and use copyrighted material in poetry. For a copy of the code and more information, see: practices-fair-use-poetry



(1.) The fact that numerous persons might each have distinguishable interests in one parcel of land is actually quite ordinary. Most real property rights are part of a bundle of property rights. I own my home, for instance, but that ownership is subject to the rights of a mortgagor who has the right to foreclose on my home if not paid regularly. The electric company owns a right of way or easement across the back of my property where it runs its wires. The Stocker oil company owns the rights to any minerals found on my land, for which right it pays me quarterly. And the City of Los Angeles has the right to tax me for the value of my land and lien my property if I do not pay those taxes.

(2.) Hyde defines allodial land as "land that can be bequeathed, passed from one generation to the next, and as such it is the vehicle for family continuity over time, for stability decade after decade" (Common as Air at p. 101).

(3.) Here I am thinking of the work of T. S. Eliot, Harold Bloom, and Arthur Danto, to name a few critics.

FRED BRANDFON practices law and lives with his son, Ben Brandfon, in Los Angeles, California. In an earlier career he directed the archaeological excavations at BeerSheba, Tel Michal, Tel Gerisa, and Jaffa, all in Israel.
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Author:Brandfon, Fred
Publication:The American Poetry Review
Article Type:Book review
Date:Mar 1, 2011
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