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Common property redux.

B. My Proposed New Property Taxonomy Explained and Defended.

From these three examples alone we can see the truth of Rose's observation that while property theorists are now focusing more on property forms other than those set out in the standard taxonomy, "the terminology is a mess." (82) With the hope that I am helping to clean this mess up rather than add to it, I offer a taxonomy of property types that I think makes better sense of the insights generated by the authors dealt with in the previous section.

1. Private property is the property form that classical liberalism stressed. It exists when a resource is owned by a single individual, and that individual has the right to exclude all non-owners from the use or benefit of the resource.

2. Common property is the property form that C.B. Macpherson stressed. It exists when each individual has a right not to be excluded from the use or benefit of a resource.

3. Collective property is the property form that Elinor Ostrom stressed. It exists when a number of individuals combine their separate interests in a resource, manage the resource together and all share in the benefits, while non-members of this limited ownership group can be excluded from the use or benefit of the resource. It combines elements of both private property and common property. Simply put, it looks like common property when viewed from the inside, and like private property when viewed from the outside.

1. Private Property

The classical liberal tradition stressed the centrality of private property ownership, which amounted to Blackstone's "sole and despotic dominion" over the thing owned. As is indicated by the word "sole", the paradigm of a private property owner for this tradition was a single individual. Sarah Blandy refers to "the liberal model of full individual ownership" a model that "is organised around the idea that each resource belongs to an individual; the name of the individual is attached to the resource in what Waldron has described as the name/object correlation, the essence of ownership." (83) Moreover, it is clear that this individual was assumed to be a human being. It was a human individual who used his private property to achieve physical security, privacy, and a release from social pressures to conform; to produce a bounty that provided the means of life for himself and his family and that secured his independence; to finance his pursuit of the good life as he conceived it; and so on.

But even as this conception of private property flourished in the 17th and 18th centuries, the reality of property relationships told a different story. First, the rights of individual private property owners never really amounted to sole and despotic dominion. (84) Second, forms of property ownership existed that departed from the paradigm of ownership by a single human being: partnerships and corporations. Partnerships fall within my taxonomy's category of collective property rather than private property--they involve shared ownership of resources by a limited group that manages the resources and appropriates their benefits while excluding all others. However, because the dominance of the private property paradigm made other property forms hard to see, partnerships were not recognized as examples of a different, non-individualistic form and were instead just included within private property. Corporations also did not fit the liberal paradigm of ownership by a single human being. But the fact that the corporation could be described as a single artificial "person" or "individual" made it easy for liberal property theory to squeeze it into the orthodox paradigm. Ownership by a single human person and ownership by a single artificial person were held to be equivalent. They were just two different types of private property ownership.

This assimilation approach had to turn a blind eye to the fact that by the late 19th century when ownership of productive assets by large, publicly traded business corporations had become the dominant economic form, each corporation could have thousands of shareholders. Behind the veil of corporate individuality there lurked a large collectivity. These many shareholders, although they are held to be distinct from the corporation itself, are generally held to be the owners of the corporation. Consequently, my taxonomy will take a two-track approach to such corporations. Property owned by the corporation is private property; it is owned by an artificial individual that has the right to exclude everyone else from the resource. But the corporation itself is a piece of collective property; it is owned by a number of shareholders who form a limited group that shares rights to participate in the management of the corporation (basically they can elect the directors who really manage it) and that shares rights to the profits produced by the corporate assets (if the directors decide to declare a dividend). Modest as these shareholder rights may be, non-shareholders are excluded from them.

Finally, there is another type of property ownership by an artificial entity that needs to be discussed under the heading of private property. Surprisingly, it is ownership by the state. It will seem odd to link ownership by the state with private property because in the standard liberal taxonomy they are polar opposites. In my taxonomy, however, property ownership by an artificial entity called the state and property ownership by an artificial entity called a corporation can sometimes be identical. This is because, as Margaret McKean noted, ownership by the state can be of two kinds. The state can own "public property held in trust for the public by the state, to which the general public often has access", and also it can own "state property that is essentially the exclusive--and therefore private!--property of government bodies, to which the public does not have access." (85) I think that McKean is correct to say that an adequate property taxonomy should emphasize this distinction between public property and state property, and I also think that McKean is correct to say that ownership of state property is really a type of private property ownership. Earlier we noted that C.B. Macpherson made exactly the same analysis of state property because it involves the right by an artificial individual owner to exclude any non-owner from the use or benefit of the resource, just as you find with corporate private property ownership. (86) Others have made this point as well. (87)

In summary, private property in my taxonomy is ownership by a single human or artificial individual where this individual has the right to exclude anyone else from the use or benefit of the resource owned. Although this keeps the classical liberal conception of private property as part of my taxonomy, it makes the surprising move of absorbing state property and so eliminating it as the major non-private property form. This creates room to establish common and collective property as the remaining major forms, which accords with Heller's and Rose's urgings that we move beyond the standard trilogy of property forms.

2. Common Property

I believe that the key to a better understanding of common property is the adoption of the definition advanced earlier by C.B. Macpherson: "Common property is created by the guarantee to each individual that he will not be excluded from the use or benefit of something". (88) Common property is marked by a presumption of access for all, and this presumption remains in place even if access has to be temporarily suspended because a public road is closed for repairs or a parade, or if the occupancy of a public building has reached the limit allowed by the fire code, or if that public building is only open from 9 a.m. to 5 p.m. Similarly, the norm of a right of access to a resource remains in place even if a small fixed fee has to be paid in order to exercise a right to enter a public art gallery or a national park, or to obtain a statutory license to perform a previously recorded song. Lawrence Lessig wrote that "[b]y a commons I mean a resource that is free. Not necessarily zero cost, but, if there is a cost, it is a neutrally imposed, or equally imposed cost.... The point is not that no control is present, but rather that the kind of control is different from the control we grant to [private] property." (89) Elsewhere he argues that "a resource is 'permission free' if the right to use the resource does not depend upon anyone's subjective will.... It follows that a 'permission free' resource could cost something, so long as the user had a right to buy access to the resource." (90)

How does common property so understood fit with Hardin's tragedy of the commons? We have already seen that Hardin's argument fails to appreciate that there are forms of collective property that can, without resort to state regulation or private property, provide the coordinated management of a resource that avoids tragic outcomes. (Ostrom provided many examples of this.) But even when we limit the argument to common property, Hardin fails to appreciate that there are many kinds of common property, and his tragedy only potentially applies to one of them. In the next section I will argue that if we accept Macpherson's definition of common property, then we can isolate three distinct types of common property: (1) a privately created commons, (2) public property, and (3) the public domain. Moreover, each of these three types of common property can take both a material and an immaterial form, yielding six types in all. Hardin's tragedy, however, only potentially applies to one type: the material public domain. It docs not apply to any immaterial common property (because such property cannot be tragically used up), and in the cases of both material public property and a privately created material commons, there is an owner of the resource who can regulate use of it to prevent tragic outcomes.

But how can there be such an owner of common property? Does not common property mean ownership by all or ownership by none? It is indeed the case that much thinking about common property has presented these two alternatives as the only possibilities, but I now argue that adopting Macpherson's understanding of common property and my taxonomy's three types of common property allows us to see other possibilities.

The Christian and socialist traditions tended to think of common property as ownership by all. The 14th century theologian John Wycliffe argued that "the only way each of the righteous can possess the whole world is for all of them to hold it in common; common ownership is the more perfect form of ownership". (91) The socialists wanted shared social ownership of the means of production to replace individual private ownership of the means of production. But on Macpherson's understanding of common property, it is characterized by a widely dispersed individual right of access that can exist without common ownership. Many individuals can have a right of access to a resource without being the owners of that resource. Indeed, none of my three forms of common property will feature common ownership; instead, instances of common ownership will feature in my collective property category. As we shall see in more detail in the next section, a private property owner can create a type of common property when he grants a license or easement giving all members of the public wide access to his resource. But this person remains the owner of the property, as he has not donated the resource to the public. Similarly, in the case of public property the resource is owned by the state, even if, as McKean put it, the resource is "held in trust for the public" (92) and all members of the public have a right of access to the resource. Finally, in the case of the public domain there is no common ownership because there is no owner at all of these resources. Still, all members of the public have a right not to be excluded from the use or benefit of these resources, and so there is common property as Macpherson defines it.

The liberal tradition was more likely to think that common property meant that there was no owner involved at all--Hardin's tragedy argument is a good example of this. But as I have just argued, this liberal thinking is flawed because two of my three types of common property do have an owner of the resource. Only in the third type of common property, the public domain, do we have common property in a resource without any owner of the resource. However, it could be argued that this characterization of the public domain faces a severe problem, because if there is no ownership of a resource, then there can be no property rights in it at all, and so it is an error to call the public domain a type of common property. Margaret McKean made this argument forcefully. Recall that the first item in her taxonomy was "unowned non-property (or open access resources)", and she emphasized this "non-property" point when she wrote:
   People who really ought to know better frequently use the term
   "common property" to refer to unowned resources, to which no one
   has recognized rights of any kind and which therefore is not
   property at all. Unowned resources are quite obviously vulnerable
   to degradation because no one has the right to keep anyone out or
   to limit use. All agree that unowned commons are doomed to tragedy.
   The unfortunate misuse of "common property" to mean unowned
   resources not only makes hash out of the term "property" by
   referring to its absence, but also blinds us to the possibility
   that a resource used in common can actually be owned exclusively by
   the group that uses it. (93)

McKean thinks that the term "common property" should be reserved for what I am calling "collective property", because property rights can only arise when something is owned exclusively either by an individual or a limited group. But Macpherson would reply that it is a mistake, induced by the dominance of the liberal paradigm of private property ownership, to think that the lack of an owner and of a right to exclude means that there can be no property rights in existence. Just because the public domain is neither privately owned nor collectively owned, nor owned in common by all, it does not follow that there are no property rights operating in the public domain. There can still be the common property rights that he described--the right of all members of the public not to be excluded from the use or benefit of the resources in the public domain. Because Macpherson's conception of common property is not shaped by the template of liberal private property and its right of exclusion, it can be hard to see for those whose imaginations have been structured by the orthodox tradition of thinking about property. McKean can think of common property only as a type of shared private property.

3. Collective Property

Collective property combines elements of both private property and common property, and so is an example of what Heller described as an "integrative approach" to taxonomy--"one that brings together elements of the existing ideal types into something surprising and new." (94) It therefore looks like common property when viewed from the inside, and like private property when viewed from the outside. This is because collective property exists when a number of individuals combine their separate property interests in a resource, manage the resource jointly, and all share in the benefits, while non-members of this limited ownership group are excluded from the use or benefit of the resource. Because collective property involves individuals combining their separate property interests, it always involves shared ownership, but does not always involve co-ownership. This can be seen in patent pools and copyright collectives. Here separate owners of intellectual property combine their resources to form the pool, and through cross-licensing arrangements allow each member of the pool to have access to the intellectual property owned by the others, but they do not all become joint or co-owners of the intellectual property in the pool. (95)

Collective property would certainly include Heller and Dagan's "liberal commons" category, and so would cover the main property types found in capitalist economies--corporations, partnerships, joint tenancies, trusts, (96) etc. Outside the liberal commons there are other types of collective property that are more organic and "sticky", and that do not feature the easy ability to exit that was a distinctive characteristic of the liberal commons. Here we would find non-Marxist socialist models of collective ownership of the means of production, such as producers' cooperatives. Even further beyond the liberal commons we would find the native title of Indigenous peoples to their ancestral lands. Notoriously, liberal property theory has had trouble accommodating native title because it is a form of shared ownership that is very far removed from the liberal paradigm of ownership.

Most property theorists do not recognize collective property, as I have defined it, as a separate property form. Macpherson did not pay attention to it at all. If he had, he probably would have categorized it as an example of private property because it involves exclusionary rights stemming from ownership. Other property theorists do pay attention to what I call collective property, but they typically categorize it as a type of common property instead. We have just seen that Margaret McKean understands common property to mean what I call collective property, rather than what Macpherson means by common property:
   In contrast to conventional usage that distinguishes between common
   property and private property (automatically implying that common
   property is public property because of our habit of crudely
   dichotomizing all property into either public or private forms), I
   would argue that common property is best thought of as a variety of
   shared private property. (97)

Elinor Ostrom is widely understood to have identified a special type of commons that is different from the open access commons that Hardin considered. But Ostrom's examples of "limited access common pool resources" are never common property in Macpherson's sense, and are instead nearly always collective property. I shall explain the exceptions shortly.

Notwithstanding this prevailing orthodoxy, I believe that there are good reasons for recognizing collective property as a major property form distinct from common property. First, a common property category that contains both property that always involves shared ownership by a group, and property that never involves shared ownership by a group is too broad. It mashes together two very different things, reducing our ability to see how our property relationships actually operate. Second, collective property raises justification and legitimacy issues that common property does not, and a good property taxonomy should highlight this rather than conceal it by combining the two into the same category. The justification issue arises because collective property, like private property, involves the right to exclude others from the use or benefit of a resource, and it has long been recognized that this right gives power over others that can be used to harm them. Why should non-owners accept an arrangement where they can be harmed and only a few owners are advantaged? This is a familiar issue in property theory. Common property, on the other hand, faces no such legitimation challenges, since everyone has the same right of access and nobody can be excluded.

Economic considerations provide a third reason why we should separate collective property from common property. First, collective property is not subject to Hardin's tragedy of the commons argument; however, one type of common property is. Second, collective property, rather than being tragic, is the most important and efficient property form in modern economies. The large corporations that dominate those economies are collectively owned. But despite its economic importance, collective property is not identified as a special property form by the standard liberal property taxonomy, and is instead merged into either the category of private property or common property. I argue that it is time to recognize it as a distinctive property form that combines elements of both.

If the taxonomical change I suggest is acceptable, there is still a terminological issue. Why call this new property form "collective property"? Another possible name is "semicommons" property, a term that has also been applied to a property form that combines elements of private and common property. The term was invented by Henry Smith to describe the mixture of private property and common property elements found in the open fields of medieval England. (98) Smith's understanding of a semicommons has been extended by some who use it to describe modern situations involving intellectual property where there are both private property and common property elements present. (99) But I think that calling collective property a "semicommons" makes it seem like a form of common property again, underplaying its distinctiveness and its significance. Collective property is more pervasive, displays a wider range of types, and is much more economically important than common property, and therefore a clear distinction between it and common property should be maintained.

The collective property I have described covers forms of shared ownership by a limited group. Ostrom provided us with many examples of this, but not all of them would fit into my category as not all of her examples of limited access common pool resources feature people with ownership rights. This is not a criticism of Ostrom; her project is not to develop a property taxonomy, but to investigate any type of collective arrangements for the management of a resource other than state regulation and private property. Sarah Blandy picked up on this point;
   [I]t is important to note that [common-pool resources] scholars and
   property scholars are not concerned with the same issues. Charlotte
   Hess and Elinor Ostrom make a clear distinction between common-pool
   resources as "types of economic goods, independent of particular
   property rights" and common property as "a legal regime--a jointly
   owned legal set of rights"  ... CPR theorists are not primarily
   interested in property but in analysing the collective governance
   of common-pool resources. (100)

Consequently, Ostrom can include in her analysis examples where a group that has no ownership rights in a resource is nevertheless able to establish effective control and management of it, exclude outsiders, and thus turn it into something that mimics genuine collective property. She shows how in Alanya, Turkey, the fishers have created an effective voluntary system for regulating the inshore fishery, even though the group does not own the resource. (101) In America, the Maine Lobstermen's Association is an example of a similar group that has managed, without ownership rights, to achieve self-regulation of a resource by the use and threat of force. (102) In terms of my taxonomy, the lobstermen have no private or collective property rights in the lobsters. They have only common property rights (which do not require ownership) and are illegally using force to prevent others from exercising their similar common property rights. This is unsatisfactory from property law's point of view, but it may be very satisfactory from the lobstermen's point of view in conserving the lobster resource and avoiding tragic outcomes, which is what interested Ostrom.

Explicitly recognizing collective property as a part of a new property taxonomy could cause us to see familiar things in new ways, and to re-categorize some merely informal arrangements as genuine collective property rights. This re-categorization may be especially helpful for less powerful groups, who have tended not to have their interests recognized by the standard taxonomy. As Carol Rose observes:
   Story trees, folklore and traditional plant products may go
   unrecognized as property not only because of their indefinite group
   character, but also because of dismissive attitudes toward their
   creators. Those creators are often women on the one hand and
   traditional peoples on the other Yet the creators of these
   collaborative works could benefit from property protection--not
   necessarily to cash in on their work, but sometimes simply to
   achieve recognition, and to prevent outsiders from appropriating
   and commercializing their emergent artistic products. (103)

Hopes for such a transformation of informal sharing arrangements into collective property rights are buoyed by the fact that we can point to a few examples of it happening already, as Anna di Robilant describes:
   Community gardens have been an important and visible feature of
   American cities since the 1980s Many of the gardens in New York
   City were created at the time of the fiscal crisis of the 1970s,
   when thousands of housing units scattered around the city were
   abandoned by their owners and eventually acquired by the city.
   There was no money to clear the lots because the city was on the
   verge of bankruptcy. Buildings deteriorated and collapsed, and the
   depressed market meant that few lots were sold. The gardens were
   formed by local residents reacting to the degeneration of their
   neighbourhoods, often with no city authorization. The city began to
   recognize the gardens legally, and in 1978, it established the
   Green Thumb project, which offered leases and assistance to the
   gardeners. (104)

Finally, I need to consider the consequences for the previous section of this paper (which dealt with defences of common property) of recognizing collective property as a major property form distinct from common property. One consequence is that some of the people who believed that they were defending common property were in fact defending collective property. This would apply to Ostrom, McKean, Heller and Dagan, Alexander, and di Robilant. Rose, Macpherson, Lange, Litman, Boyle, Lessig, Benkler and Balkin, however, were defending genuine forms of common property on my taxonomy, namely public property, the public domain, and a privately created commons. Moreover, the efforts of those defending collective property still performed some useful work in that earlier section. Viable forms of both common and collective property can serve to rebut the classical liberal (and neo-liberal) claim that individual private property is the only defensible and durable property form. As John Page put it, "[t]he more we 'see' a variety (and greater quantity) of different property types, the less conditioned we become to a self-imposed straitjacket where property and private property are synonymous." (105)


I will now argue for the recognition of three types of common property: a privately created commons, public property, and the public domain. Each type can take both a material and an immaterial form. In all three types we find Macpherson's "guarantee to each individual that he will not be excluded from the use or benefit of something," even though the holders of the common property right do not own the resource to which they are given access.

A. A Privately Created Commons

1. Material Commons: Conservation Easement and Informal License

In this situation, both private property and collective property can be transformed into common property by the owners. The owner gives up the strong right to exclude all non-owners, and grants an easement or license that confers on the general public a broad right of access to the resource. Although most privately created commons result from the voluntary actions by the owner of the resource, sometimes an owner can be compelled by law to grant a license to anyone who wants to use his resource. This happens, for example, with a statutory license that allows others to record music previously recorded by the original artist after paying a statutory fee. (106)

The fact that this type of common property is based upon a foundation of private or collective property is what distinguishes it from the other two types of common property. This distinguishing feature might justify calling it a "semicommons." As noted in the previous section, Henry Smith used the term "semicommons" to describe a mixture of private and common property in English medieval farming. Although I argued that it is misleading to call collective property a semicommons since no wide public right of access is involved there, that objection would not apply here.

An important type of privately created material commons is the "conservation easement", which is granted by private/collective land owners in order to create public access to land, preserve a view, or preserve a wildlife habitat on the land. (107) This easement is perpetual; it burdens and runs with the land, and therefore binds subsequent private/collective owners of the land. (108) In New Zealand there has recently been a grant of a conservation easement and associated protective covenants over 53,000 hectares of South Island high country from the private owner of a perpetual lease to the Queen Elizabeth II National Trust. This is the largest such conservation easement over private land in New Zealand's history; it covers a land mass larger than some of New Zealand's national parks. In fact, it has been described as "New Zealand's first national park in private hands." (109) It is a fine example of a privately created material commons that will feature public access, together with conservation of iconic landscapes, and endangered native wildlife. Where a wildlife habitat is preserved by these means, we have the complication of a material commons to which the public may not have a physical right of access. In this situation, Macpherson's "guarantee to each individual that he will not be excluded from the use or benefit of something" could still exist, but the benefit would be the continued existence of the animals whose habitats are preserved.

Other privately created material commons are achieved by less formal arrangements that would be implicit licenses in the eyes of the law. One example would be allowing members of the public to wander freely about the grounds of a university campus. Another example would be shopping malls where members of the public are invited to enter and wander freely, although the hope is that most of them will buy something. It is generally accepted that while an easement is a property right, a license is merely a contractual right to do what would otherwise be a trespass. How then can such implicit licenses belong in my property taxonomy? I would argue that it makes sense to say that a license is not a property right when an owner gives a limited right to access his property to a limited number of people, such as the people who purchase tickets to see a movie at a particular time in a cinema, or the people who stay at a hotel for a few days while attending a conference. But when an open-ended right of entry is granted to the public at large without any payment, and without significant restrictive conditions being imposed, we have a different situation. The implicit license in this situation does give rise to Macpherson's "guarantee to each individual that he will not be excluded from the use or benefit of something",110 and therefore does produce an example of common property.

2. Immaterial Commons: Creative Commons License and General Public License

Intellectual resources, unlike material resources, are "naturally nonrivalrous, meaning that consumption of the resource does not deplete the amount available to other users, and nonexcludable, meaning that knowledge resources are not naturally defined by boundaries that permit exclusion of users." (111) Still, the law acts to "propertize" some of these resources and allows the owners of the resulting intellectual property to exclude all non-owners from the use or benefit of the resource without the owners consent. But just as with material property, the owners of intellectual property can choose to give up all or most of the right to exclude others that comes with their property ownership. This brings a privately created immaterial commons into existence. Granting public access to privately or collectively owned intellectual property is achieved by a license, the most significant of which are the General Public License used to create open source software, and the Creative Commons License.

Michael Madison, Brett Frischmann and Katherine Strandburg want to apply Ostrom's ideas about group management of natural resources to the cultural environment, and they find a range of examples of such "constructed cultural commons". At one end of their range is what I would categorize as collective rather than common property, such as patent pools from which non-owners are excluded. (112) But at the other end of the range we find what I would categorize as a privately created immaterial commons, because the collective owners of the intellectual property grant a broad license to the general public to use the resource. "It is entirely possible and desirable for a community to produce and/or manage a cluster of cultural goods that is accessible to outsiders. One of the measures of the social benefit of a constructed cultural commons may be the degree to which it disseminates the intellectual goods it produces to a wider audience." (113) They provide the examples of Wikipedia and "jamband fan communities",114 but their most important example of collective property being turned into a privately created immaterial commons is open source software:
   The Linux operating system, an alternative to Windows and Mac OS
    ... was produced and is still maintained by a volunteer
   collaborative of individual programmers ... Formally, the software
   is governed by copyright law, and its use is managed by the terms
   of the General Public License ... The result is a complete, complex,
   and successful industrial product that is built and maintained not
   by a traditional, hierarchical, industrial firm, but by a
   loose-knit community. (115)

The reason why open source software is not simply donated to the public domain by the creators is that it would then be possible for someone else subsequently to take it out of the public domain by claiming intellectual property rights in it. (116) By retaining the intellectual property rights in their work, the developers of the software both block anyone else from claiming exclusive access, and also ensure that the public will have access by granting a broad General Public License. James Boyle notes that
   [t]hough journalists frequently and mistakenly claim otherwise,
   neither "free software," nor most "open-source software" is in the
   public domain. After all, the thing that makes open-source software
   work is the General Public License. All the things that seem so
   interesting about open-source--its model of distributed production,
   the way it grows, binding future innovators who make use of it to
   add to the store themselves--are built on this license. That
   license, in turn, rests on an intellectual property right, the
   copyrights held by the Free Software Foundation and other entities.
   The GPL says, in effect: Here is this copyrighted body of work; you
   may use it, add to it, modify it, or copy it--all of these uses are
   legal, but only if you comply with the terms of the GPL. Otherwise,
   your actions are infringements of the exclusive rights conferred by
   section 106 of the Copyright Act. (117)

Lawrence Lessig describes how the Creative Commons License took its inspiration from the free software movement and follows the same "strategy of using private ordering to build a public commons ," (118) but it was designed to fit the intellectual property of authors and artists rather than software designers. (119)

However, just as we saw in section III that many property theorists tended to subsume collective property within common property, so my privately created immaterial commons is often subsumed within another type of common property. Patricia Samuelson, for example, sees Creative Commons Licenses and General Public Licenses as examples of a "Contractually Constructed Information Commons," and categorizes them as belonging within the public domain. (120) She does this even while she acknowledges that these licenses are based upon the private intellectual property rights of the owner who constructs the information commons. Because I will argue that materials in the public domain are not owned by anybody, I think that this is a mistake.

B. Public Property

1. Public Property Distinguished from State Property

Public property is a type of common property that is owned by the state, but to which the general public has a broad right of access. The strong right to exclude non-owners, which the state enjoys with respect to state property (private property owned by the state), does not exist with public property, although the state, as owner, can still make rules to manage the public access efficiently, equitably, and safely.

2. Material and Immaterial Public Property

There can be both material and immaterial forms of public property. Examples of material public property would be public streets, parks, plazas, beaches, lakes, libraries, sports fields, and so on. Immaterial public property is not such a large category, but would include information held by government departments and agencies to which the public can demand access.

Earlier we saw that Patricia Samuelson wrongly subsumed a privately created commons within the public domain, and similarly others wrongly subsume public property within the public domain. Tyler Ochoa reports that "lands owned by the United States Government are frequently referred to as the 'public domain.'" (121) But on my taxonomy the lands owned by the United States Government are either state property or public property, and are not part of the public domain. The distinctive feature of the public domain, I will argue, is that it has no owner, and both a privately created commons and public property have owners of different kinds. Conceptual clarity is advanced if we respect the differences between the three distinct types of common property, even as we acknowledge that they all feature a widespread public right of access.

3. The Public Trust Device

The instances of material public property form a range that exhibits different degrees of state power to manage the resource. At one end of the range the state can change the public use from one form to another, as when it closes a library and turns it into a community center, or constructs asphalt tennis courts on part of a grassed sports field. It can even bring the public property to an end, as when it closes a public street and sells the land to private owners. But at the other end of the range the state's powers are much more circumscribed. It is here that we find language describing the public property as subject to a "public trust" and forbidding the state from doing anything that violates the terms of the trust. The state could not sell or change the use of the property if doing so would violate the purposes of the trust. Here the state's ownership of the resource still exists, but is very thin and could even be said to be nominal, as John Page puts it:
   While the nominal owner may be the state, its title is a threadbare
   one. The true beneficial owner, illusory or otherwise, is the
   people.... Where the state is a bare trustee, its role is reduced
   to management of trust assets for the exclusive benefit of the true
   beneficial owners, who retain the bulk of the key bundle rights.
   The states residual right is essentially the right to manage
   constrained by trust obligations. Shorn of most of the hallmark
   property rights, it may be unrealistic to describe the states
   dearth of bundle rights in public property as proprietorial. (122)

In "The Comedy of the Commons" Carol Rose argued that in the cases of what she called "inherently public property", it was the "unorganized public" rather than the "organized state" that had the most important rights. That is, public access to a resource was assured for certain purposes, and the organized state could not take this access away because it only held legal title to the resource in trust for the public, which was the real beneficial owner. Members of the public could go to court to block attempts by the state to sell or even change the use of the resource. She described how the "public trust doctrine" has come to be particularly important in American law with respect to natural resources and the environment. (123) In Canada the public trust doctrine is not as well established as it is in America. Sarah Hamill reports that this has resulted in some courts tending to favor the end of the range that gives greater weight to the state's powers to manage public property as it sees fit, rather than the public's right of access to public property. (124)

C. The Public Domain

1. The Material Public Domain: Res nullius and RES COMMUNES

The main categories of the material public domain were already well known to Roman law, which catalogued res nullius and res communes among the nonexclusive forms of property. (125) Res nullius consisted of things that were capable of being owned, but that were not owned because they had not yet been appropriated by anyone. This category included wild game and unclaimed land. (126) Res communes consisted of resources that were not capable of being owned because of their nature and were available to all. This category included the air and the sea. (127)

Hardin's tragedy of the commons only potentially applies here to the material public domain. Immaterial forms of common property cannot be degraded by overuse, and my two other forms of material common property both feature owners who can act to conserve the resource if necessary (as does collective property). But there are not many examples of the material public domain that one can point to anymore. There is little, if any, unclaimed land. Only the air and the high seas (and perhaps outer space) are obvious candidates. One can only marvel that Hardin's argument has achieved such importance in property theory while applying to such a small number of situations.

2. Immaterial Public Domain: Beyond Intellectual Property Rights

The immaterial public domain is much more important today than the material public domain. The immaterial public domain contains things that cannot be covered by any intellectual property rights (such as facts, ideas, natural languages, etc.), things that were never covered by intellectual property rights although they could have been, and things that were once covered by intellectual property rights that have since expired.

3. Boyle: Recent Threats To And New Defences Of The Immaterial Public Domain

As described earlier, the neo-liberal expansion of private property rights at the end of the 20th century led to the shrinking of the immaterial public domain. A few authors such as David Lange and Jessica Litman warned that this shrinking came with significant costs, but it was only in the early 21st century that their warnings were picked up by a significant number of other people. In 2003 there appeared two special issues of Law and Contemporary Problems devoted to "The Public Domain." (128) These issues were part of a wave of greater interest in the public domain, and it was this wave that generated the arguments canvassed earlier that a large immaterial public domain is necessary for (1) creativity and innovation, (2) economic efficiency, and (3) democracy and a free society.

James Boyle was an important contributor to this wave. He wanted to move beyond the 18th century copyright debates, which emphasized the economic, cultural, and political harms caused by monopoly, (129) to an account of how the public domain could be defended today as something valuable in its own right. (130) He noted the early contributions of Lange and Litman, and sought to build upon them. He suggested developing analogies between harms caused in the material realm and harms caused in the immaterial realm, so as to make these immaterial harms more visible. He analogized the expansion of private intellectual property rights into the public domain as "a second enclosure movement". He suggested that the defenders of the immaterial public domain learn from the ways in which people organized to resist threats to the material environment:
   Just as the duck hunter finds common cause with the bird-watcher
   and the salmon geneticist by coming to think about "the
   environment," so an emergent concept of the public domain could tie
   together the interests of groups currently engaged in individual
   struggles with no sense of the larger context. This notion, in
   turn, allows people to solve collective action problems in a number
   of different ways, including the creation of specialized
   organizations whose technical expertise and lobbying proficiency
   allows the diffuse interests of a wider public to be better
   articulated. Here, too, we can learn. The public domain should have
   its Greenpeace, its Environmental Defense Fund, its Nature
   Conservancy, its Environmentally Concerned Scientists. (131)

My only criticism of this modern writing defending the public domain is that some property theorists try to shove too many disparate things into the public domain in the course of defending it. Pamela Samuelson, for example, claims that there are 13 different conceptions of the public domain, and she argues that this multiplicity is a good thing. (132) James Boyle agrees that multiple conceptions of the public domain are a good thing: "The public domain will change its shape according to the hopes it embodies, the fears it tries to lay to rest, and the implicit vision of creativity on which it rests. There is not one public domain, but many." (133) But placing so many different things within the one category produces a problem:
   [J]ust as physicists search for a "unified field theory" that
   explains all of physics, the elusive question remains whether there
   is a "unified field theory" of the public domain that can help
   unify and explain the disparate types of subject matter that are
   contained within it. (134)

My position is that there is no good reason to inflate the category of the public domain and so produce the need for a "unified field theory". If material that did not belong within the public domain were kept out, the character of the public domain would not seem so problematic. For example, James Boyle suggests that we include within the public domain "songs that can be 'covered' by subsequent artists upon payment of a defined fee under a compulsory license." (135) Lawrence Lessig says that a Creative Commons License crafts "an 'effective' public domain--meaning a free space that functions as a public domain, even though the resources that constitute it are not properly within the public domain." (136) Both of these authors include within the public domain items that are privately or collectively owned, but to which the public has broad access pursuant to a license granted by the owner(s). I do not see how it promotes clarity to put such items in the same category as items that are not owned at all. I argue that my taxonomy better allows us to see what is going on in the difficult area of common property by separating out the three distinct ways in which members of the public can come to have access to resources of which they are not the legal owners.

4. Ownership of the Public Domain: Everyone or No One?

In contrast to both a privately created commons and public property, the public domain in my taxonomy is not owned by anybody. Not everybody would agree with my claim that the public domain is unowned but that members of the public enjoy common property rights over it. Earlier we saw Margaret McKean object that "[p]eople who really ought to know better frequently use the term 'common property' to refer to unowned resources." (137) But, as I explained, the absence of an owner with exclusionary powers does not entail the absence of all property rights. Common property, as Macpherson defined it, can still exist if every individual has a right not to be excluded from the use or benefit of the resources found in the public domain.

While McKean sees conceptual problems with my account of the public domain, Tyler Ochoa sees strategic problems. He acknowledges that "[m]any modern definitions of the phrase 'the public domain' characterize it as material not subject to intellectual property protection. In other words, the public domain is marked by the absence of ownership." (138) But he argues to the contrary that material in the public domain should be categorized as owned by the whole public. Partly his reasons for this position derive from his historical analysis of the way the terms "public domain", "public property", and "common property" were used in American law, (139) but his main reason is strategic and rhetorical. He says that his approach allows the public domain to be better protected:
   One may legitimately ask: Why does it matter if the public owns a
   "property" interest in the public domain? One answer lies in the
   rhetorical power of the word "property". The protection of property
   is one of the most fundamental principles of American law.... Most
   importantly, if the public has a property interest in the public
   domain, any deprivation of that property would be subject to the
   Due Process Clauses of the US Constitution. Such an interest may
   form the basis for challenging Congressional action that reduces
   the public domain, such as copyright restoration. (140)

But I would reply that Macpherson's definition of common property responds to the concerns of Ochoa just as well as it did to the concerns of McKean. Individual property rights are more powerful rhetorical tools in liberal legal cultures than ownership by the public, and Macpherson has provided a way to understand common property as a widely spread individual property right. Thus we do not need to argue for public ownership of the public domain to protect it as Ochoa wants; we have individual property rights available to do that job.


Common property was once taken seriously, but as classical liberalism waxed from the 17th century onwards, common property waned. Interestingly, in the last few decades interest in common property has revived, and when we survey the range of arguments that have been made to defend it, we find that many of them have been generated by making creative use of the resources of liberalism itself. However, these varied arguments in defence of common property have produced a confused and conflicting landscape. I have argued in this paper that conceptual clarity can be achieved by adopting C.B. Macpherson's definition of common property as the guarantee to each individual that he will not be excluded from the use or benefit of something. Once this move is made, it follows that common property must be separated out from another property form that I have called collective property. Collective property involves shared ownership of a resource by a limited group that enjoys its benefits, but that can exclude all non-members of the group from access to the resource. Many purported defences of common property turn out to be defences of collective property instead, and this is a major source of the confusion in the area.

Unlike collective property, which always involves shared ownership, common property never involves shared ownership. Although it might seem surprising that common property does not entail common ownership, my analysis identifies three distinct ways in which each member of the public can be assured that he or she will not be excluded from the use or benefit of some resource, without being an owner of that resource. These are a privately created commons, public property, and the public domain. In the first two types of common property there is an owner of the resource other than those members of the public who enjoy the common property right, and in the case of the public domain the resources are not owned by anyone. Public property is one type of ownership by the state, while the other type, state property, turns out to be a variety of private property on my analysis.

It is particularly noteworthy on my analysis that Hardin's tragedy of the commons, which according to standard liberal property theory eliminates common property as a serious property form, turns out to have very little application. Because each of the three types of common property can take both a material and an immaterial form, there are six possible varieties of common property, but of these Hardin's tragedy turns out to be applicable to one only: the material public domain. And to make matters worse, the material public domain is a variety of common property with very few instances, unlike, for example, material public property and the immaterial public domain. Consequently Hardin's broadside almost completely misses its mark.

Although I have stressed conceptual clarification in this article, I have had other goals as well. I have tested the conventional claim that forms of property other than private property are defective and marginal, and found this claim to be unsupported. Common and collective property are both ubiquitous and viable, and this is why we need a new property taxonomy. Collective property is much more common in our economies than either individual private property or common property, but the standard liberal taxonomy of property forms deflects attention away from this fact because it does not recognize collective property as a separate category.

Finally, I noted in section II of this article that the standard liberal taxonomy of property forms is not neutral, but is the expression of a particular politics, namely the politics of classical liberalism and the cold war contest between capitalism and communism. But my proposed alternative taxonomy is equally informed by politics; it is no more a neutral, positivistic description of the brute facts of property relationships than was the standard taxonomy. Stressing collective property advances the values of community and cooperation, and stressing common property advances the value of substantive egalitarianism rather than formal egalitarianism. But neither my taxonomy nor the standard taxonomy is defective just because it is the expression of background political commitments. I am persuaded by the anti-legal positivist position advanced by Ronald Dworkin, Stanley Fish, Richard Posner, and critical legal studies, among others, that the law necessarily contains moral and political commitments. (141) Since moral and political commitments cannot be avoided, the question to be asked is: Which moral and political values should the law advance? I believe that the values expressed by my taxonomy are better than the values expressed by the standard taxonomy, but this is not the place to defend that claim.


([dagger]) Michael Robertson, Faculty of Law, University of Otago, New Zealand.

(1) See Richard Schlatter, Private Property: The History of an Idea (New Brunswick, NJ: Rutgers University Press, 1951), chs 1-2.

(2) CB Macpherson, "The Meaning of Property" in CB Macpherson, ed, Property: Mainstream and Critical Positions (Toronto: University of Toronto Press, 1978) at 10 [Macpherson, "Meaning of Property"].

(3) Carol Rose, "Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age" (2003) 66:1-2 Law & Contemp Probs 89 at 91 [Rose, "Romans, Roads, and Romantic Creators"].

(4) See e.g. EP Thompson, Whigs and Hunters: The Origin of the Black Act (New York: Pantheon, 1975).

(5) See e.g. Stuart Banner, Possessing the Pacific: Land, Settlers, and Indigenous People from Australia to Alaska (Cambridge, Mass: Harvard University Press, 2007).

(6) Michael Heller, "Three Faces of Private Property" (2000) 79:2 Or L Rev 417 at 418 [Heller, "Three Faces"]. See ibid at 418-22 (where he cites Jeremy Waldron as an important contemporary property theorist employing this taxonomy). See also Michael Heller, "The Dynamic Analytics of Property Law" (2001) 2:1 Theor InqL79 at 80, n 4 [Heller, "Dynamic Analytics"] (in which Heller gives other examples of property theorists using this standard taxonomy).

(7) Garrett Hardin, "The Tragedy of the Commons" (1968) 162:3859 Science 1243.

(8) Ibid at 1244 [emphasis in original],

(9) Hanoch Dagan & Michael Heller, "The Liberal Commons" (2001) 110:4Yale LJ 549 at 559-60. See also Carol Rose, "The Comedy of the Commons: Custom, Commerce, and Inherently Public Property" (1986) 53:3 U Chicago L Rev 711 at 711 [footnotes omitted] [Rose, "The Comedy of the Commons"].

(10) See Carol Rose, "The Several Futures of Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems" (1998) 83:1 Minn L Rev 129 at 130-31 [Rose, "Several Futures"].

(11) See James Boyle, "Fencing Off Ideas: Enclosure & the Disappearance of the Public Domain", (2002) 131:2 Daedalus 13 at 17 [Boyle, "Fencing Off Ideas"]. See also James Boyle, "The Second Enclosure Movement and the Construction of the Public Domain" (2003) 66:2 Law & Contemp Probs 33 at 51 [Boyle, "Second Enclosure Movement"].

(12) Carol Rose, "Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory" in Carol Rose, Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership (Boulder, Colo: Westview Press, 1994) ch 2.

(13) Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge, UK: Cambridge University Press, 1990) at 23, 48.

(14) Ostrom was a member of the National Academy of Sciences Panel on Common Property Resource Management and also the first president of the International Association for the Study of Common Property.

(15) The medieval commons destroyed by the enclosure movement was not tragic, but a stable and successful property form. See Margaret McKean, "Success on the Commons: A Comparative Examination of Institutions for Common Property Resource Management" (1992) 4:3 J Theoretical Politics 247 at 255, n 10.

(16) Ostrom, supra note 13 at 7.

(17) Ibid at 25.

(18) See Boyle, "Fencing Off Ideas", supra note 11 at 41 [footnotes omitted].

(19) Bruce Ziff, Principles of Property Law, 4th ed (Toronto: Thomson Carswell, 2006) at 15. In making this point, Ziff refers to the work of A Carter, The Philosophical Foundations of Property Rights (London, UK: Harvester, Wheatsheaf, 1989) at 68.

(20) Michael Heller, "The Tragedy of the Anticommons: Property in the Transition from Marx to Markets" (1998) 111:3 Harv L Rev 621; Michael Heller, The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives (New York: Basic Books, 2008).

(21) Heller, "Three Faces", supra note 6 at 425. See also Michael Heller & Rebecca Eisenberg, "Can Patents Deter Innovation? The Anticommons in Biomedical Research" (1998) 280:5364 Science 698.

(22) Rose, "The Comedy of the Commons", supra note 9 at 769-70.

(23) Ibid at 723.

(24) Ibid at 768.

(25) Carol Rose, "A Dozen Propositions on Private Property, Public Rights, and the New Takings Legislation" (1996) 53:1 Wash & Lee L Rev 265 at 270.

(26) Ibid at 267.

(27) Ibid at 294.

(28) Ibid at 276 [citations omitted].

(29) Ibid at 280.

(30) Rose, "The Comedy of the Commons", supra note 9 at 775, citing Albert Hirschman, The Passions and the Interests: Political Arguments for Capitalism before Its Triumph (Princeton: Princeton University Press, 1977).

(31) Ibid at 716.

(32) Rose cites Frederick Law Olmsted who "argued that ... recreation can be a socializing and educative influence, particularly helpful for democratic values. Thus rich and poor would mingle in parks, and learn to treat each other as neighbors. Parks would enhance public mental health, with ultimate benefits to sociability": ibid at 779. See Frederick Law Olmsted, Civilizing American Cities: A Selection of Federick Lau) Olmsted's Writings on City Landscapes (Cambridge, Mass: MIT Press, 1971).

(33) Rose, "The Comedy of the Commons", supra note 9 at 777.

(34) See John Page, "Towards an Understanding of Public Property" in Nicholas Hopkins, ed, Modern Studies in Property Law, vol 7 (Oxford: Hart, 2013) 195 at 214 ("[p]ublic property in land is an important component in the propitious, well-ordered community. It is the 'communal infrastructure', the physical and metaphorical common ground, where shared activities 'socialize, democratize and educate society'").

(35) Dagan & Heller, supra note 9 at 564.

(36) Ibid at 553.

(37) Ibid at 578-79.

(38) Ibid at 597.

(39) Ibid at 600-01.

(40) Gregory S Alexander, "Civic Property" (1997) 6:2 Soc & Leg Stud 217.

(41) Annadi Robilant, "The Virtues of Common Ownership" (2011) 91:4 BUL Rev 1359.

(42) Anna di Robilant, "Common Ownership and Equality of Autonomy" (2012) 58:2 McGill LJ 263.

(43) Macpherson, "Meaning of Property", supra note 2 at 2 [emphasis in original]. A more nuanced version of his point is made by Sarah Hamill:
   Clearly there is more to property than simply private property, but
   such is the power of private property that it dominates both the
   conventional categorization of property and the current
   understanding of the bundle-of-rights theory. That is to say,
   private property appears as the baseline or original model of
   property, while other forms of property appear as deviations. Such
   a situation makes it difficult to take other forms of property
   seriously because they do not appear to conform to property theory.

Sarah E Hamill, "Private Rights to Public Property: The Evolution of Common Property in Canada" (2012) 58:2 McGill LJ 365 at 370 [emphasis in original, citations omitted].

(44) Macpherson, "Meaning of Property", supra note 2 at 3.

(45) Ibid at 5.

(46) Ibid.

(47) Macpherson, "Meaning of Property". supra note 2 at 11. See also ibid at 9-11.

(48) Obviously Macpherson did not see coming the wave of neoliberalism in the two decades after he published Property: Mainstream and Critical Positions in 1978. Neoliberalism was a powerful reaction against the modern liberalism that Macpherson favored, and it also advanced the argument that more private property rights were the only sensible solution to environmental degradation. See Boyle, "Second Enclosure Movement", supra note 11 at 24.

(49) CB Macpherson, "Liberal-Democracy and Property" in CB Macpherson, ed, Property: Mainstream and Critical Positions (Toronto: University of Toronto Press, 1978) 199 at 199 [Macpherson, "Liberal-Democracy"].

(50) Ibid at 200.

(51) Ibid at 199.

(52) Macpherson, "Liberal-Democracy" at 205-06. See also ibid at 201.

(53) Ibid at 205-06.

(54) This is the position advanced in James W Nickel, "Is There a Human Right to Employment?" (1978-79) 10:2-4 Philosophical Forum 149.

(55) The scope of the public domain is analyzed in Jessica Litman, "The Public Domain" (1990) 39:4 Emory LJ 965 at 975-93.

(56) For more extended descriptions of this process, see Lawrence Lessig, "The Creative Commons" (2003) 55:3 Fla L Rev 763 at 768-71; Michael Robertson, "Property and Privatisation in RoboCop" (2008) 4:3 IntlJLin Context 217.

(57) David Lange, "Recognizing the Public Domain" (1981) 44:4 Law & Contemp Probs 147.

(58) Litman, supra note 55.

(59) See James Boyle, The Public Domain: Enclosing the Commons of the Mind (New Haven, Conn: Yale University Press, 2008); Boyle, "Second Enclosure Movement", supra note 11.

(60) See Lawrence Lessig, Code: Version 2.0 (New York: Basic Books, 2006) [Lessing, Code: Version 2.0]; Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (New York: Penguin Press, 2004); Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (New York; Random House, 2001).

(61) Litman, supra note 55 at 966 [emphasis in original]. See also ibid at 966-67, 1000-11.

(62) Boyle, "Fencing off Ideas", supra note 11 at 19-20.

(63) Rose, "Several Futures", supra note 10 at 153. See also Lawrence Lessig, "Re-Crafting a Public Domain" (2006) 18:3 Yale JL & Human 56 at 64 ("Culture is the classic comedic commons. In the sense that Carol Rose first taught us, culture is precisely the sort of commons that gets enriched (rather than depleted) the more people consume it." [citations omitted]).

(64) See "Designing the Public Domain" (2009) 122:5 Harv L Rev 1489 at 1495-96.

(65) Boyle, "Fencing Off Ideas", supra note 11 at 24.

(66) Yochai Benkler, "Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain" (2003) 66:1/2 Law & Contemp Probs 173.

(67) Jack M Balkin, "Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society" (2004) 79:1 NYUL Rev 1.

(68) Ibid at 3-4.

(69) See Lessig, supra note 63; Lessing, Code: Version 2.0, supra note 60 (stressing the ways in which new software and hardware can constrain the free use of intellectual products even more than law does).

(70) Heller, "Three Faces", supra note 6.

(71) Heller, "Dynamic Analytics", supra note 6.

(72) Ibid at 79-80 [citations omitted].

(73) Heller, "Three Faces", supra note 6 at 423. See also ibid ("[l]egal and economics scholars have generally overlooked evidence of anticommons tragedy when it appeared because the problem did not fit within the familiar property trilogy" at 424).

(74) Ibid at 428.

(75) Carol Rose, "Left Brain, Right Brain and History in the New Law and Economics of Property" (2000) 79:2 Or L Rev 479 [Rose, "Left Brain, Right Brain"].

(76) Ibid at 481.

(77) Ibid at 483.

(78) Rose, "Left Brain, Right Brain", supra note 75.

(79) Ibid at 485.

(80) Ibid.

(81) McKean, supra note 15 at 251-52 [emphasis removed],

(82) Rose, "Left Brain, Right Brain" supra note 75 at 483.

(83) Sarah Blandy, "Collective Property: Owning and Sharing Residential Space" in Hopkins, supra note 34, 151 at 156-57.

(84) See Robert W Gordon, "Paradoxical Property" in John Brewer & Susan Staves, eds, Early Modem Conceptions of Property (New York: Routledge, 1995) 95; Carol M Rose, "Canons of Property Talk, or, Blackstone's Anxiety" (1998) 108:3 Yale LJ 601.

(85) McKean, supra note 15 at 251 [emphasis in original].

(86) Macpherson, "Meaning of Property", supra note 2 at 5-6.

(87) See Rose, "The Comedy of the Commons", supra note 9 (with respect to ownership by the government--i.e., McKean's state property--"[t]his form of public property would be no more than a variant on private property, wherein a corporately organized body could claim exclusive control over property--investing in it, managing it, exchanging it--just as a private owner would" at 730) See also Page, supra note 34 ("[d]irect ownership by the state or a state agency is a paradigm framed from (private) property's individualistic values and rhetoric of exclusion" at 205).

(88) Supra note 2 at 5.

(89) Lawrence Lessig, "The Architecture of Innovation" (2002) 51: 6 Duke LJ 1783 at 1788.

(90) Lessig, supra note 63 at 57.

(91) Schlatter, supra note 1 at 69.

(92) McKean, supra note 15 at 251.

(93) McKean, supra note 15 at 250 [emphasis in original].

(94) Heller, "Three Faces", supra note 6 at 426.

(95) See Michael J Madison, Brett M Frischmann & Katherine J Strandburg, "Constructing Commons in the Cultural Environment" (2010) 95:4 Cornell L Rev 657 at 660.

(96) See Heller, "Three Faces", supra note 6 at 428-29 (describing trusts as examples of Heller's liberal commons).

(97) McKean, supra note 15 at 251.

(98) Henry E Smith, "Semicommon Property Rights and Scattering in the Open Fields" (2000) 29:1 J Leg Stud 131 at 132.

(99) See James Grimmelmann, "The Internet is a Semicommons" (2010) 78:6 Fordham L Rev 2799; Madison et al, supra note 95 at 668; Stephen R Munzer, "Commons, Anticommons, and Community in Biotechnological Assets" (2009) 10:1 Theor Inq L 271 at 273.

(100) Blandy, supra note 83 at 159-60 [emphasis in original].

(101) Ostrom, supra note 13 at 18-20.

(102) Lawrence B Solum, "Questioning Cultural Commons" (2010) 95:4 Cornell L Rev 817 at 825-26. Carol Rose also describes this situation in Rose, "Left Brain, Right Brain", supra note 75 at 486. See also James Acheson, The Lobster Gangs of Maine (Hanover, NH: University Press of New England, 1988).

(103) Rose, "Several Futures", supra note 10 at 160. See also Rose, "Romans, Roads, and Romantic Creators", supra note 3 at 108. Pamela Samuelson also makes this point in "Enriching Discourse on Public Domains" (2006) 55:4 Duke LJ 783 at 811-12.

(104) di Robilant, supra note 42 at 311-12.

(105) Page, supra note 34 at 202.

(106) See Lessig, supra note 56 at 772.

(107) Page, supra note 34 at 199.

(108) Because the common law did not allow an easement in gross, conservation easements are creatures of statute. See Michael Heller, "The Boundaries of Private Property" (1999) 108:6 Yale LJ 1163 at 1178, n 72.

(109) Guy Williams, "'Extraordinary Bequest 'Agreed" The Otago Daily Times (6 August 2014), online: < -bequest-agreed>.

(110) Supra note 2 at 5.

(111) Madison et al, supra note 95 at 666.

(112) See Madison et al, supra note 95 at 690.

(113) Ibid at 695.

(114) Ibid at 662-63.

(115) Ibid at 661. See also Gregg Macey, "Cooperative Institutions in Cultural Commons" (2010) 95 Cornell L Rev 757 at 776.

(116) Wendy Gordon, "Discipline and Nourish: Constructing Commons" (2010) 95 Cornell L Rev 733 at 739.

(117) Boyle, "Second Enclosure Movement", supra note 11 at 65. See also Gordon, supra note 116 at 743, n 51 (reproducing the GNU General Public License).

(118) Lessig, supra note 63 at 74.

(119) Ibid at 75.

(120) Samuelson, supra note 103 at 799.

(121) Tyler Ochoa, "Origins and Meanings of the Public Domain" (2003) 28:2 U Dayton L Rev 215 at 258. See also Litman, supra note 55 at 975, n 63 (where she includes state property within the public domain).

(122) Page, supra note 34 at 209.

(123) Rose, "The Comedy of the Commons", supra note 9 at 720-39.

(124) Hamill, supra note 43.

(125) The Romans also recognized res publicae as a nonexclusive property form, but this was public property rather than the public domain. Rose, "Romans, Roads, and Romantic Creators", supra note 3 at 96.

(126) Ibid at 92.

(127) Ibid at 93.

(128) (2003) 66:1-2 L & Contemp Probs 1.

(129) See Mark Rose, "Nine-Tenths of the Law: The English Copyright Debates and the Rhetoric of the Public Domain" (2003) 66 L & Contemp Probs 75.

(130) See Boyle, "Second Enclosure Movement", supra note 11 at 58.

(131) Boyle, "Second Enclosure Movement", supra note 11 at 73.

(132) See Samuelson.rwpra note 103 at 785.

(133) Boyle, "Second Enclosure Movement", supra note 11 at 62. See generally ibid at 68-69.

(134) Ochoa, supra note 121 at 221.

(135) Boyle, "Second Enclosure Movement", supra note 11 at 62.

(136) Lessig, supra note 63 at 56. As he expands on page 74:
   In the terminology I will adopt, neither the Creative Commons, nor
   the Free Software Movement, technically expands 'the public
   domain.' They instead expand the 'effective public domain' by
   creating a 'commons,' a resource that anyone within the relevant
   community can use under content-neutral terms. If the public domain
   is technically a domain without property rights, the commons is
   not. The freedoms granted in this commons are granted by the
   permission of property holders.

(137) McKean, supra note 15 at 250.

(138) Ochoa, supra note 121 at 256.

(139) See ibid at 257-60.

(140) Ibid at 261-62.

(141) See Michael Robertson, Stanley Fish on Philosophy, Politics and Law (Cambridge, UK: Cambridge University Press, 2014), chs 7-8, 12.
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Title Annotation:IV. A New Property Taxonomy B. My Proposed New Property Taxonomy Explained and Defended through IV. Conclusion, with footnotes, p. 590-618
Author:Robertson, Michael
Publication:University of British Columbia Law Review
Date:Aug 1, 2016
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