v1.1 13 FEBRUARY 2025
An exploration of how the commons have been shaped, diminished and developed, over time… bearing in mind that the contours of the commons will determine the legitimacy of the unauthorised use of content as training data for AI
The Earth was given to the world of men in common, John Locke asserted in his 1689 Second Treatise on government, echoing Psalms 115:16. He noted that ‘no body has originally a private Dominion, exclusive of the rest of Mankind’ but also recognised that the development of a mechanism to appropriate the gifts of God, the world and that which lay in it, was necessary ‘before they can be of any use, or at all beneficial to any particular Man’.
Writing several hundred years after the commons and the proprietary began to confront each other, Locke's world was fast moving towards one in which the proprietary was the norm, and not the commons. The proprietary was not the anti-commons; it was the commons which had become the anti- proprietary. Stability was, by then, largely illusory: privilege and power were contested in what remained of the commons.
Early Servitudes
The changes in perceptions of the commons which crystallized by the 17th century arguably led directly to contemporary approaches to the commons and understandings of common rights as hard-won quasi-rights detracting from absolute and legitimate ownership. This was in stark contrast to many earlier understandings which saw common rights as vital components of systems which were responsible for holding communities together through allowances and servitudes even after the proprietary began to hold sway.
In fact, in mediæval agricultural communities, some ancient common rights seem to have been considered to be so obvious and universal that (prior to 1290, at any rate) they were seen as being not merely appurtenant to land but attendant to it; they did not necessarily require proof of either grant or usage to be recognised.
The right of pasture, for example, appears to often have been presupposed: although the servitude tended to be limited to place and by extent (for it is doubtful that anyone would have wanted the right to be exercised in gardens or within curtilages, or that it would have been acceptable to exercise it beyond the extent necessary to support cultivation), there were no arguments about whether or not it existed. It did exist, unequivocally.
1290 was a watershed year not so much because it changed ways of living but because it altered the legalities which enabled those ways of living. It was the year which saw the passing of the Quo Warranto and Quia Emptores laws (in England) which asked by what authority lords — ultimately tenants themselves — exercised jurisdiction over lands and which regulated land dealings not least by preventing land from essentially being sublet by subinfeudation.
One consequence of increased regulation, which forced the alienation of land to follow the mode of substituting tenants rather than creating sub-tenants, was that servitudes were less likely to simply be presumed to exist. In effect, the commons shrank. And they continued to shrink through the gradual weakening of feudalism, through the Black Death which changed demographics, through attempts to create efficiencies in estate management by enclosing land once either common or waste, and through philosophical support for inclosures which support also, incidentally, travelled with ease from the realm of the real to that of the intangible to become the labour theory of intellectual property.
The Privatisation of the Commons
“We see in Commons, which remain so by Compact, that 'tis the taking any part of what is common, and removing it out of the state Nature leaves it in, which begins the Property; without which the Common is of no use. And the taking of this or that part, does not depend on the express consent of all the Commoners,” as Locke put it. “Thus the Grass my Horse has bit; the Turfs my Servant has cut; and the Ore I have digg'd in any place where I have a right to them in common with others, become my Property, without the assignation or consent of any body. The labour that was mine, removing them out of that common state they were in, hath fixed my Property in them.”
In having private property come into being by detraction from the commons through the efforts of the man who claims it, the labour theory of property, whether applied to intellectual or real landscapes, implicitly recognises that the endeavours of humans are essentially derivative, and that men do not create anything from nothing.
Although it is understood that Locke referred extensively to the Hebrew bible, this idea also reverberates in the 1611 King James Version’s exploration of the purpose of life which reads (in part): “What profit hath a man of all his labour which he taketh under the sun? [....] All things are full of labour; man cannot utter it: the eye is not satisfied with seeing, nor the ear filled with hearing. The thing that hath been, it is that which shall be; and that which is done is that which shall be done: and there is no new thing under the sun. Is there any thing whereof it may be said, See, this is new? it hath been already of old time, which was before us.” (Ecclesiastes 1:3,8–10)
Unfortunately, in laying out his theory of the legitimate origins of private property, Locke also helped legitimise the foundation of an extraordinarily inequitable society, much like contemporary society, simply because his writing seems to champion those who either have or can commandeer physical prowess — or, in the case of intellectual property, textual and artistic skill — to the exclusion of all others. His theory punches down, not up, as one might say.
Nonetheless, Locke’s theory seems to bridge mediæval and modern textual cultures. By the time he wrote, the commons prevalent in the mediæval world had, in practice, already begun to come under the control of legal censorship and would soon be hedged in by then newly-developed copyright laws which restrained drawing from pre-existing texts and treating them as intellectual commons.
Locke's suggestion that a man could create (his own) private property by adding his labour on to what he had found in the commons engineered a mechanism through which the commons could be enclosed and made proprietary.
The Architecture of Pre-Print Textuality
Each act of copying through which mediæval manuscripts came into being invariably turned into an act of creation or transformation since not even the most skilled of scribes could be relied upon to copy a manuscript without error.
The roles of scribes, compilers, commentors, and authors were neatly categorised, at least with reference to theological texts, by Bonaventure in his commentary on The Sentences of Peter Lombard likely completed in 1254 but the categorisation invariably failed. It was, of course, most easily confounded by holograph manuscripts which saw authors copying their own texts inexactly but, even in other cases, the roles imbricated and sometimes significantly overlapped either intentionally or inadvertently turning every manuscript into a version of its exemplar, an interpretation, a recension, a revision, or even a redaction.
Scribes were generally expected to copy exemplars but they were placed in the uncomfortable position of also often being expected to emend manuscripts so that their work did not reproduce the errors contained in the exemplars they copied from. These conflicting expectations resulted in conflating the acts of copying and copyediting at one end of the spectrum and in enmeshing those of copying and composing at the other.
Not all copies were intended to be exact copies though: litteratim copies attempted to copy manuscripts letter-for-letter while verbatim copies attempted to do so word-for-word, the latter presumably correcting minor errors encountered in the process. Only in intended duplicates was the effort made to faithfully reproduce paratextual features, gloss, and mises-en-page. Replicates, on the other hand, simply focussed on copying the main text of manuscripts.
Added to this, even when mediæval manuscripts were not copies, their texts were usually drawn or transposed from earlier documents and included compilations, cartularies collecting charters possibly in archaizing hands imitating texts of the distant past, florilegia comparable to modern anthologies, and cognate texts presenting unbroken linear narratives obscuring derogations from exemplars.
Those engaged in preparing manuscripts, reproductions or derivations, would have often needed to select text and transcribe it on to new surfaces, possibly making adjustments to fit the text in. In such cases, assuming that they didn't change the import of the text, it is unlikely that they would have been considered to alter it. This heritage understanding has reverberated through the ages and likely underlies contemporary copyright laws which may explicitly state that changes to content necessitated for technical reasons do not impinge on the moral right of authors not to have their work mutilated or distorted.
On the other hand, changes to text could well be dialectically motivated to suit politics, power, personal stylistic preference or simply the morality or theological belief of those who engaged in the production of manuscripts. This tendency to mould texts can be seen from the time of Chaucer whose tales are unlikely to have been ‘original’ in the sense which copyright law understands the term through to the 19th century and beyond where translation, a form of derivative textuality, has sometimes continued to use source texts as commons for the purpose of translation, without any real enthusiasm to remain faithful to their source materials; the advent of print did not simply destroy the textual culture which preceded it in one fell swoop.
Translation, a right only included in the so-called copyright bundle in 1886 through Article 5 of the Berne Convention, could significantly alter the world of a text. The Count of Monte Cristo, Dumas’ novel written in French, was bowdlerized when it was translated into English and published in 1846, as was, it appears, every English translation which closely followed that translation. Only after a hundred and fifty years did a complete translation (that of Robin Buss published by Penguin) become available. Each new translation was undoubtedly derived from Dumas’ original novel, and, yet, developing it was the act of an author and not a scribe.
Not even texts which one might have expected to be stable, such as statute and scripture, were necessarily stable. The passive introduction of multiple versions into circulation through error aside, these texts were also actively translated, transposed, and recast to enhance access to them.
Access to Law and Religion
The 13th century Assize of Bread, arguably the law most relevant to the general population of the mediæval world, fixed the size of bread to be sold at a particular price point and accounted for fluctuations in the price of grain by explaining how the size of loaves would vary depending on the vagaries of the corn market.
The law was, however, not treated as being unalterable — adaptations and alterations were intentionally made to suit local requirements. The types of loaves contemplated by the law could be renamed so that familiar local names were used instead. Alternatively, or perhaps additionally, the text of the law could be illustrated or tabulated, or even visualised possibly by having the size of loaves be sculpted into the stone walls of public buildings as ready reckoners of a sort. Such changes made the law more easily comprehensible and, when it was incorporated into almanacs and the like, more easily portable.
At the time, making the law accessible to the public was not merely a matter of reformatting it but of testing its pliancy and possibly reconstructing its content; laws made their way into the commons even if they were not really meant to be there.
It was only from 1504 that the office of King’s Printer came into being with a printer who would print statutes, royal proclamations and other official documents. Before that, the office, which was created in 1485, was held by Peter Actors who imported books, and was not a printer. This change, for which the development of printing technologies was undoubtedly a catalyst, helped cordon off the law from the commons.
Scripture too followed a similar trajectory, ultimately being fenced off from the commons by the appearance of authorised versions. The King James Version of the Bible, an authorised version published in 1611, cautioned scribes and readers alike not to alter its words: “Ye shall not add unto the word which I command you, neither shall ye diminish ought from it, that ye may keep the commandments of the LORD your God which I command you.” (Deuteronomy 4:2) Despite what it said, till legal regulation corralled translation (which had a tendency to to amount to interpretation), the Bible had been a reasonably fluid document which had existed as a codex long before it became a book.
Attempts had been made to effect access to the Bible by wider audiences through translations into the vernacular from mediæval times. The 14th century Wycliffe Bible was the first attempt at translating the Bible into English from the Latin Vulgate. Soon after it came into being, so too did the Suppression of Heresy Act 1400: De heretico comburendo, the 1409 Oxford Constitutions under Thomas Arundel, and the Suppression of Heresy Act 1414 which together attempted to proscribe the use of the English Bible in England, enabled burning heretics at the stake, and made provision for the state to assist the church in the suppression of heresy. But not even all three instruments together succeeded in entirely suppressing the Wycliffe Bible.
Over a hundred years later, another attempt was made to translate the Bible into English, this time not from the Latin Vulgate but from the original Greek and, it is believed, Hebrew texts. This attempt was made by William Tyndale who was executed in 1536, and did not complete his translation. His work, however, was carried on by Myles Coverdale who, lacking Tyndale’s linguistic felicity, primarily relied on Luther’s German translations and Latin texts to fill in the gaps in Tyndale's translation and put together what became the Coverdale Bible first published in 1535.
Tyndale's work also became the bedrock of the Matthew Bible, which also included text translated by John Rogers and Coverdale, and was published by Rogers himself in 1537.
Both the Coverdale Bible and the Matthew Bible received a licence from the king, Henry VIII, and, in doing so, they caused the commons from which scripture was drawn to diminish into insignificance in their own time.
The Contours of the Commons
To have value, the commons should ideally be open, accessible, and usable or, in the case of the intellectual commons, editable.
The issue of authorised versions of both scripture and statute made them open and accessible to wider audiences although the process which achieved that, in both cases, had begun much before authorised versions came into being by the making available of their texts in the vernacular (via the Wycliffe Bible in the case of the former and through the use of English in statutes by the 15th century). The process, however, also inhibited the texts from being freely edited which, for all practical purposes, removed them from the commons.
Other more quotidian texts also faced similar issues: Letters Patent and the formation of the Company of Stationers began to regulate the intellectual commons by censoring what could be legally printed, and the passing of a copyright law soon after (in 1709) essentially took what had been printed completely out of the commons by making the content of texts proprietary.
The market opportunities which printing technologies presented almost certainly catalysed the change but they did not cause it; the process of changing the contours of the commons had been in the offing before the emergence of print.
The commons had, over the previous centuries, come to be diminished by the demands of ideology, theology, public health, technology, legal regulation, and market forces till they were no longer routinely viewed as essential, if sometimes unacknowledged, parts of landscapes, real or metaphorical.
Successive developments in copyright law expanded the scope of copyright, essentially a printer’s right although it was nominally an author's right, and concomitantly narrowed the scope of the commons till the only true commons became the public domain.
Exceptions to copyright and copyright infringement also developed: they were, for the most part, explicated in doctrine such as de minimis and scènes à faire, and were encapsulated in fair use and fair dealing provisions in copyright statutes. Together, these derogations from copyright maximalism came to allow protected content to be used in a restricted manner without the authorisation of their owners.
Although it would be impossible to consider copyright exceptions, new servitudes in all but name, to cause content to fall within the public domain not least because their limits are ambiguous, they do augment the commons. They tend to be sensitive to changes in technology and the demands of the market, and some exceptions have, in fact, been specifically crafted to meet the needs of information technologies, emerging and nascent, such as those dealing with the transient storage of works in the process of transmission online.
The definitional imprecision which is an almost ubiquitous feature of copyright exceptions has contributed to the commons becoming sites in which those without ownership rights confront those who hold such rights often in ways that are both unplanned and unclear, and with outcomes which may be unintended. The challenge of the 21st century will probably be determining how to accommodate the insatiable demands of artificial intelligence for training data in the intellectual landscape comprising the commons and copyright inclosures.
If history has taught us anything, it is that neither the commons nor inclosures are static. It only remains to be seen how the two will be shaped in the years to come, and who will benefit.
(This post is by Nandita Saikia and was first published at lawmatters.in. It focuses on circumstances in England since that is where the first modern copyright statute came into being but it also refers to copyright laws beyond those in England. The dates and facts contained in it have been gleaned from a number of sources including: Primary Sources on Copyright (1450-1900); Common Land and Inclosure by E.C.K. Gonner (Macmillan, 1912); The Bible, A Global History by Bruce Gordon (John Murray Press, 2024); and Britannica.)