Law, Art and the Commons

Merima Bruncevic

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781315521398
• Edition: 1
• Topic: Art
• Subtopic: Art & Business

The concept of the cultural commons has become increasingly important for legal studies. Within this field, however, it is a contested concept: at once presented as a sphere for creativity, democratic access and freedom of speech, but one that denies property rights and misappropriates the public domain. In this book, Merima Bruncevic takes up the cultural commons not merely as an abstract notion, but in its connection to physical spaces such as museums and libraries. A legal cultural commons can, she argues, be envisioned as a lawscape that can quite literally be entered and engaged with. Focusing largely on art in the context of the copyright regime, but also addressing a number of cultural heritage issues, the book draws on the work of Deleuze and Guattari in order to examine the realm of the commons as a potential space for overcoming the dichotomy between the owner and the consumer of culture. Challenging this dichotomy, it is the productive and creative potential of law itself that is elicited through the book's approach to the commons as the empirical basis for a new legal framework, which is able to accommodate a multitude of interests and values.

Volume I
(Re)Imaginations

Part 1
Law

Chapter 1
Enter

From landscape to lawscape

1.1 A walk in the commons

Much like the title gives away, this book is, simply put, about law, art and commons. The four hours in London can be the framework for it. It recounts very much true events, or as true as I remember them now as I am writing them down, a couple of months after they took place. It occurred to me that the four hours in London encapsulate what this book tries to show, that these four hours may perfectly depict what I am trying to discuss and advance here. Dear reader, this book is a walk, sometimes quicker, sometimes slower, sometimes full speed ahead, through museums, cityscapes, cultural landscapes, through subterranean webs, into the world of law, art and commons. It is a human story as much as it is a story of something well beyond the human, dare I say posthuman. I do not mean any of these as metaphors either as you will shortly see. To read this book means to enter into the cultural commons through the lawscape, to walk in it, to displace ourselves in it. Literally. Sometimes I walk alone, sometimes we walk together, at times I am in the more or less reassuring company of others, as we traverse these spheres. In this book I will be presenting something that may at times seem like abstract, ephemeral, imaginary concepts. Sometimes they will seem material, concrete, menacing, real, all too real. I want you to think about the four hours in London when those feelings overwhelm you, and know that they are at the same time true as they are constructed figments of (my? our collective?) imagination. Rest assured. You are in a safe environment. This is only a drill. A simulation.

To express it more plainly and bluntly. This book explores the possibility of constructing a legal concept of the cultural commons. In order to do that law, art and the commons need to be expressly connected. Or better yet, the connections that are already there, binding the three together, already entangling them, forming a space, an object, a hyperobject, will be revealed here. I will attempt to do precisely that by setting in motion the so called rhizome theory developed by Gilles Deleuze and Félix Guattari. I will then fold their theory within the writings of Andreas Philippopoulos-Mihalopoulos on spatial justice, concentrating mainly on the notion of lawscape.

This book discusses how to advance legal pathways that facilitate access, ownership, control and production of art through a cultural commons. The idea of the legal concept of the cultural commons is introduced and towards the end of the book given a platform in law. In order to arrive there, firstly, the commons needed to be conceived of in jurisprudence. The book therefore begins with a rather traditional legal approach analysing the impediments that jurisprudence seems to face in conceiving of such a concept as the cultural commons. Through a theoretical exercise that opens up the possibility of so called rhizomatic jurisprudence, the first part of the book, Volume I (Re)Imaginations, studies various perceived legal obstacles that stand between law and a concept of the commons. Volume I aims to get at the potential of law in imaging, reimaging, seeing or even remembering, the commons. The second volume is called (Re)Constructions and it (de and re)constructs the concept of the commons, both how it has been described in previous research and how it may be taken forward today. Volume II aims to analyse the potential of a cultural commons concept and its interaction with law. The overall aim of the book is of course to arrive at a legal concept of cultural commons in the end.

The book focuses on questions such as what does law do, what could it do, other than settle conflicts and answer the questions: who the legal owner of the artwork is or who owns the intellectual property right. Is it at all possible for law to do something other than that? Can law be a productive, creative force and envision as well as create the concept of the commons?

In order to answer those questions, I use the theory developed by the French philosopher Gilles Deleuze (1925-1995) and the French psychoanalyst Félix Guattari (1930-1992), particularly in dealing with law. I develop a critique of dogmatic legal reasoning and study particular obstacles to commons created by e.g. traditional divisions in law, for instance the private and the public, property and personhood, inside and outside. This is done by leaning on the philosophy of Gilles Deleuze (henceforward “Deleuzian”) as well as the philosophy which Deleuze developed together with Félix Guattari (henceforward “Deleuzeoguattarian”). Finally, I arrive at a discussion concerning a legal concept of cultural commons. I do so by way of a rhizomatic legal reasoning that can conceive of a conception of a cultural commons by means of avoiding, for instance, common legal dichotomies (open–closed, public–private, right–heritage) and, hopefully, overcoming them. Therein lie the theoretical and methodological commitments of this book.

For a reader of Deleuze, and Deleuze and Guattari, these types of questions and approaches are obvious when using their theory. Addressing a similar issue Deleuze once wrote in a letter:

You either see it as a box with something inside and start looking for what it signifies, and then if you’re even more perverse and depraved you set off after signifiers. And you treat the next law as a box contained in the first or containing it. And you annotate and interpret and question and write a book about the law, and so on and on. Or there’s another way: you see the law as a little non-signifying machine, and the only question is ‘Does it work, and how does it work?’ How does it work for you?… This second way of reading’s intensive: something comes through or it doesn’t. There is nothing to explain, nothing to understand, nothing to interpret. It’s like plugging into an electric circuit… It relates a law directly to what is Outside…¹

In that vein, this book seeks not to see law as a “box” but instead it attempts to get beyond this proverbial box that seems to regard law either as a cognitive creation or as an ontological metaphor. Within this context, it does not help to approach law as a set of boxes placed inside one another not connected to the “outside”. It only leads to a dead-end. What I instead aim to do is to show that by connecting law to its “outside” rhizomatically, a lawscape is created, and here the potential for a cultural commons in law is revealed. The theoretical approach shall be developed in detail in Chapter 2.

1.2 Landscape/lawscape

However, it is worth pointing out already here that we must refrain from being too theoretical. A strong connection to the material and empirical is required. As I now start to discuss the commons I want to discuss it as a concrete phenomenon, a space, in existence from the beginning. This is not necessarily how commons studies are usually undertaken.

So, when we refer to the commons, what do we usually mean? Often, “the commons” seems to refer to the so called “physical” or “natural” commons – i.e. nature, urban spaces, fields, pastures, fisheries, rivers… Connected to this physical or natural commons are the resources tied to it namely, natural resources, commercial spaces, irrigation water, clean and fresh air, fish, berries. In this context commons, it is often assumed, has to do with the distribution and allocation of (natural, or at least physical) recourses. Other times, when we talk about the commons we talk about certain, often digital, initiatives or platforms like for instance the “Creative Commons”, and the content and information shared there. Previous research on the concept of the commons is now typically divided in these two strands, natural and intellectual/digital commons. This is a direct consequence of how we usually see the commons, namely either as natural consisting of nature and the resources in nature; or human or intellectual commons consisting of the man-made, intellectual and cultural resources.² Thus, these two types of commons are usually mentioned in research and in discussions: the natural commons and more so lately the human made, intellectual or cultural commons. Instead, both have to do with management of resources, it is often claimed.

I will try to move beyond these assumptions. Firstly, I will try to move beyond the nature–culture dichotomy, by raising the impossibility of disentangling the natural from the cultural. Secondly, I will try to move beyond the idea of the commons as management of resources, and I will move towards the question of being-in-the-commons, i.e. becoming entangled with the commons as part of ourselves.³

But before I do that, let me give a Swedish example. This book does not directly have a jurisdiction that it addresses, but it certainly has a number of contexts, the Scandinavian being one of them. In Swedish law there is a legal principle, which can be described as a “right to roam”, called allemansrätten. It is relevant in this setting.⁴ Various versions of this principle exist in most Scandinavian jurisdictions.⁵Allemansrätten has for a long time been acknowledged by for instance the Swedish Supreme Court (Högsta Domstolen) and is today also inscribed in the Swedish constitutional law⁶ as well as in the Swedish Environmental Code (Miljöbalken).⁷ In broad terms, the principle grants the public a right to access and roam in nature, which means, generally speaking, that everybody may, for a limited time and on certain terms and conditions,⁸ dwell in nature, hike, camp, swim in the lakes, pick berries, and so on.

The right to roam in and access nature has in Scandinavia traditionally been considered to be of particular significance since it is directly connected to public health and wellbeing. The wellness produced by continuous and frequent access to nature ought to be, it is argued, secured and safeguarded. This wellness that access to nature gives rise to has thus been given a legal status and transformed into a public right. Allemansrätten as a legal construct thus connotes a reasonable and limited access to nature. This access, however, must happen under certain terms and conditions, and has never been of such legal character that it encroaches on the underlying ownership of e.g. the land. The limitations to allemansrätten are often described in the following manner: the public may roam in the woods but may never enter the fenced off private garden or the family home on the land. The public may dwell in nature but this comes with the obligation not to disturb private life, not to litter or damage the land, nature, animals or crops.

However, within this book I need to reach even further. The phenomenon that I call the commons is a complex concept and not always, or only, connected to the rights to access or rights to roam such as allemansrätten. It can also be connected to a space or a realm where resources and people are entangled. I will devote some time to explore what that means, particularly being entangled with artwork as a hyperobject (Chapter 3) or being entangled with the commons itself (Chapter 5).

A further layer to the commons discussion is the economical aspect, where the commons as a concept in economy theory is often presented within a “prisoner’s dilemma” setting, that is, as a paradox where property that is somehow owned or shared in common also produces free riders and as a consequence may result in over-use and eventual peril of the underlying resource, create depreciation of value, and that it therefore can undermine individual ownership and private rights on the one hand, and the resource itself on the other hand. This tendency can then lead, it is argued, to the now very well established tragedy of the commons.⁹ This is part of a larger (liberal, or neo-liberal) argument that makes the claim that resources will always be best managed in private, by virtue of the incentives bestowed on the individual owner by the private property rights as a legal and economical construction. This was at least the dominant view until Elinor Ostrom, the 2009 Nobel laureate in Economy, managed to show in her pioneering work Governing the Commons: The Evolution of Institutions for Collective Action,¹⁰ how this is not necessarily always the case and how the concept of the commons as a tool for management and governance, on the contrary, can mean an optimal management of resources, particularly when it comes to finite resources in nature. Building on, and moving beyond the results found by Ostrom, I ask how a legal concept of the cultural commons could deal with and overcome these “tragedy of overuse” and “prisoner’s dilemma” issues?

In the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage the heritage of the world is divided into two categories: natural and cultural. That is, it relies on a similar, not to say the same, divide as presented so far. So I ask here, if natural heritage, landscapes or cityscapes, can be envisioned as physical commons that partly can be governed by legal principles such as the various forms of rights to roam in nature or rights to the city¹¹ formulated as e.g. the Scandinavian allemansrätten, without causing tragedies or resource extinctions, it begs the question...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgements
• Preface
• Volume I: (Re)Imaginations
• Volume II: (Re)Constructions
• Bibliography
• Index