Issue 220: April/May 2004


 Privatisation and the Public Domain 

Once upon a time, the public domain was very large and very diverse. In fact, it probably accounted for most human activity and organization. Private property was very limited – little more than a knife, a cooking pot or two, some clothing and maybe a goat. Over time (to make a long story very short) people began accumulating possessions – some more than others – and the concept of ‘mine' and ‘yours' took on greater meaning. As disparities in the distribution of wealth and property deepened, these possessions began to require ‘protection'. With the industrial revolution and the rise of a materialist culture in what we now call ‘The West,' property gained increasing prominence as the measure of success and the concept was extended to inventions and non-material ideas. Then came the drug companies, the software companies, the giant media corporations . . . and the World Trade Organization and its TRIPS agreement.

Of course it all took a long time and was considerably more complex than this!

The domain of private property – and privatization – did not expand without cost, however, and the cost was paid by the public domain, which was steadily eroded and enclosed to create more private property. A good illustration of this is the replacement of the public commercial-social-cultural-political space of the market square with the private, commercial-only space of The Mall.

(The ‘first enclosure' was the enclosure of village commons by the feudal lords in Britain. The process began around 1700 and 4000 Private Acts of Enclosure had privatized some 7 million acres of commons before the Great Enclosure Act was passed in 1845, bringing an end to the economy of the commons upon which the welfare of the peasants depended. Deprived of their commons for growing and raising their own food, they were forced to provide the cheap labour required by the Industrial Revolution.)

The culture of commodification and exploitation for private gain has systematically diminished the commons and the public domain not only in tangible goods such as public services, utilities, and public spaces such as parks and even highways, but also in the intangible goods of ideas and information, now increasingly referred to as Intellectual Property.

It is essential to recognize, however, that Intellectual Property is a social construct, dependent for its meaning, legality and application on a strong central government and a legal system willing to enforce and extend the domain of private property at the expense of public good. Of course, there is a contradiction here when ‘government' is systematically reviled and its social justice and social welfare mandate is degraded and deconstructed.

Despite their dependence on a strong state, personal and corporate greed have become the unquestioned drivers of the economy, with the assumption that humans are motivated only by the prospect of acquisition, and that progress results solely from increased production and consequent economic growth. Any semblance of a common/public property regime is simply a block, if not an enemy, to wealth and progress.

While the granting of patents on plants, seeds, genes, gene sequences, ideas, data and information has accelerated dramatically in the past decade, proponents of the public domain, public good, the commons, and community life seem to have been unable to gain any significant leverage on the institutions of domination and exploitation.

One problem may be a lack of clarity on the basic concepts. We seed to recognize three quite distinct categories of property and space – private, common and public. (See also Ramshorn #213)

‘Private' is easily understood as belonging to a person or a family, however, since a corporation is a legal ‘person, corporately-owned property and space is considered just as much private as your domicile. The shopping mall is perhaps the most obvious example of the both the property and the space within it being privately – that is, corporately – owned. It pretends to be public space – and deliberately sets out to create the sense of a village square, but political activity and anything that might interfere with commerce is excluded. In fact, children growing up in the malls are deprived of any sense of the politics of public life along with an understanding of ‘commons.'

The term ‘commons' is wrongly used to describe what is considered as public. This misrepresentation can be attributed to Garret Hardin and his 1968 essay, The Tragedy of the Commons, in which he set out to demonize the concept of commons in order to finish off any notion of public interest or public good, and with it any positive connotations for public property and space. In reality, commons historically referred to property and space that was ‘owned' communally – by a group of fisherfolk or a village, for example – and managed for the long-term good of the group, including succeeding generations. Access to the property and space – fields, fishing grounds, forests – was limited to the group ‘owning' and managing it. It was not open to exploitation by outsiders, though limited use of the space could be extended by the group to ‘outsiders.' Thus a well-defined fishing area might be closed for fishing to all but the ‘owners' while still permitting everyone to swim or paddle in it.

The public domain, on the other hand, is open to all, but that does not mean a ‘free for all.' Access may be denied to those who refuse to play by the rules governing use of the public space and ‘property.' Roads and parks are good examples: anyone can use them, but the rules of the road must be obeyed, and are usually enforced by agents of the ‘state' – police of one sort or another. Village greens and market squares have also been socially and politically vital spaces for communities. (In British Columbia, the current ‘Liberal' regime has violated its public trust regarding public spaces by simply ignoring maintenance in many small provincial parks, firing most of the provincial park rangers and privatizing park management.)

The corporate grab for ‘genetic resources' – plant, animal and human – is being called “the second enclosure” by activists around the world who have been battling for farmers rights, retention of their seeds in their village commons and the recognition of traditional/indigenous knowledge. The public relations firms responsible for corporate image-making prefer to hide this reality behind language about ‘the common heritage of humanity.'

The social, environmental and personal costs resulting from ownership claims and privatization are increasingly visible and the moral and commercial claims made for privatization and private property are increasingly flimsy. What we need now is a vehicle for a broad public discussion about the theory and practice, merits and consequences of privatization and intellectual property regimes.

Canada, at this time, occupies a unique position on the issue of patenting life forms. The Canadian Intellectual Property Office has consistently opposed the patenting of higher life forms and the courts, up to and including the Supreme Court in the oncomousecase, have taken the position that if Parliament wants to change the patent act to allow such patents, it is up to Parliament to do so, and it is not the role of the courts or the patent office to interpret existing legislation to suit purposes its framers could not possibly have foreseen. (The judgement of the Supreme Court of Canada in the Schmeiser vs. Monsanto case is still outstanding).

In the meantime, there are strong, well-financed interests, particularly the drug and biotech industries, pushing to enclose ever more of the public domain through intellectual property claims. A strong public voice is essential if the public domain is to regain its health and strength.

In light of all this, we are circulating a proposal to create a public voice – The Forum on Privatization and the Public Domain (P&PD) – on the full range of issues raised by the relentless expansion of what are considered to be patentable products, processes, discoveries, inventions and appropriated goods, or what is commonly referred to as intellectual property , and the instruments of privatization, particularly patents and copyright. This advancing domain stretches from seeds to software, from drugs to human genetic material, from Traditional Knowledge to poetry and music.

This is a huge task, and will require full-time, dedicated staff and appropriate funding as an independent non-profit organization. The Forum will be the focal point and clearinghouse for documentation on social, economic and legal aspects of intellectual property and related issues via electronic and print media. It will develop a base of speakers and resource persons for meetings, conferences and consulting. It will engage in public education and analysis on current issues and alternatives to existing intellectual property and privatization practices such as open source software and creative commons, and to current R&D funding practices in health care and agriculture.

The Forum will produce a monthly newsletter/ (paper and/or electronic) both for educational purposes and to build the network of interested citizens (the public voice). As appropriate, the Forum will raise this public voice to address matters of current importance. A listserv, the Forum on the Patenting of Life/Forum sur le brevetage du vivant, is already in place. (To be added to the list, send a brief self-descriptive message to Devlin Kuyek:

To get this off the ground with staff and communications capability, we need $100,000-200,000. We are in the process of developing a notable ‘steering committee' to oversee the project in its initial stage and to give it visibility. If this project is something that you would like to be part of in some way, or would like to support financially, or if you know of someone who might be able and willing to make a substantial tax-deductable contribution, please do let us know.

Contact Brewster:

phone: 250-675-4866,
mail: S6, C27, RR #1, Sorrento, BC V0E 2W0.


Avian Flu by Cathleen Kneen

With all the travelling Brewster has been doing lately in his work on Privatization and the Public Domain, the issue of Security has been very evident. Not only the endless waits while documents, baggage and shoes are checked, or the petty annoyance of being without his pocket knife, but also the current hot topic, ‘Biosecurity'. Last time he came back from a trip overseas, he was brewing a head cold, which he promptly contributed to the rest of the family. Now generally, we don't get colds. In fact, we rarely get sick at all. Living on the farm, eating raw food and drinking raw milk (and lots of hot peppers) we figure we have pretty healthy immune systems. But this bug Brewster brought back was a foreigner and we had little defence. Mind you, nobody was sick more than 24 hours with it, which isn't bad. Should we have put Brewster in quarantine for a week? Or just accepted that we would have to acclimatise to this new bug, painful though it may have been in the short term?

Actually, putting Brewster in quarantine might not have achieved anything anyway. The chicken farms in the Fraser Valley that first reported infection with Asian Flu had some of the most sophisticated and stringent biosafety protocols in the country. Nevertheless, they were not only infected, but the infection spread throughout the region. The latest word at the beginning of May is 19 million birds, from 37 commercial and 10 ‘backyard' flocks have been killed to stop the spread of the disease. In other words, pretty well everything with feathers in the Fraser Valley has been wiped out. The reaction of the authorities to this disease reminds me of the scene in Arlo Guthrie's 1960s classic “Alice's Restaurant” where young Arlo charms the Draft Board psychiatrist by jumping up and down and yelling: “Kill! kill! kill! kill!”.

The government's theory is that once the purge is completed, the barns can be thoroughly disinfected and re-stocked and life will go on as before. This of course begs a number of questions about the rise and spread of the disease: questions such as, does a healthy immune system protect a bird from the Avian Flu? or, to come at it from the other side, is there anything in the high-tech practices of our ultra-modern poultry facilities that might pre-dispose them to such an epidemic? According to the vets, the answer is no: this is what they call a ‘high-path' virus which is so infective that it will spread no matter how healthy the birds might be to start with. However, that's not the whole story.

The most recent statistics indicate that about 13% of Canada's poultry are in the Fraser Valley. Now, B.C.'s total population is about 13% of the national total. But the population of the Fraser Valley is only 59% of the population of BC – and yet 84% of the province's birds are produced there. It doesn't take a mathematical whiz to detect an imbalance there! and it doesn't take an environmentalist to note that such a concentration of birds in a small land base will cause serious pollution problems.

The fact is that with the exception of two or three farms which are Certified Organic, the commercial poultry farms in the Fraser Valley, like ‘chicken factories' elsewhere, keep laying hens housed in cages which are about the size of a sheet of writing paper; even “free run” birds have extremely limited access to outdoors and then often on concrete pads, not natural earth. (On organic farms the birds are free to scratch and supplement their vegetarian diet with high-protein bugs and grubs.) At the same time the land base for these factories is inadequate to absorb what current parlance calls the ‘nutrients' from the birds, turning manure which should be a valuable resource for growing, into a pollutant. There is no question that these birds are extremely productive for the duration of their short lives. But their productivity is based on high-protein feed (let's not talk about how the protein is derived), medication such as sub-therapeutic antibiotics – and biosecurity to guard against disease entering the barns from feed trucks or visitors' boots.

Of course, the Avian Flu is hardly limited to the Fraser Valley. In some other places the effects have been even more devastating. Since emerging late last year, Avian Flu has ravaged flocks across Asia and killed at least 24 people in Vietnam and Thailand. To stem the disease, authorities destroyed about 100 million chickens, ducks and other birds and temporarily quarantined farmers.

But the disease is affecting poultry farmers whether or not their birds get sick. In Bangladesh more than a third of the country's small poultry farms have gone out of production since January. Even though the farms were free of disease, a rumour caused such a slump in the chicken and egg markets in the country that farmers failed to recover the losses incurred during the panic even after it was over. About 35,000 out of more than 80,000 small farms were closed down in the last three months.

Back home in British Columbia, all the Certified Organic flocks are being destroyed although neither the CFIA, the BC Ministry of Agriculture, or the local organic farmers can cite an instance of the disease in Certified Organic flocks. Nevertheless, the CFIA and BC government approach is to blame the ‘backyard flocks' for the outbreak, on the theory that the disease is spread by wild birds. Farmers will be compensated for their losses, which will allow the factory farms to re-stock quickly but will do little for the specialty producers who have to rebuild breeding flocks, often with rare or heritage breeds.

The redoubtable organic egg farmer Fred Reid, in a statement on the website, reported that organic producers had a three-fold message for the government:
, First, bio diversity is the solution not the problem.
, Second, the poultry industry should be down sized and decentralized.
, Third, there should be no compensation to the industrial farm complex without changes to the factory farm model and recognition of the organic farm model.

Perhaps those authorities who are so eager to re-instate and reinforce the industrial model of agriculture should spend a little time in Japan, where the Agriculture Ministry and the poultry industry stage an annual ceremony to honour the chickens.

“We want to express our regret to chickens for having to kill them, while also giving thanks to them for providing us with food,” said Hideyuki Shimada, a director at the Japan Poultry Association. “I don't know how chickens feel about it, but humans should show appreciation.” –


#220: April/May 2004 TOC
Privatisation and the Public Domain: Brewster reflects on the shrinking
public domain and announces an initiative to address it. 
Avian Flu:
 Cathleen suspects that industrialization of the poultry industry
is at the root of the problem. 
Farmers want to ban GMOs in PEI
 Canada, Brazil, and the EU: Canada's new voluntary standard
allows up to 5% GMO in a non-GMO product. Such a threshold would allow a
lot of Canadian beer to be labelled "alcohol-free". Brazil's threshold is
1% and the EU less than .9%. 
US called on to promote biotech in Australia:
 Monsanto-connected group
helps out 
US Corn Imports Upset Mexicans:
 GMO dumping and cheap prices harm Mexican
WTO rules against US cotton subsidies:
 a landmark victory for Brazil 
 Let someone else pay: low pay and poor working conditions mean
the retail giant's workforce costs the taxpayer. Meanwhile, 5 of the Walton
(Wal-Mart's owners) family are among the 10 most wealthy people in the world.