4.4.1 Preventing enclosure

Helpful prior knowledge and learning objectives

Helpful prior learning:


Learning objectives:

In the 1990s, scientists in the United States attempted to patent turmeric, a spice used in India for thousands of years to treat wounds and inflammation. A patent would have granted exclusive rights to use turmeric in products, preventing others from accessing it without paying. India’s Council of Scientific and Industrial Research challenged the patent by documenting turmeric’s traditional uses in the Traditional Knowledge Digital Library (TKDL), a digital archive. This led to the patent being taken away.

The TKDL is a powerful tool against biopiracy—when private interests claim ownership of indigenous knowledge. By documenting and sharing knowledge openly, communities can prevent its enclosure, keeping valuable ideas accessible to those who developed them. This strategy, like others discussed in this section, is most effective when combined with other legal tools and hacks.

Photograph of turmeric in powder and root form

Figure 1. Turmeric root and power, a spice used in traditional Indian medicine to treat inflammation and wounds

(Credit: Karl Solano, Pexels licence)

How can formal legal strategies prevent enclosure?

Customary usage rights often recognize a community’s long-standing relationship with resources like land or water. However, these informal rights are rarely strong enough to prevent enclosure when states or businesses seek profits. There are a number of legal strategies to strengthen protection for commons.

Legal title

Strengthening customary usage rights with formal legal titles can provide better protection. Ironically, this means using the same laws of enclosure that states and businesses use. The difference is that commoners gain legal title to protect and manage the resources for everyone in the community.

For example, indigenous communities in the Colombian Amazon have gained legal titles to their ancestral lands through resguardos, or indigenous reserves. As of 2023, Colombia has 846 legally recognised reserves (2023), covering 35.6 million hectares—31% of the country’s land. These titles protect against logging, mining, and agricultural expansion, while affirming collective land management rights of indigenous communities. By formalising their connection to the land, communities can better safeguard resources and their role as stewards.

Map of indigenous territories in Columbia

Figure 2. Indigenous territories in Columbia

(Credit: GeogrColombian, CC BY-SA 4.0)

Constitutional protection

Constitutions, the highest legal documents of a nation, outline fundamental laws and rights. When commons—resources, communities, and rules—are protected in constitutions, in theory they gain a stronger legal foundation, harder to change than regular laws, at least in theory. This may limit the ability of governments or corporations to act against them.

In 2008, Ecuador became the first country to recognize nature’s rights in its constitution, naming Pachamama, or nature, as a legal entity. While groundbreaking, such protections depend on governments upholding their constitutions—a commitment that isn’t always guaranteed.

How can legal ‘hacks’ prevent enclosure?

Legal hacks creatively use existing laws to protect commons. Like finding a clever workaround in computer code, they transform laws that have supported enclosure into tools for fairness and sustainability.

A photograph of the Whanganui River in New Zealand

Figure 3. The Whanganui River in New Zealand, the first river to be granted legal personhood

(Credit: James Shook CC BY 2.5)

Legal personhood

Granting legal personhood to natural resources allows elements of nature, like rivers or forests, to hold legal rights like a human. This means they can be defended in court against harm. The law already grants legal personhood for businesses as a separate legal entity from its owners (Section 3.3.4).

For example, New Zealand’s Whanganui River (Figure 3) was the first river in the world to receive legal personhood. Stewards or environmental groups represent the River’s  interests in courts and policy-making, aligning with indigenous values that view nature as an equal partner. While courts may not always honor these rights, legal personhood ensures nature has a voice in decision-making.

Creative licencing

Enclosure isn’t limited to physical resources. Knowledge and creative works can also be enclosed through patents or copyrights, granting exclusive ownership to individuals or businesses (Section 3.2.3). Many researchers and creatives want to enclose their work, because otherwise their work can be taken by others who may take it and sell it for profit. On the other hand, the same researchers and creatives might want to share their ideas with others. How can they do both?

Creative Commons (CC) licenses (Figure 4 and Section 4.2.5) allow creators to share their work under specific conditions, balancing protection of the work with openness. For example, this textbook uses a CC BY-SA 4.0 license, enabling free use and adaptation of the knowledge as long as credit is given and any changes made to it are shared under the same license. Such tools ensure knowledge remains accessible while preventing exploitation of the work for profit.

An illustration of creative commons licenses and symbols

Figure 4. An explanation of the various Creative Commons licences

(Credit: Teaching and Learning Resource Center, CC0)

How can local governance and legal strategies work together?

Legal protections are most effective when used with strong local governance. Community-developed rules ensure resources are managed sustainably, while legal recognition strengthens the protection of the commons.

In Bolivia, urban water cooperatives demonstrate this approach. These cooperatives, run by water users, manage distribution and set rules. The Bolivian government supports them with legal protections, preventing privatisation of water resources. This blend of local and legal strategies has kept water systems in the community’s hands.

Digital commons also benefit from this combination. Open-source software projects use community rules to govern code sharing and modification, while Creative Commons licenses protect access to the community’s work, ensuring these digital resources remain open.

What role does civic engagement play?

Civic engagement, the ways that people take collective action to address issues of public concern, is crucial in protecting commons. Community campaigns can raise awareness, build support, and pressure governments to act to protect commons. Strong public opposition to privatisation often forces authorities to prioritise community interests over private profits.

Bolivia’s “Water Wars” in Cochabamba highlight this. In the early 2000s, the government privatised the city’s water supply, handing control to a multinational company. Prices skyrocketed, leaving many unable to afford water. The community united—farmers, workers, and indigenous communities—with mass protests that drew global attention. The government eventually canceled the privatisation, returning water management to public control. This victory shows how collective action can challenge enclosure and reclaim resources.

A photograph of Public protests over water privatisation in Bolivia

Figure 5. Public protests over water privatisation in Bolivia are an example of how vital natural resources can be defended from enclosure

(Credit: Tom Kruse)

Activity 4.4.1

Concept: Power, Regeneration

Skills: Thinking skills (transfer)

Time: varies, depending on the option

Type: Individual, pairs, or group


Option 1: The Bolivian Water Revolt

Time: varies, depends on how long students are given to explore the website, whether they divide and share the work, or whether they develop a case study or exhibit with the information


The water protests in Cochabamba in early 2000 became a global symbol of defending vital natural resources from enclosure. On the tenth anniversary of the protests The Democracy Center put a set of resources online to help people understand what happened there:


The Bolivian Water Revolt



Option 2: Rights of nature initiatives

Time: 40 minutes

The movement to grant rights to nature is gaining momentum around the world.


AND/OR




Ideas for longer activities and projects are listed in Subtopic 4.5 Taking action

Checking for understanding

Further exploration

Sources

Bollier, D. and Helfrich, S. (2019). Free, Fair and Alive: The Insurgent Power of the Commons. Gabriola Island: New Society Publishers. 

Bollier, D.  (2025). Think Like a Commoner: A Short introduction to the Life of the Commons, 2nd edition. https://www.thinklikeacommoner.com/

The Democracy Center. (n.d.). The Bolivian water revolt. https://www.democracyctr.org/the-bolivian-water-revolt

Glenza, J. (2024, November 20). Granting legal personhood to nature is a growing movement – Can it stem biodiversity loss? The Conversation. https://theconversation.com/granting-legal-personhood-to-nature-is-a-growing-movement-can-it-stem-biodiversity-loss-227336

Horowitz-Ghazi, A. Beras, E. Messick, M. and Rubin, W. (2023 September 1). How one man fought a patent war over turmeric. NPR. https://www.npr.org/2023/09/01/1197321273/turmeric-india-biopiracy-patent-tkdl

International Work Group for Indigenous Affairs. (2024). Colombia: Indigenous world 2024. https://www.iwgia.org/en/colombia/5380-iw-2024-colombia.html

Terminology (in order of appearance)

Link to Quizlet interactive flashcards and terminology games for Section 4.4.1 Preventing enclosure


biopiracy: the unauthorised and uncompensated collection of biological resources by individuals or companies who then use or patent them for their own benefit

enclosure: the process that ended traditional rights on common land formerly held in the open field system and restricted the use of land to the owner

customary usage rights: traditional practices and privileges that have evolved over time and are recognised by law due to their long-standing usage

profit: total revenue minus total cost

title: the formal document that states what a person's rights are related to property

indigenous reserve: land set aside by our federal government for the use and occupancy of an indigenous community

indigenous community: the original settlers of an area (pre-invasion/colonialism) who have retained their culture apart from colonisers

steward: to manage or look after something

constitution: the basic principles and laws of a state that determine the powers and duties of the government and guarantee rights to the people in it

legal hack: creatively use existing laws to achieve a goal, like protecting the commons

sustainability: meeting people’s needs within the means of the planet

legal personhood: the ability to have legal rights or responsibilities, like a person

value: ideas about what is important or good

copyright: legal ownership of intellectual property with the right to control its reproduction and distribution

creative commons license: one of several public copyright licenses that enable the free distribution of an otherwise copyrighted work

governance: the process of overseeing the control and direction of something

cooperative: an organisation owned and controlled by people to meet their common economic, social, and/or cultural needs

digital commons: a form of commons involving the distribution and communal ownership of information resources and technology

civic engagement: all the ways that people take action together to address issues of public concern

campaign: work in an organised and active way towards a particular goal, often political or social