Introduction: the great ‘air-grab’
Over the past decade, air, the ‘most excellent canopy’Footnote 1 under which we dwell, has been redrawn as one of the latest frontiers of capital’s technology-facilitated expansion into new domains and spaces. Drone-enabled markets are being engineered in our skies, conjuring science fiction memes of flying carsFootnote 2 and attracting eager governmental support.Footnote 3 Yet, lifting the veil of techno-utopian promises that cloaks the commercialisation of the vertical reveals the hallmarks of what David Harvey has termed ‘dispossession by accumulation’:Footnote 4 the loss of our shared commons through commodification and privatisation, a project whose origins long pre-date the current incursion on our skies. As David Bollier observes, the ‘theft of natural wealth has been little noticed because it has been so incremental – and because it is generally portrayed as a sign of economic and technological progress’.Footnote 5
Beyond evident safety concerns, commercial drone operations raise significant environmental, privacy, amenity, and participatory governance issues. These are now attracting rightful attention as critical to effective and ethical regulatory responses.Footnote 6 This paper contributes to that critical scholarly movement by illuminating the role the law plays, not just in regulating, but in facilitating tech expansion. As such, it presents a case study in how technology companies ‘mobilize legal tools and institutions to advance their various goals’.Footnote 7 The paper contends that corporate claims to the sky are in part enabled by the fact that prevailing legal frameworks are unfit to adequately name and account for what is at stake as private actors expropriate our skies for their own profits. The aim of this paper is to expose this deficiency and to provide some of the language and additional intellectual conceptualisations needed to respond to and challenge the dynamics of inequity, dispossession, and disempowerment that accompany tech expansion.Footnote 8
The paper identifies and interrogates the notion of the sky as an empty resource. This is the prevalent framing reflected in and supported by the law and reinforced in current legal discourse and by industry. The paper challenges this conceptualisation by reframing the emergence of commercial drones as enclosure of our skies by big technology corporations, who seek to create and dominate new markets. In doing so, it builds on scholarly work that has analysed the act of rendering the atmosphere a plane of resource legible for extraction through a history and theory of enclosure.Footnote 9 Ian Shaw details the ways in which ‘the atmosphere is being reimagined and reengineered as an economic space to be brought inside the world interior of capital’.Footnote 10 He observes that ‘the drone is productive of new regimes of enclosure’.Footnote 11 The characterisation of efforts to commercialise and commodify a crucial part of our shared, lived environment as the extension of an old and tested economic and legal strategy dating back to the land-grabs in eighteenth- and nineteenth-century England, brings clarity as to the underlying objective. As Hendrik Hagenaars and Koen Bartels note: ‘The purpose of enclosure is to bring a shared resource under a capitalist market regime to secure profits for a few privileged or powerful actors.’Footnote 12 This framing also offers a different logic and vocabulary for understanding and expressing more accurately what it is that is being commercialised: a commons. The present paper seeks to advance the understanding of the concept of the commons as it applies to airspace in light of current encroachment. It is guided by the assertion that reconceptualising the sky as a commons enables an appreciation of the unmeasured and qualitative types of value the sky holds and provides for human and non-human species, both individually and, crucially, collectively. Thinking and speaking of the sky as a commons also ‘helps us confront the pathological tendency of markets to force people, communities and nature to become “fictional commodities” in the market system’.Footnote 13
The paper proceeds as follows. Section 1 outlines the dominant legal and regulatory frameworks that have been applied to airspace over time, namely a conservative, black-letter conceptualisation of property law and aviation law. A historical-doctrinal analysis of these domains uncovers that the law’s conceptualisation of the sky is based in the foundational proposition that it is, at least partially, ownable; and legally relevant only as a resource for a limited set of interests. This examination reveals that these laws define their purpose against human activity and its facilitation through the proclamation and delineation of rights to airspace. Section 2 interrogates the interplay between property law and technological change in the context of airspace and aviation, which gives important insight into the purpose and scope of the law and its role in current policy and scholarly discourses around drones in the sky. Importantly, this section identifies the main shortcomings of the law as it currently stands – what is termed an ‘air rights lens’: a view of the sky that is based in an understanding of private property reflective of an economic analysis of the law. It also highlights how the ‘air rights lens’ aids private interests in pursuit of the commercialisation of the sky. Section 3 turns to examine the concept of the commons and its potential as a counternarrative in the context of the technology-driven commercialisation of public spaces and the natural environment. Building on a rich body of established commons scholarship, the notion of the commons as a social practice and relational process is advanced as a compelling conceptual framework which redraws acts of resistance to the commodification of the sky as instances of commoning. The paper concludes with reflections on the utility of the commons in the production of effective counternarratives and alternative and supplementary governance models to those driving and enabling the enclosure of our natural wealth.
1. ‘Who owns the sky?’: origins of the dominant discourse in law
The sky is a fascinating and complicated thing. It is a substance, a receptacle, a force, a habitat, a medium, an imaginary. It bears ecological, economic, spiritual, cultural, and psychological significance. Yet, as with most issues, the way something is framed in the law tends to become dominant in wider discourses around it. As Carol Bacchi asserts: problematisations put forward through the law ‘take on lives of their own’.Footnote 14 This paper considers how the dominant doctrinal framing of the sky manifests epistemically as common conceptualisations in jurisdictions sharing a common law heritage with England. An analysis of the sky in common law reveals that the sky’s legal significance attaches predominantly to two such conceptualisations of ‘airspace’: one as private property (a fee simple estate) extending outward from land; and the other as thoroughfare or easement for aviation. Given that the focus of the present paper is the framing of the sky in the context of drone operations, the concept of the atmospheric commons, a role of the sky that has gained legal significance over the past few decades, must be put to one side. For present purposes, it is sufficient to note that it reinforces the reduction of the sky as a resource and service for humanity, given the atmosphere’s characterisation as ‘a global common-pool resource in its function as a sink for CO2 and other greenhouse gases’.Footnote 15
Central to the law’s conception of the sky, and the schemes devised to control it (property and aviation law), is a deliberate disregard of its ‘dynamic, three-dimensional and indivisible nature’.Footnote 16 Instead, to maximise the sky’s utility as a resource, these features are overwritten with ideas of control of access through parcellation: slicing up the sky into knowable, ownable, and governable cylinders of air, bent to the logics of private property and state sovereignty.Footnote 17 Reviewing the legal history of the sky gives important insight into the rationales behind this feat of legal fiction, and reveals an evolution that occurred in lockstep with the discovery of the sky’s economic potential.Footnote 18
(a) Sky as private property
Long before the invention of the aeroplane, common law had linked rights to airspace with ownership in the terrestrial domain. Known as ‘air rights’, this legal concept stems from the maxim cujus est solum, ejus est usque as coelum et ad inferos, on the basis of which property rights derived from ownership of surface land were deemed to extend to everything above (and everything beneath) it, notionally with no upper (or lower) limit.Footnote 19 Legally, a piece of land comprised both sky and subsurface attached to it, as asserted by William Blackstone in his Commentaries on the Laws of England: ‘the word “land” includes not only the face of the earth, but every thing under it, or over it’.Footnote 20 Cujus est solum in its absoluteness was widely accepted among Anglo-American scholars, and a solid body of early case law around trees or buildings overhanging private property reaffirmed that the land is the landowner’s ‘even to the sky, and therefore he has a right to it’.Footnote 21 Yet, as humans started to take to the sky in the late eighteenth and early nineteenth centuries, first via balloons, later in zeppelins and aeroplanes, this unqualified conception of sky-ownership following land-ownership started to crack.
The possibility of air travel disrupted the very logic that supported the argument for the aerial private property regime expressed in cujus est solum: a balance of costs and benefits. As Harold Demsetz famously observed, ‘property rights arise when it becomes economic for those affected by externalities to internalize benefits and costs’.Footnote 22 Up until the emergence of aviation, the allocation of property in the airspace above surface land to its owner was legally and economically justifiable as there were not a lot of ways to utilise that space, and so it ‘was reasonable to assume that landowners collectively valued [it] more than potential trespassers did’.Footnote 23 The prospect of commercialised air transport tipped that balance sheet in favour of the aviation industry.
The space above privately owned land was now much more valuable to a larger group of people. Consequently, the benefits of overflight were deemed to exceed any losses landowners may suffer in terms of their privacy, disturbances, or diminished ability to use the airspace themselves.Footnote 24 This shift in the balance of economic convenience became even more obvious as planes started to fly at higher altitudes (further reducing costs on landowners below), over longer distances and transported more people (making overflights even more valuable to society at large).Footnote 25 This logical progression, albeit not articulated in the language of Demsetz at the time, was clearly at the base of a corresponding change in jurisprudence in aerial trespass cases in the nineteenth and early twentieth centuries. Continued, unconditional adherence to cujus est solum would have meant that airlines must secure ‘avigation easements’ (rights of overflight) from every single landowner whose property they may pass over to avoid liability for aerial trespass.Footnote 26 The transaction costs of such a scenario would have been prohibitive to the very idea of commercial aviation and ‘airplanes were simply too useful to let the law stand in the way’.Footnote 27 So, property law changed.
(b) Sky as thoroughfare for aviation
In the early- to mid-twentieth century, both common law and statute reduced individual landowners’ exclusion rights in the airspace above their land to allow for overflight of planes. This was broadly done by legally separating so-called ‘low-altitude’ and ‘high-altitude’ airspace. High-altitude, or ‘navigable’, airspace commences at the minimum altitude for safe operation of aircraft, which generally includes most airspace over 500 feet above ground level.Footnote 28 Lawmakers declared high-altitude airspace a ‘public highway’ for aviation, to which no landowner could lay claim, and placed it under what is termed a ‘regulated commons’ regime.Footnote 29 High-altitude airspace was thus removed from the realm of private property and instead asserted as a common-pool resource to which a landowner ‘has no greater rights … than any other member of the public’.Footnote 30 This position was reinforced by legislation introduced throughout common law jurisdictions that limits liability of aircraft in respect of trespass and nuisance, stipulating that no such action can be brought by reason of flights ‘at a height that … is reasonable’ or of the ‘ordinary incidents of such a flight’.Footnote 31
In the words of Kevin Gray, high-altitude airspace is a prime example of a resource that is ‘not propertised’.Footnote 32 In the absence of a proprietary regime, such resources are considered to be held in common and to be ‘open access’: ‘free for use and exploitation by all mankind’.Footnote 33 Yet, in response to increased use of such resources – enabled, for example, through new technologies such as air travel – states are required to ration and de-conflict access to ensure its ‘productive use’.Footnote 34 In the case of high-altitude airspace, states used their sovereign power over national airspace to regulate use of this public resource. The structure of the regulated commons of high-altitude airspace resembles a governance approach, where exclusion rights of individuals are replaced with ‘significant governmental control over communally shared space’.Footnote 35 In exercising this governance role, governments have aimed to accommodate, first and foremost, ‘military imperatives, commercial opportunities and human-safety concerns’Footnote 36 to the exclusion of other interests and values that may attach to the sky.
Breaking with the cujus est solum doctrine, the introduction of public navigable airspace brought with it a certain level of confusion among lawyers as to the status of the airspace below 500 feet, or low-altitude airspace, which had been left unresolved. The 1946 landmark decision of United States v Causby is a prime example.Footnote 37 Adjudicating whether frequent military flights over the Causby family’s farm had amounted to a ‘taking’ under the US Constitution, the US Supreme Court provided a partial clarification on the question of private ownership in low-altitude airspace.Footnote 38 The Court held that landowners owned the ‘superadjacent’ airspace above their property and that intrusions of that space were to be treated the same ‘as invasions of the surface’.Footnote 39 Yet, the precise boundaries of such superadjacent airspace were left unspecified. Instead, the Court used vague and partly inconsistent language to describe its understanding of what may be deemed to be part of a landowner’s property.Footnote 40 According to the Court, privately owned airspace lay within ‘the immediate reaches’ of the ground, including ‘at least as much of the space above the ground as he can occupy or use in connection with the land’, clarifying that this did not mean the owner had to be physically present in that space. The Court added that ownership extended into airspace so far as aerial intrusions would ‘subtract from the owner’s full enjoyment of the property’.Footnote 41
It is noteworthy that the question of the exact extent of landowners’ rights to airspace had remained open in common law and statutes at a time when the modern drone had not yet been invented. In that context, it is plausible that the limited guidance provided by courts on the subject was sufficient to navigate the property law issues raised by traditional aviation, with aerial trespass actions becoming much less common over the remainder of the twentieth century.Footnote 42
(c) Commercial drones and low-altitude air rights
The emergence of drone technology as an increasingly affordable way to physically access and use low-altitude airspace for both individuals and businesses has given renewed urgency to questions around air rights and aerial trespass. Commercial drones tend to operate at an altitude of around 100 to 200 feet and, depending on the type of operation, may go much lower. For example, Google Wing’s delivery drones climb to a cruising altitude of about 150 feet, but lower down and hover at just 23 feet to release the delivered items to the ground.Footnote 43 Many commentators, and industry representatives, have identified the lingering uncertainty around how far private property stretches into the sky as potential cause for complex litigation between landowners and drone operators, and as such as a major obstacle to the development and maturation of the drone industry.Footnote 44 Consequently, recent legal scholarship has taken up the issue as a matter of priority.Footnote 45
Scholarly debate in this regard generally reflects the fact that low-altitude airspace is ‘sandwiched’ between two established legal regimes: the governance approach of the regulated commons of high-altitude airspace, and the exclusion approach of the private property paradigm of surface land.Footnote 46 Consequently, proposals for reform tend to be based on different iterations of the respective downward and upward extension of each of those regimes, an illustrative selection of which follows.
Troy A Rule calls for the affirmation of landowners’ exclusion rights up to 500 feet, preferably through legislation, alternatively through jurisprudence. He argues that a lower ceiling for private property in airspace would be insufficient to preserve ‘a level of privacy and safety comparable to what landowners enjoyed prior to the drones era’.Footnote 47 This proposal emphasises the role of low-altitude airspace as a ‘seclusion buffer’ for landowners and allocates the costs of internalisation of drone-related negative externality problems through strengthened property rights to the drone operators. To be able to fly without committing aerial trespass, operators would need to secure licences or easements from landowners.Footnote 48
Seemingly more sympathetic to ‘modern conceptions of airspace’, Lavi M Bendor and Jonathan M Hoffman propose to redefine navigable airspace to commence at 200 feet, extending federal governance into lower levels of airspace. Additionally, they envisage the further division of such expanded navigable airspace into three distinct regions dedicated to different activities and sets of interests.Footnote 49 Airspace above 500 feet remains reserved for crewed aviation; 500–400 feet serves as a safety buffer zone; and 400–200 feet is kept for drone flight paths.Footnote 50 Airspace below 200 feet is to be asserted as privately owned and controlled by the subjacent landowner, paired with the encouragement of further commercialisation: ‘Rather than sitting empty, the low-altitude airspace should be commercialized through a marketplace in which landowners sell their consent to overflights over their properties. Delivery services and other heavy-duty drone operators can aggregate those consents into viable flight paths …’.Footnote 51
To avoid possible challenges associated with the extension of a centralised regulated commons governance model into low-altitude airspace, Brent Skorup offers an alternative approach. Likening low-altitude airspace to other resources held in common where government stands in as public trustee, Skorup advocates for the introduction of auctions for the use of airspace between 500 and 200 feet.Footnote 52 This approach to licensing is predicated on the definition of individual corridors for which exclusive rights of use are auctioned off. Skorup envisages that airspace could be divided much ‘like a layer cake’.Footnote 53 He adds that within the licensed corridors, operators would be free to choose flight paths, destinations, speed, and business model. As for airspace below 200 feet, he proposes that there should be a legal presumption of trespass and nuisance for drone flights in this area, arguing that this approach balances the fact that ‘property rights and police powers are stronger at the surface, and federal interests and aviation safety more salient above 200 feet’.Footnote 54
Notwithstanding diverging views on how to best navigate, figuratively speaking, low-altitude airspace, there is strong scholarly agreement around the need for greater legal precision in assigning air rights to ensure legal certainty for landowners and drone operators alike.
It remains to be seen how different jurisdictions will solve the question of ‘who owns the sky?’ in the age of commercial drones. It is notable that a large proportion of scholarship concerned with issues of air rights and drones sits within the law and economics tradition, likely a result of the dominance of US scholarship in this area. An application of Demsetz’s economic theory of ownership, which features in most of the abovementioned analyses and proposals, suggests consideration of the proposed curtailment of landowners’ rights in terms of a cost-benefit analysis, akin to the one exercised when traditional aviation came onto the scene: do the benefits commercial drone operations provide for society outweigh the potential loss in air rights suffered by landowners? Yet, aside from the obvious difference in altitude of operations, the versatility and multitude of applications of drone technology is another important point of distinction between crewed and uncrewed aviation. Commercial aeroplanes, which make up most of the air traffic in navigable airspace, provide a limited set of services – transport of people and items over often very large distances – to which society has assigned distinct value. Commercial drone operations are much more diverse in their value propositions. Actual and speculative drone use cases range from applications in emergency services, law enforcement, arts and entertainment, traffic control, scientific research, agriculture, to the delivery of food and other consumer items. The social benefits and correlated public support of each of those use cases vary greatly, rendering a cost-benefit analysis much less straightforward than in the case of traditional aviation in high-altitude airspace.Footnote 55 Notwithstanding the pressure current property and aviation law is put under by a burgeoning drone economy, negotiating the future of the sky above our heads within the boundaries of considerations of ownership is myopic at best, dangerous at worst.
2. The air rights lens: an impoverished conceptualisation of the sky
Section 1 demonstrated the historic dominance of property law and of questions of private versus public ownership in the legal treatment of airspace. As outlined in the preceding sections, the evolution of property and aviation law in response to technological advances has involved an ongoing negotiation of the ‘allocation of rights between users of the air and owners of the land’.Footnote 56 The fundamental question driving this debate – who owns the sky? – has seen the law elevate the paradigms of ground-based private property to the extraterrestrial, and in doing so rendered invisible the textured, dynamic, multi-faceted nature of what we call ‘sky’. Section 2 further investigates the epistemic consequences of the paradigmatic focus on property for the present and future of low-altitude airspace. For this purpose and given the overall aim of this paper to provide a counternarrative to ‘dronified’ commercialisation and enclosure, the term ‘sky’ is used synonymously with low-altitude airspace. The following sections break down three main shortcomings of engaging with the sky primarily through the vector of air rights: the notion of the sky as an exclusive resource for human activity; the legal fragmentation of the sky in defiance of its natural properties; and the disregard and inability to account for collective interests in the sky.
(a) Shortcoming 1: sky is reduced to a resource
The recent debate about how to accommodate increased commercial drone operations in our skies has carried forward and further entrenched the dominant notion of the sky reflected in common law. Pip Wallace and Jennifer Holman astutely observe that Western perspectives of the sky are based in the anthropocentric tendency ‘to treat the area as a resource rendering services for human purposes’.Footnote 57 As elaborated in Section 1, property in airspace has emerged and changed in line with economic considerations. Be it as public highway for aviation or as private asset to landowners, air rights frame the sky around the optimisation of its utilisation for a distinct set of activities and groups of users. Encompassed activities and users – ie interests – are determined by the technologies that are available to realise them. This is in line with Demsetz’s property law theory: ‘Technology shocks create demand for novel assets, and property rights emerge to coordinate increased use of the asset’.Footnote 58 According to this logic, the (abridged) story of the sky told through the property law lens goes like this: airspace is empty, unused and, to the extent it extends from private landholdings, privately owned. Aeroplanes come along; high-altitude airspace is declared a public resource for aviation. Drones come along; the ‘oft-forgotten natural resource’Footnote 59 of low-altitude airspace is suddenly useful to a new industry; negotiations between competing interests – landowners, drone operators, and governments – ensue.
The demotion of the sky to a resource in fact goes so far as to deny its (legal) existence in the absence of a way to extract value from it. As Skorup notes in his proposal to introduce a licence scheme for low-altitude airspace between 200 and 500 feet to be administered by the state via auction: ‘[low-altitude] airspace … resembles spectrum rights or oil drilling rights in that the resource cannot exist until the technology is created’.Footnote 60 The notion that a resource only materialises upon invention of a technology to extract or use it implies that the sky was not serving any (legally relevant) purposes until aviation came along. In the pursuit of what Ian Shaw has termed ‘atmo-economica’ – the reimagination of the sky as economic space, ‘a worldly form of capital’ – other, non-economically driven roles and uses of the sky are obscured.Footnote 61 The law’s resource-focused view of the sky therefore serves a crucial narrative function beyond the legal domain: the characterisation of low-altitude airspace as empty and under-utilised is foundational to the commercial drone industry’s bid to commodify it.
(b) Shortcoming 2: sky is artificially segmented
The export of a property law regime conceived on land into the extraterrestrial domain is premised on the fictitious extension of clear dividing lines into air. On land these lines may manifest physically through structures such as walls or fences, or natural boundaries such as rivers or trees, features absent in the sky. But even just the legal segmentation of the sky, both vertically and horizontally, into different layers stands in stark contrast to its very nature. Scientifically described as ‘atmosphere’, the sky is defined as ‘a layer of gaseous elements that surrounds the earth’,Footnote 62 ‘where visual indicators such as topography, [human] inhabitants or fixed phenomena are lacking’.Footnote 63 Claiming ownership and associated rights over specific ‘slices’ of sky is defiant of its ‘fluid and indivisible form’.Footnote 64 As part of its fluid nature, the air accommodates objects and fills all spaces dynamically, defying attempts to corral or exclude it.Footnote 65
That is not to say that the ‘propertisation’Footnote 66 of the terrestrial realm is any less artificial; we have only been habituated into thinking it is. In his account of the history and present of enclosure of the commons in the UK, Nick Hayes encapsulates the power of the imaginary of private property: ‘The cult of exclusion is an optical illusion of walls and words … Its spell hides the land with walls, it camouflages its importance to us, it naturalises the unnatural.’Footnote 67 In referencing exclusion, Hayes points to the concept of excludability as a prerequisite for the establishment of proprietary regimes over a specific resource. Discussing the landmark judgment of the Australian High Court in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor,Footnote 68 Gray explains: ‘A resource is “excludable” only if it is feasible for a legal person to exercise regulatory control over the access of strangers to the various benefits inherent in the resource.’Footnote 69 The fluid and indivisible nature of the sky suggests that it is at least physically non-excludable, meaning that ‘it is not possible or reasonably practicable to exclude strangers from access’Footnote 70 to its benefits.
Considerations around access lie at the heart of what it means to think about the sky through an air rights lens. Gray asserts that the essence of the concept of property lies in the control over, rather than the enjoyment of, access.Footnote 71 This is in line with the long-held position in common law that the right to exclude others is the most important aspect of private property.Footnote 72 Following this logic, the question Who owns the sky? is in fact shorthand for Who controls access to the sky? But what does ‘accessing the sky’ mean? Which benefits of the sky are encompassed through a property law lens? The extractivist conceptualisation of the sky as a resource for a limited set of interests suggests that access – and, inversely, exclusion – relates to direct and indirect physical presence in it. Case law around the tort of trespass in relation to air rights confirms that aerial trespass is actionable only upon physical intrusion of a landowner’s airspace, be it through overflight or overhanging structures.Footnote 73 Common law has rejected the idea of visual trespass or trespass without entry – ie peering into someone’s airspace.Footnote 74
This narrow conception of the sky as clearly defined slices of property to which concepts of access, control, and exclusion can be applied has significant practical implications for drone use itself, and for the wider discourse around it.
(c) Shortcoming 3: sky is exclusively serving a limited set of interests
Taken together, the paradigm of property conceives the sky in a fundamentally individualistic fashion. It is anchored in the division of land and air alike into individual, ownable, and excludable resource cylinders. It centres individual landowners as the main interest group in low-altitude airspace, whose only competitors – users of airspace through access – are determined by economic considerations baked into its logic. To mediate those different individual interests in exclusion and access respectively, it relies on the rules of private law, through contract and torts. It is unsurprising then that the application of the logic of property to low-altitude airspace results in negotiations of easements between landowners and drone operators, and the proposition of mechanisms set up to facilitate them at large scale, such as air rights trading platforms.Footnote 75 Setting aside the likely considerable power imbalance between individual landowners and drone operators (oftentimes large multinational corporations), questions of control of access and aerial trespass may be solved through this framework. Further, discounting the transaction costs associated with such a contractual approach, it is conceivable that drone operators could secure flightpaths through ‘chains’ of easements over neighbouring properties.
At this point, however, one must remember the physical attributes of airspace discussed in Section 2(b) above. The fact that a drone operator may have acquired contractual permission to fly into and across privately owned airspace does not mean that the impact of the drone operation is contained within that flightpath. The division of airspace along property lines is, after all, imaginary and does not translate into the natural world. The visual and noise effects of drone operations may affect nearby communities, animals, and other non-human species just as much as they may the landowner immediately below. In these instances, property law may offer a first line of defence against unwelcome commercialisation efforts. In the absence of a physical incursion of an individual’s airspace, affected neighbours of an ‘easement flight path’ in their capacity as individuals holding title in land themselves may seek relief through the tort of private nuisance. If they can demonstrate that ongoing drone operations substantially and unreasonably interfere with their right to use and enjoy their property, they may be able to bring a claim of private nuisance against their neighbour who consented to their airspace being used as part of a flight path. Yet, those without title in land are effectively rendered invisible. There is no space for the collective in the air rights debate, simply because that is not what property law is designed to address. The interests of communities as a whole (distinguishable from the sum of individual landowners’ interests) – in the absence of visual and noise pollution of their shared airspace; in the value they may attach to unobstructed views; in the role of the sky for their physical, mental, and cultural wellbeing; never mind in the protection of the living environment it provides for wildlife and organisms – it all is out of view.
Most common law jurisdictions feature statutory regimes that may create a counterweight to property law’s focus on individual landowners. Aimed at giving voice to community and collective interests, environmental or local planning laws are examples of mechanisms that – duly operated and enforced – aide in balancing private and public rights. In practice, however, these laws are rarely utilised to do so in relation to novel airspace uses, as is observable in Australia, which has been a major test bed for commercial drone delivery since 2017. As part of its wider national drone policy, the Australian Federal Government has taken steps that effectively weaken the potential barriers such statutory mechanisms may pose to drone operations. In 2023, the Government released Infrastructure Planning Guidelines for Drone Delivery Services ‘to support a nationally consistent approach to infrastructure and planning decisions for drone delivery services’.Footnote 76 Importantly, the Guidelines ‘provide guidance for planning authorities to understand the implications of emerging aviation technologies and make informed decisions for their communities’.Footnote 77 The extent of federal influence in this regard is constitutionally limited by the fact that within the Australian federal system, planning and land use management rests with state and local governments. This means that development proposals by drone delivery operators must ‘be assessed under relevant state and territory rules, including environmental laws’.Footnote 78 Nevertheless, the Guidelines act as a nudge for local planning bodies in their assessment and decision-making processes by minimising the potential impact of drone delivery services. In particular, the Guidelines encourage relevant local authorities to consider in their assessment ‘previous experiences’ that drone operators had ‘with local governments regarding operational oversight, development approval and land use permissions, or engagement with the [federal] department [of Infrastructure] to manage community noise complaints’.Footnote 79 The reliance on and extrapolation of experiences of existing delivery drone operators in Australia is a precarious base for decision-making, given their limited and often negative nature.Footnote 80 Further, the Guidelines explicitly discourage planning authorities from developing or requiring novel or specific land-use categories or planning controls for drone delivery operations.Footnote 81 Similarly, in setting out a whole-of-government policy approach to drone adoption, the federal Government has noted that ‘it is not expected that current or planned operations of emerging aviation technologies are likely to meet the trigger for assessment’Footnote 82 under the federal Environmental Protection and Biodiveristy Conservation Act. The documented deference of local and state governments to commercial operators,Footnote 83 paired with the policy direction taken by the Federal Government, significantly diminish the countervailing potential of environmental and planning laws to the dominant air rights lens.
The marginalisation of other interests in and roles of the sky is imperative for arguments in favour of maintaining low-altitude airspace under a private property regime. In contrasting low-altitude airspace with other common-pool resources, Skorup notes that ‘roads and rivers have been actually accessed by the public for centuries – “propertization” of roads and rivers would be socially disruptive and nearly impossible to enforce’.Footnote 84 The statement implies that, as elaborated above, up until the emergence of the drone, low-altitude airspace had been empty and unused by the public. This perspective, again, plays into the hands of tech companies seeking to profit from the sky. The law provides the parameters for commercial and technological expansion; if it does not capture and provide mechanisms through which to mediate wider, systematic, and collective impacts such expansion may have, their existence and significance are readily refuted.
3. Commoning the sky
The previous sections sought to demonstrate that the law’s concept of the sky is largely driven and uniquely constrained by questions of ownership. Who owns the sky? has occupied legal minds for centuries, but the ‘contemporary reenchantment of the atmosphere’Footnote 85 prompted by corporate visions for drone futures has given renewed momentum and added new, powerful players to the debate. As outlined above, this frame of ownership is predicated upon an impoverished perspective of the sky and obfuscates its centrality to human and non-human existence beyond economic benefits. This paper proposes that the grammar of the commons offers a valuable alternative lens through which to view and articulate the sky. Reframing the sky as a commons helps establish what is at stake in the face of enclosure that ‘operates through an increasingly atmospheric spatiality’,Footnote 86 an exercise that has intrinsic value and also provides imaginaries for current, emerging, and future commons of the sky. If we can denominate what the sky is beyond private property and thoroughfare, we can more accurately understand how it can be preserved. Naming the commons and making them ‘culturally legible’ is the first step in reclaiming them.Footnote 87
But what does it mean to reclaim the commons of the sky? To understand the meaning and potential of reclaiming the sky as a commons, we must interrogate the very idea of the commons and recover it from the bounds and burdens of historical and co-opted accounts. The following sections identify three aspects of the project of reclaiming the commons of the sky. Section 3(a) contends with and seeks to release the commons from the constraints of economic analyses and rational actor theory. Section 3(b) reinvigorates the concept of the commons as fundamentally expressive of relationality with our environment. Finally, Section 3(c) highlights the power of the commons as a practice and tool of resistance to the enclosure of the sky.
(a) Releasing the commons of the sky: from old shapes to new forms
The commons is not a static idea. It is a concept laden with ‘inherent ambiguities and latent complexities’.Footnote 88 Ash Amin and Philip Howell characterise ‘the contemporary commons as both lost in old shapes and recovered in new forms’.Footnote 89 The confines of such old shapes tend to equate the commons with the resources at its base, or the type of property regime that a resource is held in, or both. This has led to unhelpful terminological conflations.
One predominant framing conceives commons as common goods: resources that are unowned or, in the words of Gray, ‘unpropertised’: ‘available for use and exploitation of all’.Footnote 90 Termed by Carol Rose ‘commons as open access’, this conception pitches the commons in direct antithesis to private property. One category of such commons as open access that persists in public consciousness is the global commons.Footnote 91 These are the kind of commons that international law is concerned with – ‘very large commons that are open to all simply by virtue of their vast size and diffuseness’,Footnote 92 such as the oceans or Antarctica.
Commons as open access is also what Garrett Hardin had in mind when he warned of the inevitable over-exploitation of resources open to all in his seminal 1968 article ‘The tragedy of the commons’.Footnote 93 He posited that the only perceivable ways to prevent the collapse of the commons were the institutions of private property (ie enclosure) or state control.Footnote 94 The term ‘common-pool resource’ is mostly used in the context of what Elinor Ostrom identified as rebuttal to the tragedy metaphor: instances of well-functioning community governance of commonly held resources.Footnote 95 Importantly, Ostrom’s commons concept radically differs from commons as open access in that it attaches to clearly delineated resources that are limited in scope and access.Footnote 96 Though different in their approaches and outlook, both Hardin’s and Ostrom’s commons schools focused on what may be considered the quintessential commons: fisheries, forests, pastures, groundwater. In the traditional commons school, these types of resources are said to share two essential characteristics. They are subtractable or depletable, meaning that each user is capable of subtracting from the benefit of other users; and non-excludable or difficult to fence off, meaning that their physical attributes make controlling access to them costly or virtually impossible.Footnote 97
The second terminological conflation of the commons with common property leads to framings that ‘characterise commons as principally a form of property’.Footnote 98 As opposed to commons as open access, which denotes the absence of any ownership, this understanding of the commons is expressive of a type of property or ownership regime that sits beyond the private/state property dichotomy. As Rose observes, the limited commons as conceived by Ostrom are not an antithesis of property, but in fact ‘a recognizable version of a bounded and exclusive property, even if the boundaries encompass an entire community …, they are commons on the inside, but property on the outside’.Footnote 99 Indeed, Ostrom herself underscored the importance of separating ‘the intrinsic nature of the resource and the property-rights regime under which it is held’.Footnote 100 However, as JK Gibson-Graham et al observe, ‘this thinking strategy privileges formal and abstract legalities at the expense of actual practices of maintaining or creating commons, or commoning enclosed or unmanaged resources’.Footnote 101
The continued prevalence of these dominant framings of the commons is apparent in the air rights debate contoured in Section 1. The fact that air rights have been commuted to facilitate commercial aviation adds a layer of complexity to the present analysis: it appears that conceptualising the sky as a commons is epistemically prejudiced due to the invocation of the term in the context of ‘the regulated commons’ of high-altitude airspace. In establishing public navigable airspace as a ‘regulated commons’ against the backdrop of the air rights debate, lawmakers invoked the concept of the commons to signify ‘the antithesis of the private property regime that applies to the surface land’.Footnote 102 An examination of this debate reveals that the reference to the commons within it is limited to discussions and choices of the most appropriate property regimes, based in microeconomics and rational actor theories, with the aim of maximising utility. Current drones and air rights scholarship frequently references, for example, the alleged ‘wastes of open-access’ and the ‘underutilisation’ of low-altitude airspace as justification for strengthened property rights of landowners.Footnote 103 This clarifies that the understanding of the commons in the current air rights discourse still subscribes to and carries forward foundational assumptions from Hardin’s ‘tragedy of the commons’.
An understanding of the commons that hinges solely on where a resource falls in the dichotomy of private and public ownership does not provide for an effective defence line against technology expansion. As is observable in the current context of drone-based tech expansion into the ‘property rights no man’s land’Footnote 104 of low-altitude airspace, economic enclosure can occur without those seeking to extract a commons acquiring legal ownership of it. Indeed, contrary to popular uses of the term as synonymous with common property, something can be privately owned and still be a commons.Footnote 105 Conversely, borrowing from Rose, something can be a commons on the outside (in name and law) and property on the inside (in fact). If we were, as some commentators suggest, to extend the regulated commons regime of high-altitude airspace at least partially into low-altitude airspace, notionally making it a ‘common good’, state regulation would in effect control access in favour of a limited set of interests.
The strength of reclaiming the sky as a commons in response to the rise of drone commerce lies in the fact that it does not, necessarily, seek to challenge the property regime underpinning airspace, and therefore participate in the existing, epistemically limited debate. Rather, it gives voice, shape, and life to what is silenced in regulatory and public discourses that exclusively rely on and attend to interests encompassed in an economic property theory of the sky. This more inclusive understanding may suggest that limits need to be placed on existing air rights as posited by current legal frameworks, to allow for the emergence of a regulatory architecture that attends to both individual and collective interests.
(b) Reinvigorating the commons of the sky: from resource to process
The challenge of reinvigorating the notion of the commons, then, is to bring awareness to and move beyond what Hendrik Wagenaar and Koen Bartels have described as ‘conceptual and methodological blind spots’ that contemporary commons theory has inherited from its old shapes.Footnote 106 In other words, it is not just that we need a different way of thinking about the sky, we also need a different way of thinking about the commons.
One approach to do so that has been put forward by commons scholars and activists in more recent times is to ‘focus on it as a verb, as commoning’.Footnote 107 Peter Linebaugh first introduced this formulation of the commons when he wrote:
To speak of the commons as if it were a natural resource is misleading at best and dangerous at worst – the commons is an activity and, if anything, it expresses relationships in society that are inseparable from relations to nature.Footnote 108
Building on the three elements that Ostrom and other commons scholars have identified as constitutive of commons – a resource, a community, and collective action taken by said communityFootnote 109 – the notion of commoning emphasises the role of communities and the relational process of negotiating access, use, benefit, care, responsibility and distributing benefits in ways that consider the wellbeing of others.Footnote 110 This changed emphasis signifies an ontological shift from form to content of the commons. Commons are neither resources nor a type of property; they are social systems which are made up by ‘communities and resources managed in common’.Footnote 111 By divorcing the idea of the commons from the nature of the resource and placing the emphasis on the practice of commoning, the actualisation of a resource as commons is contingent upon a community acting on its responsibility to care for it.Footnote 112
(c) Reclaiming the commons of the sky: resisting enclosure
Through this lens, existing acts of resistance to enclosure can be recounted as examples of commoning. In applying the language of the commons to existing practices, they can be brought within what David Bollier and Silke Helfrich have termed the ‘Commonsverse’.Footnote 113
To illustrate, Google Wing’s first residential delivery drone trial, which took place in the Canberra suburb of Bonython in Australia in 2018–2019, was met with significant community backlash. Under the banner of ‘Bonython Against Drones’ (BAD), residents successfully organised petitions, generated a parliamentary inquiry, and ultimately prompted the company to abandon Canberra in 2023. The local community meticulously recorded and communicated to governments and Google Wing the way the drone operations affected residents’ everyday life. Issues raised ranged from noise and visual pollution, privacy concerns, to detrimental impacts on health, amenity, and wildlife. Importantly, BAD identified and strongly criticised a range of governance failures that had enabled the drone trial: a stunning absence of transparent information, community consultation, as well as complaints and review mechanisms.Footnote 114 To retell stories such as the one of Bonython as instances of commoning the sky can help amplify and bolster resistance. It provides a conceptual and narrative framework that affiliates such acts with other practices with kindred values and a larger vision based in the desire to seek alternative pathways to the market’s insatiable quest for new commodities.Footnote 115 As Amin and Howell note, ‘to recover the commons, then, may be a matter of discursive framing as well as or as much as a political event’.Footnote 116 The reframing of instances of resistance in the language of the commons helps to locate and build allyship by aligning them with a larger movement against privatisation and commercialisation of public, shared spaces and domains. It facilitates ‘linguistic epiphanies’Footnote 117 that can expand the imagination and ambition of communities in their practices.
Ultimately, to reclaim the commons of the sky is to powerfully expose efforts to commodify our skies as ‘dronified forms of enclosure’Footnote 118 with all of enclosure’s well-documented implications, and to give voice to collective interests in our shared skies. It enables a move away from the mere mediation of individual landowners’ interests and towards understanding, negotiating, and governing according to communities’ social practices. Resistance to enclosure manifests as both responses to imminent or ongoing commercialisation as well as alternative ways of relating to the sky absent acute encroachment: a community’s lived responsibility and care for their shared skies.
Conclusion: where can the commons take us?
This paper has uncovered the one-dimensionality of contemporary regulatory approaches to the skies above our heads, their service to commercial interests and ambitions and, conversely, their inability to convey, mediate, and protect what falls outside the dominant legal paradigm. The incursion of commercial drones into our aerial environment painfully exposes the deficiencies and vulnerabilities of both its doctrinal conception and its governance. The present paper has sought to identify, examine, and enrich the first, and in doing so point to alternative pathways for the second.
Seeing is the critical first step to thinking about the changes needed to institutions, law, and policy to better nourish, protect and expand the commons of the sky. Attempting to find solutions to governance challenges based on the dominant reading of the sky as a resource risks perpetuating poor regulatory outcomes that have allowed for the privileging of commercial over other interests. By giving visibility and language to what is left in the negative space of the law, it is possible to move beyond the limited subjectivities created by it and find ways to better account for all the sky is and does. Terminology has an important role to play in this endeavour. Replacing ‘airspace’, which signifies emptiness to be filled, with ‘commons’ is more evocative and representative of what we stand to lose in the face of enclosure. Only then can appropriate and principled recommendations for governance be made.
The idea of the commons as a social system straddles both these ambitions. On the one hand, it provides a discursive corrective to the air rights lens. Commoning encapsulates an intrinsic relationality that does not fit neatly into systems that are built around individual rights, ownership, and resource extraction. Internalised, commoning as a relational worldview necessarily leads to a more expansive and holistic understanding of ‘nature’ that can fill in the gaps between those engendered by the siloes of different legal regimes, by animating what is entirely out of view. On the other hand, commons provide the blueprints for different structures for governance that can supplement or reconfigure existing ones: ‘Commons can flourish quietly in the cracks between the state and market; they can overlap with those systems; they can even incorporate aspects of them.’Footnote 119 Thus, commoning does not oppose but sits alongside other, existing systems of governance. As such, commoning the sky may manifest, for example, as the strategic exercise of private property rights, through the torts of trespass or private nuisance, in line with the practices of and for the benefit of the commoning community.
Therefore, the reimagination of the sky as a commons is not just discursively but normatively consequential in three ways. First, the fact that commons can only manifest through commoning communities demands more robust participatory and local governance mechanisms in the development and implementation of policy and regulatory agendas, rather than centralised processes which are ill-placed to mediate contextual community preferences. This could take the shape of strengthened public consultation processes and the utilisation and enforcement of local planning laws to ensure regulatory outcomes align with the commoning practice of the community in question. Secondly, the commons provide a vehicle to articulate collective and non-commercial values of the sky, which is a prerequisite for policy design and regulatory processes that better account for systemic risks and impacts of drone operations. Thirdly, an emphasis on the collective facilitated through the idea of the commons of the sky may give renewed force to other legal mechanisms which could enrich the ongoing negotiation of the future of this significant part of our natural environment. For example, the tort of public nuisance is defined by the requirement that the defendant’s conduct interferes with ‘public rights held in common by members of the community as a group (by contrast with private nuisance where the interference is with private rights to occupy and enjoy land held by persons as individuals)’.Footnote 120 A reconceptualisation of the sky as a commons may be translated into distinct public rights that could be claimed to have been interfered with to bring an action in public nuisance.
These are but examples of where the commons might take us as we confront the enclosure of our skies. In the spirit of Ostrom’s concept of polycentric systems of governance,Footnote 121 reclaiming the commons of the sky in its entirety – habitat, experience, atmosphere, medium, thoroughfare – will require the emergence of multiple commoning communities on international, national, regional, and local levels. By confronting the limitations of the law providing the contours of current approaches to the sky, this paper has sought to provide a springboard for this endeavour.
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