Constructing commons in the cultural environment

• Published in: Cornell law review Vol. 95; no. 4; pp. 657 - 709
• Main Authors: Madison, Michael J, Frischmann, Brett M, Strandburg, Katherine J
• Format: Journal Article
• Language: English
• Published: Ithaca Cornell University, Law School 01-05-2010
• Subjects: Collaboration; Common law; Comparative analysis; Environmental law; Information; Intellectual property; Knowledge; Licensing; UNITED STATES
• ISSN: 0010-8847

This Article sets out a framework for investigating sharing and resource- pooling arrangements for information- and knowledge-based works. We argue that adapting the approach pioneered by Elinor Ostrom and her collaborators to commons arrangements in the natural environment provides a template for examining the construction of commons in the cultural environment. The approach promises to lead to a better understanding of how participants in commons and pooling arrangements structure their interactions in relation to the environments in which they are embedded, in relation to information and knowledge resources that they produce and use, and in relation to one another.
Some examples of the types of arrangements we have in mind are patent pools (such as the Manufacturer's Aircraft Association), open source software development projects (such as Linux), Wikipedia, the Associated Press, certain jamband communities, medieval guilds, and modern research universities. These examples are illustrative and far from exhaustive. Each involves a constructed cultural commons worthy of independent study, but independent studies get us only" so far. A more systematic approach is needed.
An improved understanding of cultural commons is critical for obtaining a more complete perspective on intellectual property doctrine and its interactions with other legal and social mechanisms for governing creativity and innovation, in particular, and information and knowledge production, conservation, and consumption, generally. We propose an initial framework for evaluating and comparing the contours of different commons arrangements. The framework will allow us to develop an inventory of structural similarities and differences among cultural commons in different industries, disciplines, and knowledge domains and shed light on the underlying contextual reasons for such differences. Structured inquiry into a series of case studies will provide a basis from developing theories to explain the emergence, form, and stability of the observed variety of cultural commons and, eventually, to design models to explicate and inform institutional design.
The proposed approach would draw upon case studies from a wide range of disciplines. Among other things, we argue that theoretical approaches to constructed cultural commons should consider rules pertaining to membership criteria, contribution and use of pooled resources, internal licensing conditions, management of external relationships, and institutional forms, along with the degree of collaboration among members, sharing of human capital, degrees of integration among participants, and any specified purpose to the arrangement.