Constructing Commons in the Cultural Environment

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* Article: CONSTRUCTING COMMONS IN THE CULTURAL ENVIRONMENT. By Michael J. Madison, Brett M. Frischmann & Katherine J. Strandburg. Cornell Law Review, Vol. 95


URL = http://www.lawschool.cornell.edu/research/cornell-law-review/upload/Madison-Frischmann-Strandburg-final.pdf

Abstract

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." (http://www.lawschool.cornell.edu/research/cornell-law-review/upload/Madison-Frischmann-Strandburg-final.pdf)


Excerpts

What are Cultural Commons

"Cultural commons exist on a spectrum. At one end of this spectrum are collective organizations that manage copyrights or patent pools. This subset is useful to work with because the set of pooled resources is easily identifiable, as is the relevant community of actors.

Specifically, the set of resources is comprised of rather discrete, propertized, intellectual works, such as patented inventions, and the community is comprised of those who own those works and wish to reuse them.

At the other end of the spectrum are more complex examples. For example, the sharing and development of ideas, skills, tacit knowledge, and even the intellectual and cultural components of social capital within a university research community constitutes a constructed cultural commons.

This example invites significant variation among case studies based on the particular resources and subset of the university community targeted for study. Depending on the resources under investigation, the relevant community may be defined broadly in terms of the university as an institution, more narrowly in terms of a particular university or academic discipline, or most narrowly in terms of a specific academic unit, department, or school. Even something as seemingly mundane as an academic conference or scholarly presentation or an e-mail listserv among colleagues in a specific discipline might be usefully analyzed using our constructed cultural commons framework." (http://www.lawschool.cornell.edu/research/cornell-law-review/upload/Madison-Frischmann-Strandburg-final.pdf)


Typology

"More generally, we can distinguish among different types of cultural commons based on their core purposes. Some such commons arise as solutions to collective action, coordination, or transactions cost problems that exist apart from IP rights (and perhaps would not be solvable without these rights). These solutions might involve instances of cooperative behavior where members construct an open environment to pool resources and use those resources themselves for some specific purpose. Open source software projects, mediated by formal free and open source licenses and by informal communal structures for determining what code becomes part of the “authorized” code base, are examples of this type.126 Standard-setting enterprises also fit into this category,127 as do joint ventures for scientific research and development. These cultural commons depend on each member’s possessing certain intellectual property interests as a facilitator of participation.


A second type of commons or pooling arrangement is intended to solve collective action, coordination, or transactions cost problems that exist only because of the IP rights themselves. In some of these cases, a commons is constructed as a defense against potential privatization of commonly useful resources. Examples of such arrangements might include constructed commons for basic biological building blocks such as the Single Nucleotide Polymorphism (SNP) consortium130 or the publicly available databases of genomic sequences that are part of the Human Genome Project.

Formal licenses and related agreements assure that participants in the commons become part of what amounts to a mutual nonaggression pact that is necessary precisely because of the possibility that intellectual resources may be propertized. So long as the resource is in the commons, it can be shared among commons members, and neither commons members nor outsiders are able to appropriate that resource, patent it, and then assert a patent claim against a commons member. Within the commons, research proceeds more or less as it otherwise would, according to informal disciplinary norms and free of (or at least, less burdened by) undue anxiety about propertization and potential holdup.

A third type of cultural commons may be designed to mediate among communities with different default norms. Technology transfer institutions, which enable universities and other nonprofit research enterprises to deliver information resources (such as the technical knowledge described in patent specifications) to the private market, are examples of this type of commons.

The cultural environment inside the university is typically characterized by information sharing not governed by IP rights, even if IP rights are present as matters of form.133 The environment outside the university is governed largely by IP rights. Technology transfer institutions may constitute an institutional pool or commons that mediates these two regimes.134 Similarly, open source projects have developed “boundary organizations” to mediate their relations with commercial firms.

By specifying these distinct types of cultural commons, we are probably setting up a more sharply delineated field of institutions than is really obtained in practice. In any given commons, it may be the case—and may even likely be the case—that the motivation for the pool arises from a variety of considerations, that is, some do not arise from the character of intellectual property interests themselves, and some do.

Pooling arrangements also may exist for less socially salutary reasons. Most obvious is the case of members colluding to restrict competition, and it is certainly within the purview of our approach that commons should be evaluated in part by reference to the possibility of anticompetitive behavior and other possible costs. But by requiring as an initial matter that an intellectual commons operate via sharing of intellectual resources, we distinguish this project from investigations of cartels as such, which operate by sharing price and output information and which pose significant and obvious risks of anticompetitive behavior without offsetting welfare benefits.

The functional purpose of cartels is different from the cultural commons arrangements noted above; that is, cartels are not designed to create an open environment within which resources may be shared and productively used by members or to sustain individual members. But just as the line between different types of intellectual commons may be difficult to draw consistently, the line between commons and cartels similarly may be difficult to draw. Antitrust regulators have long faced the challenge of identifying illegitimate cartels disguised as legitimate patent pools and other knowledge-sharing institutions."


Degrees of Openness and the Character of Control

"Commons regimes are defined both by the degree of openness and control that they exhibit with respect to contributors, users, and resources, and by the assignment of control, or custody of the power to administer access. The rules-in-use of a constructed cultural commons will delineate its degree of openness, particularly with respect to use of the resources by outsiders who do not contribute to resource creation. Again, this inquiry is less relevant to natural resource commons arrangements. Natural resources generally are finite, potentially rivalrous in consumption, often congested, and subject to tragic overconsumption. 138 Consequently, it is often necessary to limit access to a common-pool resource to a defined community. The boundaries of the community sharing a resource tend to be coextensive with the boundaries of commons self-governance.139 Thus, in many cases, the commons is open to members and closed to everyone else, and that is the end of the story. Intellectual resources, by contrast, are not subject to the same natural constraints and are naturally shareable without a risk of congestion or overconsumption. Rarely does “too much information” diminish the value of individual items of information.

It is entirely possible and desirable for a community to produce and/ or manage a cluster of cultural goods that is accessible to outsiders.141 One of the measures of the social benefit of a constructed cultural commons may be the degree to which it disseminates the intellectual goods it produces to a wider audience.

i. Openness as Applied to Resources


What do we mean by openness? Little ambiguity exists in most everyday contexts (e.g., an open door), but openness can be a confusing concept when used to describe an intellectual resource. Openness describes our capacity to relate to a resource by accessing and using it. In other words, openness describes the extent to which there are barriers to possession or use. Openness varies according to the costs of surmounting barriers (in terms of money, conditions, or other restrictions) to exploitation. Openness in this sense may encompass joint or shared access to and use of the resource.

Barriers to possession or use of a resource may be natural or constructed. A resource may be open naturally because its characteristics prevent it from being possessed, owned, or controlled by anyone.

Frischmann provides one example:

- [F]or most of the earth’s history, the oceans and the atmosphere were natural commons . . . [b]ecause, for example, exercising dominion over such resources was beyond the ability of human beings or simply was unnecessary because there was no indication of scarcity.

- A resource also may be open . . . as the result of social construction. That is, laws or rules may prohibit ownership or ensure [a certain degree of openness] . . . .

For example, copyright law grants protection over creative expression but excludes protection for ideas in order to maintain open access and use of ideas. Patent law likewise excludes abstract ideas from patentability. Openness may arise through norms and customs among owners and users and through institutional design."


Openness and the vesting of control over openness are related. In part, both concepts may simply reflect choices regarding how best to manage resources. In the context of intellectual property pools, for example, management of the pooled resources may be vested in a central institution created specifically for that purpose, or it may be decentralized and vested in the hands of individual IP rights holders.

Openness and the sources of control also reflect power and its distribution among potential possessors and users. Openness may be measured by the degree of control over the terms of access and use of a specific resource. Such control is exercised by human beings on human beings. Openness is relational, and it relies on social institutions.

In sum, openness is a functional variable that describes the degree to which possession and use of a resource is controlled, and it is a relational variable that describes the structure of relationships among potential resource users.


ii. Openness as Applied to a Community

As a resource or set of resources may have an open character, so may a community. As openness is applied to resources, openness of a community is defined partly in functional terms, by natural and constructed attributes that define membership in the community, and partly in terms of power and other bases for relations among participants. 147 Above, we defined the cultural environment as a set of interdependent and interconnected systems and resources.


As with openness applied to resources, openness with regard to a community describes our capacity to relate to that community as a contributor or user of resources that comprise in part the cultural commons. Thus, openness describes the extent to which there are criteria for or barriers to membership or participation in the creative or innovative processes that the cultural commons is intended to support. Openness also describes the extent to which a particular community is accessible to and interconnected with related context, institutions, and social practices.

Openness with respect to a community has an internal dimension as well as an external one, as it reflects the degree to which participants in the cultural commons collaborate with one another or otherwise share human capital as well as (or rather than) resources. For example, the participants in an intellectual property pool may specify rules regarding how resources are contributed to and withdrawn from the pool. The General Public License for open source computer programs specifies that membership in the community defined by users of the program is open to anyone.

Anyone may add to, use, or redistribute the licensed program. Redistributors, however, must abide by the license term that they make the full source code of the program accessible to further users of the program. Moreover, in most open source software projects, only certain contributions are accepted into “official” versions of the code.150 Thus, although use and modification of the code for personal use are open to anyone, the ability to contribute to the shared resource is regulated.

In describing and assessing the degrees of openness and control that characterize a cultural commons or pool, one should bear in mind more than just the conventional producer perspective by which information and knowledge shareability problems often are analyzed.

Hardin’s “tragedy of the commons” is typically understood as challenging markets and governments to offer ways to supply resources in the face of cooperation and competition problems.152 In analyzing openness with respect to resources and communities, accordingly, it is tempting to limit the analysis to openness with respect to actual and potential resource producers.

In information and knowledge environments, those resources are “naturally” given only in part. The cumulative and aggregative character of knowledge is fundamental to human culture. Producers of knowledge and culture resources are therefore simultaneously users and consumers. In analyzing openness, it is important to consider the degree to which openness expresses the interests of users, as matters of both function and relation. In particular, a constructed commons in the cultural environment may function as infrastructure.

In the cultural environment, the tragedy of the commons that Hardin described may refer not to an undersupply of a resource prompted by overconsumption but instead to an undersupply prompted by the failure of the private market to aggregate user or consumer preferences for certain fundamental or “infrastructural” resources. This situation occurs, for example, in the context of basic research conducted within and across universities.

To the extent that the Internet itself constitutes a commons, it is likely better characterized as an infrastructural resource that solves certain problems of consumption rather than problems of production."


Discussions

==Responses in special issue of Cornell Law Review, vol. 95:

  • RESPONSE: MAPPING SOCIAL TECHNOLOGIES IN THE CULTURAL COMMONS. T. Eggertsson [1]
  • DISCIPLINE AND NOURISH: ON CONSTRUCTING COMMONS. By Wendy J. Gordon. [2]
  • COOPERATIVE INSTITUTIONS IN CULTURAL COMMONS. Gregg P. Macey. [3]


Reply

The authors reply in the article, The Complexity of the Commons, http://www.lawschool.cornell.edu/research/cornell-law-review/upload/Madison-Frischmann-Strandburg-reply-final-2.pdf