Systemic Co-Regulation Across AI Value Chains

* Article: Lenartowicz, Em, The AI Commons Framework: Private Ordering as Systemic Co-Regulation Across AI Value Chains (June 10, 2026).

URL = https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6914804

Abstract

"The most public questions of the AI transition are answered in its most private documents. The AI Act and analogous regimes govern whether a system is safe and rights-respecting enough to be placed on the market and kept there, scaled to risk. They are not built to reach a second class of question the same transition raises, no less a matter of public interest: the distributional, environmental, and participatory stakes of a deployment – who captures the value it generates, who bears its costs, what its compute consumes and emits, who has standing when its terms change. Those stakes take shape at the layer regulation is least able to reach: the operational terms under which capabilities are contracted into use. API conditions, procurement clauses, platform agreements, cloud and compute contracts: each decides something narrower than the public-interest question – a price, a hosting region, a data right, a notice period – and the narrow decisions, together with everything the documents leave unsaid, accumulate into a systemic distributional shape no contracting party has deliberately chosen. This is the interaction-layer governance gap: systemic consequences emerge from operational decisions, and the contracts governing those decisions have no vocabulary for the public-interest commitments the consequences call for. The AI Commons (AIC) Framework is the private ordering mechanism this paper proposes for the space. The framework draws on the Creative Commons and open-source precedent – small families of standardised terms that reshaped how knowledge and code circulate, without statutory change – and applies the same mechanism downstream from the artefact to the deployment. Its six licence profiles – Governance, Sustainability, Openness, Reciprocity, Value, Access – are organised around a paired diagnostic of externality and exclusion, can be activated in any combination and scoped along the value chain, and travel through ordinary contract law. Whether such a regime achieves network effects depends on institutional choices made above it, including how the AI Act’s own infrastructure interfaces with private ordering above the regulatory floor. Read against the Act, AIC is also a mode of implementation: the Act’s own toolkit already reaches for voluntary model contract terms and codes of conduct, and AIC generalises that instrument class to the questions the Act cannot pose. AIC is systemic co-regulation: a co-equal mechanism, lateral through value chains where public regulation is vertical through jurisdictions, operating as a formal innovation in how governance commitments propagate."