Constructing Commons in the Cultural Environment

Intellectual Property

Article Snapshot


Brett M. Frischmann, Michael J. Madison and Katherine Strandburg


Cornell Law Review, Vol. 95, No. 4, pg. 657, 2010


Proposes a framework for investigating sharing and resource-pooling arrangements for information-based works.

Policy Relevance

Structured inquiry into a series of case studies from a wide range of disciplines will provide a basis for developing theories to explain the emergence, form, and stability of commons-type arrangements for creative activity and, eventually, for designing commons-type institutions.

Main Points

  • A commons is a managed-access property regime, which is designed with limitations tailored to the character of the resources and the communities involved rather than left to evolve via market transactions grounded solely in traditional proprietary rights.
  • A “cultural commons” is a commons that has developed to manage the distribution of knowledge and information resources, such as copyrighted works of authorship, patented inventions, and other forms of information and knowledge that may or may not be aligned with formal intellectual property regimes.  
  • Examples of cultural commons include 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.
  • Although commons arrangements have a variety of purposes, they are often socially beneficial because they promote valuable spillovers of information and help solve underproduction and overconsumption problems.
  • Elinor Ostrom and her colleagues have pioneered a case study approach that has greatly improved our understanding of natural resource commons.
  • The theoretical discussion of intellectual property policy, however, has been focused primarily on extremes of exclusion and open access, ignoring a wide range of cultural commons that persist between the extremes.
  • 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.
  • This article develops a theoretical framework to systematize case study-based research to evaluate and compare the contours of different commons arrangements.
  • The framework borrows from Ostrom, but is adapted to account for important differences between constructed cultural commons and natural resource commons, such as the fact that knowledge resources must be created while natural resources are “given” and the fact that knowledge resources cannot be over-consumed.
  • The framework identifies attributes of commons to be examined including:

    • membership criteria
    • rules governing contribution and use of pooled resources
    • internal licensing conditions
    • management of external relationships
    • institutional forms
    • degree of collaboration among members
    • sharing of human capital
    • degrees of integration among participants
    • Explicitly specified purpose of the arrangement
  • Case studies based on this framework will help scholars and eventually policymakers assess the level of openness associated with a given commons and determine the extent to which “openness” is, as we hypothesize, associated with pools that are welfare-enhancing.

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