Creative Production Without Intellectual Property

Guest Blogger

Kate Klonick

For the Innovation Law Beyond IP 2 conference, March 28-29 at Yale Law School

The problem of the commons has existed as long as humans have formed communities: how do you protect against overfishing in an ocean no one owns, but everyone uses? How do you prevent pollution in a sky that belongs to no one, but everyone breathes?

In talking about more traditional natural resource-based commons problems, economists and lawyers have largely debated the relative merits of two approaches to solving the commons problem:

1. letting the state resolve the problem (through laws); or
2. letting the market resolve the problem (through privatization).

An alternative approach, developed by Elinor Ostrom — and which won her a Nobel Prize in Economics in 2009 — escapes this binary, and suggests that a voluntary self-governing citizenry will create its own institutions and solutions to commons problems. Ostrom created a framework for analyzing and studying these institutions, as a means of creating societal preconditions to support their development.

But protecting and allocating natural resources like fish or air or land is slightly different than allocating culture and knowledge.  “Knowledge commons” — as Brett Frischmann, Michael Madison, and Katherine Strandburg explain in Governing Knowledge Commons — are created by humans and are both intellectual and cultural. In natural resources, the problem of the commons stems from the self-interest individuals have in depleting a common resource; but in intellectual and cultural resources, the problem of the commons stems from the challenge of incentivizing the ongoing creation of these resources, while also recognizing that such contributions are public goods.

Madison and his colleagues apply Ostrom’s theory to a variety of knowledge commons case studies, from patent pools to Wikipedia, and the Associated Press to open source software. In so doing, they build on Ostrom’s framework and suggest a refined structure for analyzing the more abstract knowledge commons as well as delineating how knowledge commons differ from traditional commons.

This template for ongoing case studies can be used to analyze knowledge commons in many different fields. In analyzing genomic data commons, Peter Lee has done precisely that.  Applying the theories of Ostrom and Madison, et al., Lee examines the unique features of the genomic data commons and the problems that have arisen — or not.  Lee’s detailed history of the genomic data commons and its ongoing challenges — not only in maintaining itself as an institution, but in creating reliable results — illustrates precisely how complicated and multivariable institutions surrounding knowledge commons can be.


Kate Klonick is a Resident Fellow at the Yale Law School Information Society Project. She can be reached at klonick at gmail.com.

Labels: Beyond IP

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