Constructing Commons in the Cultural Environment

Michael J. Madison & Katherine J. Strandburg & Brett Frischmann

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The Maine lobster fishery is a successful example of a managed natural resource commons.  To ensure an ongoing supply of lobsters in the face of threats to the fishery from unregulated over-fishing, over a period of years Maine lobster fishermen crafted a set of formal and informal rules to determine “who gets the lobster.”  By design, the product of their efforts is a commons, a managed-access governance regime that allows both lobsters and the lobster industry to flourish.

How do such commons work?  Where do they come from, what contributes to their durability and effectiveness, and what undermines them?  These questions are at the heart of an institutionalist research paradigm that has been extremely successful in understanding the successes and failures of natural resource commons arrangements.  The Nobel Committee recently recognized the importance of institutionalism by awarding  the 2009 Nobel Prize in Economics to political scientist Elinor Ostrom and institutional economist Oliver E. Williamson.

Constructing Commons in the Cultural Environment, our full-length article in the Cornell Law Review, confronts the challenge of understanding the governance of what we refer to as constructed commons in the cultural environment, in which the resources to be produced, conserved, and consumed are not crustaceans but information: copyrighted works of authorship, patented inventions, and other forms of information and knowledge that need not be aligned with formal systems of intellectual property law.  The phrase “constructed cultural commons,” as we use it, refers to socially constructed institutions for developing and sharing cultural and scientific knowledge in a formally or informally managed way, much as a natural resource commons refers to the type of managed sharing environment for natural resources exemplified by the Maine lobster fishery.

A commons is neither a place nor a thing.  Rather, a commons is a resource management or governance regime.  Cultural commons are regimes for managing the sharing of information or cultural resources.  Commons are “constructed” in the sense that their creation, existence, operation, and persistence are not matters of pure accident or random chance, but of emergent social process and institutional design.  Examples of constructed cultural commons include: intellectual property pools, in which owners of patents in a technological domain license their patents to a common “pool” from which producers of complex products can obtain all of the permissions needed to make and sell goods that use the patents; open source computer software projects, which offer users of open source programs the ability to create and share modifications to the programs; Wikipedia, which offers users of this Internet encyclopedia the power to add to and edit its contents; the wire service for journalism operated by the Associated Press, which allows individual member media outlets the opportunity to publish work produced by other members; and “jamband” fan communities, which record, share and comment on musical performances of their favorite groups—with the permission of the artists themselves.  The best-known jamband is the community that grew up around and that is still associated with the Grateful Dead.

Participants design these environments with limitations tailored to the character of the resources and communities involved. They do not operate solely via market transactions grounded in traditional proprietary rights, nor are they structured exclusively by government regulation.  Research on intellectual property and related cultural resources has generally failed to focus sufficiently on managed sharing or on the governance of cultural resources via collective mechanisms.  The theoretical discussion of intellectual property policy has been focused on extremes of exclusion and open access, ignoring a wide range of constructed commons that persist between the extremes.  Such discussion is often divorced from empirical studies of creative and inventive communities.  In Constructing Commons, we argue that it is high time to devote more attention to the middle ground of constructed cultural commons.

Research on the Maine lobster fishery and other natural resource commons is grounded in the empirical case study approach pioneered by political scientist Elinor Ostrom and her colleagues.  That approach employs an “Institutional Analysis and Development” (IAD) framework of structured inquiries to study a variety of commons arrangements before moving on to create theories and models to explain them.1  Commons researchers divide their inquiries into nested groups.  A set of inquiries into “exogenous variables” is further divided into questions about the biophysical characteristics of the shared resources, the attributes of the community, and the “rules-in-use” or governance mechanisms.2  A second set of inquiries focuses on the “action arena” in which social interactions and exchange take place.3  Finally, each study inquires about the outcomes of the commons management system.

A simple illustration of the framework might be a soccer league.  The formal rules of soccer are fixed, but the rules-in-use clearly vary somewhat between a professional league and a recreational league, between children’s leagues and adult leagues, and so forth.  A specific soccer league is also characterized by the relationships among the players (neighbors, professional competitors, friends, etc.), by the attributes of the fields on which games are played, and even by the climate of the places where the games take place.  The action arena (soccer games) depends on complex and specific interactions among all of these characteristics.  Nonetheless, the outcomes over time in a particular league are the patterns of interaction that are clearly identifiable as “professional soccer,” “friendly weekend game,” “children’s soccer league” and so forth.  Moreover, some leagues may be successful, lasting for years even as players come and go, while others will fail.  The goal of applying the Ostrom framework of analysis in this context would be to use studies and analyses of many different soccer leagues to come to an understanding of success and failure as a function of specific context.

This method of structured inquiry has the advantages of a systematic approach without prematurely imposing any one theoretical paradigm on the study of commons.  It allows the complexity of real-world commons arrangements to inform the search for theoretical understanding rather than papering over such complexity in an attempt to shoehorn existing commons arrangements into a pre-existing model.  After engaging in a large number of such studies, Ostrom’s approach permits generalization (for example, with regard to design principles for successful commons) along with more specific theorizing, modeling, and even experimental studies of particular aspects observed in the case studies.

Borrowing from and building on Ostrom’s work, Constructing Commons develops and argues for the use of a similar framework to systematize case-study-based research exploring the construction of cultural commons.  The time is ripe for such an approach, as a number of scholars have begun to do case studies of constructed cultural commons.  To the extent that researchers have undertaken case studies so far, however, they tend to have studied isolated areas (such as open source software or academic publishing) and to have considered a limited number of descriptive variables.  This makes integration and learning from a body of case studies quite difficult, which in turn discourages people from pursuing further case studies.

Constructing Commons in the Cultural Environment adapts, extends and distinguishes Ostrom’s IAD framework to account for important differences between constructed cultural commons and natural resource commons.  Understanding the origins and operation of constructed cultural commons requires detailed assessments that recognize that they operate simultaneously at several levels, each nested in a level above, and that each level entails a variety of possible attributes.  We suggest a set of buckets or clusters of issues that should guide further inquiry, including the ways in which information resources and resource commons are structured by default rules of exclusion, and the ways in which members of these pools manage participation in the collective production and extraction of information resources.  Case studies across disciplines and reviews of existing literature that addresses cultural commons will help specify relevant attributes within each cluster.

Because space does not permit a detailed exposition of the framework here, we will briefly discuss only a few of the most important issues that distinguish the inquiries necessary for studying cultural commons from those appropriate to natural resource commons.  Most importantly, unlike commons in the natural resource environment, cultural commons arrangements usually must create a governance structure within which participants not only share existing resources but also engage in producing those resources.  This characteristic of cultural commons creates a more intertwined set of exogenous variables, since separating the managed resources from the attributes and rules-in-use of the community that produces them is impossible.   Moreover, in cultural commons, distinguishing outcomes from resources and community attributes is not strictly possible, since the interactions of the participants in such a commons are inextricably linked with the form and content of the knowledge output, which in turn is itself a resource for future production.  These differences call for a set of inquiries tailored to cultural commons.

Because the resources shared within a cultural commons are themselves culturally constructed and non-rivalrous, defining the boundaries of the commonly managed resource is also more complex than in the natural resource commons context.  A reference “natural environment” must be consciously chosen: either the public domain or a proprietary intellectual property environment may be most appropriate depending upon the particular commons (e.g., university research community or patent pool) under investigation.  Nuanced questions about openness are in order.  In natural resource commons, in many cases, the commons is open to members and closed to everyone else, and that is the end of the story.  This is sensible because natural resources are rivalrous—preventing over-consumption is usually the goal of the commons arrangement.  Intellectual resources, by contrast, are not subject to the same natural constraints and are naturally shareable without a risk of congestion or overconsumption.  Thus, a constructed cultural commons arrangement reflects many choices about the degree and type of participation that is available to various persons and entities.  Open source software projects, for example, often allow anyone to comment, make suggestions, or submit code for potential adoption, but are managed by a small group of core programmers who determine what code to incorporate into official releases.  Additionally, individuals having nothing to do with the writing of the code can use it, subject to constraints on commercialization incorporated into the copyright license, which vary from project to project.  Constructing Commons discusses in some detail how to adapt the Ostrom framework to account for these and other differences between natural resource commons and constructed cultural commons.  We expect the framework to evolve further as researchers apply it to specific case studies.

The Constructing Commons framework suggests a means to investigate the social role and significance of constructed commons institutions.  This investigation is relevant to property law in particular and social ordering more generally.  The conventional view of property scholars, particularly those with interests in intellectual property law, is that resource production and consumption are, and ought to be, governed primarily by entitlements to individual resource units, held individually and allocated via market mechanisms.  To the extent that those market mechanisms are inadequate to optimize the welfare of society, in the event of market failure, government intervention is the suggested remedy.  Intellectual property rights themselves are generally justified as remedies for market failure.  Creative works and new inventions are characterized as public goods, whose intangibility prevents their originators from excluding potential users and thus recouping their investments via pricing.  Copyright and patent laws create artificial but legally sanctioned forms of exclusion, restoring a measure of market control to creators and innovators.  The conventional view regards communal and collectivist institutions, particularly those that blend informal normative structures with formal government rules, as exceptional and dependent upon pre-existing property entitlements.

Systematically performing and analyzing case studies of constructed cultural commons across a wide range of domains according to the proposed framework offers a critical method for assessing the validity of this property-focused narrative.  We suspect that, over time, the constructed cultural commons framework that we describe will yield a far larger and richer set of commons cases in the cultural context than one might discover by focusing only on patent law or scientific research or software development.  We anticipate that social ordering both depends on and generates a wide variety of formal and informal institutional arrangements, and that the logical and normative priority assigned to proprietary rights and government intervention may turn out to be misplaced.  Importantly, understanding commons in the cultural environment is likely to shed light on the ways in which managed sharing or openness with respect to cultural resources generates the “spillovers,” or third-party benefits, that are critical to the welfare effects of those resources.4  The social value of information lies not only in its effect on the producer and the consumer of that information, but also in the ways in which the consumer shares that information with others.

Beyond our proposal of a framework for studying them, our consideration of constructed cultural commons also highlights a number of points that are important in the study of intellectual property going forward.  Considering constructed commons helps to elevate collective, intermediate solutions to their possible place of significance in accounts of property regimes and should diminish the skepticism of many scholars that collective solutions can work beyond narrowly defined situations.  Case studies will also call our attention to the constructed, designed character of both the cultural and the legal environment in regard to knowledge and information policy problems.  Finally, as they have they have done in the study of natural resource management, systematic analyses of constructed commons across a wide range of collected case studies should lead us to doubt panacea prescriptions drawn from overly simplistic models.

Acknowledgments:

Copyright © 2010 Cornell Law Review.

Michael J. Madison is Professor of Law and Associate Dean for Research, University of Pittsburgh School of Law.  Brett Frischmann is Associate Professor of Law, Loyola University Chicago School of Law.  Katherine Strandburg is Professor of Law, New York University School of Law.  Parts of this work were completed while Professor Strandburg was visiting at New York University School of Law (2007-08) and Fordham University Law School (Fall 2008).

This Legal Workshop Editorial is based on: Michael J. Madison, Brett Frischmann & Katherine J. Strandburg, Constructing Commons in the Cultural Environment, 95 CORNELL L. REV. ___ (2010).

  1. See, e.g., Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action 58-88 (1990) (describing commons case studies).
  2. See Elinor Ostrom, Understanding Institutional Diversity 13, 19 (2005).
  3. See id. at 14.
  4. See Brett M. Frischmann & Mark A. Lemley, Spillovers, 107 Colum. L. Rev. 268–71, 282–84 (2007); Brett M. Frischmann, Speech, Spillovers, and the First Amendment, U. Chicago Legal Forum 301, 310-21 (2008).

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