I have a hand in two new papers recently posted to SSRN dealing with “cultural commons.” The first is a paper that describes and defends a method for conducting further research, in this case a framework for investigating the mechanics of cultural or knowledge commons via case studies. The approach owes much to Elinor Ostrom, who has for many years led an enterprise to do similar things with respect to natural resource commons. The title is “Constructing Commons in the Cultural Environment,” and it’s co-authored with Brett Frischmann (Loyola/Chicago, currently visiting at Cornell) and Kathy Strandburg (DePaul, currently visiting at Fordham). The abstract:
This Essay considers the problem of understanding intellectual sharing/pooling arrangements and the construction of cultural commons arrangements. We argue that an adaptation of the approach pioneered by Elinor Ostrom and collaborators to commons arrangements in the natural environment may provide a template for the examination of constructed 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 environment(s) within which they are embedded and with which they share interdependent relationships. Such an improved understanding is critical for obtaining a more complete perspective on intellectual property doctrine and its interactions with other legal and social mechanisms of governing creativity and innovation. We propose an initial framework for evaluating and comparing the contours of different pooling arrangements with an eye toward developing an understanding of the institutional and structural differences across arrangements and industries as well as the underlying contextual reasons for such differences. The proposed approach would draw upon case studies from a wide range of disciplines. Among other things, we argue that a theoretical approach to cultural constructed commons should consider rules pertaining to membership criteria, contribution and use of pooled resources, internal licensing conditions, management of external relationships, and institutional forms along with the degree of collaboration among members, sharing of human capital, degrees of integration among participants, and whether there is a specified purpose to the arrangement.
The second paper applies that framework to a particular commons case: the university. The title is “The University as Constructed Cultural Commons.” The abstract:
This paper examines commons as socially constructed environments built via and alongside intellectual property rights systems. I sketch a theoretical framework for examining cultural commons across a broad variety of institutional and disciplinary contexts, and I apply that framework to the university and associated practices and institutions.
Both papers are the initial offerings in a broad, long-term project. Brett, Kathy, and I welcome interest in and suggestions both for the papers and for the project as a whole.