Constructing Commons in the Cultural Environment
Michael J. Madison
University of Pittsburgh - School of Law
Brett M. Frischmann
Yeshiva University - Benjamin N. Cardozo School of Law
Katherine J. Strandburg
New York University School of Law
Cornell Law Review, Vol. 95, p. 657, 2010
U. of Pittsburgh Legal Studies Research Paper No. 2008-26
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.
Number of Pages in PDF File: 55
Keywords: commons, common pools, governance, public goods, information, knowledge, intellectual property, patent pools
JEL Classification: D23, H41, K11, L22, L23, O31, O32, O33, O34
Date posted: September 12, 2008 ; Last revised: May 28, 2010
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