Brett M. Frischmann
Yeshiva University - Benjamin N. Cardozo School of Law
July 25, 2012
B. Frischmann, Infrastructure: The Social Value of Shared Resources, p. 253, Oxford University Press, 2012
This chapter explores how infrastructure theory applies to cultural-intellectual resources. Intellectual infrastructure, such as basic research, ideas, general purpose technologies, and languages, creates benefits for society primarily by facilitating a wide range of downstream productive activities, including information production, innovation, and the development of products and services, as well as education, community building and interaction, democratic participation, socialization, and many other socially valuable activities. The foundational role of intellectual infrastructures in cumulative, dynamic, and complex systems merits attention. Courts and commentators frequently refer to intellectual infrastructure resources as “building blocks” to capture their role as basic inputs. But while the “building blocks” metaphor is evocative, it fails to fully reflect the complex relationships among participants in intellectual systems that derive value from intellectual infrastructures as producers, users, consumers, or incidental beneficiaries.
Section A begins with the idea of the cultural environment as infrastructure.
Section B describes the economic characteristics of intellectual resources. The economic analysis of intellectual resources is quite complex; this section extends the analysis of previous chapters of the book in a few ways. First, it explains how (non)excludability and nonrivalry give rise to distinct economic considerations concerning systematic risk of undersupply of some intellectual resources. Next, it considers an added layer of complexity associated with the ‘on the shoulders of giants’ effect. The added complexity centers on the dynamics of intellectual processes and systems and how intellectual progress occurs. An appreciation of this effect is critical to understanding how productive use of intellectual resources generates spillovers.
Section C focuses on applying the infrastructure criteria to delineate intellectual infrastructure. After a series of examples, the section turns to ideas as an example of intellectual infrastructure. Focusing on the First Amendment, copyright law, and patent law, it examines legal recognition of both the infrastructural nature of ideas and the social value of commons management.
Section D considers intellectual property laws. It examines intellectual property laws as a semi-commons regime. It shows how intellectual property laws are targeted exceptions/interventions to the default commons regime for the cultural environment. The laws enclose and regulate a select (albeit very broad) set of intellectual resources to overcome supply-side market failures. Given tremendous difficulties in establishing and maintaining boundaries around this set and the dynamic and complex nature of cultural-intellectual resource systems, the laws also sustain semi-commons arrangements for enclosed resources. This leads to a second point. Many intellectual infrastructure resources are excluded from the enclosed set — that is, the resources remain in the public domain and are not patentable or copyrightable, but many intellectual infrastructures are patentable or copyrightable. For these resources, intellectual property laws recognize the social demand for commons management and mediate access to intellectual infrastructure accordingly. I argue that a more deliberate approach is needed and provide some preliminary suggestions.
Number of Pages in PDF File: 69
Keywords: infrastructure, commons, open access, public goods, intellectual property, information, cultural environment, patent, copyright, First Amendment, ideas
JEL Classification: D4, D5, D6, H4, H5, H54, K00, L4, L5, L9, O1, O3, Q2, R4Accepted Paper Series
Date posted: July 25, 2012
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