Constructing Commons in the Cultural Environment

55 Pages Posted: 12 Sep 2008 Last revised: 28 May 2010

See all articles by Michael J. Madison

Michael J. Madison

University of Pittsburgh - School of Law

Brett M. Frischmann

Villanova University - Charles Widger School of Law

Katherine J. Strandburg

New York University School of Law


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.

Keywords: commons, common pools, governance, public goods, information, knowledge, intellectual property, patent pools

JEL Classification: D23, H41, K11, L22, L23, O31, O32, O33, O34

Suggested Citation

Madison, Michael J. and Frischmann, Brett M. and Strandburg, Katherine J., Constructing Commons in the Cultural Environment. Cornell Law Review, Vol. 95, p. 657, 2010, U. of Pittsburgh Legal Studies Research Paper No. 2008-26, Available at SSRN:

Michael J. Madison (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States
412-648-7855 (Phone)
412-648-2648 (Fax)

Brett M. Frischmann

Villanova University - Charles Widger School of Law ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States

Katherine J. Strandburg

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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