Page:The digital public domain.pdf/48

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1. Communia and the European Public Domain Project
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diversity.[1] In this perspective, the prevailing assumption is that anything of value within the public domain should be commodified.[2] The recent tremendous expansion of intellectual property rights has been justified by this and similar statements.

To put it bluntly, this statement and the like are wrong. No economic theory of intellectual property and commons management supports the prediction stated.[3] Ostrom powerfully advocated the cause of the commons against the mantra of propertisation. Her work showed the inaccuracies of Hardin’s ideas and brought attention to the limitations of the tragedy of the commons.[4] Empirical studies by Ostrom and others have shown that common resources can be effectively managed by groups of people under suitable conditions, such as appropriate rules, good conflict-resolution mechanisms, and well-defined group boundaries.[5] Under suitable conditions and proper governance, the tragedy of the commons becomes “the comedy of the commons”.[6]

Culture is quintessential comedic commons, because it is enriched

  1. ↑ Paul Goldstein, Copyright’s Highway: From Gutenberg to the Celestial Jukebox (Stanford: Stanford University Press, 1994), p. 236; see also Wagner R. Polk, “Information Wants to Be Free: Intellectual Property and the Mythologies of Control”, Columbia Law Review, 103 (2003), 995-1034 (arguing that “increasing the appropriability of information goods is likely to increase, rather than diminish, the quantity of ’open’ information”).
  2. ↑ See William Landes and Richard A. Posner, The Economic Structure of Intellectual Property Law (Cambridge, MA: Harvard University Press, 2003); William Landes and Richard A. Posner, “Indefinitely Renewable Copyright”, University of Chicago Law Review, 70 (2003), 471-518 (pp. 475, 483).
  3. ↑ See Yochai Benkler, “A Political Economy of the Public Domain: Markets in Information Goods Versus the Marketplace of Ideas”, in Expanding the Boundaries of Intellectual Property: Innovation Policy for the Knowledge Society, ed. by Rochelle Dreyfuss, Diane L. Zimmerman and Harry First (Oxford: Oxford University Press, 2001), pp. 267—94 (pp. 270—72).
  4. ↑ See generally Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge: Cambridge University Press, 1990); Elinor Ostrom, Roy Gardner and James Walker, Rules, Games, and Common-Pool Resources (Ann Arbor: University of Michigan Press, 1994); and Elinor Ostrom, The Drama of the Commons (Washington, DC: National Academies Press, 2002).
  5. ↑ See Hess and Ostrom, p. 11; Rights to Nature: Ecological, Economic, Cultural, and Political Principles of Institutions for the Environment, ed. by Susan S. Hanna, Carl Folke, and Karl-Goren Maler (Washington, DC: Island Press, 1996); Making the Commons Work: Theory, Practice and Policy, ed. by Daniel W. Bromley, David Feeny et a1. (San Francisco: ICS Press, 1992); Commons Without Tragedy: The Social Ecology of Land Tenure and Democracy, ed. by Robert V. Andelson (London: Center for Incentive Taxation, 1991); David Feeny, Fikret Berkes, Bonnie J. McCay, and James M. Acheson, “The Tragedy of the Commons: Twenty-Two Years Later”, Human Ecology, 18 (1990), 1-19.
  6. ↑ See Carol M. Rose, “The Comedy of the Commons: Custom, Commerce, and Inherently Public Property”, University of Chicago Law Review, 53 (1986), 711-81.
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