Re-Constructing Intellectual Property Law in a Knowledge Society
Edited by Thomas Riis
Chapter 2: Information abundance and knowledge commons
This chapter describes a fundamental conceptual and empirical challenge to the foundations of intellectual property (IP) law and then describes what to do in response. The standard accounts of IP law describe systems of legal exclusion intended to prompt the production and distribution of intellectual resources, or information and knowledge, by making those things artificially scarce. The argument here and below frames IP law instead as one of several possible institutional responses to the need to coordinate the use of intellectual resources given their natural abundance, and not necessarily useful or effective responses at that. The chapter therefore aims to shift the analytic framework from law to governance, and from IP law in isolation to IP law as part of commons, or resource management. Examples and illustrations are drawn from several domains of information and knowledge governance. A more elaborate introduction to the argument can be laid out as follows. The several forms of IP law – patent, copyright, design rights, and so on – are specialized institutional responses to a subset of the many social dilemmas concerning knowledge and information resources. The standard economists’ account of that subset, common to each of these legal fields, is a variant of the well-known “tragedy of the commons.
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