Private Governance of Knowledge: Societally-Crafted Intellectual Properties Regimes

Abstract

The evolutionary challenge global society faces is the decentralized development of legal rules that multilaterally protect social autonomies from violating each other. At the national level, democratic constitutions provide for the resolution of conflicts between different normative worlds, although the focus here is certainly on the protection of autonomies from political encroachment. However, political constitutions make sure that legal orders consider a plurality of normative perspectives. In contrast, international lawmaking can exclusively link to a specific social rationality, lacking any impartial forum for normative reconciliation. This is of special importance for the governance of intellectual resources. The incorporation of international intellectual property protection into the framework of trade relations has resulted in a unilateral economic interpretation of intellectual property (IP) rights. This biased international IP lawmaking does not satisfy the demands of knowledge production in society and the various types of social interaction requiring the use of copyrighted material, as the increasing number of privately-crafted IP regimes indicates. These private regimes reconfigure property rights in a way that is reflective of the environmental conditions of knowledge-sharing in social systems. As it seems, constitutionalization of global knowledge-sharing must take place through the recognition of the jurisgenerative power of societal rule production together with the public role of private law in the judicial review of private ordering. Under conditions of normative fragmentation, the constitution gets dispersed into ecological integrity rules that take account of the multilateral social effects of rights.