The Romance of the Public Domain

Abstract

Since Hardin, law and economics scholars have launched a crusade to expose the evil of the commons - the evil, that is, of not propertizing. Progressive legal scholars have responded in kind, exposing the perils of propertization. With the rise of the Information Age, the flashpoint debates about property have moved from land to information. The public domain is now the cause celebre among progressive intellectual property and cyber-law scholars, who extol the public domain as necessary for sustaining innovation. But scholars obscure the distributional consequences of the commons. They presume a landscape where every person can reap the riches found in the commons. This is the romance of the commons - the belief that because a resource is open to all by force of law, it will indeed be equally exploited by all. But in practice, differing circumstances - including knowledge, wealth, power, access, and ability - render some better able than others to exploit a commons. We examine this romance through the lens of the global intellectual property regime in genetic resources and traditional knowledge. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) transformed a global public domain in information by propertizing the information resources of the West - from entertainment to technological advances - but leaving in the commons the information resources of the rest of the world, such as genetic resources and traditional knowledge. Just as the trope of the romantic author has served to bolster the property rights claims of the powerful, so too does the romance of the public domain. Resourcefully, the romantic public domain trope steps in exactly where the romantic author falters. Where genius cannot justify the property claims of corporations (because the knowledge pre-exists individual claims of authorship), the public domain can. We review real-world strategies for resolving the romance of the commons. Just as recognition of the tragedy of the commons is the central justification for private property, recognizing the romance of the commons may justify forms of property uncommon in Western legal traditions.