Global Public Domain Research Articles

The Romance of the Public Domain

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.

American Exceptionalism, Exemptionalism and Global Governance

Are America and global governance on a collision course? And if so, with what consequences? I make two arguments in this chapter. First, unlike the situation in 1945, when the U.S. truly was the world's political Archimedean point, global governance in the 21st century is being stitched together by a multiplicity of actors and interests - in considerable measure reflecting the success of America's own postwar transformational agenda. Indeed, the very system of states is becoming embedded within an increasingly mobilized and institutionalized global public domain that includes not only states but also non-state actors involved in the promotion and production of global public goods. While the American state remains by far the most powerful force among them, platforms and channels for transnational action that it does not directly control have proliferated - and are deeply entwined with American society itself. Enacting a strict exemptionalism posture, therefore, has become much harder than it seems. Second, although the debate fueled by the recent upsurge of U.S. resistance to global governance involves highly technical questions of constitutional law, on which I, a non-specialist, touch only lightly, it is also fundamentally a political debate, requiring us to make political choices. For on close inspection, many of the solutions proposed by the exemptionalists not only are unnecessary, but also impose a greater burden on us than the problems they seek to solve. In the conclusion I spell out some implications for the future of global governance of the continuing dialectic, if you will, between the two forms of American exceptionalism, acknowledging that the path ahead does not promise to be smooth, but noting that neither has it been getting to where we are today.

Justice Unbound? Globalization, States and the Transformation of the Social Bond

Conventional accounts of justice suppose the presence of a stable political society, stable identities, and a Westphalian cartography of clear lines of authority--usually a state--where justice can be realized. They also assume a stable social bond. But what if, in an age of globalization, the territorial boundaries of politics unbundle and a stable social bond deteriorates? How then are we to think about justice? Can there be justice in a world where that bond is constantly being disrupted or transformed by globalization? Thus, the paper argues that we need to think about the relationship between globalization, governance and justice. It does so in three stages: (i) It explains how, under conditions of globalization, assumptions made about the social bond are changing; (ii) it demonstrates how strains on the social bond within states give rise to a search for newer forms of global political theory and organization and the emergence of new global (non-state) actors which contest with states over the policy agendas emanating from globalization; and (iii) despite the new forms of activity identified at (ii), the paper concludes that the prospects for a satisfactory synthesis of a liberal economic theory of globalization, a normative political theory of the global public domain and a new social bond are remote.

Justice Unbound? Globalization, States and the Transformation of the Social Bond

Conventional accounts of justice suppose the presence of a stable political society, stable identities, and a Westphalian cartography of clear lines of authority--usually a state--where justice can be realised. They also assume a stable social bond. But what if, in an age of globalisation, the territorial boundaries of politics unbundle and a stable social bond deteriorates? How then are we to think about justice? Can there be justice in a world where that bond is constantly being disrupted or transformed by globalisation? Thus the paper argues that we need to think about the relationship between globalisation, governance and justice. It does so in three stages: (i) It explains how, under conditions of globalisation, assumptions made about the social bond are changing. (ii) It demonsrates how strains on the social bond within states give rise to a search for newer forms of global political theory and organisation and the emergence of new global (non state) actors which contest with states over the policy agendas emanating from globalisation. (iii) Despite the new forms of activity identified at (ii) the paper concludes that the prospects for a satisfactory synthesis of a liberal economic theory of globalisation, a normative political theory of the global public domain and a new social bond are remote.