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intellectual propertyWhen Push comes To Pull: The New Economy and Culture of Networking TechnologyOne Sentence Summary: Information and communication technology innovation have begun to transform commercial business and social institutions from a "push" technology approach (hierarchical "center out"), to a "pull" technology approach (networked -based and decentralized). This poses new challenges to social, political, and educational systems that are largely designed to support "push" economies. Disciplines: Business Law History Cultural Evolution Technology Economics Political Science Sociology Findings:
Keywords: capitalism communication complexity cooperation cultural evolution group forming networks hierarchy intellectual property interdependence networks norms open source property rights reciprocity reputation social capital trust Published in: The Aspen Institute Date: 2006 One Paragraph Summary: Over the past 25+ years, change that has usually originated with technological innovation has led to new products, services, and human behavior patterns. These changes are reflected in business and industry, and the way that people entertain, govern, educate, and socialize among themselves. The change is from a centralized, command and control, bureaucratic, broadcast way of organizing, that tries to anticipate and create demand, to a decentralized and highly networked system that shares information about overall network performance and best practices among it's network, and meets local and specialized needs. One Page Summary: This paper is a summary of an Aspen Institute sponsored in-depth roundtable session, written from the perspective of one informed conference observer (Bollier). The participants are leading thinkers in the many complex areas this paper covers (economics, systems theory, human behavior, human futures, information technology evolution, etc) and are listed on page 57. A selection of their key insights shared in the paper are listed below: A "push" economy is geared towards mass production, anticipating consumer demand, and routing resources to the right place at the right time, to create standardized and mass produced products. By contrast, a "pull" economy is based on open, flexible production platforms that are used to orchestrate a broad range of resources. Instead of producing standardized products, "pull" model companies are demand-driven, and assemble products in customized ways that serve specialized or local needs, usually using "rapid" or "on the fly" processes. Several global corporations are moving towards "pull" methods, and away from "push" models; ie., Toyota, Dell, Cisco, Li & Fung. These companies employ different variations of Value Network models, that share information about overall network performance and best practices for serving specialized needs, among hundreds or even thousands of partner companies that make up the network. This creates an intra-network knowledge commons. Some companies also work closely with Open Source Software projects, thereby expanding their "pull" network, and expanding their knowledge commons into a broader Open Commons via Open Source Software project contributions. Thus, "pull" business models also tend to be Network Value-Increasing, and Commons-based business models as well. "Pull" models can also be platforms for creating "increasing returns dynamics." This is due to "pull" models being based around loose and flexible networks that are already configured to scale as growth occurs. So, growth does not incur the huge overhead costs in administration that "push" models must contend with. Pull platform key characteristics include modular and loosely-coupled networks, open channels that better harness the passion and commitment of innovation communities. "Pull" platforms also will tend to influence public policy with regards to education and innovation, as more companies tend to gravitate towards the "pull" models. The areas where "push" models tend to succeed in business are in areas where people do not know what they want, and prefer to shop from pre-made selections (Ikea, Home Depot). However, there are even "pull" models to found here, in the form of user-driven innovation, such as mountain biking, extreme skiing, hot rodding, etc. In these pro-amateur niches, customers don't necessarily know what they want, but do want to be a participant in the "pull" network that creates the product. How do you tax a product that is made in 23 different countries? "Pull" models are going to change the way that governments create policy as more companies gravitate toward them. This will influence laws about intellectual property, education, taxation and more. "Pull" economies are not just centered around finding creative ways to "outsource/offshore jobs" away from one place and to the places where "labor" is "cheaper". Successful "pull" models have encouraged and aided "insourcing", where more jobs are created, for instance in the United States by "foreign sources (a total of 7 million cited by this paper), than are out sourced (a total of 600,000+ cited by this paper). This is because pull models seek out, not just the "cheapest" labor, but the best ways to add value to the production networks. So, they can scale to many participants around the world, regardless of local labor costs, to find the best participants needed for specific specialized productions. The social dynamics of "pull" models are highly centered around creating relationships of trust, sharing knowledge, and close cooperation among network participants. In "pull" models, non-market value creation (tacit knowledge, intangible value) is generally steered towards a commons-based model. A commons is used as a "collective governance regime for managing shared resources sustainably and equitably." Many of these commons are made possible by networked information technologies (the internet). Bollier suggests that "if online commons are going to be useful to business, companies will need to do more work to develop protocols for identity and reputation management". This is because the use of the commons is based around trust. It also due to the need for ways to measure qualitative value in intangible assets beyond money, like knowledge, individual performance and value multiplication, and network wide performance/value multiplication. Roundtable participants also noted that "pull" models will pose challenges to current education regimes that are centered around training people to participate in "push" economies. One of the participants mentions that " Computers, software tools, and Internet resources make possible some radically new styles of learning. By using pull-based systems, students can function much like businesses in the pull environment: They can access resources they don't control and put themselves into flows of activity, rather than just building inventories of static, objectified "knowledge."
The Tragedy of the Anticommons: Property in the Transition from Marx to MarketsOne Sentence Summary: Care in allocation of property rights in transitional economies (e.g., from state to private control or under rapid technological change) is essential to prevent <em>the tragedy of the anticommons</em>, the underuse of valuable resources. Disciplines: Law Economics Findings:
Keywords: public goods property rights intellectual property Published in: Davidson Institute Research Workshop on the Economics of Transition and Harvard Law Review, Volume 111 (3) (pp. 621-688) Date: June 1997 and January 1998 One Paragraph Summary: Anticommons property is defined to be a class of property in analogy to the commons in classical economic literature to explain some of the failures and difficulties in the transition from communist to market economies. Multiple owners have privileges in a resource in a commons. The overuse of that resource has been described, notably by Hardin, as the tragedy of the commons. Heller defines an anticommons property as a scarce resource in which multiple owners have the right to individually exclude others from its use, and no one has an effective privilege of use. Stalemate results in the tragedy of the anticommons, the underuse of a property. Appropriate attention to the ways rights are created and allocated in property in societies making a transition from state to private control is essential to avoid the paralysis that occurred in the former Soviet Union. Similar situations can occur in the distribution of environmental and intellectual property rights in societies in which the transitions are taking place because of technological developments. One Page Summary: Anticommons property is defined to be a class of property in analogy to the commons in classical economic literature to explain some of the failures and difficulties in the transition from communist to market economies. Multiple owners have privileges in a resource in a commons. The overuse of that resource has been described, notably by Hardin, as the tragedy of the commons. Heller defines an anticommons property as a scarce resource in which multiple owners have the right to individually exclude others from its use, and no one has an effective privilege of use. Stalemate results in the , the underuse of a property. Heller examines a paradox in Moscow after the dissolution of the Soviet Union. Storefronts remained empty even though the economy was growing and there was demand for consumer goods. In contrast, street kiosks in front of them filled with goods and customers. He maintains that the phenomenon is due to a tragedy of the anticommons, an underuse of scarce resources due to the allocation of multiple new owners with the rights to exclude others from its use. He compares the distribution of rights in commercial property (previously owned by the state with overlapping bureaucratic stakes) with other types of properties (e.g., individual apartments, communal apartments, and street kiosks.) In the latter cases, sometimes legal but more often brutally questionable means of resolving rights disputes results in more widespread use of resources in the absence of appropriate legal recourse. While Heller devotes most of his attention to the underuse of commercial property in Moscow and other cities in the former Soviet Union, the notion of the anticommons has implications in the distribution of environmental and intellectual property rights. Anticommons property may emerge in developed markets wherever new property rights are being defined. This can occur when new technologies make possible uses of, for example, intellectual property and environmental rights, unanticipated by the previously existing legal mechanism. Once anticommons property appears, it is difficult to remedy the situation either through markets or subsequent regulation. Rather, Heller argues that care must be taken to avoid the accidental creation of anticommons property when new property rights are being defined by conveying core bundles of rights rather than multiple rights of exclusion. The Second Enclosure Movement and the Construction of the Public DomainOne Sentence Summary: The “second enclosure movement” attempts to put fences around the intellectual commons of ideas and facts in a manner analogous to the enclosure and transfer of property rights from the public to the private sphere during the first enclosure movement in England that fenced off common areas between the fifteenth and nineteenth centuries. A new way of thinking about the public domain, the intellectual commons, is needed to combat the negative impact of this trend. Disciplines: Law Findings:
Keywords: intellectual property open source property rights public goods Published in: Law and Contemporary Problems, Vol. 66:33 Date: Winter/Spring 2003 One Paragraph Summary: The “second enclosure movement” attempts to put fences around the intellectual commons of ideas and facts in a manner analogous to the enclosure and transfer of property rights from the public to the private sphere during the first enclosure movement in England that fenced off common areas between the fifteenth and nineteenth centuries. A new way of thinking about the public domain, the intellectual commons, is needed to combat the negative impact of this trend. One Page Summary: The “second enclosure movement” attempts to put fences around the intellectual commons of ideas and facts in a manner analogous to the enclosure and transfer of property rights from the public to the private sphere during the first enclosure movement in England that fenced off common areas between the fifteenth and nineteenth centuries. A new way of thinking about the public domain, the intellectual commons, is needed to combat the negative impact of this trend. Limits on intellectual property rights are being eroded by specious arguments about the need to protect against piracy and to encourage innovation. Historically there was a sense that any grant of intellectual property rights, effectively a state granted monopoly, was to be strictly limited in term. In fact, the erosion of those historical limits through legislation and extensions of intellectual property protections like business method patents, the Digital Millennium Copyright Act, and patents on the human genome can be argued to decrease the possibilities for collaborative creation traditional in domains as varied as science, law, education, and music. The first enclosure movement can be viewed as a “revolution of the rich against the poor”, it was justified by the incentives it offered for large-scale investment, for the control it offered over exploitation, and for the efficiency of exploitation of resources. It was said to “avoid the tragedies of overuse and underinvestment,” a conclusion that is subject to some debate. The second enclosure movement is the similar much more recent application of intellectual property law to “the enclosure of the intangible commons of the mind”: things that were formerly thought of as either common property or uncommodifiable are being covered with new, or newly extended, property rights. Advocates of the second enclosure argue that the extension of property rights is essential to create incentives to invention. Opponents point to the restrictions and bottlenecks on innovation and, in the case of the human genome, the claim that it is the “common heritage of humankind belonging to everyone.” Dangers:
The notion of intellectual property has had critics through its history: Jefferson was concerned with the state creation of unbounded monopoly. He felt that intellectual property rights might be necessary, but should not be treated as natural rights and should be strictly limited in term. The concept of public domain as applied to intellectual property is a relatively recent construct. Copyright is a system designed to feed the public domain providing temporary and narrowly limited rights. The public domain is “a commons that includes those aspects of copyrighted works which copyright does not protect.” The Internet expanded rapidly because its core protocols, TCP/IP and HTML, are open. A global network transforms the nature of creativity by introducing new ways of collaborating: examples include the free software and open-source software movement. The free software and open-source software movements may serve as models for thinking about alternative ways of dealing with intellectual property which encourage collaborative innovation while offering creators the ability to distribute their inventions for financial gain. These movements stand squarely on intellectual property: they build on a living ecology of open code where the price for participation is a commitment to make incremental innovation part of the ecology. Lessig defines a commons as “a resource that is free. Not necessarily zero cost, but if there is a cost, it is a neutrally imposed, or equally imposed cost.” The General Public License (GPL) of the open-source software movement encourages continuing improvement by making source code for software and its modifications available for members of the community. Continuous, peer-monitored improvement is encouraged without violating individuals’ rights to distribute products for financial gain. Presumably the best solutions are adopted by the community. Boyle proposes using the concept of “public domain” for intellectual property, a relatively recent term in legal discourse, as a rallying point for combating the erosion of the intellectual commons in much the manner that the concept of the “environment” was used to create a coalition of disparate self-interests. The Relationship RevolutionOne Sentence Summary: While the Internet phenomenon is often referred to as an “Information Revolution,” Michael Schrage says this is a misnomer and claims it is more accurate to state that the world is in the midst of a Relationship Revolution. Disciplines: Technology Economics Findings:
Keywords: communication intellectual property networks security technology Published in: from the Merrill Lynch Forum Date: 1997 One Paragraph Summary: The rapid growth and expansion of digital technologies have created the impression that we are in the midst of an Information Revolution, living in an Information Age, or that we have, at least, created an Information Economy. According to Shrage such a view is myopic. Thinking that the Internet is about information is like thinking that the internal combustion engine is about processing gasoline. It’s true that the impact of digital technologies on popular culture, financial markets, health care, etc. is causing a significant revolution, but the biggest impact the technology is having is on the relationship between people and organizations. One Page Summary: “Along every conceivable dimension — from the intimate to the institutional — digital media force both individuals and organizations to redefine what kind of relationships create value.” The result of this paradigm shift isn’t about data and information, it’s about the value and priority that people place on the quantity and quality of their relationships. Significant advances in technology have always altered how we perceive ourselves and our relationships. The automobile had an impact beyond simply moving from point to point B, and TV had an impact beyond delivering images and sound. Both of those wrought real and profound cultural change. Whenever a new medium emerges we have to look beyond the simple mechanics of the medium to the impact the medium has on the community. What’s important to recognize is that these new digital technologies aren’t simply evolutions of preceding technologies, but that these new technologies are now networked with each other. These new networks between networks have resulted in new relationships between networks that, in turn, have created new kinds of relationships between people. This new phase of networked technologies allows individuals and institutions alike to create new ways of interaction. Intimacy, anonymity, trust, openness, access, passion, negotiation, hierarchy, coordination and collaboration can all be mediated, monitored and managed via networks ostensibly designed to carry bits. The value challenge has shifted from gathering and disseminating information to packaging and bundling it in unexpected ways. What people crave is the chance to communicate and relate to each other in new ways – not simply to have access to a vast feast of information. The new technologies are directly related to the essence of being human. They challenge and stretch the traditional meaning of concepts like relationship, community and interpersonal expression. People expect more from these new technologies than simple job improvement, they want it to improve their working relationships with their boss, their colleagues, their subordinates and their clients. Ultimately what is critical to people is value, and it is people, not information, that create value. According to “Netizens” their increased sense of belonging, of being part of a larger community, greatly outweighs the benefits of having a mass of information available. Failing to understand the transformational affects of the digital technology on culture itself will result in missed opportunities. Silent Theft: the Private Plunder of our Common WealthOne Sentence Summary: Without a concerted effort against it, the trend of privatization and enclosure threatens to sacrifice the environmental, political, cultural, and information commons that communities rely on for their long-term health and prosperity. Disciplines: Business Law Economics Political Science Sociology Findings:
Keywords: public goods property rights privatization intellectual property hierarchy cooperation capitalism Published in: New York: Routledge Date: 2004 One Paragraph Summary: Enclosure limits social investment and environmental protection, encouraging short-term profits for the largest companies. Privatization only delivers a fraction of the benefit that commons provide for the public. The resources at stake include public lands, natural systems, government research, cultural traditions, historical knowledge, and the gift economies that can be found in academia, open-source movements, Internet groups or local communities. Enclosure supports monopolistic control of resources by large firms, working against consumer rights. Economic evaluations of the situation often ignore the sacrifices of enclosure because the time scale is too short or there is a moral impact that defies quantification. The imposition of market values in all spheres of public life threatens the public-minded ethic of gift economies by directing the attention of all parties towards money and property rights. Moves towards enclosure, like allowing firms to buy exclusive rights to portions of genetic codes or a water supply, undermine the intrinsic value of these resources to communities and stifles the competitive diversity that would ensure more efficient use. Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic ProductionOne Sentence Summary: Benkler defines a class of “shareable goods” whose use and distribution is more efficient under regimes that encourage sharing rather than through traditional markets. Disciplines: Law Economics Findings:
Keywords: intellectual property open source sharing economy Published in: First published in The Yale Law Journal, Vol. 114, pp. 273-358 Date: 2004 One Paragraph Summary: The class of “shareable goods” can be physical (e.g., excess capacity in an automobile or on a networked personal computer) or non-physical (e.g., intellectual property and wireless communication capabilities.) The characteristics of shareable goods lead Benkler to suggest the societal economic value of mechanisms encouraging sharing rather than exclusion as is traditional in market-based and state-controlled systems. He concludes with a discussion of the policy implications for technological innovation. One Page Summary: There is a class of “shareable goods” that systematically have excess capacity relative to the needs of their owners. The use of these goods is more efficiently harnessed and allocated through sharing relationships rather than secondary markets. These rival material resources are beginning to be shared in the production of both rival and non-rival goods. Examples include car-pooling and the pooling of excess processing capacity of personal computers connected to the Internet for decomposed computations in a variety of domains. Social sharing and exchange among individuals who are strangers or weakly related is an underappreciated modality of economic production that should exist alongside price-based and firm-based market production and state-based production. The sharing of physical goods is analogous to the sharing of labor in peer production (e.g., open source software). The goods that are amenable to sharing are “lumpy.” They deliver utility in discrete packages rather than continuously. Thus an automobile used in carpooling is purchased with a fixed number of seats; a PC has certain processing power, memory and storage. They have enough capacity to satisfy their owners, but more than is often needed. Shareable goods are also of “medium granularity”: granularity is a measure of the cost relative to the demand for them in and the wealth of a society. A locomotive or passenger plane is large grained virtually everywhere. An automobile or PC is mid-grained in the United States, but large grained in Bangladesh. Thirty years ago, computers were large grained all over the world. These goods are thus are large enough to satisfy the needs of their owners and inexpensive enough that one person can justify putting a unit into service given his ability and willingness to pay for it. They have an overcapacity on a aggregate basis. The motivations to share are often altruistic, but may also be financial or offer some other non-financial reward (e.g., access to high occupancy vehicle car pool lanes in the case of ad hoc ride sharing systems.) The provision of services through sharing is more efficient than traditional markets because of negligible transaction costs and the benefits of more direct information exchange: the needs of the end consumers are communicated more directly than in traditional markets. The analysis of the economic efficiency and value of shareable (physical) goods has implications for legal and legislative policy in other areas such as intellectual property and wireless communication. Current policy analysis, legal decisions, and legislation often disregarding and/or ignorant of the economic and social value of shareable goods, has tended to defend existing market-based production and distribution in support of increasingly outmoded centralized, capital intensive, industrial models of distribution (as opposed to production) of cultural media. These limiting decisions incorrectly assume that the role of market production is fixed rather than technologically contingent. How shareable goods are treated through legal, regulatory, and legislative policy has potentially crippling or conversely encouraging impact on the architecture of multi-media devices, communication networks, power distribution systems and on the production of cultural goods. Paying for Public GoodsOne Sentence Summary: Scientific and technological developments such as the Human Genome Project, GNU/Linux, Global Positioning Satellite data, file-sharing distribution of music and cinema, the cost of drugs for global epidemics such as AIDS, has necessitated new models for paying for public goods, such as compulsory licensing, competitive intermediators, and nonprofit matching funds. Disciplines: Computer Science Economics Political Science Findings:
Keywords: intellectual property open source peer production public goods Published in: Code: Collaborative Ownership and the Digital Economy, Rishab Aiyer Ghosh, Ed., MIT Date: 2005 One Paragraph Summary: Public goods are those in which the marginal cost of sharing is zero, the cost of excluding others from benefiting from its use is high, and the use by an additional person does not diminish the availability of the good to others. Systems for allocating public goods are politically charged, since the price-market system does not work well and conflicting parties look to state mechanisms for protection of their interests. President Reagan made signals from Global Positioning Satellites freely available; published DNA sequences are deposited in a central databank, giving free and unrestricted use of the raw sequences to scientists; and the GNU/GPL makes Linux code available free of charge under certain conditions. The threat to intellectual property posed by digital file-sharing, the prohibitive cost of AIDS drugs in the developing world, the rights of indigenous peoples and sovereign nations to drugs derived from local plants and plant knowledge, have posed challenges to the intellectual property regimes enshrined in agreements by the World Intellectual Property Organization. Novel regimes for paying for public goods have been proposed in response to these challenges. Compulsory licensing for music, similar to that adopted by radio broadcast – with significant modifications for equitably distributing proceeds – is one proposal. Another proposal would make vital drugs available to nations who agree to pay a percentage of GNP for new drug development. A matching fund, administered by a nonprofit entity, has been proposed to bring funders and seekers together into a kind of eBay for public goods. Although none of these schemes appear to be the foolproof, universally agreeable, final word on the subject, they do demonstrate that new solutions to problems of public goods are possible. One Page Summary: "This chapter examines the problem of financing public goods in three settings. Two efforts combine a degree of state coercion in mandating funding, with a decentralized and competitive private sector model for allocating funds. The first is the problem of compensating artists in a world where the most efficient distribution systems are peer-to-peer file-sharing networks. The second concerns the problems of funding the development of new drugs and other medical inventions. Finally, a proposal for new intermediators to facilitate voluntary collective action to finance public goods is considered." Making DNA sequences centrally and freely available resulted in valuable innovations, such as the software tool BLAST that performs 500 trillion sequence comparisons annually. "In a series of workshops at New York and Banff, Canada, a group of artists, lawyers, and economists looked at practical issues of how a compulsory license might work, and like most such inquires, discussed how one might set or collect fees, with alternatives such as levies on purchases of computer equipment or bandwidth, or various systems for subscription services, based either upon a flat rate or the amount of downloaded music. Some thought the fees should be paid directly from general tax revenue. There was no group consensus about these issues, but there was an appreciation that it would be good to structure the fee so that it was in some sense free on the margin (similar to how one now pays for cable television or subscriber-based radio services), and that it would be a positive feature if listeners could freely experiment with unknown artists or music types, thus contributing to discovery, growth, and opportunities for new artists." How to allocate funds was not settled. Would some money be available to finance public goods that are not supported by the marketplace, such as experimental music or recording/archiving folk music? Should artists and studio musicians have a say? The workshops proposed that for part of artist compensation, intermediators would compete against each other and listeners could decide where to put their money. It was suggested that several experiments should be conducted and evaluated: "The Blur/Banff discussions were seeking to find a way that the listeners and artists could build a new social contract that would compete with and possibly replace t he current system of distributing and marketing music. It would seek to liberate the art from the consequences of marketing the art as a commodity. If the P2P model was successful, the expenditures on marketing would fall, and the greater share of resources would be available to artists themselves." Health care R&D, especially research into new drugs, poses another problem. Although government grants to scientific research through academic institutions supports fundamental research, drug development is carried out by pharmaceutical companies, whose patents enable them to repay the considerable development costs but the prices bear no relation to the cost of manufacture. The social dilemma balances the self-interest of the pharmaceutical companies who seek rents to justify lengthy and expensive development, and the needs of nations faced by epidemics such as AIDS whose citizens cannot afford access to commercially available drugs. WTO agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) requires all but least-developed economies to issue patens on medicines. "This suggests a potential modification to the TRIPS agreement to allow countries an alternative way to contribute to global health-care R&D by ensuring that a fixed fraction of their GDP is being spent on supporting health care R&D," releasing such countries from their obligation to allow patents that block generic drug manufacture. Systems for efficiently collecting funds, and how to use them to fund innovation without marketing monopolies are outstanding problems to be solved. Authors suggest competitive intermediators to "control the allocation of resources to companies and academics carrying out R&D, but not carry it out temselves (as this would be a conflict of interest). Instead each intermediator would concentrate on embracing the business model for resource allocation that it believed was the most efficient for drug development.." Prizes for R&D outputs, small grants, peer-reviewed open research projects are suggested. "Intermediates could also adopt "open" research agendas, since the ability to raise money would not be linked directly to product sales. If employers or individuals believed open research was more productive than proprietary R&D, more money would flow to open R&D projects." Consumers could possibly enjoy savings from reduction in marketing spending, which is a far larger component than R&D in pharmaceutical sales. Another model, developed in a 2002 Rockefeller dialogue on collective management of intellectual property goods, focuses on lowering transaction costs for voluntary financing for a wide range of public goods by creating a kind of eBay marketplace, matching seekers with philanthropies, individuals, and corporate entitites. "The Matching Funds proposal is to create a new institutional framework that would make it easier to match willing funders and willing suppliers of public goods. The institutional framework would be an intermediator called Matching Funds (MF). The role of MF would be to provide due diligence on proposals for new public goods, and if the review was positive, to list the projects for subscribers." The public could critique the proposal and suggest modifications. "Subscriptions would be binding commitments to fund the project if sufficient support for the project was forthcoming from the community of persons who wanted the project done." Imagined Collectivities and Multiple AuthorshipOne Sentence Summary: Certain communities of Papua New Guinea participate in a kind of multiple (as opposed to collective) authorship of collectively owned cultural products, which may shed light on emerging property rights problems around common pool resources such as the human genome that are in some sense owned collectively. Disciplines: Anthropology Computer Science Economics Political Science Sociology Findings:
Keywords: sharing economy property rights peer production open source intellectual property cooperation Published in: Code: Collaborative Ownership and the Digital Economy, ed. Rishab Aiyer Ghosh, MIT Press Date: 2005 One Paragraph Summary: Citing controversies over the ownership of the human genome, Strathern examines intellectual property practices among tribal people in Papua New Guinea. A commemorative sculpture is made by a group of artisans; other people pay to participate in a ritual in which the sculpture is displayed to only paying participants, then burned. The paid participants have the right to reproduce the pattern of the sculpture in their own future rituals and those who did not pay to see it do not have the right. The actual object no longer exists, and the intellectual property is distributed among the memories of the participants. The sculpture is a "distributed object," and the network of artisans and ritual participants are both collaborative creators and collective owners of a virtual property - a structure of ownership and distribution that parallels in interesting ways emergent forms of co-created property such as the genome, ethnopharmacological knowledge, or open source software. From Consumers to Users: Shifting the Deeper Structures of Regulation Towards Sustainable Commons and User AccessOne Sentence Summary: In this paper, Benkler demonstrates that regulatory policy in the digitally networked environment is being used to replicate the current mass media structure in which individuals are passive consumers and argues that regulatory policy should develop and sustain an information commons for the consumption, production and exchange of information by active users. Disciplines: Law Technology Information Findings:
Keywords: technology sharing economy public goods networks intellectual property communication Published in: Federal Communications Law Journal Vol. 52 pp. 561-579 Date: April 4, 2000 One Paragraph Summary: Currently, regulatory policy in the digitally networked environment is being used to replicate the current mass media structure in which individuals are passive consumers obtaining information and content from a few commercial producers. But people want to be users as is evidenced by the Internet and the fact that people using telephones have spent more than on "newspapers, magazines, broadcast cable, and movies combined "in order to participate in peer communication. Today, technologically through the digitally networked environment and through appropriate regulatory policy, it is possible to develop a system in which individuals are free to participate in the consumption, production, and exchange of information - an information commons. However, such a system is not guaranteed and appropriate regulatory choices must be made at all levels (physical layer, logical layer, and content layer) to ensure a commons that supports active use as opposed to passive consumption. One Page Summary: Currently, regulatory policy in the digitally networked environment is being used to replicate the current mass media structure in which individuals are passive consumers obtaining information and content from a few commercial producers. In this paper, Benkler provides legal, regulatory, and technological examples of how the mass media producer-consumer model is being reproduced at the content, logical, and physical layers of the digitally networked environment. At the content layer, intellectual property rights are used to legally deny uses that purely provide for public discourse. At the logical layer, owners of the logical layer are allowed to design that layer to protect the use of their content even for uses that are privileged by law. At the physical layer, the FCC has gone in two opposing directions by both created a commons of digital spectrum and perpetuated the current broadcast system with the allocation of digital spectrum. And in cable broadband, providers cite "technical reasons" for creating a system that provides significantly larger downstream capacity than upstream capacity and that technically prohibits customers from becoming users by hosting servers that serve up content in both cases perpetuating the mass media producer-consumer model. But people want to be users as is evidenced by the Internet and the fact that people using telephones have spent more than on "newspapers, magazines, broadcast cable, and movies combined" in order to participate in communication. Users consume information but also rework information and send it to others (or produce new information). The Supreme Court's view of the First Amendment has repeatedly upheld the notion of users in that it provides for "robust debate, diversity of viewpoints, and individual expressive freedom" as opposed to the view that it provides a technical rule against regulation as regulation. At the same time, mass media has become technically, economically, and legally entrenched and government regulation seeks to counteract the potentially ill-effects on the intent of the First Amendment. The reality is that mass media provides very few individuals or organizations with access to communication pathways, and hence without regulation and maybe in spite of it, it is possible for this reality to inhibit the intent of the First Amendment. Artifacts, Facilities, And Content: Information as a Common-pool ResourceOne Sentence Summary: This paper examines the notion that the enclosure of the information commons through the privatization of information that used to be in the public domain is part of a broad pattern of legal and political changes that are transforming several of the fundamental elements of modernity: science, scholarship, and law. Disciplines: Law History Computer Science Economics Political Science Information Findings:
Keywords: sharing economy public goods intellectual property Published in: "Conference on the Public Domain," Duke Law School, Durham North Carolina Date: November 9-11, 2001 One Paragraph Summary: The commonwealth of knowledge - from science to jurisprudence - has been one of the success stories of enlightenment rationalism because the insights of a few have benefited all. The modern metanarratives of democracy and progress depend upon this freedom to build on the work of others for the benefit of all. Now that technical means make it possible to enclose, gate, censor, and meter the information commons, the privatization of public culture has begun in earnest. One Page Summary: Hess and Ostrom detail the complex interdisciplinary definitions of "commons" and "public domain," establishing the discourse in the work of Scott Gordon in 1954 and Anthony Scott in 1955, who introduced economic analysis to fisheries, a natural resource that had traditionally been the domain of biologists. "Their two articles are credited with outlining the conventional theory of the commons." Hess and Ostrom also note the application of game theory as a way of rationalizing commons dilemmas in which "appropriation from common-pool resources is frequently represented as a one-shot or finitely repeated, Prisoner's Dilemma game. Since appropriators are viewed as being tapped in these dilemmas, repeated recommendations were made that external authorities must impose a different set of political regimes and property rights on such settings. Some recommended private property as the most efficient form of ownership. Others recommended government ownership and control. Ostrom and Hess note that the political-economy literature had, until recently, not considered the possibility that the appropriators of common pool resources would find ways to self-organize their use of the CPR. The ability to self-organize institutions for collective action that transform Prisoner's Dilemma games into Assurance Games, the obstacles to self-organization, and the strategies different groups have used to overcome these obstacles are the central themes of both Hess's and Ostrom's work. It is particularly important to note that Hess and Ostrom look to fisheries and irrigation arrangements precisely in order to bring empirical human reality to the abstractions of game-theoretic models. In turn, they use the principles that emerged from empirical observation to make theoretical models. Hess and Ostrom emphasize that although all resources have other attributes, an important insight into the nature of public and private aspects of common pool resources can be gained by considering a matrix where excludability is plotted against subtractability: "Recognizing a class of goods that share these two attributes enables scholars to identify the core theoretical problems facing individuals whenever more than one individual or group utilizes such resources for an extended period of time. Using "property" in the term used to refer to a type of good, reinforces the impression that goods sharing these attributes tend everywhere to share the same property regime. As discussed below, this is certainly not the case." Consider a two by two matrix in which the column on the left represents low subtractability and the column on the right represents high subtractacility. The row on top represents difficult excludability and the row on the bottom represents easy excludability. Comparing the rows and the columns, four combinations of attributes become visible:
Different property regimes have been used with varying degrees of success in regard to each class of goods, from communal or state ownership to private ownership. Hess and Ostrom emphasize the situational importance of every human institution by disclaiming the possibility that rigorous analysis without reference to the actual situation can yield any formula for assigning a property regime to any particular class of goods: "Examples exist of both successful and unsuccessful efforts to govern and manage common-pool resources by governments, communal groups, cooperatives, voluntary associations, and private individuals or firms. Thus, no automatic association exists between common-pool resources with common-property regimes - or, with any other particular type of property regime." Together with attacking the confusion between the nature of a good and a property regime, Hess and Ostrom analyze the confusion between a resource system and the flow of resource units, the confusion between common-property and open-access regimes, and the confusion over what property rights are involved in "ownership." Consideration of the governance of common pool resources, the authors note, moved from natural resource systems and human-made resources to such diverse goods as "surfer's waves, sports, national budgets, public radio, traditional music, indigenous knowledge, air slots, campus commons; urban commons [apartment communities and residential community associations, streets, parking places, playgrounds, reclaimed buildings etc.]; highways and transboundary transportation systems, the Internet [domain names, infrastructure, information, acceptable use policies]; tourism landscapes; cultural treasures; car-sharing institutions, garbage; and sewing. Turning to the common-pool resource aspects of information, the authors distinguish between the interdependent but separate artifacts such as books, articles, web pages, databases, computer files; facilities such as private and public libraries and archives, digital libraries, e-print repositories, the Internet, or local-area networks; and content such as knowledge, information, and data. For the past few centuries, a social machine has evolved to gather, store, and transmit knowledge; information stocks and flows are at the center of this enterprise. Until recent decades, scientific and scholarly information has been recorded, transmitted, and stored in journals, books, articles, academic and public libraries. Fair Use doctrine enabled libraries to provide inexpensive or free access to bodies of knowledge. The digitization of information and extension of copyright laws have brought about radical changes in the way scientific and scholarly knowledge is handled: "Since 1995, the development of distributed digital information through network browsers has radically c hanged many of the traditional institutions of scholarly communication. Research information is moving much faster and much farther, often bypassing the normal publication process. While it is true that recent commodification and privatization of research information threatens the future of libraries' freedom to collect and distribute information, it is only one part of the story. Recent legislation, such as the Digital Millennium Copyright Act, the Sonny Bono extension Act, the proposed legislation of the Uniform Computer Information Transactions Act (UCITA), may all adversely affect the costs, access, and availability of scholarly information." Libraries are threatened because the publishers of scholarly digital information are seeking more money and more control while library budgets shrink. Librarians such as Clifford Lynch and legal experts such as Lawrence Lessig and Jamie Boyle have analyzed the forces that could make public libraries and public scholarship into anachronisms like scribes and illuminated manuscripts. Hess and Ostrom point at a countermovement that counters enclosure through technologies that enable collective action: "In great contrast with the new legislation increasing copyright and patent restrictions, encouraging contract over property law with the constraints of embedded licensing agreements, is the international E-prints "revolution" that is making scholarly research freely accessible in unprecedented ways. The movement officially began with the mounting of arXiv.org at Los Alamos National Laboratory. Developed in 1991 by physicist and information specialist Paul Ginsparg, it was designed to serve as a repository for digital papers in physics and mathematics. By 1993, the site had received around 500 submissions. By September 30, 2001, the site had received 174,842 submitted papers. "The papers are free but unrefereed, requiring scholars themselves to judge the accuracy and quality of the work. This archive is the first that actually changes the representation and visibility of the scholarly record. The average number of site users range from 60,000 to 160,000 per day." There are hundreds of other digital archives. The Digital Library of the Commons http://dlc.dlib.Indiana.edu/ is both an e-print repository for self-archiving as well as a traditional digital library. An example of an effective grassroots initiative is that taken by the Public Library of Science, a nonprofit organization of scientists dedicated to making the world's scientific and medical literature freely accessible "for the benefit of scientific progress, education and the public good." |
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