A commons is a regime for creating and managing value through non-market means. It consists of the resources that we inherit from previous generations and which we must pass along, intact, to our children. A commons may consist of tangible physical resources like public land and water, or intangible resources like information, music and data. A commons is not just an economic institution with a single metric of value, money. It is also a community of people that has its own rules for how a shared resource shall be managed and its benefits allocated.
Historically, the public domain has been the term used to describe an open, non-commercial space of activity whose materials are available to all. In conventional legal discourse, the public domain has always been regarded as something of a junkyard filled with works of little value. After all, if no one can assert property rights in public-domain works, they can't be sold for very much money. From the perspective of the market, they therefore must be worthless.
But in fact, the public domain -- when seen as a commons -- is a rich incubator of innovation and value. The problem is that, by the lights of neoclassical economic analysis, its value is not properly understood. The actual value-proposition of the commons has been eclipsed by the market's ability to generate private, monetized wealth.
This mistake about valuation -- that the market's matrix of value is the only one that matters -- encourages an over-propertization of the commons. I call this problem the "tragedy of the market." Excessively broad property rights and monetization of resources are stifling innovation, competition, and public access. My book, Silent Theft: The Private Plunder of Our Common Wealth (Routledge, 2002) describes the many realms of American life affected by "market enclosure."
The private appropriation of commons assets is not just a deplorable theft; it results in fundamental social inequities that become structural. We see this right now as multinational companies try to turn fresh water supplies into global commodities; as pharmaceutical companies claim property rights in ethnobotanical knowledge developed by indigenous peoples; and as broadcasters clamor for exclusive rights in portions of the electro-magnetic spectrum.
The Enclosure of the Scientific Commons
One need only read recent books by Jennifer Washburn, Derek Bok, Sheldon Krimsky and Corynne McSherry to realize that a market enclosure of academic science is well underway.(2) These and other critics argue that corporations are skewing university research priorities from long-term basic R&D to short-term, applied commercial research. They are demanding secrecy and publication delays as conditions of their partnerships, which in turn prevent other scientists from verifying findings and building upon the science. They are offering lucrative consultancies and stock equity plans for researchers, which introduce worrisome ethical conflicts of interest.
Universities, for their part, have barely recognized or addressed these perils, in part because many of them -- the top research universities -- have a keen conflict of interest. They are too busy patenting the discoveries of university scientists and entering into partnerships with large corporate sponsors. Science journalist Seth Shulman, author of Owning the Future, has warned, "Given the fierce expansion of market norms in academic research, the values of the technological commons must be actively championed to prevent them from eroding beyond recognition."(3)
Professors Michael A. Heller and Rebecca S. Eisenberg have shown how an expansion and fragmentation of individual property rights in a given scientific domain can end up paralyzing research innovation and, in turn, stifle the development of markets. They call this problem the "tragedy of the anti-commons." This is a circumstance in which "multiple owners each have a [property] right to exclude others… and no one has an effective privilege of use."(4) An anti-commons exists when property rights are too numerous and fragmented to allow the commons to function.
Once an anti-commons emerges, write Heller and Eisenberg, "collecting rights into usable private property is often brutal and slow." The search for treatments or vaccines for malaria is plagued by this problem, for example, because researchers cannot afford to clear the rights to dozens of research tools, proprietary reagents, software, and so forth.
Leveraging the Commons for Science
Many scientific commons are now being launched to avoid the many barriers to the free flow of information that markets tend to erect. Online commons enable universities, scientific disciplines, and academic journals to honor and protect some basic values of science -- sharing, collaboration, open debate -- in the face of market pressures to restrict the circulation of valuable knowledge.
It helps to remember that scientific inquiry is fundamentally a creature of the commons, not the market. Academic science is driven by peer groups that govern themselves by their own professional ideals, standards, and social norms.(5) Market values are regarded as secondary and even hostile to the core mission of science.
As far as I know, no taxonomy has yet been devised for the many scientific endeavors (many of them Internet-based) that function as commons. Let me review the rich variety of scientific commons that I have identified. I distinguish them according to three general (and somewhat overlapping) features: 1) commons made possible by new software architectures; 2) commons based on innovative legal structures; and 3) institutional commons.
Software Architectures
Websites and web logs have proven to be the workhorses of networked communities. They are highly efficient vehicles for assembling, organizing, archiving, and disseminating new information, and for hosting ongoing dialogue and debates. Many websites skillfully leverage decentralized "surplus capital" (unused computer CPU time) and volunteers to do important scientific work.
An example: NASA's Clickworkers invites Internet users to identify and classify craters on Mars based on satellite images of the planet's surface. The work, normally conducted by graduate students or scientists over the course of months, is now done for free, by thousands of Internet volunteers whose quality of work rivals that of trained geologists. http://www.clickworkers.arc.nasa.gov/top
Wikis -- a web application that allows anyone to add and edit content on a collaborative website -- are also important vehicles for scientific collaboration.(6) In essence, wikis enable a group of users to assemble, review, and modify a body of writing in a cumulative way. Wikipedia may be the best-known wiki; it has compiled more than 600,000 articles in four years. But there are more than 1,000 public wikis out there and countless private wikis.
Wikis leverage the sharing and collaboration that lie at the heart of science, helping to develop some fundamentally different sorts of knowledge. I am particularly intrigued by the recently established Flu Wiki, which may come to rival the CDC and WHO in its ability to track the outbreaks and movements of flu viruses. http://www.fluwikie.com
Peer-to-peer file sharing networks -- better known for facilitating illegal music downloads -- are playing an important role in scientific research. The great advantage of P2P architecture is that it allows dispersed members of an online group to quickly and directly exchange data without relying on a central server. Far-flung participants from different institutions can thus be immersed in the same virtual working environment and collaborate much more effectively than they can in the more traditional networking structure of centralized computer servers and clients.
The new software architectures are literally making possible new forms of scientific inquiry and knowledge, such as computational biology. One of the most advanced public initiatives in applying P2P architecture is Bioinformatics.org, the Open Lab at the University of Massachusetts, Lowell. This project provides decentralized networking tools to researchers so they can work together in solving information problems in bioinformatics. Bioinformatics.org has more than 14,000 members and 200 projects that it is hosting. In some ways, the very emergence of the bioinformatics discipline could not have occurred without computer networks and the commons they made possible. As patents and copyrights assert proprietary claims over shared resources, enterprising minds within science are declaring that it may be time for an open source biology movement.
Richard Jefferson's Australia-based group, Cambia, has been creating new non-proprietary research tools and technologies for more than a decade. Its BiOS Initiative -- Biological Innovation for an Open Society -- develops and validates new means for cooperative invention of life sciences technologies. It recently launched a set of BiOS licenses, inspired by open source software licenses, that are intended to create a "protected commons," in which an invention can be improved by the ideas of many, without anyone patenting it. http://www.cambia.org
The Tropical Disease Initiative, or TDI, is another experiment in open source drug development. http://www.tropicaldisease.org Its goal is to use the bottom-up, self-organizing methods of open source software to develop innovative new drugs. "With open and collaborative approaches, generally," says Duke Law Professor Arti Rai, one of the founders of TDI, "there may be room for creativity or the possibility of creativity that wouldn't come if you just had one pharmaceutical company working on a drug."(7)
Innovative Legal Structures
Key to the success of commons-based solutions are legal licenses and structures that protect the integrity of the commons while enabling follow-on innovation and even commercialization. One of the most catalytic innovations in this whole area, of course, was the General Public License (GPL) for free software developed by the Free Software Foundation. It was the basis for open source licenses, many of which allow the private commercialization of derivative code.
The GPL was an inspiration for the Creative Commons licenses developed for creative works and information. The CC licenses are voluntary, private licenses that creators may use to notify potential users in advance that copyrighted works may be freely used in stipulated ways, often with commercial rights retained by the creator. http://www.sciencecommons.org
Besides licenses, we could stand some visionary legal innovations in implementing a meaningful development agenda that takes account of intellectual property policies. A good place to start would be to recognize the important role played by the commons in spurring innovation, creating economic wealth and advancing social equity. This may be a difficult, long-term proposition, however, given the World Intellectual Property Organization's entrenched commitment to a traditional intellectual property paradigm.
In the meantime, I am intrigued by the proposed treaty for medical R&D that the Consumer Project on Technology and scores of scientists, health organizations, and others have presented to the World Health Organization's Executive Board and the WHO Commission on Intellectual Property, Innovation and Health. http://www.cptech.org/workingdrafts/rndtreaty.html The treaty's backers point out that stronger intellectual property rights and high drug prices do create incentives to invest in medical innovation, but they also have serious unacknowledged costs: the rationing of access to medicine, misleading and costly marketing, barriers to follow-on research, and an aversion to risky basic research for innovative drugs and treatments for the poor.
The treaty proposal would go a long way toward financing new pharmaceuticals on a sustainable basis while making them more accessible and affordable to people, especially in developing countries.
Institutional Commons
Finally, many academic institutions and independent organizations are taking the initiative to create their own commons. M.I.T. has famously created its OpenCourseWare program to place all of its curricular materials online. http://ocw.mit.edu/index.html
At Rice University, Connexions is an international, interdisciplinary "content commons" that provides free scholarly materials and a powerful set of free software tools to help authors publish and collaborate; instructors to build and share custom courses; and learners to explore the links among concepts, courses, and disciplines. It now has more than one million people from 157 countries tapping into over 2,500 modules. Almost 100 courses have been developed by a worldwide community of authors. http://www.cnx.rice.edu
One of the most exciting developments in terms of institutional commons is the explosion in open access scholarly publishing. The Directory of Open Access Journals currently lists more than 1,700 scholarly and scientific journals that are published on an open access basis -- a number that grows by several hundred every month. http://www.doag.org Why should scientific disciplines and universities hand over their intellectual work to commercial journals -- who then charge very high prices to publish it -- when online commons can give the creators far greater control while enabling much broader distribution and citation, for free?
Open access journals have obvious benefits in stimulating the free flow of knowledge and collaboration. Scientific discoveries can more quickly be applied in clinical tests. The identification of promising research strategies and the rooting out of errors can move more rapidly. The benefits are especially important to developing countries, where timely and reliable medical knowledge may otherwise be locked up in expensive commercial journals.
The U.S. National Institutes of Health have helped legitimate the move to open access publishing with the recent requirement that federally financed research be made available under limited open-access rules. This trend is gaining further momentum now that the Wellcome Trust and Research Councils U.K. are also supporting open access publishing. This promises to catalyze sweeping changes in how scientific research will be disseminated and made accessible in the future.
What's really interesting is how the open-access ethic is spreading to new and unexpected areas. For example, as publishers try to assert ever stronger control over their textbooks -- to the extent of "renting" digital copies that "evaporate" after twelve months -- a number of open-source textbook initiatives have arisen. These include:
There are also hybrid initiatives like BookPower, http://www.bookpower.org whose ebooks are free to developing countries.
If there are any common denominators to these many science commons that I have mentioned, it is that each represents a social community -- literally or figuratively -- that is leveraging online networks to create and retain value. I realize this definition may stretch the meaning of the word "community" because in some instances the "community" may consist of strangers interacting impersonally. In such instances, the commons consists of a group of people with shared interests using the Internet as a hyper-efficient vehicle for creating valuable public goods (research, data, archives, indices, annotations).
The Commons and Intellectual Property Policy
All of these trends are gaining momentum at the very moment when people's frustrations are growing at the rising costs, inefficiencies, inequities and barriers that conventional intellectual property regimes are imposing. At the moment, this is a movement without a name. But there are enough straws in the wind for anyone to realize that new models of value creation are a-bornin'. It is posing significant challenges to our conventional understandings of how innovation and wealth occur.
When Brazil threatens to break patents for AIDS drugs in order to fight that awful disease; when many national governments such as China and Brazil reject Microsoft products in order to embrace open source software as their national standard(8); when IBM gives away free access to 500 of its software patents in order to leverage open source communities and innovation(9); when highly respected legal theorists and nonprofit organizations propose commons-based strategies for overcoming patent problems,(10) new types of international cooperation to finance drugs, and new IP regimes to stimulate development(11); when the benefits of open source software and open access publishing begin to fuel an open science movement,(12) as they have -- all this suggests the beginnings of a paradigm shift.
I like to talk about the commons because it helps us recognize some inherent limitations of neoliberal policy discourse in understanding these phenomena. It helps us recognize and explain the growing benefits of sharing and collaboration via electronic networks.
To talk about the commons is to recognize that there are other genres of solutions -- beyond stricter intellectual property controls -- that deserve serious consideration. To talk about the commons is to acknowledge that our interests as market participants, whether as investors or consumers, are only one part of who we are as human beings. For all of the market's many practical virtues, we also care about social equity, openness, the consent of the governed, and the satisfactions that come from working cooperatively toward shared goals. The commons not only helps us acknowledge these other values, it helps us operationalize them. That may be its greatest appeal.
(1) Adapted from a September 25, 2005 address at a conference on Biotechnology and Intellectual Property: Reinventing the Commons, McGill University, Montreal.
(2) Jennifer Washburn, University Inc.: The Corporate Corruption of Higher Education (New York, NY: Basic Books, 2004); Derek Bok, Universities in the Marketplace: The Commercialization of Higher Education (Princeton, NJ: Princeton University Press, 2003); Sheldon Krimsky, Science in the Private Interest: Has the Lure of Profits Corrupted Biomedical Research (Lanham, MD: Rowman & Littlefield, 2003); and Corynne McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property (Cambirdge, Mass.: Harvard University Press, 2001.)
(3) Seth Shulman, "Trouble on the ‘Endless Frontier’: Science, Invention and the Erosion of the Technological Commons," [report] (Washington, D.C.: New America Foundation and Public Knowledge, May 2002), p. 20, available at http://www.publicknowledge.org/resources/publications.
(4) Michael Heller, "The Tragedy of the Anti-Commons," 111 Harvard Law Review 3 (January 1998); and Michael A. Heller and Rebecca S. Eisenberg, "Can Patents Deter Innovation? The Anticommons in Biomedical Research," Science, May 1, 1998, pp. 698-701.
(5) The sociologist Robert K. Merton is often associated with this perspective on science. See also, e.g., Warren O. Hagstrom, "Gift Giving as an Organizing Principle in Science," in Barry Barnes and David Edge, editors, Science in Context: Readings in the Sociology of Science (Cambridge, Mass.: MIT Press, 1992).
(6) Lambert Heller, "Wikis for Scientific Publishing," http://en.wikibooks.org/wiki/Wikimania05/Paper-LH1
(7) "Open Source: How Far Can It Go?" Duke Law Magazine, Fall 2004, pp. 30-32.
(8) Steve Kingstone, ""Brazil Adopts Open-Source Software," BBC News, June 2, 2005, at http://news.bbc.co.uk/go/pr/fr/-/2/hi/business/4602325.stm.
(9) Steve Lohr, "I.B.M. to Give Free Access to 500 Patents," New York Times, January 11, 2005, p. C1.
(10) Yochai Benkler, "Commons-Based Strategies and the Problems of Patents," Science, August 20, 2004, pp. 1110-1111.
(11) Joseph E. Stiglitz, "Intellectual property rights and wrongs," http://www.dailytimes.com.pk/default.asp?page=story_16-8-2005_pg5_12
(12) John Willinsky, "The Unacknowledged Convergence of Open Source, Open Access and Open Science," First Monday, Vol. 10, no. 8 (August 2005), http://firstmonday.org/issues/issue10_8/willinsky/index.html.
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