Elinor Ostrom’s theories applied to Copyright: this Commons is certainly not Tragic


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NPR’s Planet Money podcast had an interview last week with Indiana University professor Elinor Ostrom, actually catching her as she prepared her acceptance speech for the Nobel prize for economics.

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In the interview, she talks about her research into the complexities of managing public resources. In short, Professor Ostrom shows that it’s erroneous to think of the “tragedy” of the commons as an inevitable consequence of commonly held property. Public resources present a problem when set against conventional thinking about private ownership, but Elinor Ostrom shows that it’s simply not true that individuals will necessarily use up commonly held resources in order to increase their own profit.

Instead, the most effective way to regulate the use of commons resources is to empower local groups, those who directly deal with the resources, to regulate their own use of resources. Ostrom and the Planet Money team talked about resources like fish in the ocean and cattle grazing in the Swiss Alps and, in characteristic fashion for this brilliant podcast, they talked about esoteric regimes for keeping office kitchens and fridges clean.

The political scientist [Ostrom] argues that people should be empowered to organize themselves in small ways that scale up to a global network. Government can be helpful in doing that, but people shouldn’t rely on it alone.

I was surprised there was no mention of intellectual property in general and in copyright in particular. Intellectual property might be a fringe case from Ostrom’s perspective, not being traditionally thought of as a “public resource”. But as copyfighters and open source advocates see it, copyrighted works and patented inventions are a type of public good. When somebody records a song, that recording becomes a resource available to the public, albeit with a great deal of regulation as to how it can be used. Similarly, when an inventor patents a new gizmo, the flip side of their limited monopoly over that invention is that the information about it becomes available to the public.

But by the end of the interview, it becomes clear that Ostrom’s theory fits the copyright regime very well. The general idea is that situations traditionally seen as ripe territory for the tragedy of the commons are actually local problems that will benefit more from local regulation than regulation “from above” — from the government, in most instances. At the end of the podcast, the hosts sum it up like this:

Chana Joffe-Walt: “Her work shows that local folks can come up with really good solutions to collective problems and it’s often best not to impose those rules from above.”

Adam Davidson: “The basic thing that has to happen is some group needs to play the role of problem solver — they need to come up with the rules. And often the group that can do it is the group that is facing the problem.”

Yes indeed — just like copyright. Musicians and writers create works that become available to the public. Without some sort of regulation, it looks like a tragedy-of-the-commons problem. But instead of the most closely involved — the local — community of writers, readers, musicians and audiences developing rules to solve this collective problem, publishers (middlemen in the creative market) pressed governments for copyright laws. To this day, these copyright laws govern the use of public resources in that particular area. It’s a perfect example of regulation from above rather than “local” solutions to what is essentially a collective problem.

As it turns out, copyright is also a great example of an area where local groups, groups of artists and consumers who are part of the creative market, have played the role of problem solver and come up with their own rules. They have had to do so within the regime of laws and regulations already in place but, seen from the perspective of Ostrom’s research, groups like GNU, the Open Source Initiative and Creative Commons are “local folks” with solutions to collective problems.

Copyright law has been very successful at making creative resources artificially  scarce and growing an economy of private ownership on commons land. The cheap exchange of information that came with the internet certainly made it more difficult for that artificial scarcity to be maintained, but in light of Ostrom’s research we must consider the view that copyright law is regulation from above in a commons problem better left to local regulation by the creative community. Open content licences like Creative Commons and open source licences like the GPL have been successful despite working within existing copyright regimes. What kind of rules would the creative community come up with if they had a blank slate to work from?

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