The Fable of the Commons: Exclusivity and the Construction of Markets in Cyberspace and Real Space April 10, 2006

Speakers: Shubha Ghosh, Professor of Law, Buffalo Law School, SUNY and Southern Methodist University Dedman School of Law.

The propertization of intellectual property law has lead to
the growing exclusivity of rights and concentration of
markets in various intellectual property intensive contexts,
such as the Internet. The twin trends of propertization and
exclusivity are based on a false conception of the commons,
as derived from Garret Hardin's tragedy of the commons. I
argue that the activities of the intellectual property
commons are very different from the activities of Hardin's
commons. As a result, legal institutions need to reflect the
activities of discovery and creation associated with the
intellectual property commons. An activities focused approach
to institutional design, I further argue, requires
consideration of both distributive values and efficiency
mindedness in constructing intellectual property law and
markets. I focus on three distributive values, distributon
among creators, between creators and users, and across
generations. The normative criteria grounded in distributive
justice are used to assess the current law on fair use and
secondary liablity, particularly as applied to the legal
treatment of file sharing and copyright on the Internet.

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