Black Swans and The Tragedy of the Commons

Black swan, via wikipediaHow should universities promote research and, if necessary, afford it legal protection by means of intellectual property rights? Two considerations of that question have recently swum across my desktop.

First there is a new article by Michael Madison “The University as Constructed Cultural Commons” (SSRN) applying Michael Madison, Brett Frischmann and Katherine Strandburg “Constructing Commons in the Cultural Environment” (SSRN) to the university environment (hat tips: University of Pittsburgh School of Law Faculty Blog here and here).

In the latter essay, the authors consider what they describe as “the problem of understanding intellectual sharing/pooling arrangements and the construction of cultural commons arrangements”. In the former, Madison examines “commons as socially constructed environments built via and alongside intellectual property rights systems”; he sketches “a theoretical framework for examining cultural commons across a broad variety of institutional and disciplinary contexts; and he applies “that framework to the university and associated practices and institutions”. In particular, he seeks to

… illustrate how the university and institutions and practices embedded within it relies on a variety of tools – formal intellectual property doctrines, social norms, expectations grounded in history, and the very physical structures that comprise most university facilities – to construct commons across a range of places and practices, from the classroom all the way up to the very notion of scholarly research and knowledge production. (p2).

And he argues that

… both law and other social institutions have been highly influential in creating and maintaining the university as commons. The chief risk, therefore, is not that the university will somehow lose its commons character, but that specific micro-level elements of the university will be shaped by law and society in ways that change the types of knowledge that is produced and distributed, where and how it is distributed, and the pace of knowledge-sustaining activities. Universities are not without resources themselves, of course, in these processes. Going forward, it is important to bear in mind that commons can be durable, but they are also delicate and the subject and object of evolutionary processes.

In his famous and controversial 1968 article “The Tragedy of the Commons” (162 Science 1243 (1968)) Garrett Hardin described a dilemma in which multiple individuals acting independently in their own self-interest can ultimately destroy a shared resource even where it is clear that it is not in anyone’s long term interest for this to happen. This was written in the context of population control, but the basic case is far more general. Madison is alive both to the role intellectual property rights can play as a solution to this tragedy in the cultural and university contexts, and to the costs associated with this solution. This is a topic which will be much in discussion at a forthcoming conference which I am planning to attend. Organised by the Swan Group, it is entitled:

Ireland’s Knowledge Economy in the 21st Century: Educational Perspectives.

It will be held in the (gorgeous) Edward Worth Library Dublin on the 8 October 2008. If you are interested, apply for an invitation here. According to the website:

The main objective of this conference is to present the preliminary findings of the research group regarding their exploration of the possible long term effects of the current educational policy employed in Ireland and to compare these effects to other educational systems internationally.

Following the presentation of the preliminary findings of the research group in the morning, there will be a series of brief presentations by a variety of domestic and international policymakers and researchers and other opinion and policy-makers providing a synopsis of their views.

After these presentations, the conference will end with a round-table event where domestic and international guests will discuss matters of education policy and economic growth with the research group in light of their current findings.