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The Political Economy of Commons
by Yochai Benkler (US)

Yochai Benkler, Professor of Law at Yale Law School on the need to build a core common infrastructure.

A Core Common Infrastructure

In order to capture the benefits of freedom and innovation that the networked information economy makes possible, we must build a core common infrastructure alongside the proprietary infrastructure. Such a common infrastructure will stretch from the very physical layer of the information environment to its logical and content layers. It must be extended so that any person has some cluster of resources of first and last resort that will enable that person to make and communicate information, knowledge, and culture to anyone else. Not all communications and information production facilities need to be open. But there must be some portion of each layer that anyone can use without asking permission from anyone else. This is necessary so that there is always some avenue open for any person or group to articulate, encode, and transmit whatever he, she, or they want to communicate – no matter how fringe or unmarketable it may be.

The primary strategies for building the core common infrastructure are:
• An open physical layer should be built through the introduction of open wireless networks, or a spectrum commons.
• An open logical layer should be facilitated through a systematic policy preference for open over close protocols and standards, and support for free software platforms that no person or firm can unilaterally control. More important are the reversal or refusal to adopt coercive measures that prefer proprietary to open systems. These include patents on software platforms, and the emerging cluster of paracopyright mechanisms like the United States’ Digital Millennium Copyright Act2 , intended to preserve the industrial business models of Hollywood and the recording industries by closing the logical layer of the Internet.
• An open content layer. Not all content must be open, but intellectual property rights have gone wildly out of control in the past decade, expanding in scope and force like never before. There is a pressing need to roll back some of the rules that are intended to support the twentieth century business models. These laws were passed in response to heavy lobbying by incumbents, and ignored the enormous potential for non market production and decentralized individual production to become central, rather than peripheral, components of our information environment.
• Reforming organizational and institutional structures that resist widely distributed production systems.
- The earliest large-scale successful model has been free software, with its informal social networks girded by the formal institutional framework of copyleft and open source licensing.
- In science, we are seeing the early emergence of efforts by scientists to release science from the old industrial publication model. The Public Library of Science and the Budapest Open Access Initiative are the first primary efforts in this direction. They promise to provide a framework in which scientists – who already do the science, review the papers, and edit the journals more-or-less for free – can manage their own publication systems without relying on the large commercial publishers.
- In publication more generally, the emergence of the Creative Commons is an enormously important facilitating institutional framework.
- In informal personal communications, blogspace is emerging as an interesting social space for free, independent, and widely distributed information production.
- In each case, the particular characteristics of the type of information, the institutional barriers of incumbency, and the social patterns of use are somewhat different. In each case, the solutions may be somewhat different. But in all cases we are seeing the emergence of social and institutional structures that allow individuals and groups to produce information free of the constraints imposed by the need to sell information as goods in a property-based market.

We stand at a moment of great opportunity and of a challenge to our capacity to make policy that puts human beings at the centre of the networked information society. Digital networks offer us the opportunity to enhance our productivity and growth while simultaneously improving our democracy and increasing individual freedom. These benefits come at the expense, however, of incumbents who have adapted well to the industrial model of information production, and are finding it difficult to adapt to the networked information economy that would replace it. These incumbents are pushing and pulling law, technology, and markets to shape the coming century in the image of the one that passed. It would be tragic if they were to succeed.

Building a core common infrastructure is a necessary precondition to allow us to transition away from a society of passive consumers buying what a small number of commercial producers are selling. It will allows us to develop into society in which all can speak to all, and in which anyone can become an active participant in political, social, and cultural discourse.

This article is an excerpt.
© 2003 by Yochai Benkler. This Work is licensed under the Public Library of Science Open Access License, and the Creative Commons Attribution License. The Political Economy of Commons first appeared in UPGRADE Vol. IV, No. 3, June 2003.

Yochai Benkler benklery@juris.law.nyu.edu is Professor of Law at Yale Law School (US). His research mainly focuses on the effect of the interaction of law, technology and economic structures on the organization of information production and exchange.

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