A desert watering hole attracts all kinds, with many predators foregoing easy meals in exchange for the water’s precious benefits. Arguably, sharing the water provides a net benefit to the community well beyond each party’s individual costs. Taking a lesson from nature, innovators are increasingly sharing their knowledge rather excluding others from their advancements. Resource sharing in the natural environment is known as a commons. Drawing from this nomenclature, a commons in the cultural environment is referred to as a knowledge commons.[1]

Wikipedia is one example of a tremendously successful knowledge commons. Not only do members continually and voluntarily contribute to the website, but the community also monitors those contributions. The result is a self-governed knowledge commons. Why Wikipedia functions so well and other knowledge commons have failed has fascinated a growing body of researchers.[2] Professor Strandburg, New York University School of Law’s Alfred B. Engelberg Professor of Law, has directed her research towards identifying the factors underlying the success of knowledge commons to better inform policy decisions regarding their governance. If policy-makers have a better understanding of what motivates innovators to contribute to these knowledge commons, they can create a legal framework that maximizes innovative and creative production, ultimately benefiting society as a whole.

While comparisons to natural environment commons have been useful in establishing a preliminary framework for understanding how knowledge commons work, the relationships between parties in knowledge commons has posed unforeseen complexities. In her new book, Governing Knowledge Commons, Professor Strandburg discusses the example of rare disease clinical research networks, such as the Ureal Cycle Disorder Consortium. The research network brings together patients suffering from the rare disease with physicians who study the disease. The physicians aim to create treatments and share their advancements within the community while the patients function as a sort of pooled resource. But unlike water at a watering hole, the patients are also active contributors in the knowledge commons: through their feedback they can drive the direction of physicians’ contributions to the network. So any governance of such a knowledge commons must take into account both the resource and the creator’s motivations.

The factors underlying a successful knowledge commons may vary across fields. Such variance has posed substantial challenges to academics in search of unifying principles, but researchers have made progress identifying the types of atmospheres where knowledge commons tend to arise. Professor Strandburg believes communities choosing knowledge commons over other forms of intellectual property protection tend to be not entirely competitive and have shared benefits from resource pooling. Because of the heavy costs associated with sharing information in overly competitive environments, such environments impede the creation of knowledge commons, while environments where contributors receive benefits from each other’s information tend to experience knowledge commons.

These two factors don’t always align, and for Professor Strandburg this creates an interesting milieu for determining what factors underlie innovation framework selection. Why is intellectual property protection not selected? How did the community overcome costs associated with competition? Scientific research provides an interesting example to answer these questions. Researchers are internally competitive. Their scientific advancements directly correlate to their career success, future jobs, and grant funding. However, sharing information results in benefits that could not be obtained if researchers only operated independently. Professor Strandburg hypothesizes that reputational benefits accompanying the information sharing may overcome the competitive costs in some circumstances. Identifying the reputational benefits that push the community’s cost-benefit analysis towards knowledge commons is crucial to creating a productive governance scheme. But reputational benefits alone may not do the trick. To ensure continued participation, there must be a way to monetize the associated benefits. Whereas academic researchers’ reputational benefits are essentially “cashed-out” through salary benefits and job opportunities, according to Professor Strandburg purely recreational pursuits may experience difficulty maintaining contributions to a knowledge commons.

If governing bodies can pinpoint the factors affecting the cost-benefit analysis in innovation schemes, they can better sculpt those factors and affect innovators’ decisions. Government adjustment of competition’s boundaries can be seen in recent Supreme Court decisions regarding patent eligible subject matter under 35 U.S.C. § 101, such as Alice and Myriad. By limiting those fields which are covered under patent law, the Court forces those fields to seek out alternative innovation schemes.

Researchers have made significant strides in understanding how and when knowledge commons work, and the the knowledge commons research community has grown substantially in the last six years alone. New York University Engelberg Center on Innovation Law and Policy’s annual Conference on Knowledge Commons is in its second year, and the long standing Open and User Innovation Conference has seen more attention to governance issues. As more individuals focus their studies on understanding the complexities of knowledge commons, we’ll increase our understanding of the unifying principles. Ultimately, researchers hope that those unifying principles will allow policy-makers to increase informational and creative contributions so that society as a whole may better slake its thirst for knowledge.

Margaret Diamond is a J.D. candidate, ’16, at the NYU School of Law.

[1] Michael J. Madison, Brett M. Frischmann & Katherine J. Strandburg, Constructing Commons in the Cultural Environment, 95 Cornell L. Rev. 657 (2010).

[2] Brett M. Frischmann, Michael J. Madison, Katherine J. Strandburg, Governing Knowledge Commons Introduction (Brett M. Frishchmann et al. eds., 2014).