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RRPXXX10.1177/0486613415586990Review of Radical Political EconomicsDolcerocca and Coriat

Article
Review of Radical Political Economics
2016, Vol. 48(1) 127­–139
Commons and the Public © 2015 Union for Radical
Political Economics
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a Tentative Research Agenda DOI: 10.1177/0486613415586990
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Antoine Dolcerocca1,2 and Benjamin Coriat1

Abstract
This article critically examines the concepts of the commons and the public domain as developed
in the literature on law and economics, and in the legal literature on intellectual property. It aims
to accomplish two things: reviewing the literature laying out diverse meanings associated with
these terms and reintroducing them into radical political economy. The study of the commons
and the public domain have long been neglected in the area of radical political economy, and the
way these concepts have been developed in the literature reviewed is only marginally relevant
to problems and methods of political economy. This article argues for a reassessment and
redefinition of the commons and the public domain from the standpoint of radical political
economy, and proposes a research agenda for the commons.

JEL classification: B50, K11, P13, P14, P16

Keywords
commons, public domain, tangible property, intellectual property

This paper aims to review and clarify two concepts, the commons and the public domain, that are
commonly conceptualized either as alternatives to exclusive property rights, or as the opposites
of property. Given the ways in which the commons and the public domain are conflated in studies
on intellectual property, this paper addresses the question of how the commons is to be under-
stood in relation to the public domain. It consists of a literature review laying out the diverse
meanings associated with the commons on the one hand, and the public domain, on the other.
With increasing interest in the idea of commons, the public domain emerges as an alternative
term. What these two concepts exactly refer to and the ways in which they are related, however,
still remain to be clarified. This article will address the following issues related to these two terms
and their significance.

1CEPN, Université Paris 13, Sorbonne Paris Cité, France

2Department of Sociology, Binghamton University, Binghamton, NY, USA

Date received: February 5, 2014

Date accepted: December 4, 2014

Corresponding Author:
Antoine Dolcerocca, Department of Sociology, Binghamton University, Binghamton, NY 13902, USA.
Email: antoine.dolcerocca@gmail.com
128 Review of Radical Political Economics 48(1)

i) The notion of “commons,” even within a single discipline, does not have a unanimous
definition and refers to a variety of property regimes, which poses significant problems
for scientific inquiry. One main contradiction within the literature is the use of “com-
mons” (or sometimes public domain) to refer to the resource itself and the property
regime governing that resource. Although this difference seems conspicuous, it is seldom
explicitly pronounced in the literature; “commons” or public domain can refer either to a
resource or a property regime, which have divergent implications. Since we argue for an
exploration of the commons from the perspective of radical political economy that
focuses on equitable access to resources and to the products of labor, this necessitates
examining the notion of commons (or public domain) as property regime, not merely as
resource or “pool of resource.” In the literature on law and economics, focused on the
tangible commons, the commons refers mainly to community-based property relations.
ii) “Public domain,” a concept scholars in the United States have been using only recently,
is generally limited to intellectual property issues, and it then refers to the sphere com-
prised of works that are free of any intellectual property protection (Benkler 1999). One
often defines it as a sort of particular “commons.”

The commonly articulated difference between the two concepts is that of scale; while the usual
notion of commons (typically in the works of E. Ostrom and of the Bloomington school) is associ-
ated with small, community-based property arrangements, the scale of the public domain covers
much larger sites, generally entire countries, and possibly the whole globe. There is, however,
another fundamental difference that has been overlooked: the very nature of the property regime
each of these two terms entails. The concept of commons as property regime is exclusive, as it leaves
out a part of the population or limits certain use and access rights. The public domain, on the other
hand, is inclusive; its very definition is predicated on the fact that it is devoid of restrictions in use or
access rights. The question of access is therefore central to our exploration of these concepts.1
Definitions of the commons and the public domain both vary along with the interest of the
scholar; while the term commons puts the emphasis on the question of who has access to the use
resource and who controls it (using which legal resources: rules, norms, conventions…), the
public domain poses the question of the very existence of users’ rights since there is in general no
real enforcement of the rights of the users. Moreover these rights, even when specified, are often
in danger of being violated by people “invading” the public domain since this property regime
(or regime of absence of property, in that sense very close to the idea of “open access” regimes)
often denotes an absence of regulations. We argue that this crucial difference between the com-
mons and the public domain should be taken into account and emphasized, because these two
notions correspond to different societal projects. Identifying and clarifying the divergent projects
underlying these notions would facilitate discussion among scholars and among disciplines.
The literature review will proceed in three main parts. Part 1 focuses on the commons; after
examining the concept of physical (or “natural resource based”) commons as defined by the lit-
erature on law and economics (1.1), we will turn to the treatment of the commons by the legal
literature on intellectual property (1.2), which developed somewhat later and, until recently, had
been isolated from the law and economic literature. Next, we will study the concept of the public
domain (2), which has received much attention in the literature on intellectual property, and com-
pare it to the concepts of res nullius and open access, with which public domain is often con-
flated. In conclusion, we propose an alternative definition of these concepts in a way that will
render them analytically relevant to radical political economy (3).

1However, as a crucial nuance to this distinction, the term commons is also, and maybe mostly, used in a
much broader sense, whereby it refers to everything that collectively belongs to humanity (global commons,
commons of the mind, etc.).
Dolcerocca and Coriat 129

1. The Commons: Pool of Resources or Resource System?

It is important to point out that the notion of “commons” does not have a unanimous definition
and it might refer to very different types of property arrangements, even within a single disci-
pline. Thus, “the commons” may refer, for instance, to physical communal land shared for graz-
ing, or —sometimes in the same article— to the property regime that regulates access, withdrawal,
and others rights to that land. This confusion considerably hinders any attempt at coming to a
common understanding of the term. E. Ostrom devotes a long development to this issue in
Governing the Commons, in which she underlines the difference between the category of “com-
mon-pool resources,” i.e. the resource itself, and the “commons” defined as the property regime
that regulates the resource outside of the public/private property binary (Ostrom 1990). Later on,
in their seminal paper (Schlager and Ostrom 1992) they establish an even more precise definition
of the commons, whereby it necessitates the combined presence of i) a resource (tangible or not),
ii) a “bundle of rights” distributed among the various commoners that benefit from the resource,
and iii) a mode of governance between commoners allowing a management of conflicts and the
sustainability of the resource over the long term (Coriat 2012).
Today, the concept of commons is absent or marginal in most Western legal systems.2 As
Boyle suggests, the enclosure of the commons happened in parallel with a process of legal denial
of its existence (Boyle 2008). In most cases the law is organized around a public/private dichot-
omy that leaves no space for property regimes other than state property or exclusive private
property. But it has to be noted that although mostly absent in legal systems, the commons are
still part of social and economic practices. There are still a few remaining commons in the West
and much more so in the Global South, where traditional collective landed property regimes are
maintained through conventions and customary law. These communal landed property regimes
have caught the interest of “law and economics” scholars, while intellectual property scholars,
usually lawyers, started examining the idea of the commons with the emergence of digital com-
munal intellectual property regimes in software.

1.1. The commons in the literature on law and economics: Tangible common-
pool resources and property systems
Garrett Hardin’s seminal article on the “tragedy of the commons” has triggered interest within
law and economics circles since its publication. Hardin argues that common property regimes
(which he initially conflates with open access regimes), such as common pastures, were bound to
fail due to overharvesting and eventually the depletion of the resource. Relying on the free rider
argument, he claimed that each commoner would try to benefit as much as possible from the
resource without any concern for its sustainability (Hardin 1968). Many empirical studies, how-
ever, have argued otherwise and have shown that, if resources in open access do tend to become
depleted due to overharvest, there are numerous cases of thriving communal property arrange-
ments in which commoners can live off the resource while ensuring its reproduction (Rose 1986;
Ostrom 1990; Ellickson 1994). What Hardin initially missed is the distinction between “open
access” and “shared access” organized by communities of users. In this latter case “shared
access” is generally organized around conventions and rules. Hence, as some scholars argued,
“common property is not no property.” Moreover, as it has been demonstrated by numerous case

2In the Global South there is a substantial difference between practices on the ground, often influenced
by traditional customary law in the country, and a Western inspired (if not imposed) legal system that
negates the existence of common property. A minority of countries does try to integrate a traditional prop-
erty arrangement within modern law but the heavy tendency is that of land grabs and dispossession of peas-
ants deprived of property titles.
130 Review of Radical Political Economics 48(1)

studies, under the right conditions commoners seem to have as much a sense of ownership and
responsibility toward the resource they exploit as if they were its sole owner.3
Implicit in Hardin’s argument is the question of the presumed positive correlation between
private property and incentive (to invest, to protect, to sustain, to harvest), developed by the
property rights approach more or less at the same time as Hardin’s paper (Demsetz 1967). Its
central hypothesis is that property rights foster simultaneously a certain structure of motivations
and of power, which both allow for an optimal use of resources. This approach depends on the
same premises as mainstream neoclassical theory: homogenous individuals make transactions as
a result of rational decisions. According to this property rights approach, resource scarcity neces-
sitates a clear understanding of each individual’s realm, and therefore property rights are both the
result and condition for an efficient allocation of scarce resources among trading individuals.
For a thorough analysis of the literature on the commons, it is important to mention a few
central distinctions Elinor Ostrom makes in her analysis of the concept. She critiques Hardin’s
argument and claims that “common property” and “common access” are two different property
regimes: common property, although it is shared property, functions like private property for the
outsider; if you are not part of that property arrangement, you cannot access the protected resource
(Ostrom 1990). Second, Ostrom underlines the difference between the nature of the resource and
the property regime; in fact, the nature of the resource does not predetermine the ways in which
that resource is managed. As such, identical resources may be (and in fact are) managed under
different property regimes (common property, state property, open access, etc.) (Ostrom 1990).
Finally, Ostrom maintains the distinction between resource system and resource unit. In other
words, while the commons is often presented as encompassing both, it is necessary to distinguish
between the resource that is being exploited and the institutional arrangement that regulates this
exploitation. Besides, she argues, this distinction is also useful for a “good governance” of the
commons in which individuals will have an incentive to invest in the exploitation of the resource
as well as an incentive to ensure a sustainable use of the resource. In the case of a fishery, for
example, in which the resource system is a lake with abundant fish stocks, while resource units
are fish, Ostrom claims that an ownership based on resource units is more efficient than an own-
ership based on resource system. Instead of assigning each fisherman an exclusive area of the
lake for him to fish, by dividing the entire lake into given areas each fisherman is allowed a quota
as percentage of the estimated harvest over the year. The quota system, therefore, allows for
much more sustainable exploitation of the resource. By redefining the quotas each year in accor-
dance with the evolution of the density of fish and species, this system protects efficiently the
resource in the long run (Ostrom 1990).
The typical commons studied by Ostrom is a resource system of a particular type and is based
on what she calls common-pool resources, i.e. goods that are both non-excludable and rivalrous
(as shown in Table 1). Common-pool resources can potentially be administered under any type
of property regimes, but Ostrom contends that common property is especially efficient in pre-
serving and exploiting such resources (Ostrom 1990).
As mentioned above, in 1992 (two years after Governing the Commons) Ostrom gave new and
more solid ground to her theory of commons. In a co-authored article she “imports” into the theory
of commons the concept of “bundle of rights” that had a long tradition in legal studies (Schlager and
Ostrom 1992). The new understanding of the commons resting upon the American legal doctrine of
property, conceptualized under this idea of “bundle of rights,”4 is significantly different from the
European idea, which is predicated on the right to exclude others. In contrast to an absolute right to

3Such claim could very well be acknowledged within a game theory framework, especially if we consider
games in which players communicate with one another.
4For a detailed presentation of the meaning of the incorporation of the concept of property as bundle of

rights in Ostrom’s theory, see Orsi (2013).

Dolcerocca and Coriat 131

Table 1. Properties of Common-pool Resources and Other Types of Goods (Ostrom 1990).

SUBTRACTABILITY

Low High
EXCLUSION Difficult Public Goods Common-Pool
Sunset Resources
Common Knowledge Irrigation Systems
Libraries
Easy Roll or Club Goods Private Goods
Day-Care Centers Doughnuts
Country Clubs Personal Computers

exclude, the bundle of rights doctrine theorizes property as an ensemble of juxtaposed rights, which
determine different categories of ownership rights and owners (Orsi 2013). In their 1992 paper
Schlager and Ostrom thus identify five main rights that help us understand institutional arrange-
ment for collective property: right of access, right of withdrawal, right of management, right of
exclusion, and right of alienation. Commoners possess different rights, and as such occupy a range
of different positions in the hierarchy of the commons, from “authorized user” (or simple com-
moner) to claimant, and from proprietor up to the owner (Schlager and Ostrom 1992).
Let us however note that the literature in law and economics as a whole, whether it argues in
favor or against the commons, remains entrapped within the mainstream economics notion of
efficiency. The question these authors (Rose 2003; Ostrom 1990; etc.) center their arguments on
is whether private property or the commons is the most efficient way to manage a common-pool
resource. Hardin concludes that private property is by far more efficient, while Ostrom contends
that the commons can be more efficient under the right conditions. Both authors, however, agree
on the ambiguous and ideologically charged principle of “efficiency” as the proper measurement
of the desirability of a property regime.

1.2. Intangible/intellectual commons in law and economics, and the legal

literature on intellectual property
Law and economics scholars have been conducting studies on the physical commons since the
1970s. In discussion of intellectual property, the notions of commons appeared somewhat later
and developed independently from that of physical commons examined in law and economics.
Despite the attempt at bringing together physical and intellectual commons at the Duke confer-
ence on the public domain in 2003, there still remains a discrepancy in the concept of commons
as applied to these two different areas and literatures. This partly stems from the radically differ-
ent properties of tangible and intangible goods. Tangible resources, such as land, are rivalrous (or
subtractable), which means that the amount of the resource one user withdraws is lost to other
users. Knowledge, as intangible resource on the other hand, not only is non-rivalrous (like other
intangible resources) but it even has additive features, whereby the amount of knowledge (or
information) contained in the pool will grow as commoners who “extract” knowledge deposit
their newly found knowledge in return (Coriat 2013).

1.2.1 Intellectual commons as resource

The commons is a popular concept in intellectual property literature, even more so than the pub-
lic domain because “commons” allows us to create more practical and immediate solutions to
132 Review of Radical Political Economics 48(1)

make culture, knowledge, information, etc. more accessible to people than the current regime
permits. Before focusing on the idea of commons as an alternative way to exploit and share
knowledge, which we will explore in the next section, it is important to discuss the most immedi-
ate understanding of the commons as the collection of intellectual property free material in a
given country (i.e. under a defined intellectual property regime). This section explores this idea
of the commons as intellectual resource units made freely accessible by specific institutional
arrangements. In this perspective, the commons is constituted of all intellectual work that is not
protected by intellectual property. Hence, the very contours of the commons change depending
on the country and its current intellectual property regulations (Samuelson 2003).
In parallel to the occasionally idealized pre-capitalist arable commons, the intellectual com-
mons also has a nostalgic idealization of a pre-intellectual property rights world, similar to eigh-
teenth century European or American intellectual and cultural circles.5 Others situate the golden
age in 1800s America, right after the adoption of the first copyright regulations. Lessig, for
example, describes this period as characterized by the existence of an intellectual commons, a
large pool of freely accessible knowledge. In order to be protected by copyright, the author was
obliged to register her work, which was an uncommon practice. This regulation, as a result, left
the largest part of intellectual production copyright-free:

You could take a book and write an abridgement without any regulation of copyright law. You could
translate the book without any regulation of copyright law. You could take the book and turn it into a
play without any regulation of copyright law. You could physically write out every word in that book
and give it to your friends without any regulation of copyright law. The culture was free in a sense
that is increasingly being demanded in debates about culture today. (Lessig 2003)

Given current copyright regulations, according to which most works are being copyrighted by
default, “as soon as the ink dries,” whether the author wants it or not, it is difficult to picture a
return to the state of “creative commons” that characterized nineteenth century America. For
Lessig, although the copyright system allows for the emergence of a creative commons, by
breaking the monopoly of publishers and allowing a clear identification of the author today’s
copyright system has the opposite effect. It encloses the knowledge and renders it inaccessible.
Originally, in the nineteenth century, the monopoly granted to the author was meant to last only
for a limited period of time (14 years in the United States), after which the work would fall into
the public domain and would be free for others to use, copy, and distribute. However, with the
constant, retroactive lengthening of copyright protection since then (70 years after the death of
the author in the United States, under current legislation), the public domain today is increasingly
being enclosed and privatized, instead of expanding (Samuelson 2003).
Such definition of the commons as “a public domain of knowledge that anyone can use at will
for one’s own intellectual project” is shared by a large part of intellectual property scholars
(Litman 1990; Samuelson 2003; Lessig 2003). In his book The Public Domain, Boyle differenti-
ates between the public domain and the commons, and maintains that the first difference between
these two concepts is that of scale: the public domain is usually understood as encompassing a
whole society, while the commons denotes resources under the control of a particular group.
Boyle, however, is only interested in large commons. Significantly, he states that “it is a com-
mons only if the whole society has access,” which brings the idea of commons closer to that of
the public domain. The only remaining difference, therefore, is the level of restriction in access
and use. While the public domain has no restrictions, the commons is characterized by a set of
rules (Boyle 2003b).

5The situation before copyrights was not always as idyllic as imagined. Publishers could have perpetual
rights on copying and reprinting, hence rendering the circulation of books sometimes complicated.
Dolcerocca and Coriat 133

1.2.2 Intellectual commons as resource system and property regime

One major breakthrough in understanding the intellectual commons came with Ostrom and Hess,
who adapted E. Ostrom’s analysis of the physical commons to the knowledge commons (Hess
and Ostrom 2003). They transpose the essential distinction between “resource system” and
“resource unit” (or resource) into the intellectual realm. Instead of a distinction between resource
system and resource unit, they devise a distinction between ideas, artifacts, and facilities: ideas
are comprised of the now classical trinity data-information-knowledge; artifacts are the expres-
sion of these ideas, as book, song, academic article, etc.; and facilities are the place where these
are stored and accessible, such as libraries, online journals, and websites. This distinction in the
process of production and distribution of knowledge allows us to understand the way in which
different property regimes have different consequences on access to knowledge. The intellectual
commons as property regime and resource system vary, depending on the mode of articulation
between these three poles.
While Hess and Ostrom provide theoretical insight in the intellectual commons as resource
system and in the way knowledge is produced, there are at least two remarkable initiatives that
propose knowledge production systems based on commons. The first one is the “creative com-
mons” project, a well-known initiative that aims to rebuild an intellectual commons. This initia-
tive created in 2001 is an attempt at expanding the success of the free software GNU General
Public License to potentially every other copyrighted material, such as music, books, and schol-
arly articles. The creative commons goal has been to release different models of “creative com-
mons licenses” that authors and creators can use in place of standard copyrights. Each license
details the rights the author wants to keep over her creation and/or is willing to give up, effec-
tively replacing the nationally enforced copyrights terms with more flexible rules. These licenses
are simple and they propose only six variations of “free culture” licenses. One can choose to
allow (or not): commercial use of the licensed work; copies of the work; alterations of the work;
alterations only under the condition that the derivate work be shared in turn under the same
license. Essentially, creative commons licenses allow creators to replace the default “all rights
reserved” license with a “some rights reserved” license. A recurrent criticism on this system is
that creative commons licenses, although they render cultural works more accessible, are still
copyright licenses. A key difference however lies in the fact that while copyright licenses are
designed to “exclude” everyone but the owner of the right(s), creative commons licenses are
designed to “include” (at different level and degrees) a community of users.
Another initiative of the intellectual commons as property regime is that of the open access
movement. The movement started with the growing availability of internet access in the 1990s
and growing discontent over academic journals’ prices. Scholars, in physics especially, therefore
began to self-archive their findings on the internet and make them available to all for free, which
had the objective to facilitate access to knowledge and therefore enhance scientific research.
However, the idea of open access, which corresponds to the Roman legal category of res nullius,
“thing belonging to no one,” generally has a negative connotation among economists or property
rights lawyers. Once applied to landed property, or to physical resources in general, an open
access regime is likely to result in resource depletion due to overharvesting. The open access
movement contends that access to knowledge should be entirely unrestricted: unlike physical
resources characterized by “high subtractability,” intangible resources, and knowledge in par-
ticular, have additive features. Hence, the potentially dire consequences of open access for physi-
cal resources brought up by Hardin do not transfer to intellectual property. As Peter Suber
suggests, the withdrawal of copyrights is a necessary, albeit insufficient, step toward the recon-
struction of the knowledge commons (Suber 2012). In fact, even copyright-free content can be
difficult to access due to technical reasons, for instance if the content is available only in print in
certain locations, or if the content is copyright free and digitalized but access requires a fee.
Therefore, open access proposes the construction of the commons of the public domain in order
134 Review of Radical Political Economics 48(1)

to overcome this problem of access. The main principle of this endeavor is to shift the burden of
costs linked to digitalization, editing, peer review, servers’ maintenance, etc. from the user to the
author, from an access fee system to a publishing fee system. An ideal field-candidate for such an
endeavor is that of academic knowledge, which has demonstrated successful experiments with
open access online journals.

2. The Public Domain

While “commons” is a term used both for physical and intellectual property, “public domain,” in
the American context, is specific to intellectual property discussions. Unlike the commons, it
refers to resources or systems of resources that span a whole state, if not the whole world. This
section explores some definitions of the public domain and the way in which it relates to the com-
mons. It appears that the public domain, due to its very nature and definition, does not refer
(unlike the commons) both to a pool of resources and a system of governance. The public domain
instead only refers to copyright-free intellectual resources.
The public domain, a concept scholars in the United States have been using only recently, is usu-
ally limited to intellectual property issues,6 and it refers to the sphere comprised of works that are free
of any intellectual property protection. One finds it often equated with “the commons” in a broader
sense. David Lange has reintroduced the term the public domain to the North American context.7 He
was the first to acknowledge that any expansion of copyrights coverage corresponds to an equal
retreat of the public domain or vice versa, which happens less frequently. In intellectual property
discussions, the public domain designates all works whose use and access are unrestricted in theory,
i.e. leaving aside issues of access related to ancient out-of-print editions such as orphan works.
Some authors seem to consider the public domain as the “trash can” of intellectual history, that
is the space containing all intellectual work that does not deserve to be protected because of its
poor quality (Kaplan 1967). Others have a broader and somewhat different understanding of it,
and consider it as a pool containing potentially valuable works.8 As today most intellectual pro-
duction is copyrighted by default, intellectual works fall into the public domain only when the
intellectual monopoly expires and this occurs regardless of their deemed esthetic or intellectual
worth. The public domain, therefore, rather than being a pool of low quality work, is the collec-
tion of knowledge humanity previously produced and accessible to all, once the initial monopoly
expires. This means that property rights are predicated upon the idea of the public domain. They
are two sides of the same coin. Delays vary widely among countries, and depending on the form
of protection, e.g. copyright, patent, or trademark. There is, however, a strong trend to prolong
the monopoly period in most countries.
In his article arguing for the rebirth of the public domain in intellectual property, Lange expresses
concerns that copyrights – protection on works of art, literary production, etc. – reduced the scope
of the public domain (Lange 1981). The diminution of the public domain occurs through the seem-
ingly ever-expanding reach of intellectual property rights, both in time – with longer periods of
monopoly rights – and in reach – with new patentable and copyrightable areas being approved by
courts and laws. It was published during a vast lobbying campaign by U.S. and European pharma-
ceutical, information technology, and entertainment companies, which, in the following two

6Public domain in different contexts can also refer to rights associated with tangible resources. In France, for
example, domaine public refers to coastal areas, which cannot be privately appropriated and whose access
cannot be restricted.
7While we will limit analysis to the Anglo-Saxon understanding of public domain, it would be interesting

to discuss the variety of its meanings in Europe, and most notably in France, where it can more or less be
equated with state or public property.
8Apart from older works, deemed of esthetic or intellectual value or not, some other intellectual productions

fall in the public domain immediately; in the United States, for example, the public domain includes all
laws, even the most recent ones.
Dolcerocca and Coriat 135

decades, would lead to an unprecedented strengthening of intellectual property protection in inter-

national and national law, and bilateral trade agreements in most countries of the world.9
Since the reappearance of the notion of public domain in the American context, the discussion is
strictly confined to intellectual property, and particularly to copyrights, leaving aside issues related
to patents (industrial/technical knowledge) and trademarks (brand names). Jessica Litman in her
article “The Public Domain” defines it as a commons that includes those aspects of copyrighted
works which copyright does not protect (Litman 1990). She criticizes the notion of authorship as
currently conceptualized, and its hegemonic idea of the “romantic author,” according to which artis-
tic creations spring solely from the creativity of the artist, if not from her very soul. This concept that
helped justify the implementation of the copyright system in England with the 1710 Statute of Anne
is still used today to limit the public domain. It contradicts millennia of accumulated knowledge and
artistic influences. Originality is a necessary fiction that justifies the copyright system.
On the question of the limits of public domain Boyle points to the ambiguity of the term and
the multiplicity of its usage (Boyle 2003a). For a synthesis of the meanings of public domain in
the American context, we contend that the public domain may vary in reach along two axes:
content and access. On content, all definitions of the public domain agree that it includes all intel-
lectual productions free of intellectual monopolies. However, as Boyle argues, the scope of the
public domain varies substantially depending on what we decide to include in it. If one under-
stands the public domain as composed solely of works that are entirely free of IPRs, this is a
rather limited definition; it excludes the greater part of twentieth century intellectual production.
We may, however, reach a broader definition of the public domain by including works that are
only partially covered by intellectual property rights, i.e. works concerned with the fair use doc-
trine and works released under the creative commons license.
In addition to Boyle’s argument on content, the limits of the public domain are also defined by
access. Does the public domain include all works formally accessible? Or is it restricted to works
that are actually accessible? For example, is a sixteenth century literary text, which is free of copy-
right in any country of the world as of today’s legislation, and which has only a few copies owned
by private collections, part of the public domain? These questions still remain open and these
questions of access, rather than content, have a potential to change the reach of the public domain.
Some scholars make use of alternative terms to the public domain such as res nullius (Rose
2003; Berry 2008) and open access (Suber 2012), which are synonyms with regards to physical
property. The term res nullius in Roman law refers to something that belongs to no one and can
potentially be appropriated by a private party. Res nullius therefore fits well with what used to be
called the open range, i.e. unowned10 lands of the American West, which could be claimed by any
settler willing to settle on it. This does not provide an accurate analogy with the public domain in
intellectual property; although unprotected knowledge from the public domain has been privately
appropriated (whether it is indigenous medicinal knowledge, 20th century literary works sucked
into the vortex of retroactively extended copyrights, or what was once thought of as knowledge
situated outside of the patentable area such as genes or living organisms), this is not comparable
to the open range. As for open access, the use of the term to refer to the public domain in general
is inaccurate because open access is in fact a particular type of commons regulating the public
domain; for knowledge to be in open access, there has to be a system of regulation, such as dis-
cussed by Suber. Therefore, we argue that neither res nullius nor open access, sometimes encoun-
tered as synonyms of the public domain, are accurate terms.
To summarize one can say that legal scholars, law and economics scholars, or intellectuals
associated with the free software or free culture movements have constituted the bulk of studies
on the commons and the public domain. Some Marxian or heterodox economists have exten-
sively studied intellectual property as regards to the impact of stronger intellectual property
9For a detailed account of the rise of the current global IP regime via the TRIPs agreement, and TRIPs+
regulations, see Sell (2003).
10Actually possessed and used by Native Americans in most cases.
136 Review of Radical Political Economics 48(1)

rights on economic activity (innovation, profit rate by branch or general profit rate, its relation to
financialization, etc.). However, the questions related to the commons and the public domain still
remain captured within codified and contextualized debates.11
In light of the discussion of the commons and the public domain we have conducted, we need
to explore in greater depths the ways in which these concepts can be used as alternative tools to
private exclusive property, hence opening new perspective for action. In that regard, the ideas of
the commons and the public domain have long been neglected. A lot remains to be done to reach
an agreement on more precise and complete definitions from the point of view of political econ-
omy and at the same time to better understand how these concepts can be useful in revolution-
izing the way we understand property both in theory and in practice.

3. Conclusions: Towards a Renewed Research Agenda

This paper has reviewed the concepts of the commons and the public domain in law and econom-
ics and in the literature on intellectual property, both of which are dominated by lawyers or
economists. Economists are too often inspired by neoclassical economic theory and view private
property, if not as an Eldorado that should be implemented everywhere and in all sectors of the
economy, as the condition to secure economic “efficiency.” Lawyers, on the other hand, despite
their commitment to the defense of economic practices “outside of private property,” are too
often locked within standard legal paradigms. This limitation renders even their elaborate legal
definitions of the public domain and the commons impractical or irrelevant within the framework
of economic analyses. Therefore, a series of questions are still on the agenda if one wishes to find
satisfactory theoretical definitions and useful practical solutions to the limitations that exclusive
private property erects everywhere.
Our investigation (even if preliminary) shows that the studies conducted from law and economics
and intellectual property perspectives are detailed and helpful in understanding these concepts, but
they stay embedded in visions prioritizing an economic framework built around the notions of “effi-
ciency” envisaged in market-based economies. We contend that both the common and the public
domain are crucial in the study of equitable distribution of resources and they need to be recontextu-
alized within the framework of a renewed research agenda centered on these two concepts.
In order to reach that goal, we will expose some of what we consider are the burning issues
related to the public domain and the common for political economy, namely: the public domain
and inequality of access; the intellectual commons and patents; lastly and most crucially, the scope
of the tangible commons and the question of property arrangement in processes of production.
Let us first consider the notion of public domain, whose definition is not as contested as that of
the commons and is generally agreed upon, even between different disciplines. The public domain
thus refers to unprotected intellectual resources, and not to a property regime or any other institu-
tional arrangement that governs those resources. Hence, from an economist’s perspective, the term
public domain, in its current American meaning, merely has descriptive significance and is not an
analytically relevant or useful concept. Some scholars even criticize its descriptive properties and
expose what they call the “romance of the public domain” and its falsely liberating properties
(Chander and Sunder 2004); they state that the public domain, while giving everyone equal access
to its content, does not ensure that different people or corporations can make use of it in an equi-
table manner. As such, the idea of the public domain does not resolve the issue of access to infor-
mation and knowledge.12 This critique implies that we proceed to an analysis of inequalities (and
11With the notable exceptions of Hardt and Negri (2011) and Dardot and Laval (2014).
12Besides, according to Chander and Sunder (2004), the public domain is now a tool for corporations of
the North to dispossess populations of the countries from the South when they try to play within the rules
of the intellectual property game and claim IP rights on some medicinal plant they have been using. Now,
Northern firms claim such remedies are part of the public domain. Here, in an ironic twist, the public
domain marginally serves to limit the access to property in developing nations, and protect the financial
interests of a handful of corporations from the northern hemisphere.
Dolcerocca and Coriat 137

especially group and class inequalities) of access to knowledge, which should be conducted within
the framework of the commons. In other words, there is a need to understand, through both empiri-
cal and theoretical research, which types of property regime (or which types of commonal organi-
zation) are most likely to promote (un)equal access to resources along given and well-defined
social groups (including class, race, gender, etc.) and which are able to provide fair access across
these groups.
Although the concept of commons in IP literature has varied meanings, and authors often dis-
agree on its scope or its content; one feature shared by most analyses of the intellectual commons,
however, is the dominant place reserved to copyrights. Copyrights encompass matters related to
cultural goods, such as literature, music, and all the arts, but also software as well as knowledge
in social and natural science, philosophy, and the humanities. Copyrights consist in the standard
legal protection that regulates access to all these aspects of knowledge, whose open and free
access is certainly essential for a democratic society, as has been widely argued in the literature.
Hence, we consider it crucial to study the commons, the public domain, and open access regimes
as challenges – if not alternatives – to the restrictive copyright regime currently in place. Still,
despite impressive achievements in the study of copyrights and the commons/the public domain,
almost nothing has been done regarding patents. This comes as a surprise because the increas-
ingly harsh character of the patent system has serious consequences: on the capitalist economy,
by stifling innovation and letting a handful of corporations with intellectual property monopolies
collect rent extracted on the rest of the economy; on the population, with restrictions on the use
of certain seeds or the artificially high prices of essential medicines. Scholars have conducted
studies on patent pools, which could be considered like an inter-corporate commons of industrial
knowledge, but the ways in which the commons relates to food and pharmaceutical patents (to
focus here on two key domains) remain to be explored.
Now, we suggest that the study of the commons could be broadened concerning tangible prop-
erty as well. We find the concept of common-pool resources (CPR) too restrictive if presented (as
it often is) as a necessary precondition of the establishing of a commons; CPR should certainly
not exclude many other resources that could be managed effectively via a commons. In fact, most
resources in the world, and most productive processes, can be managed through a commons.
Even capital accumulating institutions like firms can be the subject of analysis through the per-
spective of the commons. We contend that in order to be a coherent and useful analytic tool, the
commons, before referring to the type of good or resource it manages, should refer to the prop-
erty regime. In other words, any production process that involves property relations, regardless
of the type of good, can potentially be governed via a commons. This brings us to the political
question of the organization of the commons: to what degree is it managed in a truly democratic
manner (or not) and what class relations does it entail according to the type of bundle of rights
organized around the resource itself? Is it possible to expand the analytical value of the concept
of commons down from the garment sweatshop up until the soviet and workers’ council? These
are questions worth exploring in future research on the commons.
Finally, these very questions bring to the fore the issue of private property and property rela-
tions as currently analyzed in studies of the commons today. The debates on intellectual property
and the commons gave the opportunity for a critique of the neoclassical presumption according
to which private property, i.e. the private appropriation of nature and the means of production, is
the best way to create “incentive efficiency.” Already, an empirical criticism against that assump-
tion came from the free software movement. Besides, within IP literature, most scholars now
agree upon the fact that open access to already existing knowledge is the most efficient arrange-
ment for the production of new, high quality, abundant knowledge. A more theoretical challenge
to this incentive efficiency paradigm can be developed from a critique of public choice theory
and game theory from which it is derived. We believe the current debates on the commons and
the interest it triggers in social sciences is a good opportunity for heterodox scholars to question
138 Review of Radical Political Economics 48(1)

these assumptions that have exerted an hegemonic control over scholarly production for too long,
and to reopen the debate on the equitable distribution of resources and on the “allocative effi-
ciency” of private and common property.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or
publication of this article.

Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.

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Author Biographies
Antoine Dolcerocca is a PhD candidate at the Centre d’Economie Paris Nord, Université Sorbonne-Paris-
Cité, and at Binghamton University, New York. He is working on theories of property, the commons, and
the public domain.
Benjamin Coriat is a professor at the Centre d’Economie Paris Nord, Université Sorbonne-Paris-Cité since
1989. He has been working extensively on industrial economics and more recently on intellectual property
and commons. He is a public intellectual and a founding member of the “Appalled Economists’ collective.”