SIEPR Policy
paper No. 00-02
A Tragedy of the Public Knowledge 'Commons'? Global Science, Intellectual Property and The Digital Technology Boomerang
Paul A. David
October 2000
Radical legal innovations in intellectual property protection have been introduced by the
little noticed European Database Directive of March 1996. This initiative, part of the larger
institutional transformations initiated in response to the economic ramifications of rapid progress
in digital information technologies, poses numerous contentious issues in law and economics.
These are likely to create ambiguities for business and non-profit activities in this area for years
to come, and the terms on which those issues are resolved will materially affect the costs and
organizational feasibility of scientific projects that are of global reach and significance. This is
the case especially in fields such as geology, oceanography and climatology, which depend
heavily upon the collection, management and analysis of large volumes of observational data that
cannot be regenerated. More generally the conduct of open, collaborative science – along with
many of the benefits that flow from it for the developed and the developing economies alike –
may be seriously jeopardized by the consequences of the new database protections. This raises
the spectre of a new and different “tragedy of the commons,” one created by continuing the
unbalanced pressure to extract greater economic rents by means of controlling access to
information. “Over-fencing,” which is to say, the erection of artificial cost barriers to the
production of reliable public knowledge by means of reliable public knowledge, threatens the
future of “the public knowledge commons” that historically has proved critically important for
rapid advance in science and technology.
The paper sets out the economic case for the effectiveness of open, collaborative
research, and the forces behind the recent, countervailing rush to strengthen and expand the
scope of intellectual property rights protection. Focusing upon innovations in copyright law and
the sui generis protection of hitherto unprotected content, it documents the genesis and analyzes
the economic implications of the EC’s Database Directive, and related legislative proposals
(H.R. 3125, H.R. 354 and H.R. 1858) in the US. The discussion concludes by advancing a
number of modest remedial proposals that are intended to promoted greater efforts to arrive at
satisfactory policy solutions for this aspect of “the digital dilemma.”
Keywords: intellectual property rights, copyright, sui generis protection of expressive material,
economics of information-goods, open science, “fair use,” scientific databases.
JEL Classification: H4, K39, O31, O34