This Article addresses conservation, preservation, and stewardship of knowledge, and laws and institutions in the cultural environment that support those things. Legal and policy questions concerning creativity and innovation usually focus on producing new knowledge and offering access to it. Equivalent attention rarely is paid to questions of old knowledge. To what extent should the law, and particularly intellectual property law, focus on the durability of information and knowledge? To what extent does the law do so already, and to what effect? This Article begins to explore those questions. Along the way, the Article takes up distinctions among different types of creativity and knowledge, from scholarship and research to commercial entertainment and so-called "User Generated Content"; distinctions among objects, works of authorship, and legal rights accompanying both; distinctions among creations built to last (sometimes called "sustained" works), creations built for speed (including "ephemeral" works), and creations barely built at all (works closely tied to the authorial "self"); and distinctions between analog and digital contexts.
Legal and policy analyses of creativity and innovation usually focus on producing new knowledge and offering access to it. (1) Equivalent questions concerning existing knowledge, preserving and conserving old things and offering access to them, get less frequent attention. In this article, I describe a framework for addressing conservation, preservation, and stewardship of works in the cultural environment and legal and other institutions for doing those things. This is sometimes characterized as the problem of cultural heritage, a phrase that tends to focus attention on particular objects, or (at other times) as the problem of intergenerational equity, a phrase that evokes people more than knowledge itself. I refer to it as the challenge of knowledge curation.
Creativity and innovation in their several forms are species of knowledge. They are ways of knowing, experiencing, and interacting with the social and physical world. Intellectual property (IP) law is the default starting point for discussions of the legal regulation of knowledge that touch all actors in society. It is appropriate, therefore, to consider the extent to which knowledge curation is an IP law problem. Do preservation, conservation, and stewardship of knowledge present intellectual property law questions? They do, in the sense that they present questions to which intellectual property law often responds, such as questions of access to knowledge, authenticity, influence, cultural and economic progress, and authorial and reputational interest. Intellectual property law therefore seems ripe for extension beyond the new, to the old. But knowledge curation also stands at some distance from standard IP models. The usual public goods model of IP is an awkward fit for curation challenges. It is far from clear that society suffers from overconsumption of existing cultural artifacts and other older forms of knowledge and insufficient investment in their preservation. Moreover, it is far from clear that these problems, if they exist, should be addressed by granting limited rights of exclusion to owners of older forms of knowledge. Conversely, one might argue that social interests in the preservation and conservation of knowledge are adequately secured by intentionally omitting that subject matter from the scope of limited copyright, patent, and trademark rights. But that case, too, is incomplete.
Those claims may be extended preliminarily, as follows. A legal framework for durable forms of knowledge is partly baked into the structure of IP law, but negatively, and to a limited degree. The public goods case for IP regimes holds that the law properly addresses questions concerning durability of the creative or innovative intangible--the "original work of authorship," (2) the patentable "invention," (3) the distinctive "mark" or "sign" (4)--via a framework of limited exclusive rights for creators and innovators balanced by fights of access and use reserved to the public. (5) In copyright and patent law, the primary point of the law is to encourage production and distribution of the new. (6) Creative and innovative work of this sort is preserved by law and otherwise so that it can be used and so that it can be changed, that is, adapted for new purposes, for new audiences, and so on. (7) Acceptance of durability is a byproduct of the focus on novelty. As the rights/ access balance requires, rights expire, and some material is excluded from protection altogether. Fundamental forms of knowledge are preserved negatively, by exclusion, for the benefit of successive generations. Copyright law excludes ideas; (8) patent law excludes laws of nature; (9) and both doctrines exclude nonnovel and nonoriginal works. Trademark law should be considered separately, because it is less concerned with the new. Trademarks protect commercial enterprises from unfair competition and protect consumers from marketplace confusion. Still, indirectly, trademark offers a modest but nonetheless negative legal framework for conserving the identity of intangible forms of knowledge, in this case commercial symbols. Trademark doctrines require that the mark owner maintain differentiation among different but independently consistent specific commercial identities and social meanings. (10) The rights of the mark owner continue indefinitely, despite changes to the mark, so long as the mark offers consumers "the same, continuing commercial impression." (11) The point of the law is not to encourage investment in durable forms of knowledge, but to limit risks faced by trademark owners who wish to innovate with new marketing strategies.
In short, intellectual property doctrines and their justifications generally invest far more rhetorical and analytic energy on creativity and innovation than on stability and durability. (12) Preservation and conservation of older forms of knowledge are left largely, if not entirely, to the domain of tangible property law, where a rich body of law, policy, and custom has developed around the preservation of art and artifacts. (13) Importantly, copyright and patent law both require modest investments in fixed forms of new knowledge. (14) Below, I consider some the implications of those rules for knowledge curation. But fixation rules feed the production of artifacts of knowledge; curation of knowledge requires more. Related analysis of traditional knowledge (TK), traditional cultural expressions (TCEs) (also known as folklore),as and geographical indications (GIs) 16 as problems in the preservation of knowledge has not, in the main, been broadened to offer insight into problems of knowledge generally. TK and TCE discussions have exposed important insights into the meaning of tradition and preservation within specific communities, (17) and into the challenges of defining and governing interfaces between people, processes and knowledge inside TK, TCE, and folkloric communities, and people, processes, and knowledge outside them.
The result of this blend of approaches is a curious omission in the law of knowledge. Intangible forms of knowledge are addressed as questions of novelty and creativity; tangible forms of knowledge are addressed as questions of fixity and preservation. Folkloric and traditional knowledge are approached as problems in authenticity. (18) If "tangible/intangible" and "static/dynamic" form the ranges of a two-by-two matrix, then two boxes of that matrix have received less generalized attention from scholars than they should. Dynamism in tangible thing-ness is one such box; it is just starting to be addressed. (19) Here, I introduce a conversation regarding the second: the preservation and conservation of intangible knowledge, or knowledge curation. Could and should the law do more--more than what it does now in the context of intellectual property law--to preserve intangible forms of creativity and innovation produced by prior generations? We are missing a good affirmative account of the mechanics of curating the products of the mind. I propose to offer an introductory account of those mechanics. I ground that account in the idea of cultural commons.
Commons, as I use the term here, refers to institutional arrangements for sharing resources, grounded in law but heavily dependent on history and practice. Commons are neither essentially public nor private. Commons are neither perfectly free, open, and fluid nor necessarily static and fixed. Commons are governance, bounded by discipline but complex and pluralistic in orientation.
The article unfolds in the following way. Part I illustrates the idea of knowledge curation. Part II describes the mismatch between the three principal intellectual property regimes and knowledge curation. Part III offers a brief diversion on the question of piracy. Part IV describes cultural commons as a framework for describing curation. Part V points to continuing challenges for commons as an approach to knowledge curation.
WHY KNOWLEDGE CURATION MATTERS
Knowledge curation is a dialogue among interests in stability and dynamism in cultural objects and practices. The center of analysis is to-and-fro (20) rather than control, or governance rather than ownership. If production of the creative and innovative "new" constitutes the dominant "to" of IP policy, then preservation and conservation of the known "old" might be said to be the "fro." Society needs durable, fixed intangible things both because society itself needs to be largely stable and fixed, and because it also needs those durable, fixed things precisely so that it can change them, and change itself. (21) Society needs the old, and law and policy often (but not always) should promote and protect the old, in order to make sense of social interests in the new. (22) The critic Walter Benjamin referred to...