Cultural Environmentalism at 10: Real Property, Intellectual Property, and the Constructed Commons

On March 11-12, 2006, Stanford Law School's Center for Internet and Society hosted a symposium to explore the development and expansion of the metaphor of "cultural environmentalism" over the course of ten busy years for intellectual property law. We invited four scholars to present original papers on the topic, and a dozen intellectual property experts to comment and expand on their works. Environmentalists have a complicated relationship with property rights. Those who worry about the physical environment often decry strong property rights that threaten to derail environmental regulation. But environmentalists have also harnessed property rights to preserve important habitats and open spaces, using voluntary, property-based mechanisms like conservation easements to block land development. Similarly, those concerned with cultivating a cultural environment in which creative works contribute to new generations of creativity often criticize strong intellectual property rights that threaten to impoverish the public domain. But cultural environmentalists have also harnessed intellectual property rights in an attempt to create and preserve a cultural commons, using voluntary, intellectual property-based mechanisms like Free Software and Creative Commons licenses. This paper will explore the advantages and disadvantages of using voluntary manipulation of intellectual property rights as a tool for cultural environmentalism-drawing on the experience of the conservation movement, and on scholarship and case law debating the merits of encumbering assets with idiosyncratic property rights.