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But this argument hides another important element of all communication and of “creativity” within it. At first blush “creativity” and “ideas” seem like psychological states of an individual mind, which can be treated as a private domain. Essentially this is also the foundation on which the “privatization” argument rests on. While thinking is certainly an individual activity – as is speaking a language - but any system of meaning cannot be reduced to individual activities. It is more an ongoing communication involving not only others but also the stock of knowledge of existing theories and experiments, or of cultural forms, from Mozart’s music to figures like Don Quixote, Faust -- and perhaps even of Popeye or Mickey Mouse (to have the sublime meet the ridiculous). It thus differs explicitly from a private good which is “consumed” and which is undersupplied if no effective exclusive property rights are assigned.

Of course legislatures and courts, recognizing this dimension, have tried to secure some of the benefits derived from unimpeded access by developing a doctrine of “fair use”. But recent attempts both in the US in the aftermath of Eldred v Ashcroft (2003, upholding the Copyright Terms Extension Act (CTEA), in which even deceased authors (or rather heirs) could claim copy right protection), and of significant inroads into the traditional “fair use” exemptions,4 and in the EU’s regulatory framework 5 these new regimes seem more in line with the call for increasing property rights than with the notion of a public domain. One need not be a partisan of the open source movement to realize that the labour theory of value can hardly provide a plausible justification for the “privatization” of creative works which traditionally have been in the public domain, precisely because the second leg on which such a justification depends, i.e., the dangers of overuse, is here simply inapplicable.

While the first enclosure was perhaps a required response to the disastrous consequences of an open access regime because tangible resources are subject to rivalry in consumption, no such limitation exists in the case of the realm of intangible goods. Here important synergies can only See e.g. the case of Dimitry Sklyarov, a Russian programmer, who had developed a software to read e-books, such as Alice in Wonderland, which had been encrypted by Adobe as an e-Book. Under the Digital Millennium Copyright Act (1998), this was a criminal offense punishable by a jail term as it circumvented the Adobe license of the decryption equipment for reading the text (see Benkler, 2003).

See Directive 96/9/EC (1996), which served also as the model for the database treaty proposed by the World Intellectual Property Organization which protects any compilation of data as long as the creator can show a “substantial” investment.” For a further discussion, see Marlin-Bennett (2004, chapter 5).

Friedrich Kratochwil

develop when this domain remains not only open to all but transaction costs are not imposed by obstructing use and exchanges, creating thereby a tragedy of the anti-commons.

Nevertheless, we also have to keep in mind that the distinction between the “network” and the “goods” transported seems more difficult to maintain in intellectual space, where the lanes and means of communication and the content are not easily separable. Having access means on the information highway means that I am also having the good available for use, and no artefact or tangible thing like a book has to change hands (for a general discussion see Hess and Ostrom, 2003). This is best exemplified that e.g. libraries become more and more “access regulators” for information, rather than lending institutions of books or journals which they are perhaps still keeping in their collection.

Publishers also become less and less book sellers but can obtain “rents” by refusing to sell e.g. single journals but offer packages of a variety of publications under a licensing agreement. This is done officially because of the synergetic effects of these packages, but more likely to increase the value of otherwise products which would not sell.

Here a wider framework informed by Roman law seems useful, as it alerts us to the pitfalls of some current conceptualizations and forces us to re-think familiar problems In the case of the erasure of the traditional distinction between means of communication (the “highways” of old) and “content” (the good traded) we are alerted to the fact that the solution might be provided by time rather than space, as we had in traditional patent legislation (this point is well made by Rose, 2003). There neither were the products protected if they were the result of standard knowledge (not constituting an innovation), nor were exclusive property rights granted for longer periods of time (patents, copyrights) in cases they proved to be innovative. Innovations and literary works rather quickly entered the public domain and thus made it possible that the notion of a Republic of Letters did not only remain an aspiration but became indeed a common domain and ongoing concern for its members.

At a time which seems to value increasingly only what we “own” exclusively it might be time to remind ourselves that the world of the “private”, of doing one’s own thing and excluding others without much concern what we have in common, was once considered as being the world of the “idiotes” (of the private person in the original meaning of the word), who did not share a common.

Conclusion This paper argued that the conventional public goods debate offers less than it promised for the analysis of social and political problems. Its rather specialized character taking only two specific reasons for market failure as its paradigm for generating the “puzzles” it seriously impoverishes our research agenda and diminishes our ability of finding welfare enhancing solutions under the more complex conditions of actual political praxis. Thus the enchantment with parsimony has its price as some of the elements left out of the analysis actually allow us to formulate policies that can improve our individual and collective lives.

I argued instead for a focus on property regimes where the public and the private, the individual, the social, – vide the resurgence of “civil society – and the political get shaped and which calls attention to the historical contingencies – is better able to serve as a framework for analyzing policy problems – domestic as well as “global” ones- than theory driven


models which generate solution in search of problems, rather than the other way around.

Problems of Policy-Design based on Insufficient Conceptualization: The Case of “Public Goods” References (US) National Academy of Sciences (1986) 'Proceedings of the Conference on Common Property Resource Management', in The National Research Council (ed.) 1986 Washington D.C.

Acheson, J. M. (1988) The Lobster Gangs of Maine. Hanover, N.H.: University Press of New England.

Bell, A. & Parchamovsky, G. (2007) Reconfiguring Property in Three Dimensions. Berkeley Electronic Press: University of Pennsylvania Law School paper No. 2007/178. [online]. Available from: http://lsr.nellco.org/upenn/wps/papers/178.

Benkler, Y. (2003) Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain. Law & Contemporary Problems. 66173.

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Boyle, J. (2003b) The Second Enclosure Movement and the Construction of the Public Domain. Law and Contemporary Problems. 66 (Winter/Spring), 33.

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Friedrich Kratochwil

Kaul, I. (2012) 'Global Public Goods: Explaining Their Underprovision', in Ernst-Ulrich Petersmann (ed.) Multilevel Governance of Interdependent Public Goods: Theories, Rules and Institutions for the Central Policy Challenge in the 21st Century. In this volume.

Kratochwil, F. (2008) 'Constructivism: What it is (not) and How it Matters', in Donatella Della Porta & Michael Keating (eds.) Approaches and Methodologies in the Social Sciences: A Pluralist Perspective. Cambridge UK: Cambridge University Press.

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Introduction As aptly described in the introduction to this special issue, “[g]lobalization … contribut[es] to the transformation of ever more local and national goods into international public goods requiring new forms of governance, regulation and justification” (Petersmann, 2012, p.1). The present article aims to enrich the debate on multilevel governance of interdependent public goods with lessons drawn from the most advanced regional integration project, the European Union (EU). We discuss the insights gained from ‘multilevel European governance’ for global economic governance and, more specifically, for the collective action problems involved in procuring international public goods.

Further, we specifically reflect on the question whether, drawing on the European experience, it is expedient for the G20 to be institutionalized as a ‘global economic governance executive’.

For reasons of analytical clarity, we first investigate multilevel European governance (Lessons from Multilevel European Governance) before examining the basic characteristics of the G20 (The G20: History, Functioning and Legitimacy). Building on the insights reached in the previous sections we then tackle the particular question of the G20’s institutionalization as a global economic governance executive, bearing in mind the outcome of the G20 Summit at Cannes in November 2011 (Reforming the G20: Insights Gained from Multilevel European Governance).

It should be observed from the outset that multilevel European governance is infinitely less complicated than a similar attempt on a global scale, given the mosaic of states and other players in the broader international community. However, it is submitted that for the most part the differences between the two are of degree and not of nature. The European example therefore constitutes an interesting precedent as a laboratory of economic, legal and political integration transcending national borders. It is worthwhile to examine it in order to discern the root causes of the difficulty to establish an efficient global economic governance regime.

Lessons from Multilevel European Governance?

In answering the question whether and if so, which lessons can be drawn from multilevel European governance for the better provision of global public goods, we need, first of all, to consider some characteristics of multilevel European governance. A second set of reflections relates to EU institution-building and the particular role of the European Council.

* University of Leuven.

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