Information Environmentalism: towards a digital ecology – by Robert Cunningham

September 16, 2014

Author Articles, Law - Professional


photograph: Jared Zammit (CC BY-SA 2.0)

The complex mass of data that underpins everything from trade to entertainment presents many legal challenges. Robert Cunningham considers what lessons from environmentalism we can apply to the way we manage and run our information world.

We live in the information age. Yet we still remain entirely dependent on the physical world. While it is tempting to think of the information world and the physical world as parallel universes, the information world clearly affects the physical world (and vice versa). Think renewable technology.

Renewable technology is built upon information, which is usually protected by intellectual property rights. In this way, the regulation of information effects renewable technology, and renewable technology, in turn, effects the state of the natural world.

Given the importance of information in the 21st century, the health of the information environment is likely to be a key determinant of the natural world. If this is true, how might we go about diagnosing and resolving challenges within the information environment? We could reinvent the wheel. Or we could think about what policy lessons flow from attempts to diagnose and resolve challenges in the physical environment.

I take the latter approach by applying to the information environment four analytical frameworks derived from environmental theory: welfare economics, the commons, ecology, and public choice theory. The application of these four theories offers policy insights, which can be relied upon when thinking about how information should be governed. To this end, a core aim of my recent work is to establish a governance framework that can be used to secure the health and well-being of the information environment (generally) and the information commons (more specifically).

The best way to appreciate the benefits that stem from applying the four environmental analytical frameworks to the information environment is to understand the desirable principles that result from this application process.

For instance, a key insight from applying welfare economics to the physical world is that economic activity has costs and benefits. If we ignore certain costs, such as pollution, then economic activity becomes skewed in particular ways, often to the detriment of the public at large. This insight also transposes to the information world. By attaching intellectual property rights (IPRs) to information, there are costs and benefits. In applying welfare economics to the information environment we find that the purported benefits of IPRs (e.g. incentivisation) tend to be overstated and the costs of IPRs (e.g. opportunity costs from propertising information) tend to be understated.

Through applying the commons analytical framework to the information environment it becomes apparent that the information commons requires clear delineation. How can something be protected if it cannot be defined? It is also becomes evident that there are different ways of conceptualizing the commons. We can, for example, think of the commons as a ‘free-for-all’ (res nullius), or we can think of it as a resource that exists to serve the public (res communis). In the absence of explicit public-purpose policies the res nullius perspective will generally prevail, often leading to negative outcomes. Applying the commons to the information environment also underscores that propertisation is not always an effective governance tool; but even where it is, we must take into account the benefits that flow from the dynamic interaction between private property and the commons.

Ecology has played an important role within environmentalism because it has facilitated three primary functions: namely, a scientific understanding of the natural world; the creation of a set of governance principles; and the basis for an ethical foundation. Contemplating how these functions might apply to the information environment proves to be an interesting thought experiment. How might the precautionary principle relate to the regulation of information? Would it be feasible and/or desirable to allocate rights to the information commons? And is it time to start thinking about informational national parks? This idea is not so strange when considering open source initiatives such as Mozilla Firefox and Creative Commons.

Finally, the application of public choice theory. This theory implies that public decisions are likely to be detrimental when concentrated interests trump the interests of the collective as a whole. The environmental movement has been rather successful at overcoming collective action problems by establishing various civil society organisations. While this is an important function of civil society, alone it is not enough. By applying public choice theory to the information environment we find that ‘social production’ as an economic mode can be leveraged to secure better political outcomes. This is because social production is actually more effective at producing certain things than the primary alternatives of state-, market- and firm- based production. Have you ever wondered why Wikipedia trumped Encyclopedia Britannica? Even from a purely economic perspective social production can be more efficient.

A key theme of my latest work is that the health of the information environment is a key determinant of the natural world; and governance lessons relating to the natural world can be used to secure the health of the information environment. It is a virtuous cycle. However, this cycle only functions successfully if the information commons is protected, nurtured and developed in line with res communis – a resource that belongs to everyone must be used for the public benefit.

Through applying four analytical frameworks derived from environmental theory – welfare economics, the commons, ecology, and public choice theory – we begin to see that the physical world and the information world are not all that different. In both cases, property is used to mediate between private and public interests. If we forget this core function of property, then we move down the slippery slope of deploying property to fix every problem under the sun. Yet property is like ice cream – more is not always better. Ignoring this lesson is at our own peril because the consequences of too much property, whether it be in the physical environment or the information environment, are much more serious than an ice cream hangover.

R CunninghamRobert Cunningham is Associate Professor at Curtin University where he currently teaches Corporations Law, Corporate Governance, and Professional Responsibility within the Curtin Law School. 

His research interests relate to the intersection between environmental theory and information regulation. Robert is also a legal practitioner provisioning legal advice, court advocacy and education in a variety of capacities. His new book Information Environmentalism: a Governance Framework for Intellectual Property Rights is published by Edward Elgar.

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