Sharing access to intellectual property through private ordering

Intellectual property is a complex mix of different interests that either request that intellectual creation be protected by an exclusive and proprietary right or that guarantee some free access to and use of such intellectual creation. Intellectual property both grants and protects exclusive rights of property and entertains a public domain and free use of intellectual assets. This assortment of property and commons, that fundamentally distinguishes intellectual property from the traditional right of property in a tangible, is normally achieved through traditional law-making. However, recent attempts of private orderings have tried to modify this balance, generally to expand the monopoly granted by the law, through the recourse to contracts and technological measures. More surprising is the use of private ordering tools from the other side of the balance, by the proponents of a public access to works, to counteract IP expansion instead of intensifying it. From open source software to open access initiatives in artistic creation, scientific publications, or biotechnological inventions, licensing is now employed to promote a collective access to and sharing of intellectual resources, produced and distributed through a logic opposed to a proprietary exclusion. As in its use to expand intellectual property rights, private ordering deployed to enhance sharing and to open access to creations, has a normative effect. This Article aims at assessing the nature of the mechanism of the lawmaking operated by open access initiatives, as well as it normative sustainability as a project to enlarge the public domain within intellectual property. As a norm-creating process, does the private ordering method, particularly when used for sharing objectives, form a regulatory force in IP to be reckoned with?

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