Maurizio Borghi: “Intellectual Property and the Commons: Rethinking the Boundaries”

Public Lecture

Thursday 2 February 2023, 18:00 (BST); EB306

The event is free to attend, but registration is required.  Please e-mail Prof. Dinusha Mendis at to book your place.


Intellectual property (IP) as we know it today is the result of a century-long process that coincided with the rise and expansion of information capitalism and knowledge-based market economy in the Western world. While creating the conditions for extraction of value and capital accumulation in an increasing range of domains, at the same time IP law has defined the boundaries of capital accumulation by determining what can be called private property and what should remain in the commons. In the last decades, opponents of market expansionism have championed the role of classic IP doctrines and principles that enhance the public domain by allowing free, unlicensed use of protected subject matter. These include: fair use and exceptions in copyright law, exclusions and compulsory licensing in patent law, descriptive use and exhaustion in trade mark law, as well as limitations of liability and “safe harbours”. The effect of these norms depends on the assumption that the prerogatives of the right holders and those of the public domain can be defined ex ante by law. However, the latest version of techno-capitalism presents a deep challenge to this assumption, in that huge amount of value can be extracted from IP subject matter without formally owning any IP right. Indeed, big-tech corporations rely less on large IP portfolios and more on the opposite of IP, namely fair use, exemptions and safe harbours, coupled with power of control over the means of extraction of surplus-value. Within this new framework, traditional IP doctrines that enhance the public domain may not only be ineffective, but can even have the opposite effect of enabling further enclosure of the commons.

The Public lecture discusses the challenge posed to IP doctrine and attempts to set the basis for a renewed understanding of the boundaries between property and the commons.

Maurizio Borghi is Professor of Commercial Law at the University of Turin, Law School, and Co-Director of the Nexa Centre for Internet and Society at the Polytechnic of Turin.