In this paper we propose that norms-based intellectual property (IP) systems exist today and are an important complement to or substitute for law-based IP systems. Norms-based IP systems, as we define them, operate entirely on the basis of implicit social norms that are held in common by members of a given community. Within that community, they offer functionality similar to contemporary law-based IP systems with respect to both the nature of rights protected and the effectiveness of the protection provided.
We document the existence of a norms-based IP system among a sample of accomplished French chefs. These chefs consider recipes they develop to be a very valuable form of IP. At the same time, recipes are not a form of innovation that is effectively covered by law-based IP systems. Via grounded research, we identify three strong implicit social norms related to the protection of recipe IP. Via quantitative research, we find that accomplished chefs enforce these norms and apply them in ways that enhance their private economic returns from their recipe-related IP.
In our discussion, we compare the attributes of norms-based and law-based IP systems, arguing that each has different advantages and drawbacks. We also point out that the existence of norms-based IP systems means that many information commons may prove to be criss-crossed by norms-based fences, with community access controlled by community IP owners.
