This article characterises the ‘intellectual commons’, and the relationship between it, commoners and the state. It is argued that in a democracy the State should adopt a steward-type role over the intellectual commons. This role dictates that regulation should be in the best interests of the commoners, without undue interference with their inherent rights and will only be justified if it is based upon a coherent rationale. Economic theory can provide such a rationale when the costs of open entry to the commons exceed the benefits. Innovative, cooperative direct regulation has the best potential for success.