Commons, Anticommons and Community in Biotechnological Assets
Theoretical Inquiries in Law, Vol. 10, pp. 271-98, 2009
30 Pages Posted: 1 Feb 2009
Date Written: January 1, 2009
I argue for three theses: T1 - It is possible to use access to scientific knowledge to reinforce existing scientific communities and sometimes generate new ones. T2 - It is possible to use community to generate scientific knowledge, patent reform, scientific research, medical diagnostics, and trade secrets and occasionally patents. T3 - On the spectrum from commons to semicommons to private property to anticommons, an anticommons can arise if a biotechnological asset is fuzzily defined. I defend these propositions against objection and establish the fertility of my account by considering intellectual property issues relating to synthetic biology. Along the way I present a new understanding of the public domain. I also pursue several projects that interweave throughout the article. The analytic project shows how careful definitions yield a useful taxonomy of biotechnological assets and their holders. The normative project explains why we should endorse intellectual property rights in some biotechnological assets but not others. Finally, the thematic project establishes larger contrasts between different forms of community on the one hand and individualism on the other, and reveals how my understanding of the public domain delivers a surer grasp of these contrasts and their roles in institutions of property.
Keywords: Anticommons, commons, community, public domain, synthetic biology
JEL Classification: A13, D23, D78, I10, K19, K39, L65, O12, O31, O34, Z10
Suggested Citation: Suggested Citation