Tragedy of the anticommons

The tragedy of the anticommons is a type of coordination breakdown, in which a single resource has numerous rightsholders who prevent others from using it, frustrating what would be a socially desirable outcome. It is a mirror-image of the older concept of tragedy of the commons, in which numerous rightsholders' combined use exceeds the capacity of a resource and depletes or destroys it.[2] The "tragedy of the anticommons" covers a range of coordination failures including patent thickets, and submarine patents. Overcoming these breakdowns can be difficult, but there are assorted means, including eminent domain, laches, patent pools, or other licensing organizations.

The term originally appeared in Michael Heller's 1998 article of the same name[2] and is the thesis of his 2008 book.[3] The model was formalized by James M. Buchanan and Yong Yoon.[4] In a 1998 Science article, Heller and Rebecca Eisenberg, while not disputing the role of patents in general in motivating invention and disclosure, argue that biomedical research was one of several key areas where competing patent rights could actually prevent useful and affordable products from reaching the marketplace.[5]

To deposit or not to deposit, that is the question - journal.pbio.1001779.g001
Scientists are often reluctant to share their data.[1]

Examples

Early aviation

In early aviation, the Wright brothers held patents on certain aspects of aircraft, while Glenn Curtiss held patents on ailerons which was an advance on the Wrights' system, but antipathy between the patent holders prevented their use. The government was forced to step in and enforce the existence of a patent pool.[6]

Post-communism

In a 1998 Harvard Law Review article by Michael Heller,[2] he noted that after the fall of Communism, in many Eastern European cities, there were a lot of open air kiosks but also a lot of empty stores. Upon investigation, he concluded that because many different agencies and private parties had rights over the use of store space, it was difficult or even impossible for a startup retailer to negotiate successfully for the use of that space. Even though all the persons with ownership rights were losing money with the empty stores, and stores were in great demand, their competing interests got in the way of the effective use of space.

Robber barons

Michael Heller says that the rise of the "robber barons" in medieval Germany was the result of the tragedy of the anticommons.[3] Nobles commonly attempted to collect tolls on stretches of the Rhine passing by or through their fiefs, building towers alongside the river and stretching iron chains to prevent boats from carrying cargo up and down the river without paying a fee.[3] Repeated attempts were made by the Holy Roman Empire, including several efforts over the centuries led by the Emperor himself, to regulate toll collection on the Rhine, but it was not until the establishment of the "Rhine League" of the Emperor, certain nobles, and certain clergy that the control of the "robber barons" over the Rhine was crushed by military force. River tolls on the Rhine, increasingly imposed by states rather than individual lords, remained a sticking point in relations and commerce in the Rhine basin until the establishment of the Central Commission for Navigation on the Rhine in 1815.

Biomedical

Michael Heller and Rebecca Eisenberg are academic law professors who believe that biological patents creating a "tragedy of the anticommons," "in which people underuse scarce resources because too many owners can block each other."[5] Others claim that patents have not created this "anticommons" effect on research, based on surveys of scientists.[7][8]

See also

References

  1. ^ Roche, Dominique G.; Lanfear, Robert; Binning, Sandra A.; Haff, Tonya M.; Schwanz, Lisa E.; Cain, Kristal E.; Kokko, Hanna; Jennions, Michael D.; Kruuk, Loeske E. B. (2014). "Troubleshooting public data archiving: suggestions to increase participation". PLOS Biology. 12 (1): e1001779. doi:10.1371/journal.pbio.1001779.
  2. ^ a b c Heller, Michael A (January 1998). "The tragedy of the anticommons: property in the transition from Marx to markets" (PDF). Harvard Law Review. 111 (3): 621–688. doi:10.2307/1342203. ISSN 0017-811X. JSTOR 1342203. Retrieved 2018-03-16.
  3. ^ a b c Heller, Michael (2008). The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives. Basic Books. ISBN 978-0-465-02916-7.
  4. ^ Buchanan, James; Yoon, Yong (April 2000). "Symmetric Tragedies: Commons and Anticommons". Journal of Law and Economics. 43 (1): 1–13. doi:10.1086/467445.
  5. ^ a b Heller, M. A.; Eisenberg, R. (May 1998). "Can Patents Deter Innovation? The Anticommons in Biomedical Research". Science. 280 (5364): 698–701. doi:10.1126/science.280.5364.698. PMID 9563938.
  6. ^ "The Permission Problem".
  7. ^ Cook, Robert. "Gene Patents". The Hastings Center. Retrieved 2018-06-24.
  8. ^ "Do Gene Patents Hurt Research?".

Further reading

External links

Authorship and ownership in copyright law in Canada

Authorship and ownership in copyright law in Canada is an important and complex topic which lies at the nexus between Canada's Copyright Act, an important body of case law, and a number of compelling policy motives. Analysis of Authorship and ownership of copyrightable works in Canada can proceed by examination of the rules determining the initial allocation of copyrights, rules governing subsequent changes in ownership, and finally rules governing complex works such as compilations.

Common good (economics)

Common goods are defined in economics as goods that are rivalrous and non-excludable. Thus, they constitute one of the four main types based on the criteria:

whether the consumption of a good by one person precludes its consumption by another person (rivalrousness)

whether it is possible to prevent people (consumers) who have not paid for it from having access to it (excludability)One modern example is climate stability. Classic examples of common goods are water and air. Water and air can be polluted: water flows can be tapped beyond sustainability, and air is often used in combustion, whether by motor vehicles, smokers, factories, wood fires. In the production process these resources and others are changed into finished products such as food, shoes, toys, furniture, cars, houses and televisions. Another example of a private exploitation treated as a renewable resource and commonly cited have been trees or timber at critical stages, oil, mined metals, and crops. Fish stocks in international waters are also cited often. In this latter example, when fish are withdrawn from the water without any limits being imposed, living stocks of fish are likely to be depleted for any later fishermen. To describe situations in which economic users withdraw resources to secure short-term gains without regard for the long-term consequences, the term tragedy of the commons was coined. For example, forest exploitation leads to barren lands, and overfishing leads to a reduction of overall fish stocks, both of which eventually result in diminishing yields to be withdrawn periodically.

Debates about sustainability can be both philosophical and scientific. However, wise-use advocates consider common goods that are an exploitable form of a renewable resource, such as fish stocks, grazing land, etc., to be sustainable in the following two cases:

As long as demand for the goods withdrawn from the common good does not exceed a certain level, future yields are not diminished and the common good as such is being preserved as a 'sustainable' level.

If access to the common good is regulated at the community level by restricting exploitation to community members and by imposing limits to the quantity of goods being withdrawn from the common good, the tragedy of the commons may be avoided. Common goods that are sustained through an institutional arrangement of this kind are referred to as common-pool resources.

Common ownership

Common ownership refers to holding the assets of an organization, enterprise or community indivisibly rather than in the names of the individual members or groups of members as common property.

Forms of common ownership exist in every economic system. Common ownership of the means of production is a central goal of communist political movements as it is seen as a necessary democratic mechanism for the creation and continued function of a communist society. Advocates make a distinction between collective ownership and common property as the former refers to property owned jointly by agreement of a set of colleagues, such as producer cooperatives, whereas the latter refers to assets that are completely open for access, such as a public park freely available to everyone.

Commons

The commons is the cultural and natural resources accessible to all members of a society, including natural materials such as air, water, and a habitable earth. These resources are held in common, not owned privately. Commons can also be understood as natural resources that groups of people (communities, user groups) manage for individual and collective benefit. Characteristically, this involves a variety of informal norms and values (social practice) employed for a governance mechanism.

Commons can be also defined as a social practice of governing a resource not by state or market but by a community of users that self-governs the resource through institutions that it creates .

Fair division

Fair division is the problem of dividing a set of resources among several people who have an entitlement to them, such that each person receives his/her due share. This problem arises in various real-world settings, such as: division of inheritance, partnership dissolutions, divorce settlements, electronic frequency allocation, airport traffic management, and exploitation of Earth Observation Satellites. This is an active research area in Mathematics, Economics (especially Social choice theory), Game theory, Dispute resolution, and more. The central tenet of fair division is that such a division should be performed by the players themselves, maybe using a mediator but certainly not an arbiter as only the players really know how they value the goods.

The archetypal fair division algorithm is Divide and choose. It demonstrates that two agents with different tastes can divide a cake such that each of them believes that he got the best piece. The research in fair division can be seen as an extension of this procedure to various more complex settings.

There are many different kinds of fair division problems, depending on the nature of goods to divide, the criteria for fairness, the nature of the players and their preferences, and other criteria for evaluating the quality of the division.

Geolibertarianism

Geolibertarianism is a political and economic ideology that integrates libertarianism with Georgism (alternatively geoism or geonomics), most often associated with left-libertarianism or the radical center.Geolibertarians hold that geographical space and raw natural resources—any assets that qualify as land by economic definition—are rivalrous goods to be considered common property or more accurately unowned, which all individuals share an equal human right to access, not capital wealth to be privatized fully and absolutely. Therefore, landholders must pay compensation according to the rental value decided by the free market, absent any improvements, to the community for the civil right of usufruct (that is, legally recognized exclusive possession with restrictions on property abuse) or otherwise fee simple title with no such restrictions. Ideally, the taxing of a site would be administered only after it has been determined that the privately captured economic rent from the land exceeds the title-holder's equal share of total land value in the jurisdiction. On this proposal, rent is collected not for the mere occupancy or use of land as neither the community nor the state rightfully owns the commons, but rather as an objectively assessed indemnity due for the legal right to exclude others from that land. Some geolibertarians also support Pigovian taxes on pollution and severance taxes to regulate natural resource depletion and compensatory fees with ancillary positive environmental effects on activities which negatively impact land values. They endorse the standard right-libertarian view that each individual is naturally entitled to the fruits of their labor as exclusive private property as opposed to produced goods being owned collectively by society or by the government acting to represent society, and that a person's "labor, wages, and the products of labor" should not be taxed. Along with non-Georgists in the libertarian movement, they also support law of equal liberty, advocating "full civil liberties, with no crimes unless there are victims who have been invaded".Geolibertarians are generally influenced by the Georgist single tax movement of the late-19th and early-20th centuries, but the ideas behind it pre-date Henry George and can be found in different forms in the writings of John Locke, the English True Levellers or Diggers such as Gerrard Winstanley, the French Physiocrats (particularly Quesnay and Turgot), Adam Smith, David Ricardo, Jean-Baptiste Say, Frédéric Bastiat, Thomas Jefferson, Thomas Paine, Lysander Spooner, Benjamin Tucker, John Stuart Mill, Herbert Spencer and Thomas Spence. Prominent geolibertarians since George have included Albert Jay Nock, Frank Chodorov and Milton Friedman(on consequentialist grounds). Other libertarians who have expressed support for the land value tax as an incremental reform include John Hospers, Karl Hess and United States Libertarian Party co-founder David Nolan.

Knowledge Ecology International

Knowledge Ecology International (KEI) is a non-governmental organization. It was founded by Ralph Nader in 1995 and was then called Consumer Project on Technology. It deals with issues related to the effects of intellectual property on public health, cyberlaw and e-commerce, and competition policy. It has fought the Microsoft monopoly, the ICANN monopoly, software patents, and business method patents. It has supported free software in government, open access for the Internet, and privacy regulation. KEI works on access to medicines, including a major effort on compulsory licensing of patents. Beginning in 2002, CPTech began to work with Tim Hubbard and others on a new trade framework for medical research and development (R&D). In the context of current bilateral agreements, this is referred to as R&D+, which in contrast to TRIPS+ approaches.

KEI is also working with a number of other NGOs to change the mission of the World Intellectual Property Organization (WIPO), so that it operates more like a true UN agency, with a social rather than a commercial agenda.

The organization is directed by James Love.

Michael Heller (law professor)

Michael A. Heller is a Professor of Real Estate Law at Columbia Law School. He concentrates on property law. Heller coined the term "tragedy of the anticommons" while working as a law professor at University of Michigan Law School in a 1998 Harvard Law Review article entitled "The Tragedy of the Anticommons: Property in the Transition from Marx to Markets".

Heller is a graduate of the Quaker Sidwell Friends School in Washington, DC, Harvard College, and Stanford Law School. He worked as a summer associate at the Washington, DC white shoe law firm of Arnold & Porter LLP.

From 1994-2002, Heller taught at the University of Michigan Law School. He joined the Columbia Law School faculty in 2002.Heller has focused on private property laws and international property dilemmas, publishing such articles as "The Liberal Commons" (with Hanoch Dagan), in the Yale Law Journal in 2001, and "A Property Theory Perspective on Russian Enterprise Reform," in Assessing The Rule of Law in Transition Economies, also in 2001. His "Tragedy of the Anticommons" has sparked a debate among intellectual property theorists that continues to be discussed today. In 2008, Heller's book, The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives was published.

He has received criticism for repackaging old ideas in economics as his own.

Natural resource economics

Natural resource economics deals with the supply, demand, and allocation of the Earth's natural resources. One main objective of natural resource economics is to better understand the role of natural resources in the economy in order to develop more sustainable methods of managing those resources to ensure their availability to future generations. Resource economists study interactions between economic and natural systems, with the goal of developing a sustainable and efficient economy.

Open science data

Open science data is a type of open data focused on publishing observations and results of scientific activities available for anyone to analyze and reuse. A major purpose of the drive for open data is to allow the verification of scientific claims, by allowing others to look at the reprodubility of results, and to allow data from many sources to be integrated to give new knowledge. While the idea of open science data has been actively promoted since the 1950s, the rise of the Internet has significantly lowered the cost and time required to publish or obtain data.

Outline of community

The following outline is provided as an overview of topics relating to community.

A community is a group of people whose identity as a group lies in their interaction and sharing. Many factors may affect the identity of the participants and their degree of adhesion, such as intent, belief, resources, preferences, needs and risks.

Overexploitation

Overexploitation, also called overharvesting, refers to harvesting a renewable resource to the point of diminishing returns. Continued overexploitation can lead to the destruction of the resource. The term applies to natural resources such as: wild medicinal plants, grazing pastures, game animals, fish stocks, forests, and water aquifers.

In ecology, overexploitation describes one of the five main activities threatening global biodiversity. Ecologists use the term to describe populations that are harvested at a rate that is unsustainable, given their natural rates of mortality and capacities for reproduction. This can result in extinction at the population level and even extinction of whole species. In conservation biology the term is usually used in the context of human economic activity that involves the taking of biological resources, or organisms, in larger numbers than their populations can withstand. The term is also used and defined somewhat differently in fisheries, hydrology and natural resource management.

Overexploitation can lead to resource destruction, including extinctions. However it is also possible for overexploitation to be sustainable, as discussed below in the section on fisheries. In the context of fishing, the term overfishing can be used instead of overexploitation, as can overgrazing in stock management, overlogging in forest management, overdrafting in aquifer management, and endangered species in species monitoring. Overexploitation is not an activity limited to humans. Introduced predators and herbivores, for example, can overexploit native flora and fauna.

Patent pool

In patent law, a patent pool is a consortium of at least two companies agreeing to cross-license patents relating to a particular technology. The creation of a patent pool can save patentees and licensees time and money, and, in case of blocking patents, it may also be the only reasonable method for making the invention available to the public. Competition law issues are usually important when a large consortium is formed.

Patent thicket

A patent thicket is a concept with negative connotations that has been described as "a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology," or, in other words, "an overlapping set of patent rights” which requires innovators to reach licensing deals for multiple patents from multiple sources."The expression may come from SCM Corp. v. Xerox Corp. patent litigation case in the 1970s, wherein SCM's central charge had been that Xerox constructed a "patent thicket" to prevent competition.Patent thickets are used to defend against competitors designing around a single patent. It has been suggested by some that this is particularly true in fields such as software or pharmaceuticals, but Sir Robin Jacob has pointed out that "every patentee of a major invention is likely to come up with improvements and alleged improvements to his invention" and that "it is in the nature of the patent system itself that [patent thickets] should happen and it has always happened".Patent thickets are also sometimes called patent floods, or patent clusters. According to a report by Professor Ian Hargreaves, published in May 2011, patent thickets "obstruct entry to some markets and so impede innovation." Patent thickets are said to have become common in fields like nanotechnology as more fundamental science is patented. and some authors have expressed concern that this could reduce technological development and innovation.The economics of innovation literature suggests that patent thickets may have an ambiguous effect on patent transactions. On one hand, dispersion in the ownership of patents increases the number of patent owners with whom bargains have to be struck, and this may reduce the incentives to conduct patent transactions. But there is a second, countervailing effect: the presence of overlapping patent rights may reduce the value at stake in each individual patent licensing negotiation, and this may facilitate licensing deals.

Reinventing the wheel

To reinvent the wheel is to duplicate a basic method that has already previously been created or optimized by others.

The inspiration for this idiomatic metaphor lies in the fact that the wheel is the archetype of human ingenuity, both by virtue of the added power and flexibility it affords its users, and also in the ancient origins which allow it to underlie much, if not all, of modern technology. As it has already been invented, and is not considered to have any operational flaws, an attempt to reinvent it would be pointless and add no value to the object, and would be a waste of time, diverting the investigator's resources from possibly more worthy goals.

The phrase is sometimes used without derision, when a person's activities might be perceived as merely reinventing the wheel, when they actually possess additional value. For example, "reinventing the wheel" is an important tool in the instruction of complex ideas. Rather than providing students simply with a list of known facts and techniques and expecting them to incorporate these ideas perfectly and rapidly, the instructor instead will build up the material anew, leaving the student to work out those key steps which embody the reasoning characteristic of the field.

"Reinventing the wheel" may be an ironic cliche – it is not clear when the wheel itself was actually invented. The modern "invention" of the wheel might actually be a "re-invention" of an age-old invention. Additionally, many different wheels featuring enhancements on existing wheels (such as the many types of available tires) are regularly developed and marketed. The metaphor emphasizes understanding existing solutions, but not necessarily settling for them.

The term has also been used to describe the first non-circular wheel, invented in 2012, that takes the form of a three-dimensional sine wave. The seemingly complex shape has the actual width of a thin-profiled wheel and the nominal width of a wide-profiled wheel. The invention is currently in use by a company in Lake Forest, California, called Shark Wheel.

Rent-seeking

In public choice theory and in economics, rent-seeking involves seeking to increase one's share of existing wealth without creating new wealth. Rent-seeking results in reduced economic efficiency through poor allocation of resources, reduced actual wealth-creation, lost government revenue, increased income inequality, and (potentially) national decline.

Attempts at capture of regulatory agencies to gain a coercive monopoly can result in advantages for the rent seeker in a market while imposing disadvantages on (incorrupt) competitors. This constitutes one of many possible forms of rent-seeking behavior.

Robber baron (feudalism)

A robber baron or robber knight (German Raubritter) was an unscrupulous feudal landowner who imposed high taxes and tolls out of keeping with the norm without authorization by some higher authority, while protected by his fief's legal status. Some resorted to actual banditry. Medieval robber barons most often imposed high or unauthorized tolls on rivers or roads passing through their territory. Some actually robbed merchants, land travelers, and river traffic, seizing money, cargoes, entire ships, or engaged in kidnapping for ransom.

Some robber barons violated the custom under which tolls were collected on the Rhine either by charging higher tolls than the standard or by operating without authority from the Holy Roman Emperor altogether. During the period in the history of the Holy Roman Empire known as the Great Interregnum (1250–1273), the number of such tolling stations exploded in the absence of Imperial authority.

The German term for robber barons, Raubritter (robber knights) was coined by Friedrich Bottschalk in 1810.

Societal views on patents

Legal scholars, economists, activists, policymakers, industries, and trade organizations have held differing views on patents and engaged in contentious debates on the subject. Critical perspectives emerged in the nineteenth century that were especially based on the principles of free trade. Contemporary criticisms have echoed those arguments, claiming that patents block innovation and waste resources that could otherwise be used productively, and also block access to an increasingly important "commons" of enabling technologies (a phenomenon called the tragedy of the anticommons), apply a "one size fits all" model to industries with differing needs, that is especially unproductive for industries other than chemicals and pharmaceuticals and especially unproductive for the software industry. Enforcement by patent trolls of poor quality patents has led to criticism of the patent office as well as the system itself. Patents on pharmaceuticals have also been a particular focus of criticism, as the high prices they enable puts life-saving drugs out of reach of many people. Alternatives to patents have been proposed, such Joseph Stiglitz's suggestion of providing "prize money" (from a "prize fund" sponsored by the government) as a substitute for the lost profits associated with abstaining from the monopoly given by a patent.These debates are part of a larger discourse on intellectual property protection which also reflects differing perspectives on copyright.

By owner
By nature
Commons
Theory
Applications
Disposession/
redistribution
Scholars
(key work)

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