Designing the Microbial Research Commons Proceedings of an International Symposium (2011) / Chapter Skim
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3. Breaking Anti-Commons Constraints on Global Scientific Research: Some New Moves in "Legal Jujitsu"
3. Breaking Anti-Commons Constraints on Global Scientific Research: Some New Moves in "Legal Jujitsu"
Pages 13-24
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From page 13... ...
Surely there will be others present who recall the message of Garrett Hardin's 1968 article "The Tragedy of the Commons,"6 in which the it was the opposite of the "anti-commons" that figured as a decidedly bad thing. At least, the latter is the view one is left to draw from Hardin's account of historical experience with common-use arrangements, such as the common grazing rights on lands held by agrarian communes in medieval Europe that led inexorably to the destruction of valuable and exhaustible resources by "over-grazing." So, we are confronted with two disconcerting if not necessarily contradictory views about the effects of private property rights in valuable economic resources: the absence of the right to exclude others from trespass, as in the case of "the tragically over-grazed" village commons, leads to a bad outcome; but the same may be said about the presence of the patent-holder's right to exclude others from the use of the patented invention.
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From page 14... ...
the multiplying Bedouin sheep-flocks in the Negev combined with the decline of agriculture and the abandonment of the associated irrigation dams and channels to produce a reversion to the desert conditions that are found in the southern region of modern Israel. But the exhaustion of village lands in medieval Europe due to over-grazing of their common fields, the illustration that Garrett Hardin provided as a parable supporting his argument that efficient natural resource use requires private property rights and market pricing of resource use, is just a fantasy.
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From page 15... ...
For, in this case, and particularly that of digital research resources, the value of the commons actually improves with more intensive exploitation by members of an extensive community of expert users. The removal of recording and copying errors, and the annotation of data-files and reports that link the contents to the corpus of published research findings, and to related datasets with which they may be federated for further analysis, are semi-automatic consequences of the symbiotic relationship between a research community and the resource commons that it builds and exploits.
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From page 16... ...
Minna Allarakhia12 did point out in her presentation that some open-access communities are beginning to provide complementary access not only to data and to archived publications, but also to analysis tools, search tools, and other types of research tools. The premise was that, without such analytical tools, users will not be able to benefit sufficiently from the enormous data investments that are being made.
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From page 17... ...
research tool for their own work. The point here is that the device of a contractually constructed commons -- the phrase introduced in the seminal 2003 publication by Reichman and Uhlir13 -- addresses the reality of the research world in which prior work has given rise to patented procedures, or other IPR and sui generis forms of restricted access (database rights, in the EU)
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From page 18... ...
Not obtaining strong patent rights on a discovery or invention that could turn out to be important, and moreover a major source of revenue had it been property privatized could expose the institution's leaders to the kind of response that Oxford's requests for increased overhead research funding were known to have elicited on some occasions from officials in Her Majesty's Treasury: "Had you only thought to patent penicillin, you wouldn't need to be here now, would you? " Due diligence therefore suggested that in negotiations about collaborative research agreements it was better to seek the strongest possible IPR protections for the university's interests, or to push all the conceivable liability risks (or the costs of insuring against them)
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From page 19... ...
The uncertainties about the nature of the products and processes of the proposed research project, taken in conjunction with the professional incentives of those charged with performing "due diligence" and their inability to calculate the countervailing value of the losses entailed in not doing the research, tend to promote behaviors that reflect extreme risk aversion. Fears of failing to secure as large as possible gains from intellectual property rights on university conducted research appears to be a major source of protracted negotiations for collaborate agreements.
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From page 20... ...
In a survey conducted among academic biomedical researchers at U.S. universities and research institutes, John Walsh, Ashish Arora, and Wesley Cohen asked whether the respondents had abandoned a research project because the costs of obtaining licenses on patented research tools was un-supportably large.16 They found so few such instances of blocked or abandoned research projects that they report the victims of the anticommons (in the field biomedical research)
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From page 21... ...
A little microeconomics analysis indicates that is to be expected under those conditions. When database rights are distributed among commercial owners each of whom independently set prices on the contents in order to maximize the owner's individual profits, symmetrical owners will set the same charges for access rights and the greater the number of databases that a project must consult, the higher will be the stack of access charges the project will face.
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From page 22... ...
The so-called Hap Map project then followed the precedents established by the Human Genome Project, in rejecting protection of the data under copyright or database rights and establishing a policy requiring participants to release individual genotype data to all the project members as soon as it was identified. It was recognized that any of This is a special case of legal jujitsu, where a "copy-left" strategy has been mutually imposed on database users by an enforceable contract in the absence of IPR ownership.
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From page 23... ...
, collaboration between Science Commons and the Teranode Corporation, having created a database with open access scientific information and data – content that is digital, online, free of charge, and free of most copyright and licensing restrictions -- is using it also to build a semantic web to permit linkage of the contents and sophisticated search facilities for neuroscience research projects. (Here I should disclose an "interest," in that I have been and remain a member of the scientific board of Science Commons.)
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From page 24... ...
It is relevant to notice the proposal and practical demonstration by Gregory Clarkson21 of a method of using network analysis to discover patent thickets and disqualify them as ineligible for efficient pool status. Nevertheless, dual pricing policies by foundations operating research resource commons, potentially would be subject to abuse, and competition among those entities will be quite limited if they are successful in internalizing complementarities among research tools.
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