Exclusion, Inclusion, and Enclosure: Historical Commons and Modern Intellectual Property

World Development Vol. 34, No. 10, pp. 1713–1727, 2006 Ó 2006 Elsevier Ltd. All rights reserved 0305-750X/$ - see front matter www.elsevier.com/locate/worlddev

doi:10.1016/j.worlddev.2006.02.002

Exclusion, Inclusion, and Enclosure: Historical Commons and Modern Intellectual Property C. FORD RUNGE University of Minnesota, St. Paul, USA

and EDI DEFRANCESCO * Universita` di Padova, Italy Summary. — The global debate over intellectual property rights (IPR) relating to genomics, software, and scientific information has divided developed and developing countries in international fora. Fundamental issues undergird these debates: who is to be excluded from various kinds of information, and who is to be included in the benefits of these ideas? An insight into these issues may be gained from the history and theory of property rights in land, especially the enclosure of lands held in common. After considering successful examples of common property, the paper considers the modern debate over common intellectual property. Ó 2006 Elsevier Ltd. All rights reserved. Key words — Europe, Great Britain, common property, biotechnology, enclosure, open software

1. INTRODUCTION The global debate over intellectual property rights (IPR), especially relating to genomics, computer software, and scientific data, has divided developed and developing countries in the World Trade Organization (WTO) and other international fora. This complex debate involves negotiations over trade rules, copyrights, and patents. Yet a fundamental question underlies the debates: who is to be excluded from various kinds of information, especially intellectual property defining rights of access, even to life itself? And who should be included in the benefits of these ideas? Our thesis is that insight into this issue may be gained from the history and theory of property rights in land, especially the enclosure of lands previously held in common. Because the history of common property is seldom carefully examined or compared (until recently) to debates over intellectual property, we seek to develop and amplify this comparison. The article begins with a brief review of the enclosure of land and the widely cited notion

of the Tragedy of the Commons in both Great Britain and the less well-known history of the commons in Italy. We document a successful example of common property with a pedigree stretching back to 1,000 years. We then consider the modern version of the debate over intellectual property in genomics, open software, and scientific data. We conclude with a synthesis in which the two faces of enclosure—to be excluded and to be included—are brought together in an argument favoring wider applications of common rights to

* This paper was presented at the ninth US–Italy Conference on Food, Agriculture, and the Environment in Conegliano, Italy, August 28–September 1, 2004. A related article focuses on university and life sciences research (Runge, 2004). It is dedicated to the memory of Maurizio Merlo, an active and enthusiastic participant in US–Italy collaborations. Our thanks to Julio Barrigan, James Boyle, Philip Pardey, John P. Walsh, and three anonymous reviewers for comments and suggestions. Final revision accepted: February 27, 2006.

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intellectual property, especially in developing countries. 2. THE ENCLOSURE OF LAND Property rights can take many forms. In the Western tradition dating to Roman law, private property conferred the right to exclude others from a stream of benefits or rents. These property rights took the form of exclusive title to land and property and later, patents and copyrights. But the law has also recognized common rights (res communes): rights to be included in benefits streams as a member of a well-defined group. These rights can be membership in a village, a common property association using range or forest resources, a club, shareholder status in a firm or corporation, and even citizenship. 1 Rights to exclude and to be included are not simply opposites because those who are not included are excluded. They are different types of entitlements. In all markets, and in civil society as a whole, who has the right to exclude others from a stream of rents or profits and who has the right to be included in those streams are different aspects of rules which assure participants and citizens that their expectations will be met (Runge, 1984b). As Coase (1937) famously observed, even private firms operate internally as a sort of commons, based on rules of exclusion and inclusion which result from shared purposes and goals (including profit) in which tacit understandings and norms obviate the need for transactions and contracting that would be necessary in dealing with ‘‘outsiders.’’ 2 These outsiders are excluded, while owners and shareholders are included in the benefits to the firm. The interest here is to consider the balance between the negative right to exclude others from certain benefits by enclosing property, and the positive right to be included in such a stream of benefits. Rights to exclude others from landed property evolved in an historical process known as enclosure. Enclosure referred to the conversion of common or open fields into private, exclusive parcels on which sole proprietorship gave rents and/or management decisions to individual owners (Williamson, 1987). The origins of communal or common land use are obscure; most commentators trace the organization of the open field systems of common arable land in the British Isles to the period after the Norman Conquest (Rackham, 1986, pp. 155–179).

Their organization was preceded by earlier enclosures using low stony banks (reaves) dating to the Neolithic period, which were overlaid willy-nilly by Celtic fields with high banks, Roman division into squares of 775 yards (centuriation), and other regular Anglo-Saxon fields. Common arable land grew up after 1066; Fox (1981) concludes that open field commons was widespread and in working order by 1300, and took a similar form in ‘‘English, Scandinavian, Welsh, and Gaelic cultures, and on the Continent in French, Germanic, Slovenic, and Greek lands’’ (Rackham, p. 178). The system may have peaked about the time of the Black Death (c. 1350), when it accounted for between a third and a quarter of England’s land area. What remained of common arable land was largely abolished by a series of Parliamentary Enclosure Acts during 1720–1840. Common or open fields included large areas for crops, divided into narrow strips cultivated by individuals. After harvest, these fields were opened to common grazing, but with restrictions on who and how many cattle could graze according to a ‘‘stinting’’ rule. A second type of common land was meadow, with individual use rights for hay and fodder, which after harvest was again opened to common grazing. Third was common waste: permanent pasture open to all those entitled to graze there. In these types of common property, inholders of enclosed land might coexist. However, wholesale enclosure replaced this system, ‘‘characterized by a mixture of private property rights and common usages, with the system of private property prevailing today, in which an owner or tenant has virtually exclusive rights’’ (Shaw-Taylor, 2001, p. 642). The most active phases of enclosure began in Great Britain in the 1500s and extended into the 19th century. Especially in the lowlands of Great Britain, this process was initially connected to the constraint to arable agriculture represented by excess water and flooding on the flat coastal plains of Norfolk, Huntingdonshire, Lincolnshire, Cambridgeshire, and Suffolk. These wet marshes, referred to broadly as ‘‘fens,’’ required drainage to be converted to arable fields and pastures. Darby, in his classic The Draining of the Fens (1956), emphasized that such drainage provided an early and profound example of environmental engineering driven by legal orders which prefigured later enclosure movements. As early as 1531, Henry VIII empowered a Commission on Sewers to survey

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‘‘streams, ditches, banks . . . floodgates, ponds, locks,’’ and other water bodies ‘‘to be made, corrected, repaired . . . as the case may require,’’ and taxes and assessments of local inhabitants for the purposes. 3 By the end of the 1500s, enthusiasm for large drainage projects was expressed in particular by Bradley’s 1589 treatise ‘‘concerning the state of marshes or inundated lands (commonly called Fens).’’ 4 The main problem was to find the capital and organization to manage and direct their construction. The effort required an ‘‘undertaker’’ (one willing to undertake the project) and an ‘‘adventurer’’ (who adventured their capital). In return, these risk takers were rewarded with exclusive rights to a part of the land that was drained and enclosed. Meanwhile, those who had lived as commoners on the fens often formed a rural opposition, who feared for their joint rights to hunt, fish, pasture, and cut hay on the ecologically diverse and productive (if often flooded) fenlands. Among the opposition, one 17th century writer complained that the enclosing undertakers had ‘‘misinformed many Parliament men, that all the Fens is mere quagmire, and . . . of little or no value.’’ In fact, the fens afforded employment to commoners gathering ‘‘reeds, fodder, thacks, flags, hassocks, segg, fleggweed for flegeren collors, maltweede for churches, chambers, beddes, and many other fenn commodytes of great use both in towne and countreye.’’ 5 Once the fens were drained, the same writer observed, they were planted to ‘‘Cole-seed and Rape, they are but Dutch commodities and trash and trumpery.’’ 6 Yet as Europe recovered from the plague, population growth increased, contributing to rising grain and meat prices, making arable land more scarce and profitable. Projects thus continued to be organized to drain and enclose the fens through dikes, ditches, and canals so that they could be tilled or permanently pastured. Adventurers formed companies which were granted charters from the crown to drain the Fen District Levels. In return, these groups were granted private, exclusive rights of a third to two-thirds of the enclosed fields (Albright, 1955, p. 53). As Rackham notes (1986, p. 390), the fens were not unproductive, but the incentive ‘‘to make easy money out of arable crops and improved grassland’’ was strong. What became of the commoners? Camden’s Britannia (first published in 1586 and translated from Latin in 1610) dismissed them as ‘‘a kind of people according to the nature of the place

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where they dwell, rude, uncivil, and envious to all others, whom they call ‘‘Upland-men’’ (Camden, 1607–1610, Britannia, quoted in Darby, p. 23). Camden ridiculed these rustics for stalking game on tall stilts which kept them above water level, and applying their minds only to ‘‘grasing, fishing, and fowling.’’ In winter, marsh hay was burned off, contributing to a rich soil that was the source of thatch, alders, and willows used to build their cottages. 7 By Cromwell’s time, the Commissioners and the Court of Sewers were charged with taxing any commoners if their land was ‘‘hurtfully surrounded’’ by undrained marsh. The tax, if unpaid, led the land to be forfeited to the charter companies and to King Charles I, who was financially invested in the entire enterprise. Once the local employment effects of the drainage projects wore off, many of those with common rights (including tenancy grants dating to the ancient Statute of Merton) were disenfranchised, and their rights to be included became null and void. Under Cromwell’s leadership, many of these commoners formed a reactionary element. In 1638, Cromwell and his family had moved to Ely, near Cambridge, from which seat in Parliament he would later lead the Glorious Revolution. Although a substantial property owner himself, Cromwell found strong support from commoners who had been deprived of their customary rights to fish, hunt, cut hay, and pasture cattle in the thousands of square miles covered by the wetland marshes. ‘‘Here,’’ as Antonia Fraser wrote in her biography of Cromwell, ‘‘from olden times, there were no hedges to mark the map, nor were there any really great houses . . . to overlay the spirit of the Fendweller’s’’ (Fraser, 1973, p. 73). Cromwell argued that the commoners were due compensation, since they did not share in the crops and livestock now produced on enclosed fields. Ensuing riots and protests contributed to the Civil War, in which King Charles I as well as 80,000 others (out of an estimated male population of 1.6 million) paid with their lives. Ironically, in 1649, when the war was over and Charles was dead, it was Cromwell who took over the drainage projects of the Earl of Bedford on the Great Level near Cambridge. The timing and effects of enclosure, especially on the disenfranchisement of commoners, remain controversial to this day. Hammond and Hammond’s The Village Labourer (1911) argued that enclosure left commoners both poorer and more wage-dependent (Hammond

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& Hammond, 1995). Clapham (1926), Chambers and Mingay (1966), and Clark and Clark (2001) countered that the role and extent of common rights was overstated. Neeson (1993) reasserted the Hammonds’ thesis while ShawTaylor (2001) supported the idea that by the 18th century, most laborers did not have common rights anyway, and therefore could not be harmed by enclosure. Writing on the first part of the 17th century, Rackham is summarily critical of the drainage and enclosure projects, noting (1986, p. 390): ‘‘The scheme was unpopular: it infringed rights of property; it took away common-rights which could not be adequately compensated; it bestowed land on ‘Adventurers’ who had put up the capital; it made existing inhabitants responsible for maintaining works they had not asked for; it damaged the natural ecology and reduced birds and fish; and it grossly underestimated the practical difficulties. Also it was involved with the less than scrupulous activities of Charles I, who . . . failed in his royal duty of protecting the interests of his lesser subjects.’’

Whatever the historical record, the benefits of enclosure for economic efficiency have been widely asserted. The right to exclude others from a stream of rents has been defended over time as a touchstone of enterprise, the basis of incentives to adopt new technology and to maintain property in good stead. The conventional view is that enclosure freed up surplus labor and made it available to the industrial revolution; it encouraged the modernization of agriculture and animal husbandry, as well as making quite a few adventurers lords of new manors. Dugdale, in his travelogues of 1657 and 1662, noted the general improvement of lands converted from marsh to arable fields and the expanded commodity production by the new landowners, which he credited to enclosure (Darby, 1956, pp. 86–92). Boyle (2003, p. 35), although a skeptic, summarized the conventional wisdom: ‘‘By transferring inefficiently managed common land into the hands of a single owner, enclosure escaped the aptly named ‘‘tragedy of the commons.’’ It gave incentives for large-scale investment, allowed control over exploitation, and, in general, ensured that resources could be put to their most efficient use. Before the enclosure movement, the feudal lord would not invest in drainage systems, sheep pastures, or crop rotation that might increase yields from the common—he knew all too well that the fruits of his labor could be appropriated by others. The strong private property rights and single entity control that were introduced in the enclosure movement avoid the tragedies of overuse and underinvestment.’’

The empirical evidence in support of these claims is considerably weaker than what conventional wisdom suggests. In a thorough assessment of English enclosures, Robert C. Allen decomposed their effects on efficiency and redistribution of rents, using indices developed by Diewert (1974). He found that the efficiency gains on enclosed fields were actually less than on those that remained open. Specifically, Allen analyzed data collected by agriculturalist Arthur Young 8 in the 1770s on rents, wages, and prices as well as quantities of land and labor inputs used on farms. With econometric methods, Allen (1982, 1992) concluded that ‘‘the major economic consequence of the enclosure of open field arable in the 18th century was to redistribute the existing agricultural income, not to create additional income by increasing efficiency’’ (Allen, 1982, p. 950). Other agricultural historians have found that commoners farming open fields did indeed adopt modern agricultural technologies, supporting Allen’s finding that common fields actually produced higher yields than enclosed ones (Yelling, 1977). In further support of this view, Gregory Clark analyzed data on land markets from 22,000 plots held in England by charities, some common and some enclosed. He concluded, again based on econometric methods, that ‘‘rent gains from enclosure thus seems to be a myth,’’ and that ‘‘there was very little private or social gain from enclosing land’’ (Clark, 1998, p. 81, 97). 9 Where rents on enclosed fields rose, 10 this may simply have reflected the enhanced bargaining power of landlords under the new regime, as well as the population-driven increases in demand for grains, meat, and wool and the capitalization of higher commodity prices into land values. As Allen concludes, enclosure was justified with efficiency arguments, but its main effect was ‘‘to redistribute income to already rich landowners’’ (Allen, 1982, p. 951). 3. THE FALLACY OF TRAGEDY Apart from empirical studies, the theoretical case for enclosure is also dubious. Meza and Gould (1992) argued that even in perfect competition the enforcement of private rights to exclude others may result in inefficient levels of investment in resource productivity. In contrast to the partial equilibrium analysis favoring privatization by Demetz (1964) and Cheung

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(1987), Meza and Gould adopted a general equilibrium approach, in which decisions to enclose property and enforce rights to exclude may induce those excluded to overuse other property or may affect the inputs or outputs on the enclosed property, and thus prices. These price changes then affect the decisions of other property owners to enforce or not enforce enclosure. As a result, there may be too much or too little enforcement of rights to exclude, with multiple equilibria, some of which are socially inefficient. Our own work also questions the theoretical validity of the claim that resources managed as common property are necessarily managed inefficiently (Runge, 1981, 1984a, 1986). Garrett Hardin’s ‘‘The Tragedy of the Commons’’ is based on the ‘‘free rider’’ premise—that individuals find shirking responsibility more beneficial than cooperation in a commons (Hardin, 1968). The argument was developed in terms attributed to Lloyd (1833), in which there is always an incentive on common land to graze another head of cattle, regardless of the impact, because benefits of the extra animal are captured by the individual cattle owner while costs are spread across all those who share the commons. Since the individual benefits of this behavior always exceed the costs (which are shifted to the community), rational self-interest leads to social ruin. Hence, resources held in common, in which strong measures of social control are supposedly absent result in ‘‘tragedy.’’ Only the imposition of controls, including exclusive use rights, can avoid tragedy. Curiously, depending on one’s bias, either private use or dirigisme emerges as the major lesson. This has made the Tragedy of the Commons simultaneously popular with those favoring draconian regulatory measures and libertarians advocating private property as the preferred solution (Runge, 1984a, 1984b). 11 The idea that each individual will find it rational to free ride when benefits are individual and costs are spread over the community can be described as an n-person Prisoners’ Dilemma (PD) game, in which the dominant defection strategy undercuts the interests of all. Dominance means that the best strategy does not rely on what is expected of others. Therefore, the free-rider or defecting strategy dominates cooperation. Applied to common property, defection or free-riding leads to tragedy. The fact that many common property regimes do survive and even prosper, coupled with the unsettling authoritarian implications of the Tragedy

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of the Commons, suggests an alternative paradigm. This is the Assurance Problem (AP) (Runge, 1981, 1986; Sen, 1967). In its n-person game theoretic form, the AP is in contrast to PD which has a unique and inferior equilibrium. The AP has multiple equilibria, including those in which individuals cooperate rather than defect. Such cooperation may include joint enterprises organized as common property (Runge, 1986). 12 4. COMMON PROPERTY ON THE CONTINENT Since Hardin’s (1968) paper, theoretical studies of many types (e.g., game theory, neo-institutional economics, the theory of collective action) have shown that, under certain conditions, ‘‘tragedy’’ can indeed be avoided (Moretto & Rosato, 2002; Rasmussen & Meinzen-Dick, 1995; Romano, 2002). An increasing number of empirical studies, concerning both developing and developed countries, demonstrate that a common pool resource can be successfully managed under different common property regimes (see, among others: Berge & Carlsson, 2003; Kissling-Na¨f, Volken, & Bisang, 2002; Netting, 1981; Ostrom, 1990). These institutional arrangements can be located along a continuum, placing on one extreme private property regimes and on the other command and control regimes. Common use rights and collective management occupy an intermediate position (Ostrom, 1999), or what might be called a ‘‘third way.’’ Common property regimes dating to the Middle Ages and earlier survive in the Swiss Alps and northern Italy. Common property accounts for about 5% of Italian Alpine forests. In the Northern-Central Appennines common property regimes also exist, but are generally less-referenced in the international literature (Gajo & Nuvoli, 2002; Merlo, Morandini, Gabbrielli, & Novaco, 1989). Referring to the gradually disappearing Alpine common, Wilfredo Pareto wrote in 1896: ‘‘By undergoing the trial of free competition for centuries, the collective land properties show that they respond to certain specific needs. If they were to be violently destroyed, this would naturally represent a loss in the country’s utilities’’. The Magnifica Comunita` di Fiemme (MCF), illustrates a successful contemporary common property regime (Merlo, 1995; Morandini, 1996). Located in the valley of Avisio, Trento

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province, Central Alps, it manages—under de facto rights dating to before the Roman Age and under de jure rights since 1111—about 19,600 Ha of land, of which 11,400 are covered by spruce forests, 2,300 Ha are pastures, 4,700 Ha are meadows and 1,200 Ha are nonproductive land. MCF boundaries have remained relatively unchanged since the Patti Ghebardini of 1111. 13 Within its boundaries, residents of the valley hold common ownership of forests, alpine meadows, pastures, and water rights, as well as the related rights of wood harvesting, grazing, hunting, and fishing. The right-holders (Vicini) represent all of the residents in the villages of the MCF (11 at present). In the past, rights were granted not only to the descendents of the Vicini living in the valley, but also to new residents. 14 More recently, new membership has been gradually restricted to those living in the MCF for at least 20 years in order to limit the rapid increase of the number of right-holders linked to tourism (1993 Statute). 15 A formal institutional arrangement for the management of this common property has thus existed since the Middle Ages. 16 The MCF is structured at different levels and ruled democratically. At the village level, the system of rights to be included is managed by an elected local assembly (Consiglio di Regola). Voting rights belong to the Capofuoco, the head of a family, but any member of the village (at age 25) can be elected. 17 An elected assembly (Comun Generale) plays the decision-making role, similar to stockholders and the board of directors in a private company. The survival and success of the MCF is due to a mix of economic, social, and cultural factors, including its capacity to achieve intra- and inter-generational equity; maintain internal cohesion among the right-owners; adjust and fine-tune its institutional arrangements; and establish a participatory and transparent approach through informal democratic decision-making. In all these respects, it closely resembles a well-managed firm, but it is the internal dynamics of the firm, held in common, that it mimics. Transactions costs remain, but these are the costs of joint access to common information. 5. ENCLOSING IDEAS: INTELLECTUAL PROPERTY RIGHTS This historical and analytical review provides insight into the global debate over intellectual

property rights (IPR). Although we acknowledge that not all of the elements of common property in land offer insights into IPR, we feel that many parallels have gone largely undeveloped. In the modern period, we have entered what Boyle (2003) calls a ‘‘second enclosure movement’’ revolving around intellectual property. An active part of this debate relates to genomics, as well as computer software and scientific data (Ghijsen, 2002). In each area, it is often argued that without secure rights to exclude others from a stream of rents or benefits, firms will underinvest in new and promising technologies, slowing productivity gains and scientific advance. Yet, common property may offer (as it always has) a solution to the management of certain information which is superior to private exclusive use or an attempt to enforce exclusive IPR from a supervening position of authority (especially if there is none). We investigate these parallels first in relation to patent rights affecting genomics and the life sciences, second with respect to computer software, and third with respect to the role of scientific data in the private versus the public sector. Before investigating these areas, it is useful to remember that the virtue of enclosing ideas has had its distinguished doubters. Adam Smith (1776) was skeptical of patents over ideas, due largely to his general suspicion of their relationship to collusion and monopoly. Although patents may help secure higher returns for the monopolist, spurring investment, Smith was doubtful that they necessarily encouraged efficiency, innovation, and development. 18 A similar view was strongly expressed by Einaudi, who wrote that the consequence of patents was no more or less than to create monopoly by law,’’ (Einaudi, 1959, p. 396). Thomas Jefferson, although a supporter of patent rights and intellectual property, recognized their public goods characteristics, stating in an 1813 letter to Isaac McPherson: ‘‘If nature has made one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it . . . Inventions then cannot, in nature, be a subject of property.’’ 19

These views have modern adherents who fear that enclosing the genetic commons through intellectual property enforcement will

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confer additional monopoly power to global multinationals, and close out smaller firms, universities, and especially developing countries from genomics research, software, and scientific data and its benefits (Falcon & Fowler, 2002; Herdt, 1999; Tansey, 2002). Perhaps more importantly, Jefferson’s scepticism over the possibility of enclosing ideas suggests that privatizing computer software and much other information, scientific and cultural, may simply be unenforceable because of its inherent public goods characteristics (Runge, Senauer, Pardey, & Rosegrant, 2003, p. 96). Despite reservations over building walls and dikes around ideas, there is no shortage of enthusiasm by modern day undertakers and adventurers, especially in the private biotechnology and software sectors. The essential question is whether the record of enclosure in land, involving far fewer efficiency gains than imagined, will be repeated in the case of intellectual property. By contrast, the elements of common property management, revolving around rights to be included in benefits streams, may have greater contemporary relevance than is appreciated. A distinguished intellectual tradition in economics argues that enclosing ideas through patents protection is not necessary to innovation at all. Patents are largely a phenomenon of the last century and a half, and technological innovation, including industrial and agricultural revolutions, are much older. Arnold Plant of the London School of Economics (whose student Ronald Coase would do much to establish the importance of property rights in economics) argued convincingly that the absence of patents and copyrights did not deter innovation in the 19th century (Plant, 1934a, 1934b). Long before patents on genetic materials were contemplated or possible, common sharing of biological information was encouraged by societies of husbandry, through exhibitions and state and county fairs, and through newsletters and meetings of interested growers. In apple production, for example, private breeders developed new fruit varieties as a form of common property from the 1700s onward (Stallman, 1986). The American Pomological Society annual meetings resulted in thousands of nonproprietary reports on varieties tried and tested. As Tuckey (1976) wrote: ‘‘If one wonders about the great amount of talent and energy that went into the appraisal of varieties

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of fruit at this time, it must be remembered that during this period variety selection established the foundation of the commercial fruit industry in America. America had no native pear, peach, apple, plum, cherry, or grape varieties of consequence. The New World required new varieties, and it was the ardent band of fruit lovers of a century and more ago that did the laborious testing, sorting, and cataloguing which was so essential.’’

If anything, the rise of plant patent protection has been associated with a dramatic narrowing of the number of cultivars in apples and many other crops, impelling the creation of gene banks to preserve older and potentially valuable germplasm. Moser (2003) investigated the effect of patent systems on innovation across a wide range of countries, building a large data set from the catalogues of two 19th century world fairs. She found no clear evidence of increased innovative activity in countries with patent laws compared to those without them. In a detailed assault on copyrights and patents as sufficient or even necessary elements in innovation, Boldrin and Levine (2005) argue trenchantly that ‘‘Intellectual monopoly apologists like to portray intellectual property as a cure, a powerful and beneficial medicine alleviating the innovative impotence of competitive markets. If intellectual property is the Viagra of innovation, then it has been prescribed on the basis of the wrong diagnosis to a patient who is not impotent. It may occasionally provide an initial spurt of innovational enthusiasm. Unfortunately, this subsides rather rapidly and is replaced by a rapacious desire to obtain economic satisfaction through the exclusion of as many people as possible from fruitful intellectual intercourse.’’

Consider, for a moment, the role of intellectual common property in the university, which is a kind of permanent fair or festival of ideas. The fertility of an intellectual commons as a seedbed for new ideas is the reason universities exist, and why balkanization of knowledge within academic departments can easily overtake the advantages of specialization from the point of view of research output as a whole. This perspective is reflected in leading legal opinions on intellectual property law. Justice Brandeis, in a 1918 dissent in International News Service v. Associated Press (240 US 215), wrote that ‘‘[t]he general rule of law is, that the noblest of human productions— knowledge, truths ascertained, conceptions, and ideas—become, after voluntary communication to others, free as the air to common use,’’ (Boyle, 2003, p. 40).

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In genomics and bioinformatics, as in software, the line is blurred between computer modeling and biological research, just as ‘‘digital production techniques blur the line between listening, editing, and recreating,’’ (Boyle, p. 40). The question posed by critics of the Second Enclosure Movement is whether, given the public value of information contained in human and plant genomes, and much software and data, its enclosure will necessarily promote efficient social outcomes. ‘‘More property rights,’’ Boyle writes, ‘‘even though they supposedly offer greater incentives, do not necessarily make for more and better production and innovation—sometimes just the opposite is true’’ (2003, p. 44). Benkler (2002) carefully argues that in computer software, a ‘‘third’’ model of production is emerging based on common intellectual property which is distinct from either market-based or hierarchy-based economics. Using Linux, which he terms ‘‘commons-based peer production,’’ Benkler emphasizes that it ‘‘relies on decentralized information gathering and exchange to reduce the uncertainty of participants. It has particular advantages as an information process for identifying and allocating human creativity available to work on information and cultural resources,’’ (Benkler, 2002, p. 4). Such common networks include thousands of individuals collaborating in 5min increments to map the craters of Mars, and 40,000 people working together to create a more efficient human-edited directory for the Web than Yahoo. A third realm in which the utility of common intellectual property has emerged is in scientific data collection. Heller and Eisenberg (1998) argued that enclosure of scientific data has created a ‘‘Tragedy of the AntiCommons.’’ In response to US government policies, the National Institutes of Health and major universities began building technology transfer offices to patent and license their discoveries, constraining other research in the biological sciences and shutting off access to researchers both in the United States and abroad. ‘‘The result has been a spiralling of overlapping patent claims in the hands of different owners, reaching ever further upstream in the course of biomedical research,’’ (Heller & Eisenberg, 1998, p. 698; Heller, 1998). Two mechanisms have furthered this enclosure. The first began with the US National Institute of Health’s 1991decision to patent anonymous gene fragments on expressed se-

quence tags (ESTs). This effort has not proceeded smoothly, and NIH abandoned it several years later while the US Patent Office has given it less emphasis. Many private firms stepped in to file patents on newly expressed DNA sequences and gene fragments before their commercial potential was even understood or known, although strict utility and written description guidelines currently constrain the patenting of new DNA sequences. Even so, some (e.g., David, 2004) feel that the consequence has been to raise the risk and expense of bringing new innovations to market, reinforcing the power of large (and largely monopolistic) companies, especially in the pharmaceutical industry. The second mechanism involves the use of ‘‘reach through license agreements’’ (RTLAs), which give owners of a patented invention used in upstream research the right to reach downstream to collect rents, royalties, or options on subsequent scientific discoveries. Although justified as a mechanism to raise venture capital for smaller firms based on potential downstream rewards, RTLAs may result in overlapping and inconsistent claims on downstream commercial activity. Like Gulliver, downstream commercial entrepreneurs may awake to find themselves bound by hundreds of legal threads. The uncertainty resulting from this nightmarish possibility is a further drag on innovation and investment. As a result, some contemporary economists have reopened the question as to whether enclosure and private rights provide crucial incentives to innovate. David (2004) argues that in the life sciences (biotechnology, pharmaceuticals, and medicine), where industry funds about 25% of university research, patent claims are ‘‘perceptibly encroaching upon the culture of academic research and challenging the ethos of collaborative, open science’’ (p. 2). In the quarter-century since US passage of the Bayh–Dole Act of 1980, authorizing universities to seek patents on federally funded innovations, the delays created in gaining access to information when patents are pending has lengthened steadily. 20 This has created ‘‘formidable barriers to the ability of academic researchers to rapidly access new research tools and results,’’ (David, 2004, p. 8). Empirical evidence has begun to accumulate over the efficiency impacts of these trends, analogous to the efficiency debates surrounding enclosure in land. In 2005, the American Asso-

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ciation for the Advancement of Science (AAAS) organized a pilot survey on the effects of patenting on science (Hanson, Brewster, & Asher, 2005). Over 1,000 AAAS members responded to the survey, of which 40% who had acquired patented technologies since 2001 reported difficulties in obtaining the technology. Bioscience respondents working in the industry reported the most difficulty, with 76% saying their research had been negatively affected, compared with a still-considerable 35% of bioscientists working in universities. Of all scientists reporting difficulties, 58% said their work had been delayed by patent issues, 50% had to change the research and 28% were forced to abandon the research project. Cohen, Nelson, and Walsh (2000) found that an increasing reliance on patents in the 1990s has been accompanied by additional secrecy in the 1,478 US R&D laboratories surveyed, and that patents had become tools in blocking inventions by rivals, as negotiating levers and to aide in litigation of potential suits. As Maurer and his co-authors wrote of the increasingly complex legal landscape surrounding biotechnology research, in which data must be combined from dozens of academic and commercial sources, ‘‘discovery could soon be limited to the pace at which lawyers write contracts,’’ (Maurer, Hugenholtz, & Onsrud, 2001, p. 789). 21 Zheng, Juneja, and Wright (2006), in a survey of 90 plant biologists at four public universities, found that since 2000, one-third had experienced delays in obtaining access to research tools, causing delays, and in one-quarter of these cases a line of research had to be abandoned. A majority of respondents believed that IPR have an overall negative effect on research in their area. As Wright, Pardey, Nottenburg, and Koo (2006, p. 32) note in an analysis of investments and incentives in agricultural technology, especially genomics: ‘‘Scientists who have experience with managing start-ups and public sector development in this area generally strongly support the view that IPR thickets and hold-ups can be serious impediments to successful development of commercialization of transgenic cultivars for agriculture and horticulture in the United States.’’ The perverse incentives created by the tragedy of the anti-commons correspond to a PD game in which agents feel that because competing firms are rushing headlong to enclose intellectual property, they must also, lest they be left

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behind, even if this is an inferior equilibrium. Better to be worse off together than worse off alone. This defensive patenting strategy, when observed by others, simply reinforces the belief that it is an imperative. 22 A specific example is the privatization of Landsat data under the Land-Remote Sensing Commercialization Act of 1984. This act transferred management of Landsat data from NOAA in 1985 to a joint venture of Hughes and RCA, the Earth Observation Satellite Company. Landsat data, critical in many environmental assessments of deforestation, soil depletion, and species extinction, rose in price 10-fold, from $400 per image to $4,000. Hughes’ and RCAs’ rents clearly rose, but the result on university researchers and smaller companies was ‘‘devastating’’ (David, 2004, p. 12). In an indication of the advantages resulting from treating scientific and medical data as a form of common property, scientists in 2000 created the Public Library of Science, and in 2003 launched PLoS Biology, an open-source peer-reviewed scientific journal. As founder Michael Eisen of the University of California– Berkeley noted, PLoS sought to ‘‘switch from a model in which publishers are given permanent, exclusive control over the scientific literature and allowed to charge for access to a model in which the literature is effectively placed in the public domain . . .’’ (Lynch, 2003, p. 2). The Biological Innovation for Open Society (BIOS) initiative (arising from CAMBIA, an independent nonprofit research institute pioneering open source biotechnology and patent information) develops licensing strategies imitating the open source software movement (Nature, 2004). Similarly, the Public-Sector Intellectual Property Resource for Agriculture (PIPRA) shares access to proprietary technology, opening them especially to developing countries, while retaining the option to license for royalties to private sector interests in developed countries (Delmer, Nottenburg, Graff, & Bennett, 2003). Hence, treating at least some forms of scientific information as a commons may promote positive network externalities resulting from information sharing by a ‘‘club’’ whose members have rights to be included in the common pool of information. 23 The advantages of a club-network, including many sorts of common property, result in ‘‘internalities.’’ The internal economies resulting from such networks

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require a degree of loyalty and trust, but the benefits of reduced transactions may be very large indeed. These benefits confer real value to the rights to be included in the club-network. The collective willingness to pay to be part of this club is likely to significantly exceed individual firm’s willingness to pay to exclude others through patents or other forms of exclusion and enclosure. 24 David writes: ‘‘[T]he current rush to tighten the copyright regime and encourage strict enforcement of ‘‘anti-piracy’’ provisions of all kinds, may at some date in the not-so-distant future come to be perceived as having been a serious mistake, not only because its consequences were injurious to the conduct of open science, but because they were antithetical to the development and exploitation of new and more profitable business opportunities’’ (David, 2004, p. 12).

Headlong enclosure of intellectual property in genomics, software, and scientific data thus may materially slow the engine of research and development. Second, the new enclosure movement may create rights which, even if they do not end certain public or private classes of R&D, raise transactions costs so high as to shut out and essentially disenfranchise smaller firms or public sector scientists and developing countries. In the same sense as enclosure of land, they may transfer rents to the modern counterparts of large landlords, but be socially inefficient. Third, this process may lead directly to losses in the capacity to manage and apply information with material social and economic benefits, especially in the developing world. The new enclosure movement poses special obstacles for developing countries who have agreed in the WTO and elsewhere to implement IPR regimes with enormous costs and dubious benefits, in what former Canadian trade negotiator Sylvia Ostry (2005) calls ‘‘systematic asymmetry.’’ Like the ‘‘rude and uncivil’’ commoners of centuries past, countries and firms who fail to uphold rules of IPR have been dismissed as antiquated at best and pirates at worst. But LDCs might fairly ask: is there more to gain from treating genomics, software, and scientific data as forms of managed common property, especially through multilateral scientific and governing institutions such as BIOS, than ceding their rights to OECD-based multinationals? At base the questions are the same as in enclosure of land: is it really more efficient to enclose, and whose streams of rents are being protected as legal monopolies?

6. THE RIGHT TO BE INCLUDED We have argued that a preoccupation with the right to exclude in cases of real or intellectual property should not neglect the important benefits associated with rights to be included, resulting from membership in an intellectual and scientific club-network or commons. Common property, whether property rights to joint use of land in the 16–18th century England or to the resources of Italian Alpine forests, or to genomics, software, and scientific research in our own time, are all rights to be included. In a truly civil society, these rights to be included will be balanced against those which exclude, in ways which respond both efficiently and fairly to the competing claims of different groups, creating a balancing bundle or equilibrium of exclusive and inclusive rights. 25 On the side of exclusion, there is no question that exclusive rights to private property, real and intellectual, confer tangible benefits to those who hold them. However, the case linking these rights—taken alone—to innovation and technological change is dubious. In some cases, there may be a strong basis for the connection, but the burden of proof should be on the enclosing firm, and the authority granting rights such as patents or copyrights. At the same time, civil society cannot afford to divest itself of rights to be included in a stream of services or benefits, which also have incentive effects. Many of the benefits conferred by rights to be included involve public goods such as education, health care, or clean air and water. But rights to be included in streams of information may also be critical to incentives to invest in new research frontiers, with major implications for scientific progress and economic productivity, especially for countries who may be forced by lack of scientific and technical capability to rely on spillovers from rich centers of research and innovation in the North. The internalities of information sharing can increase the pace, and propel commercialization of, technological innovations by avoiding the fragmentation, secrecy, and transactions costs discussed above. Especially in the developing world, where the resources to mount the legalistic and juridical processes necessary to settle disputes over intellectual property are terribly scarce, this may require altering the balance in the bundle of these rights, and a reassertion of the private and public efficiencies gained from real and intellectual assets treated as common property.

EXCLUSION, INCLUSION, AND ENCLOSURE

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NOTES 1. Common rights may be argued to be a form of ‘‘group private property,’’ but clearly involve rules of use that define the rights and obligations of members and the lack of rights by nonmembers of the group. They are further distinguishable from the absence of any rights (res nullius), which in modern discussions is often called ‘‘open access,’’ and has been confused with common property. See Ciriacy-Wantrup and Bishop (1975). 2. Ronald H. Coase, ‘‘The Nature of the Firm.’’ Economica (1937). Coase’s two most famous articles, ‘‘The Problem of Social Cost’’ (1960) and ‘‘The Nature of the Firm’’ (1937) may be seen as dual pieces. The first analyzes the role of property rights in responding to externalities such as pollution from an industrial process. The second analyzes the ‘‘internalities’’ associated with the creation of firms, which lower the transactions costs of doing business inside the firm relative to business with outsiders, which remains the province of the price system. Both articles concern the boundary conditions of liability and exposure created by property rights. Read together, it is evident that they pertain to the economic advantages of rights to exclude and to be included, respectively. 3. Quoted in Darby (1956, p. 4). 4. A complete copy of Bradley’s treatise is included as Appendix I to Darby (1956) volume, The Draining of the Fens (1956). Rackham (1986, pp. 383–391), taking a longer view of fen drainage than Darby, argued that the Romans occupying Great Britain were the first systematically to drain fenland, and that the Anglo-Saxons did so as well. He thus identifies the fen drainage and enclosure occurring after 1500 as the ‘‘third draining of the fens.’’ 5. The Anti-Projector or the History of the Fen Project (1646, p. 8). Quoted in Darby (1956, p. 52). We have attempted to identify these archaic raw materials of the marsh from the Oxford English Dictionary and other sources. Reeds and fodder have their modern definitions: thacks are thatch used for roofing; flags are reeds or rushes used for binding or tightening the seams of a barrel, hassocks are clumps of grass, segg is fen sedge, a fern used for thatching. Rackham (1986, pp. 381–382) points out that sedge (also mative to North America, where it is called ‘‘sawgrass’’) has hacksaw-like leaves and that Anglo-Saxons named the rune eolh, representing X, after it. Fleggweed, flegeren collors, and maltweede all eluded our search. 6. Darby (1956, p. 52). It did nothing to reassure the commoners that a chief engineer of the drainage projects

was the Dutchman Vermuyden, who also led in the development of windmill technology to pump waters from one ditch or course to another. 7. W. Dugdale, in 1662, similarly described the commoners as a ‘‘rude, and almost barbarous, sort of lazy and beggarly people,’’ (1772, p. 171). Cited in Darby (1956, p. 23, note 1). 8. Young was secretary of the British Board of Agriculture, and editor of the Annals of Agriculture from 1768 to 1770. He traveled throughout England, collecting his data and observations into nine volumes of 4,500 pages. 9. In a comment on Clark, Chapman (1999) suggests that the Charity Commission data are unrepresentative and thus misleading. 10. A fact which led McCloskey (1972, 1991) to claim efficiency gains. 11. Hardin’s somewhat opaque solution to the dilemma called for ‘‘mutual coercion, mutually agreed upon.’’ This peculiar phrase illustrates the tension between dirigisme and private decision, but may actually describe common property regulated according to a ‘‘stinting’’ rule. 12. A further irony of the use of the Tragedy of the Commons’ as justification for imposing private, exclusive property rights is that the joint undertakings of teams of adventurers during the enclosure movement became a classic example of a ‘‘public goods’’ problems in which shirking or free riding was a major constraint to success. 13. The Feudal System introduced in the Middle Ages contrasted with the administrative autonomy of the MCF. In 1111, the MCF obtained a regulation concerning their relations with Feudal Lord, the Patti Ghebardini, which substantially exempted the MCF from the feudal system, while assuring the MCF administrative autonomy. 14. As technology and the valley’s economic development improved, these conditions also changed, in order to maintain a sustainable ratio between the users and the common estate. 15. The MCF meets Ostrom’s (1990) principles for enduring common property institutions (see Dietz, Ostrom, & Stern, 2003), including: clearly defined

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boundaries of common pool users; transparent appropriation rules; effective monitoring; graduated sanctions; and conflict resolution mechanisms. 16. Institutional settings and rules were defined for the first time in a written form in 1480 (Quadernollo): in 1613, they were described in more detail (Libro delle Consuetudini). The MCF had a new Temporary Statute, approved by the Austrian authorities in 1908. Under Italian government, the MCF had a first temporary Statute (1935), an updated one in 1951 and, finally, the present Statute (1993). 17. With several relevant exceptions, the MCF was— and still is—based on male-voting rights. 18. Smith (1776) wrote in The Wealth of Nations that monopolies should be temporary. If maintained the result would be to tax individuals ‘‘very absurdly in two different ways: first, by the high price of goods, which, in the case of a free trade, they could buy much cheaper; and secondly, by their total exclusion from a branch of business which might be both convenient and profitable for many of them to carry on (Smith, Book III, p. 339, cited in Boyle, 2003, p. 55, note 87)’’. 19. Letter from Thomas Jefferson to Isaac McPherson (August 13, 1813) in Berghed, A. E. (1907). The writings of Thomas Jefferson, 333–334. Cited in Boyle (2003, p. 53). 20. See Henderson, Jaffe, and Trajtenberg (1998). 21. A dissenting view comes from Walsh, Cho, and Cohens’ (2005) examination of academic biomedical research, which surveyed 1,125 academic researchers and found that only 1% reported delays due to patents, although delays were more common in a subset of technologies relating to signaling proteins. 22. Governments may find themselves caught in the same perverse dynamic as firms. The European Union’s Directive on the Legal Protection of Databases of March 11, 1996 originated as industrial policy to confront perceived superiority of on-line electronic databases in the United States by establishing sui generis

copyright protections which departed from longstanding principles of intellectual property law. By blurring the line between protecting expression and protecting ideas, and between original and pre-existing expression, the Directive seeks to limit reuse of databases unless payment for licenses occurs. In reaction to the Directive, the US Congress, at the request of the US Patent and Trademark Office, introduced various bills (HR 3531— Database Investment and Intellectual Property Piracy Act of 1996, and numerous successor bills, such as HR 345—The Collections of Information Antipiracy Act of 1999, and HR 1858—The Consumer and Investors Access to Information Act of 1999 (David, 2004, p. 15)). 23. On club goods and collective action generally, see Cornes and Sandler (1996), and Todd Sandler, Collective action: theory and applications. On the theory of network externalities, see Katz and Shapiro (1985). A recent paper by Smith, Pardey, Chan-King (2006) discusses the growth of professional societies in economics as examples of club-networks. 24. Even the largest and loosest of such club-networks, such as citizenship, may confer substantial benefits, both tangible and intangible. Apart from whatever tangible government benefits (Social Security, etc.) are conferred by US citizenship, it is apparent that global demand for US citizenship, based in part on intangible benefits, well exceeds the supply. Willingness to pay to be included daily causes illegal immigration and risk of life. 25. Berlin (1958), distinguished negative freedom (from interference by others) and positive freedom (to engage in or be part of a stream of benefits). Berlin’s primary interest was to argue in favor of negative liberty, as a principle of social conduct over positive liberty, which can be debased in the name of a ‘‘higher rationality.’’ In totalitarian or fascist hands, glorifying a positive freedom to a distant utopian future can lead to widespread denials or individual liberty. We are concerned with a different application of the same distinction: the balance between the negative right to exclude others from property (to be free from their claims to its benefits), and the positive right to be included in a stream of future benefits (a right to a share of a common pool of resources or information).

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