The Inequitable Commons

Michael John Long is an LLM candidate at Osgoode Hall and is taking the Intellectual Property Theory course.

The Romance of the Public Domain, as Anupam Chander and Madhavi Sunder see it, is the presumption that the public domain is a landscape where everyone has equal access to reap the riches found therein.  This ‘romance of the commons’ is the belief that because resources are open to all by the law that the resources will be equally exploited by all.  However, ‘scholars obscure the distributional consequences of the commons,’ because in practice, differing circumstances render some able to exploit the commons better than others.  The authors work with the definition that the public domain involves ‘resources for which legal rights to access and use for free (or for nominal sums) are held broadly,’ and moreover, the term is used interchangeably with the term ‘commons’ based on the admittedly spacious definition.

The authors write in response to the apparent divide between intellectual property and the public domain; between privatization and the second ‘enclosure movement’ which seeks to protect a commons of information against private property.  In fact, the authors write that ‘intellectual property and the public domain are paired together in a perpetual dance,’ in which ‘innovation captured as private property depends upon the existence of a rich public domain.’  Here they reference Carol Rose who reminds us of the first ‘enclosure movement’ in which open roadways allowed for free unfettered trade and enlarging the potential markets that private property can exploit.  The authors are certainly not anticommons, but they do believe that the focus of public domain literature on the easy appropriation, and the free speech and access to, information by ‘commoners’ fails to address disparities in the ability to exercise these apparent freedoms.

Intellectual property and the public domain, the authors argue, are made for each other; and the public domain often functions in service of privatization.  The authors wish to show that as the transportation system facilitated the first ‘enclosure movement,’ the commons preserved by Trade Related Intellectual Property Rights (TRIPS) facilitates the current ‘enclosure movement.’  This is so, in that, TRIPS require all member states to agree to both standards of protection for intellectual property rights and the allowance of foreign access and ownership, through the treatment of foreigners as equal to the citizens of the state; a combination which severely imbalances the transfer of ownership of intellectual products from the developing to the developed world.  TRIPS in effect have upset the balance of the global public domain.

Before TRIPS both the East and West benefited from each others’ invention and expression; the West benefited in the East’s unprotected knowledge (example of the neem tree), and the East benefited in the West’s weak intellectual property laws in protecting property across borders (example of computer software and films).  TRIPS changed this with strict mandates for minimum standards for intellectual property; which leaves the developing world under threat of loss of trade privileges for the use of firmly protected intellectual products, making them ‘fair followers’ instead of ‘free riders.’  The developed world however is left free to exploit the resources and efforts of the developing world where the global commons of intellectual products remains intact.  In essence, the public domain in genetic resources and traditional knowledge remains post-TRIPS and is bound to be exploited asymmetrically.  In response the authors offer four equality minded strategies to reorder exploitation and address the inegalitarian commons;

Inalienable Rules – suggest defeating attempts to propertize in order to avoid unequal exploitation of a commons.  An example is Traditional Knowledge Databases (TKDs) through which countries categorize their innovation heritage, and offer the collection to patent offices worldwide, in order to improve the body of information on prior art, and thereby prevent propertization.

Property Rules – suggest declaring genetic resources and traditional knowledge the property of defined communities.  An example is through sui generis genetic resource and traditional knowledge statutes, as seen with Costa Rica in 1991.  In this case the government created a non profit organization to work with the pharmaceutical giant Merck which agreed on the right to sampling while paying the non profit a certain sum plus royalties.

Liability Rules – suggest permitting outsiders to utilize a communities genetic resources and traditional knowledge but only in exchange for objectively determined fees.  A middle ground is found in that local communities would be paid for resources, contrary to the current global commons approach, but those communities could not withhold access to the resource, contrary to the property approach.

Affirmative Support Programs – suggest finding ways to supply the disempowered with the capital and skill to be able to exploit on an equal playing field with the empowered.  An equality minded commons will be possible only when we address the developing nations underlying unequal capacity to realize opportunities in the commons.  The authors argue that this is done through international efforts, such as through the World Bank and European Union, to fund programs that build capacity in science and technology, and notably in agriculture.

Alluded to in this final strategy is the idea that the issues of the inequitable commons may not even be the sort which can be remedied solely in the language of economic bargaining, as the above methods typically propose.  The authors believe that this is a suggestion worthy of further exploration, leaving the thought to be pondered in the close of the article.  The idea that the issues being examined may be deeper seeded are in the statement that ‘poverty affects the ability of individuals to exploit property, intellectual property, and every other legal entitlement.  The unequal tilt in the public domains exploitation follows naturally from the dynamics of production and commerce in a world characterized by deep inequality.’  This concept has been espoused by other authors, such as Michael H Davis in his article Some Realism about Indigenism, who argues that wealth and poverty need to be examined more closely as they are central and perhaps even overriding in the debate.  I leave then with the thought to ponder by Davis that ‘the poverty of the third world and indigenism is certainly due to many factors.  But TRIPS and IP generally play a role in that impoverishment by ensuring that for every step forward out of poverty, economic tribute must be paid… [and] this is a futile trip up a ladder that is constantly being lowered.’