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16 UCL Jurisprudence Rev. 16 (2010)
The Commons and Anticommons in Intellectual Property

handle is hein.journals/ucljurev17 and id is 32 raw text is: The Commons and Anticommons in Intellectual Property Samantha Leung Abstract - Intellectual property (IP) has increasingly been treated as fitting firmly within the realm of property law. Accordingly, alterations or additions to the law of IP are often justified on the basis of Hardin's economic theory, set out in his article 'The Tragedy of the Commons' , which relates to real property. The author explores the issues and dangers that arise from attempting to mould IP rights to fit within the existing property system, and considers whether this should be done at all. In the second half of the essay, she looks into an alternative, closely linked theory for IP rights - Heller's 'Tragedy of the Anticommons' - and the unique problems it highlights within the IP system. These problems are examined within the field of biomedical sciences, an industry that has been hit hard by the proliferation of IP rights. The author makes several suggestions for theoretical and practical reforms of the IP system and theory. Introduction Intellectual property (IP) has increasingly been treated by the courts, legislators and academics as fitting firmly within the area of property law. One way in which this attitude has materialised is that alterations or additions to the law of IP are often justified on the basis of Garrett Hardin's economic theory, set out in his article 'The Tragedy of the Commons 2, which relates to real property. One of the main issues I discuss in this essay is whether IP can be justified on the basis of this economic theory. To demonstrate that it can be and should be, I explain Hardin's theory of the 'tragedy of the commons' in relation to tangible goods, before exploring the potential difficulties of moulding IP to fit into his theory and comparing the IP system alongside his theory. The second issue I examine is the closely linked 'tragedy of the anticommons'3 theory, and the unique problems it highlights within the system of IP. Lastly, I analyse some theoretical and practical solutions to these problems. 1 G Hardin, 'The Tragedy of the Commons' (1968) 162 Science 1243. 2 Hardin (n 1). 3 MA Heller, 'The Tragedy of the Anticommons: Property in the Transition from Marx to Markets' (1998) 111 Harv L Rev 621.

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