THE TRAGEDY OF THE ANTICOMMONS
By
Michael Heller
The anticommons is a paradox.
While private ownership usually increases wealth, too much ownership has the
opposite effect: it wrecks markets, stops innovation, and costs lives. We can
reclaim the wealth lost in a tragedy of the anticommons. But it takes tools to
end ownership gridlock. The following pages provide the basic analytic tools
you need: a brief overview of the anticommons lexicon (Heller 2008; 2010).
THE TRILOGY OF OWNERSHIP
Traditionally, ownership has
been categorized into three basic types: private, commons, and state property
(Heller 2001). Let’s unpack those categories:
(…)
Commons property refers to
shared resources, resources for which there is no single decision maker. In
turn, the commons can be divided into two distinct categories (Eggertsson
2002). The first is open access, a regime in which no one at all can be
excluded, like on the high seas. Mistakenly, the legal and economics
literatures long conflated the commons with open access, hence reinforcing the
link between commons and tragedy. The second type of commons has many names,
but for now let’s call it group access, a regime in which a limited number of
commoners can exclude outsiders but not each other. If the ocean is open
access, then a small pond surrounded by a handful of landowners may be group
access. Group access is often overlooked even though it is the predominant form
of commons ownership, and is often not tragic at all; it is the core concept
that this volume celebrates.
Privatizing a commons may cure
the tragedy of wasteful overuse, but it may inadvertently spark the opposite.
English lacks a term to denote wasteful underuse. To describe this type of
fragmentation, I coined the phrase tragedy of the anticommons (Heller 1998).
The term covers any setting in which too many people can block each other from
creating or using a valuable resource. Rightly understood, the opposite of
overuse in a commons is underuse in an anticommons.
This concept makes visible the
hidden half of our ownership spectrum, a world of social relations as complex
and extensive as any we have previously known (Figure 2). Beyond normal private
property lies anticommons ownership. As one commentator has noted, “To simplify
a little, the tragedy of the commons tells us why things are likely to fall
apart, and the tragedy of the anticommons helps explain why it is often so hard
to get them back together” (Fennell 2004).
(…)
THE SPREAD OF THE ANTICOMMONS IDEA
After I proposed the
possibility of anticommons tragedy, Nobel laureate James Buchanan and his
colleague Yong Yoon undertook to create a formal economic model. They wrote
that the anticommons concept helps explain “how and why potential economic
value may disappear into the ‘black hole’ of resource underutilization”
(Buchanan and Yoon 2000).” In recent years, economic modeling of the
anticommons has become quite sophisticated.
To date, the most debated
application of anticommons theory has been in the area of drug patents and
innovation (Heller and Eisenberg 1998). Since my 1998 Science article
with Rebecca Eisenberg, there has been a flurry of follow-on papers and
reports, many concluding that patents should be harder to obtain, in part to
avoid potential anticommons tragedy effects. A recent book on the patent crisis
concludes that, “the structure of the biotechnology industry seems likely to
run high anticommons risks,” particularly when companies are attempting to
bring products to market (Burk and Lemley 2009).
It’s not just biomedical
research that’s susceptible to anticommons tragedy. The framework has been
applied across the high tech frontier, ranging from broadcast spectrum
ownership to technology patents. Also, cutting edge art and music are about mashing
up and remixing many separately owned bits of culture. Even with land, the most
socially important projects require assembling multiple parcels. Innovation has
moved on, but we’re stuck with old-style ownership that’s easy to fragment and
hard to put together.
Anticommons theory is now well
established, but empirical studies have yet to catch up. How hard is it to
negotiate around ownership fragmentation? How much does ownership fragmentation
slow down technological innovation? Does the effect vary by industry? It is
difficult to measure discoveries that should have been made but weren’t,
solutions that could exist but don’t. We are just starting to examine these
conundrums. A recent study reported experimental findings that reject the
presumed symmetry of commons and anticommons and find instead that anticommons
dilemmas “seem to elicit more individualistic behavior than commons dilemmas”
and are “more prone to underuse than commons dilemmas are to overuse.” The
researchers conclude that “if commons leads to ‘tragedy,’ anticommons may well
lead to ‘disaster’” (Vanneste et al 2006).
TOWARD A NEW LEXICON
We have millennia of practice
in spotting tragedies of overuse. When too many people fish, fisheries are
depleted. When too many people pollute, we choke on dirty air. Then, we spring
into action with market-based, cooperative, and legislative solutions. But
underuse caused by multiple owners is unfamiliar. The affected resource is hard
to spot. Our language is new. Even though a tragedy of the anticommons may be
as costly to society as the more familiar forms of resource misuse, we have
never noticed, debated, or learned how to fix underuse. As a first step, we
need to name the phenomenon: the tragedy of the anticommons should join our
lexicon.
Michael Heller (USA) is the Lawrence A. Wien Professor of Real Estate Law at Columbia Law School. He is the author of The Gridlock Society (2008) and Commons and Anticommons(2010).
La Directiva de Copyright aprobada por el Parlamento Europeo facilitaría los efectos descritos como tragedia de los anticomunes y lo hace, además, en un ámbito directamente afectado por la libertad de expresión en el mundo actual: reduciendo su cantidad
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