خروج، ورود و ضمیمه ها: مشترکات تاریخی و مدرن مالکیت معنوی

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.

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 intellectual property, especially in developing countries.