I’m very excited about this year’s Nies Lecture, which will be delivered by Prof. Henry Smith of Harvard Law School in just a little more than a week — Thursday, April 16th, at 4:30pm. (Register now to attend!) The title is “Semicommons in Fluid Resources,” but that only hints at the depth of the waters, so to speak, that Prof. Smith is likely to explore. As I understand it, the topic is nothing less than the nature of property itself, and how some forms of it — rights to water, and intellectual property — occupy a “middle ground” between communal governance and individual ownership. That has important ramifications for copyright law in particular, in which the dividing line between common goals and individual incentives lies at the heart of numerous doctrines.
The issue is this: suppose you have some sort of resource that multiple people want to use. Say it’s a particular piece of land. As Smith has written previously, there are two basic ways of specifying rules for what people can do with that resource: you could draw lines around objects, or you could draw lines around uses. That is, you could identify a particular object, such as a plot of land, and say that one person has the right to decide all permitted uses of it. (Or that everyone has the right to decide what they will do with it, turning it into a commons, or no one does, turning it into a forbidden zone.) Alternatively, you could draw lines around uses, not objects, and say that person X has the right to engage in activity A using the piece of land in question, and spell out rules governing each person or set of persons and telling them what uses they can make of the land and which they can’t, and under what conditions.
As Smith has argued, these different methods are best viewed as lying on a spectrum. They both specify permitted uses: the object-drawing rules by giving an exclusive right to determine all uses of an object to one person or a set of people, and the use-drawing rules by breaking those uses down individually. And most real-world property rules contain a mix of the two types of specifications, such that they lie more or less distant from the ends of the spectrum. Even straight-up fee simple ownership of land is subject to nuisance rules and easements and other exceptions (such as overflight), and pure use rules must still identify some resource that the use is in relation to.
Use rules, or what Smith calls rules of governance, are obviously more granular, and can in the abstract be more finely tailored to achieve optimal uses of resources, but only at much greater cost in terms of both specifying the permitted uses and enforcing the rules. Object-based rules, what Smith calls rules of exclusivity, are much simpler to promulgate, understand, and enforce. It is a relatively simple matter to determine if a person is present on Blackacre with the permission of the owner. There is a single person, an owner, who determines who is permitted to enter, and that person can easily signify the bounds of that right by putting up widely recognized social indicators of exclusive control, such as fences or houses with doors. It is more difficult to determine if a person is within the scope of a use rule, such as an individually-held right to walk their dog across a particular field on Tuesday night at 9pm. The means of signifying that you are the person with that particular right are not so easily conveyed. Smith has argued in his previous work that rules of exclusivity — rights drawn with respect to objects — can be expected to predominate unless the informational cost of governance (use-based) rules is outweighed by some sort of countervailing advantage to governance over exclusivity. For example, if you have a resource, such as a large pasture, that could support the grazing animals of an entire village, it might be better to give the villagers a right to use the pasture in common along with use restrictions on, say, the number of animals and the time of year they are permitted to graze, than to divide the pasture up into plots that may be too small for each villager’s animals. If that benefit is larger than the added cost in monitoring how many animals each villager pastures and when, then you would expect the pasture to be held in common for everyone.
So what does this have to do with IP, or water? Intellectual property and water rights are particularly likely to fall in the middle of the spectrum of rights, and this helps to identify some of their key features. Both are intangible, to some degree — water rights because the right is not to a particular volume of water, but to some portion of the content of a ever-changing stream or lake; and intellectual property because the right is to some sort of product of the mind and not to any particular tangible object. If property is the law of things, then IP and water are examples of resources that are less easily “thingified,” in Michael Madison’s terms. Streams of water and streams of thought both have public and private aspects, with corresponding benefits. A thought (an expression, a solution, a symbol) can be privately entertained in the mind, or it can be shared with others. Once it is shared with others, it becomes to some degree part of the cultural fabric of that community, spurring further thoughts, and as a result it can only be incompletely and with some effort designated as attributable to a particular source through law or norms. Water courses in the opposite direction. Water flows are at their source the lifeblood of a community, but they can and must to some extent be appropriated for individual use.
The trick is to define legal entitlements to maximize the sum of the individual and the communal benefits. This is not simply a problem that arises with intangibles — and here, at last, we come to the “semicommons” portion of Prof. Smith’s Nies lecture. I’ll pick up that portion of the story tomorrow.