The title of the 2015 Nies Lecture, being given by Harvard Law Prof. Henry Smith on Thursday, April 16th, at 4:30pm (register here), is “Semicommons in Fluid Resources.” What’s a “semicommons,” and what does it have to do with intellectual property? (I should note that I haven’t talked to Prof. Smith about his lecture; Tuesday’s post and today’s are based just on the abstract read in light of Prof. Smith’s previous scholarship.)
Before I go further, let me recap Tuesday’s post. Prof. Smith has, in a series of articles, laid out a theory of property law that takes into account the informational costs of assigning property rights in various ways. Some ways of describing who has a certain right, and monitoring whether that right is being respected, are very concise: “Kerry owns that red ball.” “Hey, that’s not your ball, it’s mine!” I called these object-based rules, but Prof. Smith calls them “exclusivity rules.” The idea is the same: saying Kerry has the exclusive right to use the red ball for any purpose is a short and easily comprehended way of assigning all uses of that particular object to Kerry. It’s easy to identify who Kerry is, what the object is, and what Kerry (or anyone else) can do with it.
But that’s not the only way to assign rights to objects. Instead of giving all uses of a particular object to one person in an undivided lump, we could instead specify various uses of the object under various conditions, and say that different people can engage in those uses. In other words, we could manage access to the ball. So we could say that when it’s raining, and it’s a weekday morning, Francine has the right to bounce the ball in the gym, but not too hard; and when it’s summer and not raining, and a weekend evening, George has the right to play catch in the park with the ball, until it gets too dark; etc. Obviously this is a lot more complicated, both to describe and to enforce. Not only is the description of the full set of rights to use the ball very long and hard to remember, but also we’ve introduced a lot of definitional problems. What’s “morning”? When is “summer”? What constitutes “too dark”? There’s also increased monitoring required; who is going to tell Francine when she’s done? One advantage of these “use-based” rules, or what Prof. Smith calls “governance rules,” is that they allow a single ball to be used to the maximal extent by a variety of people, which may make sense if balls are scarce and no one person could get full enjoyment out of it; but it will come at a cost of great confusion and a lot of energy invested in defining the rights and enforcing them. If balls are cheap and plentiful, it would be a lot easier for everyone to get their own ball, and simply leave it lying around when they are not using it instead of passing it off to someone else.
In general, according to Prof. Smith, we get governance rules only when there is some benefit from the added level of precision allowed by use rights that outweighs the cost of the additional complexity. There are a couple of situations where that might be true. One is where there is some sort of benefit to a whole object that is lost when it is carved up among many people, either because it is too difficult to carve up, or because the whole is greater than the sum of its parts due to economies of scale or network effects. Another is where the informational burden of object rules is not that much lower than use rules because the relevant “objects” are difficult to define in the first place.
Intellectual property represents the latter situation. The benefits of “lump sum” assignment of rights to objects are attenuated for intellectual property, because objects themselves are intangible and correspondingly difficult to define. (Smith apparently disagrees, at least for patents.) It takes effort to describe just what is protected in a person’s novel, or about a new machine, or in a brand logo, much more cognitive effort, with much poorer cultural transmission, than the effort in marking out privately owned real property. The relative cost advantage of object rules is lessened for IP.
But that’s not all. IP also represents the former situation. There are aspects of expression, or inventions, or symbols that redound to the benefit of all and are difficult to separate from those that are privately held. Creative works entertain and inform and, by their very nature, change thoughts, create new vocabularies, and inspire the creativity of others. Inventions solve problems encountered by members of society. Trademarks provide words and signs people use to identify and refer to products, services, or businesses. Various IP doctrines attempt to distinguish between the public aspects of IP objects and their private aspects in an effort to preserve, and maximize the value of, both.
And that phenomenon that is not without a tangible-world precedent: semicommons. One of Prof. Smith’s earliest articles looked at the open fields system in late medieval and early modern Europe. Open fields were a way of privately having the cake of property and communally eating it too. The problem confronting the inhabitants of such villages was that the surrounding arable land could be used for multiple purposes, some of which were better managed through private ownership and others of which were better used in common, by all the villagers. The solution was to do both, at different times of the year. The land was divided into strips for farming that were privately owned; but once the crops were in, the entire field was turned into pasture for each villager’s animals. The fields were therefore both commons and individually held; they were semicommons.
Semicommons require special handling to make sure the public and private aspects retain their value. The villagers’ landholdings were not all located in one place in the field, but were in strips scattered throughout. The purpose was likely to make it difficult to avoid the harm of grazing (trampling) and capture the benefits (manure) to a disproportionate extent. And grazing was restricted by limits on the number and type of animals that could be pastured.
Intellectual property is like a semicommons in that the law attempts to preserve both societal benefits and private benefits arising from the same objects. Individual works, inventions, or marks are privately owned, in the sense that exclusive rights over some uses of those objects are given to the individuals that create them, in order to incentivize and/or reward that creation. But various doctrines attempt to preserve some portion of those IP objects for the commons as well. In copyright, the idea-expression dichotomy, merger and scenes a faire, substantial similarity, and fair use — all common-law doctrines — attempt to designate the thought-provoking and the inspiring aspects of works as adding to the commons, so long as not too much is taken. Those aspects of works derive comparatively more benefit from free circulation, and it is extremely difficult to attribute general inspiration or independently available facts to particular sources. Only the material that is more directly related to the author’s particular acts of creation — the author’s own planting and reaping — is made subject to several exclusive rights.