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.

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.