October 2009 -- Anticommons theory made a splash, and is today being expanded and
applied, because it shifted our collective attention in a crucial way. Before the
1990s, the big policy questions in IP were all about individual IP rights: when
should a copyright or patent be granted, when denied? Anticommons theory
burst into this conventional conversation like an unruly drunk at a ballet
recital. It demanded attention. It said, in effect, “you may mean well, but you’re
missing the big point. You’re wasting your time!” The big point is not the
individual grant of an IP right. It’s the aggregate impact of granting many rights
to many discrete and independent right-holders. It’s the cumulative effect of all
the transactions necessary to pull these disparate rights together into a
useable bundle. That’s where the action is now, and it was anticommons
theory that said so most clearly and most convincingly.
The theory’s big splash has produced a pushback, in the form of
empirical studies looking for evidence of the anticommons dynamic.1 Though it
is early days for this sort of study, the quick move to test the theory speaks
volumes about its impact. These studies raise some interesting points, which I
address later in this Essay. My main thrust however is elsewhere. What really
intrigues me about anticommons theory is what it means to the normative
foundations of IP law. How does the shift I identified – from the grant of a single
right, to the system-wide impact of many rights – affect our understanding of whether IP law is a good or bad thing for society? How does a renewed interest
in transaction costs affect our beliefs about fundamental policy issues in the
field? And finally, how does anticommons theory translate into specific,
granular policies, such as what to do about the fair use doctrine in copyright,
or how far patent law should encourage patents on genes and proteins? These
are the sorts of topics I take up here.
Citation
"Autonomy and Independence: The Normative Face of Transaction Costs" by Robert Merges, October 2, 2009, Quick Links: Gridlock Economy Conference
Related Scholarship
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"Heller's Gridlock Economy In Perspective" by Richard Epstein, October 2, 2009, Quick Links: Gridlock Economy Conference
"The Wasteland: Anticommons, White Spaces, and the Fallacy of Spectrum" by Kevin Werbach, October 2, 2009, Quick Links: Gridlock Economy Conference
"Google Book Search in the Gridlock Economy" by Doug Lichtman, October 2, 2009, Quick Links: Gridlock Economy Conference
"Autonomy and Independence: The Normative Face of Transaction Costs" by Robert Merges, October 2, 2009, Quick Links: Gridlock Economy Conference
"On Being Misled by Transaction Cost Economics: Externalities, Commons, and Gridlocks" by Harold Demsetz, October 2, 2009, Quick Links: Gridlock Economy Conference
