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Nature and the Commons

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David Koepsell

on 20 May 2016

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Transcript of Nature and the Commons

Nature and the Commons
David Koepsell, JD/PhD
How to sort nature from
artifacts, and why nature cannot be monopolized
through IP
Nature vs. Artifact
Types of Property
A Theory of the Commons
What counts as an artifact?
Problematic examples:

- an orchard
- a plant or animal breed
- a genetically engineered creature
(e.g. the Oncomouse)
What are the necessary and sufficient conditions for

Clear cases
: tools, houses, art

More difficult cases
: A piece of real estate, an orchard, a melody
Extremely tough cases
: a "drop-cloth," an auto accident, a IVF child
Q: what makes tools, houses and art clearly artifacts?
Possible answer: they are clearly existing only because of some human action
Objection: other things exist only but for the fact of human action, including: drop cloths, auto accidents, excrement...
Possible refinement: Clearly existing only because of human action and intention. That is - they made made by humans with the intention of their existing
Provisional definition of an artifact: a man-made object, intentionally produced
Problems: real estate, melodies, orchards. What parts of these are artifacts? Can artifacts be severed?
Parts of these embody intentional expression
Are these "partly" artifacts? Wholly? Not at all?
How is this dropcloth different from...
a Jackson Pollack painting?
Are these equally artifacts?
Why might this matter?

is this an artifact?
how about this?
intellectual property
property is "ownable"
Moveables (e.g. muebles - lat.
Chattel - item of personal property other than land
Real estate (land) Lat.
Property rights confer
: ability to exclude, ability to control, to use, to alienate(sell/lend/gift)
Lockean theory: property is "homesteaded" by first diligent user, made rightful owner by first possession, use, and improvement.
As against all other claims, the possessor, user, improver has the just claim. May exclude others from use to the extent he or she can maintain control, use, improvement of the property.

what features of property afford proper claims of right?
Possible answer: exclusivity and rivalry in the fact of possession.
acts of transfer
indicia of possession
Exclusivity and the necessity for force to dispossess
make valid claims of ownership in these types of property
Q: what about Intellectual Property?
Intellectual property protects aesthetic expression (copyright) and inventions (patents) for limited periods of time. The "ownership" extends to the reproduction of ideas in tokens (e.g. a book, and invention) and not to the ideas themselves. It grants a limited monopoly over the right to reproduce an aesthetic or useful art.
This exclusivity must be
granted, it cannot be
a priori. It only exists by virtue of law.

Commons are in the "public
domain"... they are unowned and
available to all.
q: are the commons ever morally
prescribed? Must some things
be part of a commons?
Commons exist first, historically, by fiat. Sovereign sets aside land for "commoners" who have no land. That commons can be used, and even (in England) settled if one can erect a shelter between dawn and dusk.
Commons exist in otherwise excludable property. These I call "commons by choice" (e.g. national parks, feudal commons)
Some things are not naturally excludable. E.g. airwaves (radio waves/spectra)
Q: can there be legitimate property rights over non-exclusive things like radio spectra?
Example: radio spectra. these are not naturally encloseable, and anyone with access to a transmitter can broadcast (absent some regulation) on any band they want to at any wattage they can afford. Fear of the results led to regulation through governments. Fear of a "tragedy of the commons" in which the radio spectra become polluted with competing broadcasters vying for their part of the spectrum. Ronald Coase had an idea - create "property" rights in spectra and offer them at auction... let the market sort out the most efficient uses.
...previously, the govt granted licenses
and dictated uses.
These licenses, like IP, grant temporary monopolies. But unlike IP, the monopoly is over the use of something natural - a wavelength of the radio spectrum
: are there parts of nature that belong to a different form of commons; a commons by
(logical or material)?
What about natural resources like water, oxygen, sunlight? Could we devise Coasian plans to allocate property rights in such resources?
How about this? (a portion of the BRCA patent)
The law recognizes a distinction between the "scientific commons" and the "man-made" world of artifacts. Thus, explicit exclusion from patent eligibility of "laws of nature" and "products of nature."
Nature vs. Artifact: A Legal Ontology
Two factors have complicated this and result in confusion:

1) the "isolation and purification" doctrine
2) the distinction between "man-made" and artifacts
Logical implication of "isolation and purification" doctrine: isolated O2 is patent-eligible.
Patent attorneys have argued this point
alleging that because "pure" O2 does not occur in nature, granting a patent on the product is not a patent on a product of nature.
The Ontology of Artifacts
I argue neither isolation nor purification necessarily creates an artifact. Purified O2 is a man-made product of nature
of Nature
"true" artifacts
synthesized natural products
No human intention
No human design
human intention
No human design
human intention
human design
Question is: but for the design and intention
of a human, would the thing exist? If yes, then no patent
O2, answer is:

Unmodified gene sequences: answer is
Process of identifying a gene: answer is
Process of purifying O2: answer is
The "commons" was at one time land that was consciously set aside by a sovereign for use by "commoners" (for grazing sheep, cultivating, etc.)
A Theory of the Scientific Commons
We could call this "
it could be enclosed and exclusively possessed (and thus "owned")... a priori justice of ownership of real property is grounded in brute facts of exclusive possession (Reinachian apriorism)
But some things cannot be possessed to the exclusion of others
laws of nature
products of nature
abstract ideas
(material/logical)... simply cannot be enclosed to the exclusion of anyone.

commons-by-necessity cannot be ethically owned.
(these are specifically excluded by patent law)
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