Commons Sense

One of my recurring frustrations in making my case against gene patents is the failure by some to grasp the argument I am trying to make regarding the nature of "the commons". Perhaps I have been unclear, or maybe the approach I am taking to property law and justice is too far afield from those more frequently made to be immediately understood. Yesterday, however, I gave a guest lecture in an ethics course for ICT students (software programmers, mostly), and gained a lot from the experience. These students not only grasped the argument, but embraced it, and helped to clarify a subtlety that I need to elaborate upon in defining the "commons by necessity" that I believe genes and other parts of the universe belong to.

Briefly, to summarize, I argue that the justice of property rights derives from the logical and practical ability of people to enclose a space, and the need for a rival to use violence to dispossess a possessor of the space. Thus, property rights in land and movables are grounded in these brute facts. There is no such grounding for intellectual property rights. Moreover, there are parts of the universe that cannot be justly owned, and IP claims over these "commons by necessity" are unjust. These are parts of the universe which cannot be held exclusively by anyone, as a matter of brute fact. Examples include: the laws of nature, radio spectra, and genes which are de facto unencloseable. My thanks to Stephan Kinsella who helped me to realize that this applies, actually, to all ideas, and thus makes all IP law a similar incursion on an unencloseable commons by necessity.

My thanks go to some of the students yesterday who pointed out a fine distinction in the realm of objects belonging to the commons by necessity (as opposed to the commons by choice, which includes encloseable spaces over which we make choices to maintain no private ownership). They pointed out that there are commons not just by logical necessity like radio spectra and laws of nature, but also those that might be called commons by practical necessity which includes sunlight. So one could, given enough time and technical capabilities, enclose the sun and harness its power monopolistically, but this is a very remote technical possibility.

Genes, I argue, are logically unencloseable, and thus clearly belong to the commons by necessity, and attempts to give monopolistic control over them are per se unethical. If there's only one point I hope readers take away from my book, this is it.

**update: I just learned Who Owns You? is being translated into Portuguese! My first book came out in Japanese and Portuguese, so maybe Japan will soon follow suit. I'll keep you updated.