Tragedy of the anti-commons

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The tragedy of the anti-commons (Engl. Tragedy of the anti-commons ) describes the dilemma in which the number of rights holders makes the achievement of a socially desirable result impossible. The English expression of this neologism was coined by the American law professor Michael Heller.

term

Fragmented property rights with the possibility of veto : The residents of this “ nail house ” in Chongqing refused to give way to a planned shopping center. Chinese law does not provide for expropriations.

The term is based on the term tragedy of the commons . While the tragedy of the commons consists in the overexploitation of a good to which many have usage rights but for which there is no excludability, the tragedy of the anti-commons describes a mirror-image dilemma: A large number of rightholders do not have sole usage rights to a good, but they do the right to exclude others from using it. In this case, there is a risk that the good is not used or is underused. An anti-commons exacerbates the danger of orphan works .

The concept provides a uniform framework for a number of failures in coordination such as patent hoarding, submarine patents , nail houses and other, mostly bureaucratic problems. Overcoming such system failures can be difficult and potentially violent. But there are different approaches such as expropriation , deadlines for legal action, patent pools such as cross-licensing or other types of license organization.

The anti-commons problem was introduced by US law professor Frank Michelman in a 1982 article. Michael Heller popularized the concept of the tragedy of the anti-commons in two articles from 1998 and 1999.

The tragedy of the anti-commons can be classified according to the assignment or non-assignment of property rights and the outcome:

Property rights Common ownership or no property rights
Negative outcome / tragedy with right of veto: tragedy of the anti-commons Tragedy of the commons
Positive outcome / maximization without veto right: normal case Comedy the commons

Examples

Shops in Moscow

In Heller's 1998 Harvard Law Review article , he wrote that after the fall of communism, many cities in Eastern Europe had a lot of street stalls, but also lots of empty shops . Following an investigation, he came to the conclusion that the problem lay in the large number of departments and private individuals who had different rights over the use of shops. It was very difficult, if not impossible, for a trader to successfully negotiate the use of the property. Although all the owners lost money with the empty shops and the shops were in high demand, their conflicting interests made it impossible to use the property effectively.

Patents

Patents are often cited as an example of the tragedy of the anti-commons because a patent owner has exclusive rights to use the patented technology. If the manufacture of a particular product involves the use of many techniques and components that have been patented by different people or companies, it can be very difficult to negotiate suitable contracts with all of the patent owners at the same time. This can result in someone paying so many royalties that it becomes too expensive or too risky to make the product they want. As a result, a product that would combine many innovations and would be in great demand would not be manufactured just because the costs of the necessary patents would be too high.

The potential manufacturers lose, the patent owners lose, the consumers who would have benefited from the technology lose, and under certain circumstances the environment can also lose if the product had replaced an environmentally harmful technology. When medical technology is involved, even people can lose their lives. Since the responsible patent owners are also consumers, they lose twice. Paradoxically, this happens when or precisely because they actually behave "rationally" in order to use their resources optimally for their self-interest.

For many products a manufacturer has to negotiate the use of several patents. For example, a DVD player contains numerous parts that have been patented by various companies. A single microchip can affect over 5000 different patents. As a result, nobody can make a DVD player or microchip without each individual patent owner agreeing to have their patents licensed. In many industries, patent owners either agree to cross-license their patents (i.e., you can use ours if we can use yours) or they work out a joint licensing agreement that makes the products affordable. In general, for DVD players, computer components, and other consumer electronics, the cost of licensing the patents is rarely much higher than the cost of manufacturing.

Thanks to the simplified patenting of biological discoveries, anyone involved in biomedical research is likely to have to use several patented procedures to develop a marketable product. However, because these patents are short-lived and few patents end in marketable products, it is often disproportionately expensive to research new treatments and processes and results in the product being rejected in the marketplace. In fact, a patent owner can sue the research himself as patent infringement and charge a license fee, even if the chance of a marketable product is small.

In any case, even a questionable patent can make it legally impossible to launch a product. A dispute between Research In Motion and NTP, Inc. involved a single wireless email patent, which is a key component of the Blackberry . It resulted in an objection which would have prevented the sale of the BlackBerry in the USA if it had not just stayed with the objection.

copyright

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Competitive competition for copyrights can also prevent a product from being marketed at a reasonable price, which can result in the copyright holder missing out on royalties of great value. For example, WKRP in Cincinnati was one of the most popular sitcoms of all time in the United States. However, while many of the television shows of the 1980s were successfully released on DVD, WKRP was not available on DVD for many years.

The reason was that the copyrights to the film music were distributed among a large number of rights holders: the television producers of the show had agreements with music licensing agencies such as ASCAP and BMI , according to which a fee would be paid centrally to these licensing agencies for each song that appeared on the television show had to. However, these agreements did not apply to DVDs. The producers of the series had to fall back on the original copyright holders and were faced with the task of negotiating individually with several dozen composers. The show's current owner, 20th Century Fox , eventually released the show on DVD in 2007, replacing music he couldn't get rights to with similar pieces.

See also

literature

Original article :

  • Frank Michelman: Ethics, Economics and the Law of Property . In: Nomos . XXIV: Ethics, Economics and the Law, 1982 ( PDF ).
  • Michael A. Heller: The Tragedy of the Anticommons: Property in the Transition from Marx to Markets . In: Harvard Law Review . tape 3 , no. 111 , January 1998, doi : 10.2307 / 1342203 ( PDF , in one version as a working paper).
  • Michael A. Heller: The Boundaries of Private Property . In: Yale Law Review . No. 108 , 1999.

Development of a formal model :

Web links

Individual evidence

  1. ↑ a b Francesco Parisi, Ben Depoorter and Norbert Schulz: Duality in Property: Commons and Anticommons . In: International Review of Law and Economics . tape 25 , no. 4 , 2005 ( PDF , in a version as a working paper).
  2. ^ Stef van Gompel: Audiovisual Archives and the Inability to Clear Rights in Orphan Works . In: The European Audiovisual Observatory (Ed.): Iris plus, Legal Observations of the European Audiovisual Observatory . 2007, p. 3 ( PDF ).
  3. ^ Carol M. Rose: The Comedy of the Commons: Commerce, Custom and Inherently Public Property . In: University of Chicago Law Review . tape 53 , no. 711 , 1986 ( PDF ).
  4. ↑ Michael Heller: The Tragedy of the Anticommons . In: Harvard Law Review . January 1998.
  5. ↑ Global Encyclopaedia of Welfare Economics, page 295 (English)